Xxxxxxxx vs Xxxxxxxx
2023 Latest Caselaw 2807 Gua

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GAHC010064022023




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

                                Case No. : I.A.(Civil)/855/2023

            XXXXXXXX
            D/O LATE KANCHAN GOSWAMI,
            R/O ASHRAM ROAD, HAILAKANDI TOWN WARD NO. 6,
            P.O. AND P.S.- HAILAKANDI, DIST.- HAILAKANDI, ASSAM.
            VERSUS
            XXXXXXXX
            S/O LATE BENIMADHAB GOSWAMI,
            R/O MADAN MOHAN PARK LANE, RANGIRKHARI SILCHAR TOWN WARD
            NO. 18,
            P.O.- SILCHAR, SUB P.O.- RANGIRKHARI, P.S.- SILCHAR SADAR, DIST.-
            CACHAR, ASSAM.



Advocate for the Petitioner   : MR. A M BARBHUIYA

Advocate for the Respondent : MR B ACHARYYA




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                   HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                           ORDER

02.08.2023 (M. Zothankhuma, J.)

1. Heard Mr. A.M. Barbhuiya, learned counsel for the applicant. Also heard Mr. B. Acharyya, learned counsel for the respondent.

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2. This is an application for condoning the delay of 294 days in filing the appeal against the impugned ex parte judgment and decree dated 17.12.2021 passed by the learned Principal Judge, Family Court, Cachar, Silchar in F.C.(Civil) Case No.246/2020, by which the marriage of the applicant (wife) and the respondent (husband) was dissolved.

3. The applicant's counsel submits that the respondent (husband) had filed F.C.(Civil) Case No.246/2020, praying for divorce from the applicant (wife). The applicant, on the other hand had filed Transfer Petition (Civil) No.24/2021 before this Court, praying for transfer of the divorce case pending in the Court of the Principal Judge, Family Court, Cachar, Silchar to the Court of the learned District Judge, Hailakandi. This Court, vide order dated 12.07.2021 issued Notice to the respondent and stayed further proceeding in the divorce case. Despite the stay order, the divorce case was finalized by the Principal Judge, Family Court, Cachar, Silchar vide order dated 17.12.2021, by dissolving the marriage between the parties herein, which was not in the knowledge of the applicant.

4. The applicant's counsel further submits that subsequent to the disposal of the divorce case by the Family Court, Cachar, Silchar, this Court disposed off the Transfer Petition filed by the applicant, by allowing the transfer of the case from the Court of the Family Court, Cachar, Silchar to the Court of the District Judge, Hailakandi, vide order dated 25.01.2022.

5. The learned counsel for the applicant submits that on transfer of the disposed off divorce case from the Family Court, Cachar, Silchar to the Court of the learned District Judge, Hailakandi, the registration of the divorce case was changed from F.C.(Civil) Case No.246/2020 to T.S.(D) Case No.19/2022. Thereafter on the basis of various orders passed by the learned Court of the learned District Judge, Hailakandi, the applicant started appearing in the said Page No.# 3/4

case. However, the respondent did not appear in the said case. On further enquiry into the matter, the applicant could come to learn that the divorce case had already been decreed in favour of the respondent and which was not known to the applicant.

6. The learned counsel for the applicant submits that despite knowing that the divorce case had already been disposed off, the respondent kept up pretence of the said case not being disposed off and had even appeared before the Court of the Distric Judge, Hailakandi in T.S.(D) Case No.19/2022 on 10.02.2022, as can be seen from the order annexed to the application. He submits that due to the above reason, an unintentional delay in filing the appeal has been occasioned. He accordingly prays that the delay of 294 days should be condoned.

7. Mr. B. Acharyya, learned counsel for the respondent (husband), on the other hand submits that the applicant always has the liberty to challenge the impugned order of the Family Court under Order IX Rule 13 CPC, as the same had been made ex parte.

8. We have considered the submissions made by the learned counsels for the parties and we find that the divorce decree granted by the Family Court, Cachar, Silchar in F.C.(Civil) Case No.246/2020 has been made despite the stay order granted by this Court on 12.07.2021 in Tr.P.(C) 24/2021. Further, we also find that the applicant came to know of the divorce decree being granted allegedly on 21.03.2023, while the present appeal has been filed on 24.03.2023. The question of making an application under Order IX Rule 13 CPC does not arise as the applicant had submitted his Vakalatnama in F.C.(Civil) Case No.246/2020.

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before the Court of the learned District Judge, Hailakandi, despite the divorce case having been decreed on 17.12.2021, we are of the view that sufficient cause for the delay has been made out. Accordingly the delay of 294 days is condoned. Registry to register the appeal and the interim application and list the same after a week.

10. I.A. is accordingly allowed.

                        JUDGE                         JUDGE




Comparing Assistant