Smt Arunima Bora vs Sri Dipmoni Bora
2021 Latest Caselaw 3204 Gua

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GAHC010262252018




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

                                   Case No. : Mat.App./1/2019

             SMT ARUNIMA BORA
             W/O SRI DIPMONI BORA, D/O LATE KAMAL CH. BORA, R/O VILL. MAJ
             URIAGAON, MOUZA SINGIAPUTONI, P.S. NAGAON, DIST. NAGAON,
             ASSAM, PIN 782001



             VERSUS

             SRI DIPMONI BORA
             S/O LATE BHABA KANTA BORA, R/O VILL. SINGIAPUTONI TELIAGAON,
             MOUZA SINGIAPUTONI, P.S. NAGAON, DIST. NAGAON, ASSAM, PIN 782001



Advocate for the Petitioner    : DR. N DEKA

Advocate for the Respondent : MS. P BHATTACHARYA

BEFORE THE HON'BLE MR. JUSTICE SUMAN SHYAM THE HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY

30/11/2021 Suman Shyam, J

Heard Dr. N. Deka, learned counsel for the appellant. We have also heard Ms. P. Bhattacharya, learned counsel appearing for the respondent.

This appeal is directed against the judgement dated 29/08/2018 and decree dated 04/09/2018 passed Page No.# 2/4

by the learned Additional District Judge No.1, Nagaon in MS(D) No. 8/2016, instituted by the respondent with a prayer to grant a decree of divorce under Section 13(1)(a) of the Hindu Marriage Act, dissolving the marriage between the appellant and the respondent. The learned Court below had decreed the suit filed by the respondent (husband).

Assailing the judgement dated 29/08/2018 and decree dated 04/09/2018, the instant appeal was presented before this Court by the appellant-wife on 26/11/2018. However, record reveals that notice was issued to the respondent in the appeal only on 23/01/2019.

By the order dated 23/01/2019 passed in the connected Interlocutory Application i.e. IA(C) No. 167/2019, this Court, while issuing notice upon the respondent, had also suspended the operation of the impugned judgement dated 29/08/2018 and the decree dated 04/09/2018. However, it transpires from the record that the applicant did not take steps for service of notice upon the opposite party/respondent in connection with IA(C) No. 167/2019. As such, the respondent, being unaware of the pendency of the appeal and the stay order passed by this Court, had remarried on 25/01/2019 i.e. after the statutory period for preferring appeal against the impugned judgement and decree had expired.

Taking note of the peculiar facts and circumstances of the case, this Court had passed order dated 27/02/2020 directing both the parties to remain personally present. On 11/03/2020, the following order was passed by this Court after hearing the version of the appellant and the respondent, who were personally present :-

"11-03-2020 Heard Dr. N. Deka, learned counsel for the appellant as well as Ms. P. Bhattacharya, learned counsel representing the sole respondent.

In terms of the earlier order dated 27.02.2020, both parties i.e. Smt. Arunima Bora as well as Sri Dipmoni Bora are present before this Court. Sri Dipmoni Bora submits that he remarried on 25.01.2019, which is well after the time for appealing against the judgment and decree had expired. We, however, noticed that an order dated 23.01.2019 had been passed in the IA(Civil)/167/2019, whereby an interim stay of the judgment dated 29.08.2018 and decree dated 04.09.2018 had been passed. What would now call for consideration as to whether the remarriage of Dipmoni Bora on 25.01.2019 can be deemed to be a valid marriage in view of the aforesaid order dated 23.01.2019.

Sri Dipmoni Bora submits that there is no scope for reconciliation or resolution of the case at hand.

We, therefore, direct for listing the appeal for Hearing during last week of April, 2020."

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Today, when the matter is called up for hearing, Ms. Bhattacharya learned counsel for the respondent submits that since her client has already remarried, the impugned decree has become unassailable and, therefore, this appeal be closed as infructuous.

Responding to the above, Mr. Deka has submitted, in his usual fairness, that there was a lapse on the part of the applicant in taking steps for service of notice upon the respondent in the appeal as well as the stay application.

It is evident from the record that the appellant/applicant did not take steps for service of notice upon the respondent/opposite party within time, as a result of which, he was not aware of the stay order passed by this Court. Being un-aware of the pendency of the appeal and the stay order operating therein, the respondent had re-married on 25/01/2019. Unless notice in the appeal or application for stay is served or a copy of the stay order passed by this Court is served upon the opposite party/respondent, the respondent can neither be held responsible for violation of Court order nor can he proceeded against for contempt of Court. That apart, the marriage of the respondent having taken place on 25/01/2019 i.e. after the expiry of statutory period for filing the instant appeal, the re-marriage of the respondent also cannot be invalidated only on the ground of pendency of this appeal. To that extent, we find force in the submission of Ms. Bhattacharya that the decree of divorce passed by the learned trial Court has become un-assailable. Be that as it may, Mr. Deka submits that he is not disputing the fact that the respondent had remarried on 25/01/2019, and therefore, there may not be any scope for restoring the marriage between the parties at this stage. He, however, submits that even if the decree of divorce is held to have attained finality, even then, the appellant's application for grant of permanent alimony, registered and numbered as Misc.(J) Case No. 10/2020 arising out of Mat Suit (D) No. 08/2016, which is pending disposal in the Court of the learned Additional District Judge No.1, Nagaon would have to be decided on merit. Mr. Deka further submits that the said application is fixed for appearance of the respondent on 11/01/2022. As such, he submits that this appeal be disposed of by granting leave to the learned trial Court to proceed with the matter and decide the plea of permanent alimony made by the appellant in accordance with law.

Ms. Bhattacharya submits that she would have no objection if the above request made by the appellant is granted by this Court. She has also assured this Court that the respondent would appear before the learned trial Court on the next date fixed.

Taking note of the submissions advanced by the learned counsel for the parties and in view of the concession made by Mr. Deka to the effect that his client is no longer keen to assail the decree of Page No.# 4/4

divorce, we close the appeal by granting leave to the applicant to pursue the pending application for permanent alimony before the Court below.

Since this order is passed in presence of learned counsel for both the parties, we direct that, regardless of service of any further notice, the respondent shall appear either personally or through his engaged counsel, before the learned Court below on 11/01/2022 in connection with Misc. (J) case No. 10/2020 and face the proceeding.

It will be open for the learned Court below to pass appropriate order in the application for permanent alimony by taking note of the over all facts and circumstances of the case but without being influenced by any observation made in this order.

Considering the urgency expressed in this matter, the learned trial Court to make an endeavour to dispose of the petition as expeditiously as possible, preferably within a period of 6 (six) months from 11/01/2022.

The appeal stands disposed of accordingly.

                                                   JUDGE                                     JUDGE
sukhamay



Comparing Assistant