Review.Pet./111/2020
2021 Latest Caselaw 1825 Gua

GAHC010281972019




              THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
                  ARUNACHAL PRADESH)


              Review Petition No.111/2020
              In Matrimonial Appeal No. 62/2018 (D/O)

                              Smti. Swapnali Saikia
                              Address - D/o Dr. Jogen Ch. Saikia,
                              Resident of House No.3, Rupali Path, Bye
                              Lane No.2, Junali RGB Road, PS
                              Geetanagar, Guwahati 24, Dist Kamrup
                              Assam.
                                                        ....Petitioner
                                      -Versus-

                              Bikash Borah,
                              Son of Sri Dulal Chandra Borah,
                              Resident of B-39, Minal Residency, JK
                              Road, PS Govindpara, Dist Bhopal,
                              Madhya Pradesh.
                                                      ....Respondent

Advocate for the Petitioner : Ms. M. Borah.

Advocate for the Respondent : Mrs. K. Deka.

BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANISH CHOUDHURY

10.08.2021

The matter has been taken up through video conferencing.

Heard Ms. M. Borah, learned counsel for the review petitioner.

This review petition has been filed before this court seeking review of the judgment dated 04.10.2019 passed by a Division Bench of this Court in Mat. Appeal No. 62/2018.

The brief facts of the case are that the marriage between the parties was solemnized on 11.03.2011 under the provisions of Special Marriage Act, 1954.In the year 2014, the wife, i.e. the present review petitioner, instituted a divorce petition before the Family Court, Guwahati, under Sections 27(1)(b) and (d) of the Special Marriage Act, 1954 on the ground of cruelty and desertion. The petition was registered as F.C. (Civil) Case No. 390/2014. The respondent husband also contested the case by filing his written statement and a counter-claim for divorce, again on grounds of cruelty. After hearing the parties, the learned Principal Judge, Family Court, Kamrup, Guwahati, decreed the petition for divorce moved by the wife vide order dated 30.06.2018. He dismissed the claim of the husband. Aggrieved by the aforesaid order of the learned Family Court, the husband preferred an appeal before this Court, which was registered as Mat. Appeal 62/2018.

After hearing both the sides, the Matrimonial Appeal was allowed and the judgment of the Family Court dated 30.06.2018 was set aside by this Court. However, while allowing the appeal, the Division Bench held that the appeal to that part of the judgment, whereby the Family Court had dismissed the counter-claim of the respondent husband is also without merit and it fails and, and to that extent, order of the Family Court was also dismissed. In sum and substance, the divorce petition of the wife as well as the counter claim of the husband for the same relief were both dismissed.

Now the present review petition has been filed by the wife mainly on the ground that she and the respondent before this court continue to be husband and wife though they are living separately and there is no useful purpose to continue like this. The Division Bench, while disposing of the appeal, clearly held that it is the mandate of law under the Special Marriage Act that a decree of divorce can be granted on a limited number of grounds which are specified under Section 27 of the Special Marriage Act, 1954, such as cruelty, desertion, etc. Since these grounds did not exist, the appeal was liable to be dismissed and was dismissed as such.

The grounds for review are also extremely limited such as the grounds which are given under Order XLVII Rule 1 of the Code of Civil Procedure, which is presently



1. Application for review of judgment.- (1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important mater or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

applicable in this case. We find that there is no error apparent on the face of the record which may justify our interference in this review petition. The other grounds in Rule 1 of Order XLVII are also not available to the review petitioner. In fact no such ground has been taken. The petitioner only harps on the difficulties she is presently faced with, as divorce has not been granted.

We find no merit in this review petition and, accordingly, the same is dismissed. We, however, make it clear that the order passed by the Division Bench and the dismissal of the present review petition will not prejudice the case of the present review petitioner or her husband in case they move a petition under Section 28 of the Special Marriage Act, which is a petition for divorce by mutual consent.

                  JUDGE                 CHIEF JUSTICE




Comparing Assistant