[Cites 5, Cited by 0]
Gauhati High Court
Xxxx Xxxx vs Xxx Xxxx on 17 December, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010164592021
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/554/2023
in Mat.App./23/2022
XXXX XXXX
S/O LATE MIR AKRAM ALI
RESIDENT OF HOUSE NO. 23
BIRUBARI MASJID ROAD
BIRUBARI PO GOPINATH NAGAR
PS PALTAN BAZAR GUWAHATI 781016
DIST KAMRUP (M) ASSAM
VERSUS
XXX XXXX
D/O SRI DHARMESWAR BAISHYA
W/O MR. ASIF ALI MIR
RESIDENT OF DR. J.C DAS ROAD
OPP. NAMGHAR PANBAZAR 781001
KAMRUP M ASSAM
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Advocate for : MR. A SARMAH
Advocate for : DR. N DEKA appearing for XXX XXXX
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 17.12.2025
(M. Zothankhuma, J)
1. We have heard Ms. M. Dev, learned counsel for the applicant/appellant
and Dr. N. Deka, learned counsel for the respondent wife.
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2. By this application under Order XLI Rule 5 CPC, the applicant/appellant
has prayed for stay of the operation of the impugned order dated 17.02.2021,
passed in Misc. (J) Case No. 170/2014 by the learned Principal Judge, Family
Court-III, Kamrup (M), Guwahati.
3. The applicant has put to challenge the impugned order dated 17.02.2021,
passed in Misc. (J) Case No. 170/2014, arising out of FC (Civil) Case No.
859/2014.
4. The facts of the case, in brief, are that the applicant husband and the
respondent wife had married on 31.01.1995 and the said marriage was
thereafter registered on 13.02.2009 under the Special Marriage Act, 1954
(hereinafter referred to as the 1954 Act). Due to problems in the marriage,
which resulted in the respondent wife and their two daughters living separately,
the applicant filed an application for talak before the Sadar Kazi, Guwahati,
which was registered as Kazi Case No.30/2013. The Kazi thereafter disposed off
Kazi Case No.30/2013, by passing an order of divorce after pronouncement of 3
talaqs. As the marriage had been registered under the 1954 Act, the applicant
husband filed FC (Civil) Case No. 859/2014, praying for declaring the marriage
null and void under Section 27 of the Special Marriage Act, 1954 and declaring
that the marriage certificate dated 13.02.2009, issued by the Marriage Officer,
Kamrup (M), Guwahati, was null and void. It may be stated here that
declaration of a marriage as null and void can only be made under Section 24 of
the 1954 Act, while a divorce can be granted under Section 27 of the 1954
Act.
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5. The respondent wife, who was the opposite party in FC (Civil) Case No.
859/2014, filed a counter-claim, praying for dissolution of marriage under
Section 27 of the Special Marriage Act and also filed Misc. (J) Case No.
170/2014 under Section 37 of the said Act, praying for permanent alimony of
Rs.3 Crores, in the event of dissolution of marriage by granting decree of
divorce.
6. The Court of the Principal Judge, Family Court No-III, Kamrup (M),
Guwahati, vide judgment dated 17.02.2021, disposed of FC (Civil) Case No.
859/2014, by holding that the applicant was not entitled to get a decree of
nullity of marriage, dismissed the prayer of the applicant. On the other hand,
the learned Family Court came to a finding that the respondent wife had proved
that the applicant had treated her with cruelty. As such, the learned Family
Court granted a decree of divorce, on the basis of the counter-claim filed by the
respondent wife under Section 27 of the 1954 Act. Misc. (J) Case No. 170/2014
was also disposed of by the learned Family Court-III, Kamrup (M), Guwahati,
vide the impugned order dated 17.02.2021, by granting Rs.1 Crore as
permanent alimony to the respondent wife and the said amount was to be paid
within two months of the order.
7. The learned Family Court, while deciding the issue of permanent alimony,
had relied upon the evidence adduced in FC (Civil) Case No. 859/2014 and it
held in the impugned order dated 17.02.2021 as follows:-
"In the present case it appears that the opposite party husband is an affluent
person having landed property and an established business in the name and style
"Akram Business" wherein there are 51 shop houses. According to the petitioner the
monthly rent received from "Akram Business" is Rs.5,00,000/-(Rupees Five Lakhs).
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The 'Akram Business" is situated at Fancy Bazar, a place which is a prominent business
hub of State of Assam, hence there is no doubt that the opposite party is earning a
handsome amount from "Akram Business". The petitioner lived with her husband for a
long period of 14 years. She is used to live the mode of life of her husband who is
undoubtedly an affluent person. Hence, having due regard to the status of the
petitioner, the mode of life she was used to have when she lived with her husband and
income of the opposite party, I am of the considered view that the petitioner is entitled
to get permanent alimony of Rs.1,00,00,000/-(Rupees One Crores only) from the
opposite party."
8. The applicant husband, being aggrieved with the impugned order passed
in Misc. (J) Case No. 170/2014, has filed the present appeal. On the other
hand, the judgment dated 17.02.2021 passed in FC (Civil) Case No. 859/2014
has attained finality, as no appeal has been filed against the same.
9. This Court had admitted the present appeal against the impugned order
passed in Misc. (J) Case No. 170/2014, vide order dated 31.05.2023, subject to
the deposit of Rs.15 Lakh to this Court, which has been since released to the
respondent wife.
10. It may be stated here that the orders passed in FC (Civil) Case No.
859/2014 and Misc. (J) Case No. 170/2014 had been made after the decision of
the Supreme Court in the case of Rajnesh (supra), which was on 04.11.2020.
In view of the above, the parties have submitted affidavit of disclosure of their
assets and liabilities in the appeal, in terms of Rajnesh (supra).
11. We have also noticed that the applicant has submitted affidavits of
disclosure of assets and liabilities, wherein the Income Tax Returns of the
applicant have been annexed.
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12. On considering the prayer for stay made by the applicant/appellant and
keeping in view the IT Returns submitted by the applicant in his affidavits
submitted in the main appeal, the stay of the operation of the impugned order
dated 17.02.2021, passed in Misc. (J) Case No. 170/2014 by the learned
Principal Judge, Family Court-III, Kamrup (M), Guwahati, is stayed, subject to
the condition that Rs. 15 Lakh is deposited before this Court on or before
27.01.2026.
13. In the event, the said amount is not deposited on or before 27.01.2026, it
will be deemed that no stay has been granted against the impugned order
dated 17.02.2021.
14. IA is accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
