Gauhati High Court
Xxxxxxxxxxxxxx vs Xxxxxxxxxxxxxx on 9 August, 2023
Page No.# 1/4
GAHC010157212023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2071/2023
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VERSUS
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Advocate for the Petitioner : MR. D CHAKRABARTY
Advocate for the Respondent : MR. R K JAIN
Linked Case : Mat.App./3/2022
JOY RAJ
S/O DR. SANTOSH KUMAR SARKAR
PERMANENT RESIDENT OF AMBAGAN
NEAR BSNL TOWER
PO KHALIPUR
PS AND DIST DHUBRI
ASSAM.
VERSUS
DEBAPRIYA SHIL
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D/O DIPAK KUMAR SHIL
RESIDENT OF WARD NO. 2
KALIBARI BARUAPATI ROAD
PO AND PS GAURIPUR
DIST DHUBRI
ASSAM 783331
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Advocate for : MR. D CHAKRABARTY
Advocate for : MR. R K JAIN appearing for DEBAPRIYA SHIL
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE KARDAK ETE
ORDER
Date : 09-08-2023
(KR Surana, J)
The proceedings of Mat. App. 1/2022 arises against order passed in respect
of application made by the respondent for restitution of conjugal rights which
was registered as FCTS (R) case no.1/2018 and was filed under section 9 of the
Hindu Marriage Act, 1955 which was allowed by the common judgment dated
21.12.2021.
2. Mat.App. 3/2022 arises out of proceeding filed under section 10 of the
Hindu Marriage Act, being FCTS (JS) case no.8/2021 by the appellant-husband
for judicial separation from the respondent, which was adjudicated and disposed
of by the common judgment dated 21.12.2021.
3. Heard Mr. D. Chakraborty, learned counsel for the appellant-husband
and Mr. R.K. Jain, learned counsel for the respondent-wife.
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4. In course of submissions, it has been pointed out before the Court
that the respondent-wife, in the meanwhile, has filed a suit for seeking divorce
from the appellant-husband under section 13(1)(ia), 13(1)(ib) and 13(1A)(ii) of
the Hindu Marriage Act which has been registered and numbered as FCTS (D)
case no.39/2023, which is pending for adjudication before the Court of learned
Principal Judge, Family Court, Dhubri.
5. On a pointed query of the Court, the learned counsel for the appellant
has submitted that as per his instructions, the appellant-husband does not
intend to resume his conjugal life with the respondent-wife. Similarly, the
learned counsel for the respondent has also submitted that as per his
instructions, the respondent-wife is also not ready and willing to resume a
conjugal life with the appellant-husband.
6. The suit for divorce filed by the respondent-wife is a testimony of the
intention of the respondent not to resume the conjugal life with the appellant-
husband.
7. Under such circumstances, when both sides are not ready and willing
to co-habitat and resume their marital life together, the Court is of the
considered opinion that if this appeal is decided on merit, it would have no
practical effect except the academic exercise of the Court to determine the
dispute between the parties. The further consideration of the Court is that as
the decree for restitution of conjugal life could not be executed, a right had
accrued in favour of the respondent-wife to seek another ground for divorce
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from the appellant-husband.
8. Under such circumstances, the Court is of the considered opinion that
ends of justice would be met by closing both these appeals as infructuous by
providing that the common judgment and decree dated 21.12.2021 in the
proceedings of FCTS (R) case no.1/2018 and order passed in FCTS (JS) case
no.8/2021 shall not prejudice either side when the proceedings of divorce, being
FCTS (D) case no.39/2023 is heard and decided, save and except that the
decree passed for restitution of conjugal right has not been executed within the
stipulated time of one year.
9. Accordingly, with the observation as indicated above, these two
appeals stands closed having been rendered infructuous with the filing of the
divorce suit by the respondent-wife.
JUDGE JUDGE
Comparing Assistant
