Sri Anil Kumar Baishya vs Smt Queen Baishya
2021 Latest Caselaw 2822 Gua

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GAHC010234112018




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

                                Case No. : Mat.App./5/2019

            SRI ANIL KUMAR BAISHYA
            S/O LATE SUNDAR BAISHYA,
            RESIDENT OF NEPALI PATTY, BAMUNGAON, MOUZA MAHABHAIRAB, PO
            TEZPUR, DIST SONITPUR, ASSAM 784001



            VERSUS

            SMT QUEEN BAISHYA
            D/O SADA BAISHYA,
            RESIDENT OF SUALKUCHI NA PARA, PO AND PS SUALKUCHI, DIST
            KAMRUP ASSAM 781103



Advocate for the Petitioner   : MR. B CHAKRAVARTY

Advocate for the Respondent : MR. A DEB




             Linked Case : I.A.(Civil)/471/2021

            SMT QUEEN BAISHYA
            D/O SADA BAISHYA
            RESIDENT OF SUALKUCHI NA PARA
            PO AND PS SUALKUCHI
            DIST KAMRUP ASSAM 781103


             VERSUS
                                                                                      Page No.# 2/4


              SRI ANIL KUMAR BAISHYA
              S/O LATE SUNDAR BAISHYA
              RESIDENT OF NEPALI PATTY
              BAMUNGAON
              MOUZA MAHABHAIRAB
              PO TEZPUR
              DIST SONITPUR
              ASSAM 784001


              ------------
              Advocate for : MR. Y DOLOI
              Advocate for : MR. B CHAKRAVARTY appearing for SRI ANIL KUMAR BAISHYA



                                         :: BEFORE ::
                         HON'BLE MR. JUSTICE SUMAN SHYAM
                        HON'BLE MRS. JUSTICE MARLI VANKUNG

                                           ORDER

11.11.2021 (Marli Vankung, J)

Heard Mr. B. Chakravarty, learned counsel appearing for the appellant i.e. (husband). Also heard Mr. Y. Doloi, learned counsel appearing for the respondent i.e. (wife).

2. This appeal is directed against the Judgment and Order dated 11.07.2018 passed by the learned Principal Judge, Family Court, Kamrup (M) at Guwahati in Misc. (J) Case No. 190/2017 by which the learned Court below has directed for payment of an amount of Rs. 6,00,000/- (Six Lakhs) only to the respondent (wife) as permanent alimony, under section 25 of the Hindu Marriage Act.

3. The learned counsel for the appellant has submitted that the order dated 11.07.2018 is not sustainable in law and liable to be set aside since the same is not based on any evidence brought on record. Mr. Chakravarty submits that an order under Section 25 of the Act of 1955 ought to be based on evidence advance by the parties. To support his case, the learned counsel for the appellant has placed on the decision of the Hon'ble Supreme Court in the case Page No.# 3/4

of Suvarnalata Vs. Mohan Anandrao Deshmukh and Another reported in (2010) 4 SCC 509 .

4. The learned counsel for the respondent on the other hand, while admitting that no evidence was adduced by either party, has submitted that the respondent though working as a Staff/Trainee Nurse she does not have sufficient means to maintain herself and that she is facing financial hardship. Mr. Doloi has therefore, prayed for dismissing the appeal.

5. Having heard the submissions of both the parties, the brief facts of the case is that the marriage between the parties was solemnized on 10.05.2009. They were initially living together as husband and wife. However, due to various reasons their marriage was dissolved by a decree of divorce passed by the learned District Judge, Tezpur, Sonitpur in the case of FC (Civil) Case No. 94/2013, dated 24.07.2017. Thereafter, since there was no order of alimony in the divorce decree, the matter was taken up in Misc. (J) Case No. 190/2017 wherein in the impugned order dated 11.07.2018 was passed fixing the sum of Rs. 6,00,000/- (Six Lakhs) only as permanent alimony to be paid to the respondent (wife) by the appellant. Hence, this appeal.

6. We have considered the submissions made by the learned counsel for both the sides and have observed that the learned Lower Court has not considered any evidence while issuing direction for payment of an amount of Rs. 6,00,000/- (Six Lakhs) only as permanent alimony. We find that there is no evidence on record and consequently, the impugned order was also not based on any evidence. Since the impugned order is for payment of money, the quantum in respect of which, has been decided without considering any evidence, the same, in our view is not sustainable in law.

7. For the above reason, we set aside the impugned order dated 11.07.2018 and remanded, this matter to the learned trial Court for a fresh decision in the application i.e. Misc (J) Case No. 190/2017. The learned Principal Judge, Family Court, Kamrup(M) at Guwahati is to decide the case afresh by giving opportunity to both the parties to adduce their evidence. Considering the urgency expressed in the matter by Mr. Doloi, we request the learned Family Court to dispose the matter as expeditiously as possible, preferable within 3(three) months from the date of commencement of recording of evidence. We also make it Page No.# 4/4

clear that the sum of Rs. 2,00,000/- already deposited by the appellant and received by the respondent as a part of the alimony, shall remain un-disturbed under this order.

8. Both the parties are to appear before the learned Lower Court on 08.12.2021 and submit a copy of this order. Since both the parties are represented through their learned counsels, no further notice need be issued to the parties by the Learned Lower Court notifying the date of appearance.

With the above observation and direction, this mat appeal stands disposed of.

                  JUDGE                              JUDGE




Comparing Assistant