Page No.# 1/ vs Tina Dey Sarkar And Anr
2025 Latest Caselaw 7717 Gua

Gauhati High Court

Page No.# 1/ vs Tina Dey Sarkar And Anr on 13 October, 2025

                                                               Page No.# 1/11

GAHC010128202025




                                                          2025:GAU-AS:13622

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/237/2025

         JATINDRA DEB AND 10 ORS.
         S/O- LATE UPENDRA KUMAR DEB, R/O- A T ROAD, NEAR SANI MANDIR,
         CHABUA, P.O. AND P.S. CHABUA, DIST. DIBRUGARH, ASSAM

         2: SMT. SHIPRA DEB
         W/O- JATINDRA DEB
          R/O- A T ROAD
          NEAR SANI MANDIR
          CHABUA
          P.O. AND P.S. CHABUA
          DIST. DIBRUGARH
         ASSAM

         3: MADHUMITA DEB DUTTA
         W/O- SANTANU DUTTA
          D/O- SRI JATINDRA DEB
          R/O- NEAR OVER BRIDGE
          HIJUGURI
          P.O.
          P.S. AND DIST. TINSUKIA
         ASSAM

         4: SANTANU DUTTA
          S/O- LATE SURENDRA KUMAR DUTTA
          R/O- NEAR OVER BRIDGE
          HIJUGURI
          P.O.
          P.S. AND DIST. TINSUKIA
         ASSAM

         5: PAROMITA DEB DEY
         W/O- SRI BIKASH RANJAN DEY
          D/O- SRI JATINDRA DEB
          R/O- UDAYAN BIHAR
                                             Page No.# 2/11

VILL.- OUGHULI
DIST. KAMRUP(M)
ASSAM
PIN- 781171.

6: BIKASH RANJAN DEY
 S/O- BIPUL KUMAR DEY
 R/O- UDAYAN BIHAR
VILL.- OUGHULI
 DIST. KAMRUP(M)
ASSAM
 PIN- 781171.

7: SAMIRAN DEB
 S/O- LATE UPENDRA DEB
 R/O- WARD NO. 5
 NEAR SUNDAY MARKET
 CHABUA
 P.O. AND P.S. CHABUA
 DIST. DIBRUGARH
ASSAM

8: SUDIP DEB
 S/O- SRI SAMIRAN DEB
 R/O- WARD NO. 5
 NEAR SUNDAY MARKET
 CHABUA
 P.O. AND P.S. CHABUA
 DIST. DIBRUGARH
ASSAM

9: POOJA DEB
 D/O- HEMENDRA DEB
 R/O- A T ROAD
 NEAR SANI MANDIR
 CHABUA
 P.O. AND P.S. CHABUA
 DIST. DIBRUGARH
ASSAM

10: RUMI DEY
 D/O- LATE SADHANGSHU DEY
 R/O- C/O- DIBAKAR DEY 290
 RUPNAGAR PATH NEAR LAKSHI NARAYAN MANDIR
WARD NO. 6
 GOLAGHAT
 DIST. GOLAGHAT
ASSAM
                                                                          Page No.# 3/11


            11: SUBIR SARMA PATHAK
             S/O- LATE SHAILENDRA SARMA PATHAK
             R/O- WARD NO. A1
             LANE 27
            AMRABATI COLONY
             CHABUA
             DIST. DIBRUGARH
            ASSAM
             PIN- 786184

            VERSUS

            TINA DEY SARKAR AND ANR
            D/O- LATE RAVI DEY SARKAR, R/O- SHANTI NAGAR, NEAR LEARNERS
            SCHOOL, P.O. AND P.S. DOOMDOOMA, DIST. TINSUKIA, ASSAM

            2:JAYDEEP DEB
             S/O- SRI JATINDRA DEB
             R/O- A T ROAD
             NEAR SANI MANDIR
             CHABUA
             P.O. AND P.S. CHABUA
             DIST. DIBRUGARH
            ASSA

Advocate for the Petitioner   : MS. M BORA,

Advocate for the Respondent : MR. R S MISHRA (R-1), MR. A K GUPTA(R-1)




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

Date : 13.10.2025

Heard Mr. S.P. Chowdhury, learned counsel for the petitioners. Also heard Mr. A.K. Gupta, learned counsel for the respondent No. 1.

2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 13.05.2025, passed by the learned Additional District Judge No. 2, Tinsukia, in Misc. (J) Case No. 2/2025, arising Page No.# 4/11

out of Title Suit (M) No. 204/2024.

3. It is to be noted here that vide impugned order dated 13.05.2025, the learned Additional District Judge No. 2, Tinsukia ('trial Court', for short) had dismissed the petition filed by the petitioners, under Order 1 Rule 10(2) CPC, read with Section 151 CPC, for striking out their names from the array of respondents of Title Suit (M) No. 204/2024.

4. Mr. Chowdhury, learned counsel for the petitioners submits that the respondent No. 1 herein as plaintiff, had instituted Title Suit (M) No. 204/2024, before the learned trial Court, for a decree of divorce, arraying the present petitioners as respondent Nos. 2 to 12, in the said title suit, and that respondent No. 2 is the father, respondent No. 3 is the mother, respondent Nos. 4 & 6 are the sisters, respondent Nos. 5 & 7 are the brothers-in-law, respondent No. 8 is the paternal uncle, respondent No. 9 is the first cousin brother, respondent No. 10 is the cousin sister, respondent No. 11 is the maternal uncle and respondent No. 12 is the mediator cum family friend of respondent No. 1, and that they have been impleaded in the divorce proceeding only to harass them and that no relief is being claimed against them.

4.1. Mr. Chowdhury also submits that the present petitioners are neither a necessary party nor a proper party in the divorce proceeding as the relief claimed in the title suit is only to dissolve the marriage between the respondent No. 1 and the plaintiff in the title suit. Mr. Chowdhury further submits that the petition filed under Order 1 Rule 10(2) CPC was dismissed by the learned trial Court without sufficient ground, and under such circumstances, it is contended to allow this petition by setting aside the impugned order dated 13.05.2025.

4.2. Mr. Chowdhury also submits that Gauhati High Court has framed The Page No.# 5/11

Hindu Marriage (Gauhati High Court) Rules 1988, notified vide Notification No. XI-2/83/10376/RC, dated 27.04.1989, to regulate the procedure under the Hindu Marriage Act, 1955 and the said Rules also does not provides for impleadment of any other persons as party except however the husband and wife, and on this count also the impugned order is liable to be interfered with.

5. Per contra, Mr. Gupta, learned counsel for the respondent No. 1 submits that though no relief is being claimed against the present petitioners in the Title Suit (M) No. 204/2024, they have been arrayed as party on the ground that there is specific allegation levelled against them as the consent of plaintiff, for the marriage between her and the respondent No. 1 therein was obtained through fraudulent means and under such circumstances, presence of the present petitioners in the said title suit is very much necessary, and as such, they are not a necessary party, but since fraud is alleged against them, they are a proper party in the aforementioned proceeding, and therefore, it is contended to dismiss this petition.

6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 13.05.2025, as well as the plaint of Title Suit (M) No. 204/2024.

7. The reliefs, so claimed in the title suit, are reproduced herein below:

"(i) For a declaration for dissolution of the marriage between the Petitioner and the Respondent No. 1 by granting a decree of nullity by dissolving their voidable marriage fraudulently solemnized on 30/04/2024.

(ii) For declaration that the Petitioner is entitled for marriage expenses of Rs.15,00,000/- (Rupees Fifteen Page No.# 6/11

Lakhs) only and also entitled for Permanent Alimony of Rs. 25,00,000/- (Rupees Twenty Five Lakhs) only from the Respondent No. 1.

(iii) For any other relief or relief(s) as your Honour may deem fit and proper for the ends of justice."

8. Indisputably, the reliefs aforesaid are being claimed against the respondent No. 1 therein and no relief is being claimed against the present petitioners, who happens to be the father, mother, sisters, brothers-in-law, paternal uncle, cousin brother, cousin sister, maternal uncle and mediator cum family friend. And as stated herein above and admittedly also, no relief is being claimed against them, and the only ground for arraying them as party in the proceeding is that some fraudulent conduct has been alleged against them by the plaintiff in the title suit. It is not in dispute that such allegation against the petitioners cannot be adjudicated in a proceeding under Section 12(1)(a) (b) of the Hindu Marriage Act.

9. It is worth mentioning in this context that while dealing with the provision of Order 1 Rule 10(2) CPC, Hon'ble Supreme Court in the case of Kasturi vs. Iyyamperumal, reported in (2005) 6 SCC 733, has held that two tests are to be satisfied for determining the question as to who is a necessary party, and the tests are:

(i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings;

(ii) no effective decree can be passed in the absence of such party.

10. Further, in the case of Vidur Impex & Traders (P) Ltd. vs. Tosh Apartments (P) Ltd., reported in (2012) 8 SCC 384, Hon'ble Supreme Court has dealt with the issue as under:-

Page No.# 7/11

"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:-

41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.

41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court. 41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.

41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is Page No.# 8/11

unduly delayed then the court will be fully justified in declining the prayer for impleadment."

11. In the case in hand, the only ground for rejection of the petition filed by the petitioners herein is that some allegations of fraudulent conduct are being levelled against them while facilitating the marriage between the plaintiff and the respondent No. 1, in the title suit. And if the impugned order rejecting the petition filed by the present petitioners is examined in the light of the law, laid down by Hon'ble Supreme Court in the case of Kasturi (supra) and Vidur Impex & Traders (P) Ltd. (supra), this Court is of the view that the ground so assigned by the learned trial Court for dismissing the petition, fails to withstand the legal scrutiny, in as much as, without the presence of the present petitioners in the Title Suit No. 204/2024, the Court can completely, effectively and properly adjudicate upon all matters and issues between the plaintiff and the respondent No. 1 in the title suit.

11.1. Admittedly, the present petitioners are the father, mother, sisters, brothers-in-law, paternal uncle, cousin brother, cousin sister, maternal uncle and mediator cum family friend, and arraying such a large number of persons in a divorce proceeding while no relief is being claimed against them, and also where the marriage can be dissolved and the permanent alimony sought for can be granted without their presence, their impleadment in the said proceeding appears to be unjustified and unreasonable, and the dismissal of their petition, seeking their names striking off from the array of respondents of the title suit, is illegal and arbitrary and the same is liable to be interfered with.

12. It is to be noted here that Gauhati High Court has framed The Hindu Marriage (Gauhati High Court) Rules 1988, notified vide Notification No. XI- 2/83/10376/RC, dated 27.04.1989, to regulate the procedure under the Hindu Page No.# 9/11

Marriage Act, 1955. Rule 7 deals with contents of the petition, which read as under:-

4. Contents of petition.-- In addition to the particulars required to be given under Order VII, rule 1 of the Code and Section 20 (1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars :

(i) the place and date of marriage;

(ii) whether the spouses were Hindus by religion at the time of the marriage and whether they continue to be so till date of filing of the petition,

(iii) the name, status and domicile of wife and husband before and after the marriage;

(iv) the principal permanent address where the parties lived, including the address where they last resided together;

(v) the name of the children of the marriage, if any, their sex and their dates of birth or age;

xxxxxx xxxxxxxx

12.1. Rule 8 deals with necessary parties, which read as under:-

8. Necessary parties.--

(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has committed adultery with any person the petitioner shall make such person a co-respondent. The petitioner may, however, apply Page No.# 10/11

to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds:

(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery;

(ii) that such person is dead;

(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no person with whom adultery has been committed;

(iv) for any other sufficient reason that the Court may deem fit to consider.

(b) In every petition under Section 13 (2) (i) of the Act the petitioner shall make the other wife mentioned in that Section a co-respondent.

(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5 (1) is contravened the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

12.2. And as submitted by Mr. Chowdhury, learned counsel for the petitioners, nowhere in these Rules impleadment of any other persons as party, except however the husband and wife, are provided. And since no such provision is there in Rules, no words should be added or altered unless necessary. It is well settled in the case of Bhaynagar University vs. Palitana Sugar Mill Page No.# 11/11

(P.) Ltd., reported in (2003) 2 SCC 111, that "Statutory enactments must be construed according to plain and clear language, no words should be added or altered unless necessary." Again in the case of Promoters & Builders' Association, of Pune vs. Pune Municipal Corporation, reported in (2007) 6 SCC 143, it has been held that "Cardinal principle of statutory construction that clear and unambiguous language must be given effect without hypothetical interpretation." And as such, there appears to be substance in the said submission of Mr. Chowdhury.

13. In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned order, dated 13.05.2025, so passed by the learned trial Court, stands set aside and quashed. The names of present petitioners/respondent Nos. 2 to 12, shall be struck off from the array of respondents of Title Suit (M) No. 204/2024.

14. In terms of above, this revision petition stands disposed of.

15. The parties shall bear their own costs.

JUDGE

Comparing Assistant