Page No.# 1/9 vs Gautam Ghosh
2025 Latest Caselaw 8033 Gua

Gauhati High Court

Page No.# 1/9 vs Gautam Ghosh on 27 October, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                   Page No.# 1/9

GAHC010186982024




                                                             2025:GAU-
AS:14312-DB

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

                               Case No. : Mat.App./34/2024

            SIMPI MANDAL
            D/O LATE LAKSHAN CH. MANDAL
            RESIDENT OF WARD NO. 9, GTB ROAD, DHUBRI TOWN, PO PS AND DIST
            DHUBRI, ASSAM



            VERSUS

            GAUTAM GHOSH
            S/O LATE GOURMONI GHOSH,
            NISHA MEDICAL, VILLAGE HORTOKILA (BABUPARA) PO HORTOKITOLA,
            PS BARPETA ROAD, DIST BARPETA, ASSAM 781315



Advocate for the Petitioner   : MS. S KANUNGOE,

Advocate for the Respondent : MR. R AHMED, MD KHAN
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                                 -B E F O R E -


              HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                  HON'BLE MR. JUSTICE KAUSHIK GOSWAMI



     For the Appellant     : Ms. S Kanungoe, Mr. C V Intong,
                             Advocates.

     For the Respondent    : Md. M Khan, Mr. R Ahmed, Advocates
                             for the sole respondent.

     Date of Hearing       : 27.10.2025.


     Date of Judgment       : 27.10.2025.




                         JUDGMENT & ORDER (ORAL)

KAUSHIK GOSWAMI, J

Heard Ms. S Kanungoe, learned counsel for the appellant. Also heard Mr. M Khan, learned counsel appearing for the sole respondent/husband.

2. This appeal is presented under Section 28 of the Hindu Marriage Act, 1955 [hereinafter referred to as the 'said Act'] against the judgment and decree dated 29.07.2024 (signed on 30.07.2024) passed by the learned Principal Judge, Family Court, Dhubri in F.C.T.S.(D) No. 40/2023, whereby the appellant/wife's Page No.# 3/9

petition for dissolution of the marriage by a decree of divorce under Section 13 (1) (i-a) of the said Act with the respondent/husband was dismissed.

3. The brief facts are that the appellant/wife and the respondent/husband were married according to Hindu rites and customs on 02.05.2022 at Maa Mahamaya Dham, Bagribari and thereafter, they were living together in the house of the respondent/husband at Hartokitola at Barpeta. The appellant/wife on 01.06.2022, i.e., after 30 days of their marriage left the house of the respondent/husband allegedly upon being driven out of the house of the respondent/husband and accordingly, filed petition for divorce before the learned Family Court for alleged cruelty, which was dismissed by the learned Family Court. Situated thus, the present appeal has been preferred.

4. Ms. S Kanungoe, learned counsel for the appellant/wife submits that the impugned judgment and decree dated 29.07.2024 is bad in law as well as in fact, inasmuch as, the learned Family Court failed to appreciate that both the parties did not desire to resume their conjugal life. She further submits that due to the persistent mental as well as physical cruelty being inflicted upon the appellant/wife, she had to leave her marital house and stay with her parents within 30 days of her marriage. She further submits that the appellant/wife is not willing to continue with the marriage and hence, the marriage having irretrievably broken down, the learned Family Court ought to have granted the divorce.

5. Per contra, Mr. M Khan, learned counsel for the respondent/husband submits that the respondent/husband is willing to continue with the marriage and does not wish to be separated from his wife.

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6. Upon hearing the learned counsels for the parties and on perusal of the records, it appears that though it is contended before us that the case of the appellant/wife before the learned Family Court was that due to persistent mental and physical cruelty allegedly meted out to her by the respondent/husband, she is not willing to continue with the marital relationship and therefore, sought dissolution of marriage. However, the same is contrary to the records of the learned Family Court.

7. Relevant paragraphs of the petition of the appellant/wife filed before the learned Family Court read as under -

"8. That, the opp. Party is a habitual drug addict. On every night, he started inhuman physical torture upon the person of the petitioner. The petitioner and her family member have tried to settle the matter amicably but the opp. Party cannot changed his nature and habit. Ultimately, on 01/06/2022, the petitioner was driven out from the matrimonial home by giving some dose of beating. Finding no alternative, the petitioner bound to take shelter at the parent's house at Ward No. 9, GTB Road, Dhubri Town.

9. That, in many occasions, the petitioner tried to lead the happy conjugal life with the opp. Party but he willfully express that he has no interest to lead the conjugal life with the petitioner.

10. That, lastly on, 25/05/2023, one Salilsh was held with the help of village elders, relatives and good wisher to settle their dispute but opp. Party denied to lead the conjugal life, rather he wants DIVORCE.

11. That, there is no collusion between the parties in filing this proceedings.

12. That, the life is more important than a marriage tie. The opp., party has been threatening for dire consequence in the life of the petitioner, if the marriage between the parties is not dissolve, the petitioner may loss her life. "

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8. Reading the aforesaid paragraphs, it appears that the appellant herself, in her petition for divorce before the learned Family Court, stated that though she was physically tortured by the respondent/husband, however, she tried to lead the happy conjugal life with the respondent/husband, but on the other hand, the respondent/husband expressed no interest in leading a conjugal life with her. She further stated therein that despite the intervention of village elders and relatives to settle their differences, the respondent/husband wanted the divorce. It further appears that she had categorically admitted therein that since the respondent/husband himself had expressed disinclination to continue the conjugal life and desired separation; she was constrained to file the divorce petition.

9. It appears that the Family Court by the impugned judgment and decree dated 29.07.2024, upon appreciating the arguments and evidence, found that the allegations of cruelty were not substantiated by cogent or convincing evidence. Relevant paragraphs of the impugned judgment and decree dated 29.07.2024 read as under -

"12. In the instant case it is alleged by the petitioner that since after the marriage the respondent subjected the petitioner to mental as well as physical torture which was stated to be unbearable and which even led her to make attempt to commit suicide but despite such alleged tortures she continued to live with him till she was driven out from her matrimonial home and thereafter, even made effort to amicably settle the matter and after elapse of one year also made effort of resumption of conjugal life by holding village meeting and as the respondent refused to resume conjugal life she came up with the present petition. Thus, it can vey easily be assumed that the wife/petitioner in all occasion since after her marriage continued to lead conjugal life with the respondent by condoning his cruelty upon her on each occasion and had every time forgiven the husband/respondent for his misdeed by restoration of their Page No.# 6/9

conjugal relations as it was at the outset or in other words, by restoration of the offending spouse/respondent to the same position as he occupied before the offence was committed.

13. Such effort for amicable settlement by the petitioner as per her categorical contention and continuation of her conjugal life despite facing several torture in the hands of the respondent until she was driven out and thereafter, also making effort to settle the matter amicably for the purpose of resumption of their conjugal life can only be described as condonation of cruelty by the petitioner.

14. As per the categorical contention of the petitioner till the filing of the present petition she continued to make effort for resumption of her conjugal life with the respondent through amicable settlement and it was only due to the respondent who refused to resume the conjugal life and sought divorce, she filed the present petition. On the other hand, the respondent has categorically denied the aforesaid contention and stated that he is always willing to resume conjugal life with the petitioner.

15. The fact as being emerged from the contention of the parties is that both of them seek resumption of their conjugal life. The contention of the petitioner discloses that she filed the present petition for divorce as it is the respondent who wants divorce through she always made effort for restoration of their conjugal life. The respondent also contended regarding his willingness to resume conjugal life with the petitioner.

16. The discussions being made above, which evidently shows that the petitioner on each and every occasion condoned the cruelty of the respondent rather she always made effort for restoration of her conjugal life, thereby reveals that the ground of cruelty basing on which the present petition has been filed by the petitioner seeking decree of divorce does not exist in view of the same being condoned by her on repeated occasion.

17. In view of the foregoing, materials on record this Court has not inclined to delve into the fact of cruelty on merit or in other words, whether the petitioner could prove the fact of being treated with cruelty by the respondent. However, it is pertinent to mention that the petitioner has failed to examine any reliable witness to substantiate her case. Neither Page No.# 7/9

any of the persons in the neighborhood who allegedly save her on many occasions while she was allegedly physically assaulted by the respondent, is examined nor is any other relevant evidence adduced including any medical document showing the fact of being undergone treatment for such physical assault, as alleged.

Thus, in view of the discussions held above, the instant issue is answered in negative and against the petitioner.

18. In view of the findings of issue No.i, this Court is of the opinion that the petitioner is not entitled to get the decree of divorce as prayed for or any other relief.

Accordingly, the issue No. ii and iii are also answered in negative and thereby decided against the petitioner. "

10. It is thus evident from the above that the Family Court after being satisfied that both the parties desired to resume their conjugal life in the backdrop of the materials placed before the Court showing the respondent husband's willingness to continue the marital relationship, accordingly rejected the prayer for divorce.

11. The appellant/wife's own statement before the learned Family Court that she had filed the divorce petition primarily because the respondent wanted separation, negates the core ground of cruelty on which the petition was based. As regards the contention of the learned counsel appearing for the appellant/wife that the appellant/wife did not state before the learned Family Court that she wishes to continue her marital relationship with the respondent/husband, is totally contrary to the statements made in the divorce petition and her submission as well as those made before the learned Family Court, which is evident from reading the extracted portion of the impugned judgment hereinabove. It is well-settled law that the statements of fact regarding proceedings in Court such as an admission or concession made by a party recorded in the judgment of a Court is conclusive and not open to be Page No.# 8/9

contradicted in appeal, denying the making of such statement (Refer State of Maharastra -Vs.- Ramdas Shrinivas Nayak and Another, reported in (1982) 2 SCC 463)

12. It is thus clearly discernable from the materials placed on record that the filing of the divorce petition itself was a result of the husband's unwillingness to continue the relationship, rather than cruelty inflicted upon the wife. It is further evident that both the parties expressed their willingness to continue their marital relationship before the learned Family Court. In fact, Mr. M Khan, learned counsel for the respondent/husband confirmed before us at the time of hearing the willingness of the respondent/husband to continue with the marital relationship.

13. The Family Court has therefore rightly held in the impugned judgment and decree that the appellant/wife has failed to make out a case for dissolution of marriage. No fresh evidence or legal infirmity has been brought on record to warrant interference by this Court in appellate jurisdiction under Section 28 of the Act.

14. In view of the above discussion, we are of the considered view that the judgment and decree passed by the learned Family Court do not suffer from any error of law or fact, warranting interference.

15. As such, the instant appeal is dismissed.

16. Resultantly, the judgment and decree dated 29.07.2024 (signed on 30.07.2024) passed by the learned Principal Judge, Family Court, Dhubri in F.C.T.S.(D) No. 40/2023 is hereby affirmed.

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17. Return the TCR.

JUDGE JUDGE

Comparing Assistant