[Cites 2, Cited by 0]
Gauhati High Court
Page No.# 1/ vs Xxxxxxxx on 1 December, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/10
GAHC010209492022
2025:GAU-
AS:16451-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./37/2022
XXXXXXXX
W/O DEBASHISH DAS,
D/O LATE NRIPESH RANJAN DEY,
R/O SANKAR TIWARI ROAD, AMBICAPATTY, SILCAHR, DIST.- CACHAR,
ASSAM.
VERSUS
XXXXXXXX
S/O LATE DILIP KUMAR DAS,
PERMANENT RESIDENT OF
NAVODAY NAGAR, PATHARKUCHI ROAD,
P.O. AND P.S.- BASISTHA,
GUWAHATI- 781029, DIST.- KAMRUP (METRO), ASSAM.
PRESNTLY RESIDING AT-
C/O CENTRAL SILK BOARD, BANGALURU, PIN- 560068, KARNATAKA.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
For the appellant : Mr. S.C. Biswas.
For the respondent : Mr. B. K. Singh.
Date of hearing : 01/12/2025
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Date of Judgment : 01/12/2025
JUDGMENT & ORDER (ORAL)
(M. Zothankhuma, J)
Heard Mr. S.C. Biswas, learned counsel for the appellant wife and Mr. B. K.
Singh, learned counsel for the respondent husband.
2. The appeal has been filed by the appellant wife against the divorce decree
granted on the respondent husband's petition, by the Court of learned Principal
Judge, Family Court-III, Kamrup (M) at Guwahati, vide judgment dated
22.06.2022 passed in FC(Civil) Case No. 174/2014.
3. The brief facts of the case are that the appellant wife had published an
advertisement, giving her personal details for matrimony. In the advertisement
dated 01.02.2009 published by the appellant wife, the age of the appellant was
shown to be 31 years of age. After a meeting of the families of the appellant
and the respondent, the marriage between the parties took place on
10.05.2009. On the date of the marriage, the respondent was 41 years of age,
while the appellant should have been 31 years of age. Later, it transpired that
the appellant was actually 43½ years of age on the date of the marriage,
instead of being 31 years old.
4. Due to various reasons, which had disturbed the matrimonial life of the
appellant and the respondent, the appellant left the matrimonial home on
10.04.2010. The appellant lived in her parents' house between the period from
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10.04.2010 till 30.10.2010. The appellant returned to the matrimonial home on
31.10.2010. However, she again left on 25.12.2010. Thus the appellant lived in
the matrimonial home for approximately 12 months and did not return to the
matrimonial home after 25.12.2010.
5. The other issue to be decided is with regard to the appellant having filed a
domestic violence case against the respondent husband and mother-in-law. The
domestic violence case against the mother-in-law was however set aside by this
Court and the domestic violence case against the respondent husband was
dismissed by the learned Trial Court for non-prosecution. The learned Trial
Court, while deciding FC (Civil) Case No. 174/2014, had granted the divorce
decree, on the ground that the respondent husband had been able to prove that
he had been subjected/treated with cruelty by the appellant, not only on the
issue of the appellant giving a wrong age in the advertisement, but also making
a false claim that she had become pregnant, which the appellant later stated
that it had been terminated. The pregnancy statement having turned out to be
false, the same implied that there was no question of termination of pregnancy
by the appellant. The learned Trial Court had also come to a finding that the
appellant wife left the matrimonial home on her own volition and filed the
domestic violence case against the respondent and mother-in-law, which
reflected her intention to bring the marriage to an end.
6. The learned counsel for the appellant submits that no cruelty was inflicted
upon the respondent by the appellant and that there was a typographical error
in the advertisement dated 01.02.2009, showing the appellant as 31 years of
age. He submits that the age of the appellant in the advertisement should have
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been 43½ years, inasmuch as, the appellant was 2½ years older than the
respondent husband. He further submits that even if there was a
misrepresentation of the age of the appellant, the respondent and his family
having physically seen the appellant prior to the marriage, they could have
declined to participate in the marriage. However, having accepted the appellant
in real life, they could not turn around and take a stand that the appellant did
not appear to be what she had stated in the advertisement.
7. The counsel for the appellant submits that though the appellant wanted to
go back to the matrimonial home, the respondent never invited her back to the
matrimonial home and did not take steps for furtherance of the same. He
submits that the appellant is willing to go back to the matrimonial home even till
today. He submits that the finding of the learned Family Court that the
appellant was not pregnant was a wrong finding, inasmuch as, the ultrasound
report dated 28.05.2010, which has been exhibited as Ext.D, could not be said
to be the final word in coming to a finding that the appellant was not pregnant.
He submits that Ext.D would go to show that there was a possibility of the
appellant having become pregnant at the time she left the matrimonial home,
i.e., 10.04.2010, inasmuch as, Ext.D should not be read in a very narrow sense.
He accordingly submits that the impugned judgment and decree of divorce
should be set aside.
8. Mr. B. K. Singh, learned counsel for the respondent husband, on the other
hand, submits that there is no infirmity with the decision of the learned Family
Court as one of the basis for the marriage, was the age given by the appellant.
He submits that if the respondent knew that the appellant was older than him,
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the marriage would not have taken place. He also submits that the appellant
had faked her pregnancy, which is corroborated by the ultrasound report dated
28.05.2010 (Ext.D). He also submits that when a case under the Domestic
Violence Act, had been initiated against the respondent and his mother by the
appellant, which has turned out to be a false case, as the DV case against the
mother has been quashed, vide order dated 12.02.2018 passed in Crl. Pet.
628/2016 and the case against the respondent dismissed, there was no infirmity
with the divorce decree being issued on grounds of cruelty.
9. We have heard the learned counsels for the parties.
10. As it is clear from the advertisement published by the appellant, she had
shown her age to be 31 years in the advertisement dated 01.02.2009. The
marriage that took place three months later happened at the time when the
appellant was 41 years of age. As the finding of the learned Family Court was
that the appellant was 2½ years older than the respondent, which has not been
disputed by the appellant, the same goes to show that the appellant was 43½
years old on the date of her marriage.
11. In para 27 of the impugned judgment passed by the learned Family Court,
it has been clearly stated that in the maintenance case filed by the appellant
wife, the mother of the appellant in her cross-examination, had admitted that
while giving the advertisement in the newspaper, the mother of the appellant
had suppressed the actual age of her daughter. The above finding of the learned
Family Court, which is based on the testimony of the mother of the appellant in
the maintenance case filed by the appellant, goes to show that the appellant
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had intentionally given a wrong age in the matrimonial advertisement. If the
appellant had given her age as 43½ years old in the advertisement, there was a
high degree of probability that the respondent would not have accepted the
appellant as his wife, as he would be 2½ years younger than the appellant. In
this regard, the learned Trial Court has observed that in an arranged marriage
and in society, the general norm is that the bride is usually younger than the
bridegroom, which is the expectation of the family and society in general. In our
view, there has been an intentional suppression of the age of the appellant, as
admitted by the mother of the appellant.
12. With regard to the finding of the learned Family Court that the appellant
was not pregnant, as claimed by her and that the question of termination of
pregnancy did not arise, we find that the ultrasound report dated 28.05.2010
(Ext.D), states that the uterus and ovary of the appellant was as follows:-
"Uterus : Uterus is anteverted & bulky. Size8.8x4.8cm. Single gestational sac
is seen inside the uterus. No foetal pole is seen. Gestational age
from sac diameter corresponds to 6 weeks 3days+/- 3 days.
"Ovary : Both ovaries are normal in size. RO-33x15mm LO-42x16mm."
13. On a consideration of the ultrasound report, we find that the appellant
could have become pregnant sometime around 12 th or 13th of April, 2010. On
the other hand, the appellant had left the matrimonial home on 10 th of April,
2010. We are of the view that a strict interpretation of the ultrasound report
cannot be taken, inasmuch as, an accurate assessment as to the exact date
when pregnancy occurred may not be possible to be made by us, as there are
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details which are not in the public domain. In the present case, when a margin
of error/degree of +/- three days are given, we are of the view that the margin
of error/degree of +/- three days that can be given to the ultrasound report,
may also stretch to 5/6 days. This would be better explained/decided by medical
experts, who unfortunately have not been called for to give evidence on this
issue.
14. The next issue to be decided is with regard to whether the filing of the
domestic violence case by the appellant against the respondent and her mother-
in-law would constitute cruelty and whether there was a chance to rectify a
dying marriage. In the case of K. Srinivas Rao Vs. D.A. Deepa [(2013) 5
SCC 226], the Supreme Court has held that when a wife filed a criminal
revision petition seeking enhancement of the punishment awarded to the
husband in a case under section 498A IPC, the said conduct caused mental
cruelty to the husband. In the present case, the Domestic Violence (DV) case
filed by the appellant against the respondent and his mother can be said to
have caused mental cruelty to the husband.
15. The further issue is with regard to whether the appellant had deserted the
husband and in this regard, the learned Trial Court has held in para 32 & 33 of
the impugned judgment as follows:-
"32. On considering the facts of the present case in hand and on comprehensive appraisal of
matrimonial life of the parties, it is patent that the situation is such that there was a consistent
unjustifiable conduct and behaviour on the part of the respondent towards the petitioner
which affected his physical and mental health and such treatment complain of result of torture
for apprehension in the mind of the petitioner is seemingly found to be grave, substantial and
weighty. The mental and physical agony caused by the conduct of the respondent towards the
petitioner who had left to her parental home for her own fault and her refusal to reunion with
the petitioner to carry out the marital obligation cannot be called by any stress of imagination
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as normal wear and tear of the married life. The relation between the petitioner and the
respondent has become stale and dead and, therefore, reasonable inference can be drawn
that the marital life between the petitioner and the respondent, who have been living
separately for the last eleven years is already dead for all practical purposes.
33. In view of above discussions it is found that the petitioner has adduced sufficient evidence
to establish that the respondent treated the petitioner with cruelty and the respondent
deserted the petitioner for a continuous period not less than two years immediately preceding
the presentation of the instant case.
16. The above being said, the parties have finally come to a settlement during
the last 2 (two) Court dates, i.e. on 14/11/2025 and today i.e. 01/12/2025. The
terms of settlement/Memorandum of Understanding, which has been signed by
the parties and the witnesses Mrs. Sakshisree Sarma, Advocate (Enrolment no.
2155/2022) and Ms. Jeeya Ghosh, Advocate (Enrolment no. 1137/2017), is to
the following effect :-
"MEMORANDUM OF UNDERSTANDING
THIS DEED OF UNDERSTANDING is made on this 14th day of November, 2025 at Guwahati,
Shri Debasish Das, Son of Late Dilip Kumar Das, aged about 56 Years, resident of Navoday
Nagar, Patharkuchi Road, P.O. and P.S. Basistha, Guwahati- 781029 in the district of
Kamrup(M), Assam hereinafter referred to as the 1st Party.
-AND-
Smti. Bharati Dey (Das), daughter of Late daughter of Late Nripesh Ranjan Dey, aged about
58 years, resident of Shankar Tiwari Road, Ambicapatty, Silchar, in the district of Cachar,
Assam hereinafter referred to as the 2nd Party.
-AND-
Whereas, Mat Appeal, being Mat Appeal No 37/2022, filed by the Second Party challenging the
Judgment and Decree dated 22.06.2022 is being heard by the Hon'ble Division Bench of
Gauhati High Court.
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Whereas, it has been decided to settle the permanent alimony of the 2nd Party to be paid by
the 1 Party as full and final settlement.
NOW THIS DEED OF UNDERSTANDING WITNESSED THE FOLLOWING TERMS AND
CONDITIONS IN BETWEEN THE PARTIES: -
1. That the 1st party shall pay an amount of Rs 17,00,000/- (Rupees seventeen lakhs) only as
full and final settlement of Permanent Alimony within 45 days from today.
2. That the 2nd party shall not demand any alimony or any claim whatsoever from the 1st Party
in future.
3. That the maintenance proceeding instituted by the 2nd Party against the 1st party will come
to an end and that 1 Party shall not be liable to pay any more monthly maintenance pending
before the Principal Judge of Family Court in Case No. FC (Crl) 107/2011, Cachar from
December, 2025 onwards.
IN WITNESS WHEREOF the parties hereto have put their respective signatures on this deed of
undertaking on this day, month and year mentioned herein above."
17. The Memorandum of Understanding/Deed of Settlement is made a part of
the record and marked as Annexure 'X'.
18. The Memorandum of Settlement is for payment of permanent alimony by
the respondent to the appellant for Rs. 17 lakhs (Rupees seventeen lakhs) only,
as full and final claim made by the appellant against the respondent. It is also
clarified that there is a correction made in Annexure 'X', to the extent that Rs.
15 lakhs (Rupees fifteen lakhs) permanent alimony has been enhanced to Rs.
17 lakhs, as per the agreement made between the parties.
19. The appellant has also agreed that in view of Annexure 'X', she does not
wish to press this appeal any further.
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20. It is also noticed that the 7 (seven) original certificates of the appellant
have been returned by the respondent.
21. It is also made clear that from the date the second instalment with regard
to the Rs.17 lakhs permanent alimony is deposited in the Registry of this Court,
the respondent shall be relieved of the burden of paying monthly maintenance
to the appellant.
22. In view of the above reasons, the respondents shall deposit the Rs. 17
lakhs (Rupees seventeen lakhs) in the Registry of this Court in 2 (two)
instalments, within a period of 45 (forty five) days from today. The Registry shall
thereafter disburse the said amount to the appellant, on proper identification by
her counsels.
23. Accordingly, the appeal stands closed on withdrawal.
24. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
