Gauhati High Court
Page No.# 1/5 vs Dhiraj Kalita on 29 August, 2025
Page No.# 1/5
GAHC010183882019
2025:GAU-
AS:11601-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./61/2019
LATIKA KALITA
W/O- DHIRAJ KALITA, R/O- BHATIPARA CAMP BAZAR, P.S. AND P.O.
MORNOI, DIST.- GOALPARA, ASSAM.
VERSUS
DHIRAJ KALITA
S/O- LATE DINDAYAL KALITA, R/O- BADUCHAR, P.O. DOLGOMA, P.S.
MATIA, DIST.- GOALPARA, ASSAM.
Advocate for the Petitioner : MR. R. L. CHUTIA, LD. ADV.
Advocate for the Respondent : MR J C GAUR, LD. ADV.
Page No.# 2/5
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
Date of hearing : 26.08.2025
Date of Judgment : 29.08.2025
JUDGMENT & ORDER (CAV)
Heard Mr. R. L. Chutia, learned counsel for the appellant. Also heard Mr. J.
C. Gaur, learned counsel for the respondent.
2. This appeal, under Section 28 of the Hindu Marriage Act, 1955, has been
filed by the appellant challenging the impugned judgment and decree dated
05.07.2019, passed by the learned District Judge, Goalpara, in T.S. (D) No.
2/2016, whereby the marriage between the parties was dissolved on the ground
of desertion.
3. The brief facts of the case leading to the filing of the appeal is that; the
appellant and the respondent were married on 14.07.1996 as per Hindu rites
and customs; two children, a son and a daughter were born out of their
wedlock, both of whom have now attained the age of majority. Over time,
differences arose in their marital life, leading to the appellant living separately at
her parental home along with the two children, while the respondent continued
to reside in his village at Baduchar, under Goalpara District, Assam.
3.1. Subsequently, the appellant filed a petition for maintenance before the
learned Judicial Magistrate First Class, Goalpara, which was allowed. Since then,
the respondent has been paying Rs. 5,000/- per month to the appellant.
Thereafter, the respondent instituted a Title Suit being T.S. (D) No. 2/2016
before the Court of the learned District Judge, Goalpara, seeking dissolution of
the marriage on the ground of desertion under Section 13 of the Hindu Marriage
Page No.# 3/5
Act. The appellant entered appearance and filed a written statement contesting
the suit.
3.2. During the trial, the respondent examined two witnesses, who were duly
cross-examined by the appellant. The matter was then fixed for defence
evidence. However, despite several adjournments, the appellant failed to adduce
evidence and ultimately remained absent from 21.11.2018. Consequently, the
learned Trial Court ordered the matter to proceed ex-parte against the
appellant.
3.3. The appellant then filed an application under Order 9 Rule 7 of the Code
of Civil Procedure, seeking to vacate the order dated 22.11.2018 and to allow
her to adduce evidence. After hearing both parties, the learned Trial Court
rejected the said application on 27.06.2019. Thereafter, the suit was heard ex-
parte, and by judgment and decree dated 05.07.2019, the marriage between
the parties was dissolved.
4. Being aggrieved by the judgment and decree dated 05.07.2019, the
appellant (wife) has preferred the present appeal under Section 28 of the Hindu
Marriage Act, 1955.
5. Mr. Chutia, learned counsel for the appellant has fairly submitted that the
rejection order dated 27.06.2019, passed on appellant's application under Order
9 Rule 7 of the CPC for vacating the order dated 22.11.2018, has not been
assailed. He, however, submitted that the matter be decided on the merits of
the appeal.
6. Per contra, Mr. Gaur, learned counsel for the respondent, has contended
that unless the order dated 27.06.2019 rejecting the appellant's application
under Order 9 Rule 7 CPC is set aside, the present appeal is not maintainable.
Page No.# 4/5
He further submitted that the learned Trial Court had rightly decreed the suit for
divorce, as the ground of desertion stood proved.
7. Upon consideration of the pleadings, the point that emerges for decision
before this Court are:
i. Whether the present appeal is maintainable in the absence of a
challenge to the order dated 27.06.2019 rejecting the appellant's
application under Order 9 Rule 7 CPC?
ii. Whether the decree of divorce dated 05.07.2019 suffers from any
infirmity warranting interference by this Court in appeal?
8. It is an admitted position that the order dated 27.06.2019, rejecting the
application filed by the appellant under Order 9 Rule 7 CPC, has attained finality
as the same was never challenged. Once such an order remains unassailed, the
appellant cannot claim any right to adduce evidence at the appellate stage. The
consequence of the said order dated 27.06.2019 is that the learned Trial Court
was justified in proceeding with the matter ex-parte.
9. This Court has also perused and considered the documents on record. It
reveals that the respondent examined two witnesses who supported his case of
desertion by the appellant. Their testimony remained uncontroverted in the
absence of any defence evidence from the appellant's side. The learned Trial
Court, upon appreciation of the unrebutted evidence, recorded a categorical
finding that the appellant deserted the respondent without reasonable cause
since 2013, thereby fulfilling the statutory requirement under Section 13(1)(i)(b)
of the Hindu Marriage Act, 1955.
10. Under the above facts and circumstances, this Court finds no perversity or
illegality in the findings recorded by the learned Trial Court. The decree of
Page No.# 5/5
divorce passed by the learned Trial Court is based on the pleadings and the
evidence available on record and does not call for any interference.
11. From the record, it is apparent that the litigation has been pending since
2016, and both parties have categorically stated that reconciliation is not
possible. As admitted, the appellant continues to receive a maintenance amount
of Rs. 5,000/- (Rupees five thousand) only per month as directed by the
Competent Court.
12. In view of the above discussion, the appeal fails and is accordingly
dismissed.
13. The judgment and decree dated 05.07.2019, passed by the learned
District Judge, Goalpara, in T.S. (D) Case No. 2/2016, is hereby affirmed.
14. With the above observations, this appeal stands disposed of.
15. Let the Trial Court Record be sent back forthwith.
JUDGE
Comparing Assistant
