Gauhati High Court
Xxxx Xxxx vs Xxxx Xxxx on 11 December, 2023
Author: M. Zothankhuma
Bench: Michael Zothankhuma, Malasri Nandi
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GAHC010114002023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./32/2023
XXXX XXXX
S/O LATE BHUBENDRA DAS
RESIDENT OF VILLAGE HARINAGAR PART I, PS KATIGORAH, DIST
CACHAR, ASSAM
VERSUS
XXXX XXXX
D/O LATE RAJKUMAR DAS,
RESIDENT OF VILLAGE HARINAGAR PART I, PS KATIGORAH, DIST
CACHAR, ASSAM
Advocate for the Petitioner : MR. N H LASKAR
Advocate for the Respondent : MR. S D PURKAYASTHA
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
11.12.2023
(M. Zothankhuma, J)
1. Heard Mr. N.H. Laskar, learned counsel for the appellant. Also heard Mr.
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S.D. Purkayastha, learned counsel for the respondent wife.
2. The appeal is with regard to the dismissal of the Divorce Suit filed by the
appellant against his wife (respondent). The Family Court had dismissed the suit
on the ground that the appellant (petitioner) in his cross-examination had stated
that the respondent was not his wife, as no marriage had taken place between
them. The Family Court thus held that there being no cause of action, the
Divorce Suit was not maintainable.
3. The appellant has filed this appeal stating that what the appellant had
stated in his cross-examination before the Family Court was not a denial of the
marriage between the appellant and his wife (respondent). As his wife was
leading an adulterous life, the appellant (husband) did not treat his respondent
(wife) as a wife any longer.
4. The appellant's counsel submits that the appellant had made the said
statement in a fit of anger and the same is not a correct fact, inasmuch as, if
there was no marriage between the appellant and the respondent wife, there
would not have been any requirement for the appellant to file the petition under
Section 13(1)(1a) of the Hindu Marriage Act, 1955 (hereinafter referred to as
"the 1955 Act"), praying for a decree for dissolution of marriage between the
parties. He accordingly submits that the impugned judgment and decree dated
27.03.2023 passed by the learned Principal Judge, Family Court, Cachar, Silchar
should be set aside and the entire case should be tried de novo from the stage
of evidence of the appellant.
5. Mr. S.D. Purkayastha, learned counsel for the respondent wife submits that
he has got no objection to the prayer made by the appellant's counsel.
6. We have heard the learned counsels for the parties.
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7. The records show that the appellant husband had filed the matrimonial
suit, i.e. F.C.(Civil) Case No.225/2020, praying for dissolution of marriage and
issuance of a divorce decree under Section 13(1)(1a) of the 1955 Act before the
learned Principal Judge, Family Court, Cachar, Silchar. However, the appellant
during his cross-examination by PW-1 had stated on 27.03.2023 that "the
respondent wife was not his wife as no marriage took place between them". The
learned Family Court thereafter closed the cross-examination of the appellant
and held that due to the statement made by the appellant, no case of divorce
would lie, as the appellant had declared that the respondent was not his wife.
However, on perusal of the pleadings and taking into account the submission
made by the learned counsel for the respondent, it is quite clear that the
appellant was married to the respondent, inasmuch as, the respondent wife in
paragraph 12(a) of her written statement has also stated as follows :
"12. That, the respondent begs to submit the real facts are as follows :
(a) That, the respondent begs to submit that the petitioner and the
respondent were fall on love and as a result, the petitioner and the
respondent fled away and the marriage between the petitioner and the
respondent was solemnized on 18.08.2018 in accordance with the
principles of Hindu rites and rituals."
8. In view of the above, the unintentional making of a false statement by the
appellant should not come in the way of the learned Trial Court taking into
account a broader view of actual facts. Accordingly, the impugned judgment and
decree dated 27.03.2023 passed by the learned Principal Judge, Family Court,
Cachar, Silchar in F.C.(Civil) Case No.225/2020 is hereby set aside.
9. The case is remanded back to the learned Family Court to try the case de
novo, from the stage of cross-examination of the appellant. The learned Trial
Court shall thereafter decide all the issues that have been brought out in the
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pleadings by the parties. As agreed to by the learned counsels for the parties,
they shall appear before the learned Family Court on 22.01.2024.
10. The appeal is accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
