Smti. Minati Hazarika vs Sri Bidyadhar Hazarika
2021 Latest Caselaw 2673 Gua

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GAHC010268002019




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

                                 Case No. : Mat.App./4/2021

            SMTI. MINATI HAZARIKA
            SMTI. MINATI HAZARIKA
            Address - W/O- SRI BIDYADHAR HAZARIKA, R/O- VILL.- NIZ NARIKOLI
            BORAGUGA, P.O. NIZ NARIKALI, P.S. KAMPUR, DIST.- NAGAON, ASSAM.


            VERSUS

            SRI BIDYADHAR HAZARIKA
            SRI BIDYADHAR HAZARIKA
            Address - S/O- LATE MEMBER HAZARIKA, R/O- RONTHOLI, P.O.
            RONTHOLI, P.S. AND DIST.- NAGAON, ASSAM.


Advocate for the Petitioner    : MR. P J SAIKIA

Advocate for the Respondent : MR H GUPTA

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MRS. JUSTICE MARLI VANKUNG

JUDGMENT AND ORDER (Oral) Date : 02-11-2021

(Suman Shyam, J)

Heard Mr. P. J. Saikia, learned counsel appearing for the appellant(wife). Also

heard Mr. H. Gupta, learned counsel appearing for the respondent (husband).

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2. This appeal is directed against the judgment and order dated 28.09.2018

passed by the learned Additional District & Sessions Judge No.2, Nagaon, Assam, in

M.(D) Case No.46/2015, granting a decree of divorce in favour of the respondent

based on a petition filed by him on 31.07.2015 under Section 13 of the Hindu Marriage

Act, 1955.

3. The case of the respondent, as projected in the plaint, is that the appellant

had got married to the respondent on 19.03.1995 as per the Hindu rites whereafter,

they had been peacefully living as husband and wife. From their wedlock, four

children were born. However, seven years after the marriage, the appellant (wife)

started visiting the house of her parents at the instigation of her brother (respondent

No.2 in the plaint) and started staying there for weeks without the approval of the

respondent. According to the respondent, the brother of the appellant used to very

often visit their house and his wife used to go with him to the house of her parents.

Despite the objection as regards the frequent visit of the wife to her parents house

and his advise not to do so, his wife did not pay any heed to such advice. On

17.07.2012, when the petitioner/respondent was posted at Delhi as the Body Guard of

the Chief Minister, he came to know that the appellant had filed M.R. Case

No.199/2012 which ultimately culminated in a settlement reached in the Lok Adalat

whereby the respondent had agreed to pay a sum of Rs.4500/- per month to his wife

as maintenance. The above conduct of the appellant, according to the respondent,

are the instances of cruelty. It has also been alleged in the plaint that the appellant

had left her matrimonial home on 27.02.2015 along with one son and a daughter but

did not return despite several requests made by the respondent to such effect. Based Page No.# 3/6

on such pleadings, the respondent had filed the suit seeking a decree of divorce on

the grounds of cruelty and desertion.

4. The appellant (wife) had appeared and contested the suit by filing her written

statement. However, she remained absent thereafter as a result of which, the learned

court below had passed the ex-parte judgment and decree dated 28.09.2018.

5. By referring to the materials on record Mr. Saikia has argued that there is no

pleading in the plaint setting out any of the grounds for divorce within the meaning of

Section 13 of the Hindu Marriage Act, 1955 (herein after referred to as "the Act of

1955"). Moreover, submits Mr. Saikia, the learned court below did not discuss the

evidence adduced by the respondent nor did it indicate in the impugned judgment

as to on what ground, the prayer for dissolution of marriage was allowed. Alleging

that there was a communication gap between the appellant and her lawyer as a

result of which, she could not adduce evidence before the learned trial court, Mr.

Saikia has prayed for setting aside the impugned judgment and order dated

28.09.2018.

6. Mr. Gupta, learned counsel for the respondent, on the other hand, has argued

that the foundation of a case under Section 13 of the Act of 1955 has been laid in the

pleadings and the respondent had also led evidence during trial. The learned

counsel, however, submits that even if the decree is found to be unsustainable in law,

the matter be remanded back to the trial court for a fresh decision in the suit.

7. We have considered the rival submissions made at the bar and have also

gone through the materials available on record.

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8. A perusal of the impugned judgment and order dated 28.09.2018 goes to

show that based on the pleadings in the plaint as well as the written statement, the

learned court below had framed two issues which are as follows :-

"a) Whether there is any cause of action for filing this suit?

b) Whether the petitioner is entitled to get a decree as prayed for or any other relief/reliefs?"

9. The first issue was decided in favour of the respondent herein by holding that

since there was a dispute between the husband and wife the suit was maintainable.

10. In so far as the 2nd issue is concerned, the learned court below has recorded

the following finding which is reproduced herein below :-

"12. After gone through the petition filed by the petitioner as well as his evidence in-chief and evidence in chief of his witness presented before the Court, it is clear that the petitioner and the respondent were married on 19-03- 95 in accordance with Hindu rites. It is also proved that after their marriage both were living as husband and wife. It is also proved that the respondent no.1 adopted a very negative role towards him when the petitioner was in Delhi. It is also clear that the petitioner filed a case of restitution against the respondent No.1. It is also proved that there are four children out of their wedlock. It is also proved that the petitioner tried to restore his conjugal life with the respondent no.1. Therefore, issue no.2 is decided in favour of the petitioner. Accordingly, this Court found merit on his petition and passed the following order."

11. Save and except the observations made in paragraph 12 of the judgment, as

quoted herein above, we do not find any other discussion by the learned trial court

on the merit of the case. The decision and conclusion of the learned court below also Page No.# 5/6

does not even remotely indicate as to whether, the petitioner (husband) had

succeeded in proving the case of cruelty and/or desertion by his wife and if so,

based on what evidence.

12. It is to be noted herein that Section 13(1)(ib) of the Act of 1955 categorically

provides that marriage between husband and wife can be dissolved by a decree of

divorce on the ground that the other party has deserted the petitioner for continuous

period of not less than two years immediately preceding the presentation of the

petition. In the instant case, as has been mentioned herein before, the alleged

desertion was on 15.02.2015 and the suit was filed on 31.07.2015 i.e. within six months

from that date of desertion. Therefore, the petition seeking a decree of divorce on

the ground of desertion was clearly not maintainable in the eye of law.

13. In so far as the plea of cruelty is concerned, we have already noted that there

is neither any pleading nor any evidence to substantiate such a plea. Even the

learned trial court has failed to record any cogent finding as regards cruelty. It may

be noted herein that in this case the husband is alleging cruelty against his wife. But

no particulars of cruelty or evidence supporting such a plea, is available on record.

After going through the impugned judgment dated 28.09.2018, we are of the view

that the same is vitiated by non-application of mind. Therefore, the impugned

judgment is unsustainable in the eye of law and hence liable to be set aside.

14. Ordinarily, in proceeding of this nature, if the decree of divorce is set aside by

the appellate court due to non-application of mind by the trial court, the matter is

remanded back to the trial court for a fresh decision in the suit. However, since the Page No.# 6/6

suit itself has been held to be not maintainable for a decree of divorce on the ground

of desertion for the reasons mentioned herein above and considering the fact that

there is no pleading or evidence lead by the petitioner to make out a case for

divorce on the ground of cruelty, remanding the matter back to the trial court for a

fresh decision in the suit, in our view, would be a futile exercise.

15. It is unfortunate that while passing the impugned judgment and decree

dissolving the marriage between the parties, the learned trial court had failed to

properly appreciate the evidence adduced by the parties or to record proper

reasons in support of the decision and conclusion arrived at. Be that as it may, for the

reasons indicated herein before we hold that the impugned judgment and decree is

unsustainable in the eye of law.

The same is accordingly set aside.

It is, however, made clear that this order is without prejudice to the rights and

interest of either party to avail appropriate legal remedy, for redressal of their further

grievance, if any, as may be permissible under the law.

The appeal stands allowed.

Send back the LCR.

                                 JUDGE                                 JUDGE



Comparing Assistant