Gauhati High Court
Page No.# 1/7 vs Xxxxxx on 28 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/7
GAHC010004462025
2025:GAU-AS:7080-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./5/2025
XXXXXX
W/O. NILANJAN ROY CHOUDHURY, R/O. SOUTH SARANIA, 1ST BYE LANE
RIGHT, OPPOSITE KASTURBA ASHRAM, P/O. ULUBARI, P/S. PALTAN
BAZAR, DIST. KAMRUP (M),GUWAHATI, PIN-781007, ASSAM.
VERSUS
XXXXXX
S/O. LATE PRADYUT ROY CHOUDHURY, R/O. ARATI PLAZA FLAT NO. 4E,
OPPOSITE GAUHATI COMMERCE COLLEGE, GUWAHATI-3, DIST.
KAMRUP(M), ASSAM.
Advocate for the Petitioner : MRS. HIRAMONI TALUKDAR ROYCHOUDHURY,
Advocate for the Respondent : FOR CAVEATOR, MRS S ACHARYA,MR S MUKTAR
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 28.05.2025
(K.R. Surana, J)
In this case, the name of the parties are masked and not disclosed to
Page No.# 2/7
protect their identity.
2. Heard appellant-in-person as well as Mr. S. Muktar, learned counsel for
the respondent.
3. By an order dated 04.04.2025, the matter being a family dispute was
sent for mediation. As per the mediation report received from the Secretary,
Gauhati High Court Mediation Centre, which is dated 22.05.2025, the mediation
has failed. Accordingly, the matter is listed before the Court.
4. By filing this Mat. Appeal under section 19(1) of the Family Courts Act,
1984, the appellant in person has assailed the judgment and order dated
19.12.2024 passed by the learned Principal Judge, Family Court-1, Kamrup
(Metro), Guwahati in Case No. FC (Civil) 1173 of 2018.
5. In order to understand facts of the case, the Court had asked
pinpointed questions to the appellant-in-person regarding the date on which the
respondent had left her society and other relevant facts. The same had to be
asked as the petition for restitution of conjugal rights is not annexed to the
memo of appeal. To none of the Court queries, the appellant-in-person has
given a straight answer. Rather, she had reiterated thrice that the facts could be
found in the orders passed by the Supreme Court of India, which is annexed as
Annexure- C to this memo of appeal and from judgment and order dated
16.08.2019 passed by the Division Bench of this Court in Mat. App. No.
73/2019, which is annexed as Annexure- D to this memo of appeal. Therefore,
the appellant-in-person had not extended any cooperation to the Court.
6. Therefore, the Court had perused the orders passed by the Supreme
Court of India (i.e. Annexure-C) and orders passed by the Division Bench of this
Page No.# 3/7
Court (Annexure-D), appended to the memo of appeal.
7. The learned counsel for the respondent has produced his copy of the
application under section 22 of the Special Marriage Act, 1954, which had been
registered as FC (civil) Case No. 1173 of 2018.
8. The appellant-in-person has submitted that the substantial question of
law which arises for adjudication of this appeal is as follows:
"Whether without any lawful excuse, the respondent has withdrawn
from the society of the appellant?
9. A brief reference of background facts, which is available in the order
dated 23.11.2023, passed by the Supreme Court of India in Civil Appeal No.
2038 of 2023- XXX v. XXX and in the judgment and order dated 16.08.2019,
passed in Mat. App. No. 73 of 2018- XXX v. XXX, as well as from the judgment
on order dated 19.12.2024, passed by the learned Trial Court in FC (Civil) 1173
of 2018- XXX v. XXX, are referred hereunder.
10. Bereft of details, it would suffice to mention that the appellant-in-
person has made allegations of ill-treatment meted out to her by the members
of her matrimonial family, projecting that she was treated cruelly and several
instances of her sufferings have been narrated. It is also alleged, amongst
others, that during marriage, the father of the appellant-in-person wanted to
give several luxurious items to the respondent, including vehicle, but the
respondent only insisted for cash to be offered given. She has also narrated
regarding instances of abusive behavior of the respondent and his family
members towards her.
Page No.# 4/7
11. It would also be pertinent to mention that there was a divorce
proceeding between the respondent-husband and the appellant-in-person-wife,
which was registered as FC (Civil) Case No. 155 of 2016. From the judgment
and order passed by the Division Bench of this Court on 16.08.2019, in Mat.
App. 73 of 2018, it appears that the registration of marriage before the Marriage
Officer at Guwahati was performed on 11.09.2006 and the social marriage was
performed on 14.09.2006 and since 15.09.2006, the appellant came to stay with
the respondent at his ancestral home located at Guwahati. From the facts
narrated in the said judgment and order, it appears that there are counter-
allegations by the respondent against the appellant, accusing her of abusive
behavior and use of vulgar language and instances of humiliation suffered by
the respondent.
12. Therefore, it appears that there are allegations and counter-allegations
from both sides as regards their matrimonial life. Therefore, instead of giving a
graphic description of the instances leading to their matrimonial discord, it
would suffice to mention that in the proceedings of the Mat. App. 73 of 2018, it
is recorded that subsequent to the incidents of 16.04.2007, the in-laws of the
appellant-in-person had driven her from her house and the father of the
appellant picked her up from the street and took her to a hotel to have food.
Accordingly, it appears that it is on or after 16.04.2007, that the appellant has
been driven out from the matrimonial home, which is also found mentioned in
the judgment dated 16.08.2019, passed in Mat. App. 73 of 2018.
13. From the copy of pleadings of FC (Civil) No. 1173 of 2018, at
paragraph 17, it has been stated as follows-
".......later on 16.04.2007, respondent's married elder sister and her
Page No.# 5/7
husband with their cruel intention drove the petitioner from her
matrimonial home and forcefully took the petitioner's four suitcases full
of pat clothes, valuable items, without allowing the petitioner to take her
belongings ......"
14. Thus, as the appellant-in-person has chosen not to submit anything on
facts, it is from judgment and order of the Division Bench of this Court as
referred above and from the copy of application provided by the learned counsel
for the respondent, that it is revealed that the uncontroverted fact is that on
16.04.2007, the appellant-in-person, was driven out from the matrimonial home.
15. There is no material available on record to show that during the
pendency of the divorce case between the parties before the learned trial Court
any application for restitution of conjugal rights was prayed. No straight answer
is forthcoming from the appellant-in-person. However, the learned counsel for
the respondent submits that as per his instructions, the first and only application
for restitution of conjugal rights was filed before the learned Family Court on or
after 28.11.2018.
16. At this point of oral dictation of this order, the appellant-in-person had
disrupted the dictation to first say that the application was filed during the
pendency of the divorce petition. Thereafter, she changes her stand and states
that the application was filed during the pendency of the appeal before the High
Court. Therefore, we have put the appellant to notice that next time she
interrupts the dictation, she would be risking a contempt proceedings.
17. From the facts which reveal from the materials available on record, the
order dismissing the divorce petition of the respondent was passed on
Page No.# 6/7
27.07.2018. As per the copy of restitution of conjugal rights petition, produced
by the learned counsel for the respondent, the affidavit sworn in support of the
said application was on 28.11.2018. Therefore, the said application must be
presumed to have been filed before the Family Court only after the divorce
petition was dismissed.
18. Under such circumstances, the application for restitution of conjugal
rights is made 11 years after allegedly being driven out from the matrimonial
home.
19. From the nature of allegations made by the appellant against the
respondent accusing him and her in-laws of cruelty, physical and mental abuse,
etc., which includes depriving her of nutritious food, etc. till the said allegations
stand, it would not be conducive atmosphere in the matrimonial home for the
Court to pass any order in exercise of power under section 22 of the Special
Marriage Act for restitution of conjugal rights, thereby enabling the appellant to
enter the household of the respondent.
20. There is no material available on record to show that both the parties
agree to live a conjugal matrimonial life by forgetting the past and forgiving
each other for whatever has happened in the past.
21. In the considered opinion of the Court, merely because a suit for
divorce has been dismissed, would not constitute a ground for restitution of
conjugal rights when as per the projection made by the appellant-in-person in
the application for conjugal rights, the respondent drove her from matrimonial
home on 16.04.2007. The application for conjugal rights is made after 11 years
in the year 2018.
Page No.# 7/7
22. Under the circumstances, the Court does not find any good ground to
interfere with the well-considered judgment and order dated 19.12.2024,
passed by the learned Principal Judge, Family Court-1, Kamrup (Metro),
Guwahati in Case No. FC (Civil) 1173 of 2018.
23. We are unable to find fault with the observations made by the learned
Trial Court in paragraph 17 of the order that the restitution of conjugal rights is
a remedy which is aimed at preserving the marriage and not at dissolving it as
in the case of divorce and judicial separation and that being the purpose of the
petition for the restitution of conjugal rights petitioner (i.e. the appellant-in-
person herein) must show that there is a bona fide desire to resume a
matrimonial cohabitation. We are unable to take a different view.
24. Accordingly, we concur with the finding of the learned Trial Court that
the appellant, in this case, is not entitled to any decree for the restitution of
conjugal rights. No points for determination arise for being answered in this
appeal. Accordingly, the appeal being devoid any merit, stands dismissed and
the judgment and order dated 19.12.2024 passed by the learned Principal
Judge, Family Court-1, Kamrup (Metro), Guwahati in Case No. FC (Civil) 1173 of
2018 is affirmed.
25. Let the records be transmitted back to the concerned Court along with
a copy of this order for record.
JUDGE JUDGE
Comparing Assistant
