Ct. 8 vs Sg
2023 Latest Caselaw 3080 Cal

FAT 102 of 2018 Item- CAN 3 of 2019 (old CAN 11218 of 2019) 01-05-2023 ML-17.

                                             Kashi Nath Roy
           Ct. 8                                  Versus
  sg
                                              Manikona Roy

                          Mr. Rwitendra Banerjee, Adv.
                          Mr. Sujit Banerjee, Adv.
                          Mr. Nilay Sengupta, Adv.
                          Mr. Devdutta Pathak, Adv.
                                                     ...for the appellant

We have heard Mr. Probal Kumar Mukherjee, learned

Senior Counsel as Amicus and the learned Counsel for the

appellant.

The suit for divorce was filed under Section 13(vii) of the

Hindu Marriage Act, 1955. The learned Trial Judge dismissed

the suit on the ground that the husband was unable to produce

any evidence to show that, for the entire seven years' period

attempts were made to trace out the wife and there is no

evidence near to filing of the suit which would show that any

attempt was made to ascertain the whereabouts of the wife.

We have read the evidence carefully. It appears that the

suit was filed on the basis of the attempts made by the husband

in the year 2007 only and not thereafter. It is true that an

advertisement was made in the year 2007 and a missing diary

was also lodged but it seems to have not been pursued. The

divorce under Section 13(vii) will be on a presumption that a

person is not alive.

The court has to be extremely careful in deciding the said

matters unless the court is satisfied that the ingredients of the

said section are fulfilled, namely, that the person is not alive for

a period of seven years or more and such fact is established by

those persons who would naturally heard of it. The court cannot

mechanically allow the divorce under the said provision. During

the pendency of the appeal, advertisements were issued and

attempts were made to serve the wife at her last known address

and, in fact, notices were sent in the name of the father-in-law of

the petitioner.

A report has come that the brother-in-law of the petitioner

accepted the said notice and has presumably stated the father-in-

law that her sister has been missing for last several years. These

evidences were, however, not available that the suit was

originally tried. The report of the CID would also be relevant in

deciding the said issue.

Under such circumstances, we remand the matter to the

learned Trial Court with a direction to reconsider the matter and

rewrite the judgment on consideration of additional evidence to

be adduced by the appellant.

The appellant shall be entitled to obtain certified copy of

the relevant documents filed in this proceeding that may be

relied upon in the Trial Court.

It is needless to mention that the appellant shall establish

that, in spite of due diligence, the appellant was unable to trace

out his wife and would be required to produce those persons who

would have naturally heard of the wife had she been alive.

The appellant shall also be entitled to adduce further

evidence and any other evidence over and above indicated above

to prove its case.

The Officer-in-Charge of the concerned police station has

filed a report on 9th September, 2022 to the following effect:

"To The Ld. Second Assistant Registrar, Hon'ble High Court at Calcutta.

FAT 102 of 2018 CAN 3 of 2019 In the matter of: Kashi Nath Roy Sir,

Beg to submit before your Honour that in compliance with the order passed by Hon'ble Justice Soumen Sen and Hon'ble Justice Siddhartha Roy Chowdhury in FAT 102 on 29.08.2022 necessary efforts had been made to serve the notice to Manikona Roy and her father Pankaj Mukherjee at P-131, Parnasree Pally, Kolkata-700060 but the notice was not served due to non- availability of them.

Mr. Indranil Mukherjee (62y), S/o Pankaj Mukherjee of P- 131, Parnasree Pally, Kolkata-700060 reported that in the year of 1991 his father Pankaj Mukherjee left the house and nobody knows his present whereabouts. He also informed that Manikona Roy was missing from more than 13 years and remain untraceable despite of best efforts of them. So the notices were not served.

This is for your kind perusal."

The said report was taken on record in order dated 12 th

September, 2022.

The evidences of the Officer-in-Charge of the concerned

police station and Mr. Indranil Mukherjee may also be relevant.

In view of the subsequent developments, the impugned

judgment is set aside.

The Trial Court shall rewrite the judgment taking into

consideration the aforesaid observations and permit the appellant

to adduce fresh evidences.

The appeal and the application stand disposed of.

LCR shall be sent down to the Trial Court immediately.

We record our appreciation for the assistance of the

Amicus.

  (Uday Kumar, J.)                          (Soumen Sen, J.)