Jharkhand High Court
Horil Kumar Rajak vs Anita Devi @ Gudia on 7 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
First Appeal No. 249 of 2017
Horil Kumar Rajak, S/o late Sukharaj Ram Rajak, resident of village-Patratu
Basti, near S.D.O. Office, Ramgarh, PO&PS- Ramgarh, Dist.-Ramgarh
......Appellant
Versus
Anita Devi @ Gudia, daughter of Ramuna Ram, resident of village-Sikarhata
Khurd, PS-Sikarhata Khurd, District-Bhojpur (Bihar), at present resident of
village-Patratu Basti, near S.D.O. Office, Ramgarh, PO&PS- Ramgarh,
Dist.-Ramgarh ..... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Pramod Kumar Choudhary, Advocate
For the Respondent : Mrs. (Dr.) Vandana Singh, Amicus
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Order No. 09/ Dated: 7th November 2022
Against the judgment dated 30th May 2017 and the decree
prepared on 8th June 2017 which was signed by the Principal District Judge-
cum-Family Court Judge on 22nd June 2017 in M.T.S. No.280 of 2014 (in
short, divorce suit), Horil Kumar Rajak has filed the present First Appeal on
the ground that Anita Devi @ Gudia with whom his marriage was solemnized
on 30th November 2012 had a subsisting marriage with Binod Rajak which was
solemnized on 13th June 2006 at Bokaro Steel City.
2. The appellant had instituted the divorce suit on the ground of
contravention of section 5 of the Hindu Marriage Act, 1955, that his marriage
solemnized with the respondent was liable to be declared void. The appellant
raised another plea for seeking divorce on the ground that the respondent had
voluntarily deserted him and ever since 30th November 2012 when marriage
was forcibly performed in a Shiv temple at Ramgarh the marriage did not
consummate.
3. The present First Appeal was filed on 30th August 2017 with
delay of 61 days which was condoned by an order dated 3 rd May 2018 passed
in I.A. No.8280 of 2017.
4. The proceedings in the present First Appeal reveal that the
appellant did not take sufficient interest in prosecuting the appeal. It further
appears that inspite of service of summons, the respondent did not appear in
the present proceeding and, therefore, Mrs. (Dr.) Vandana Singh, the learned
counsel was appointed as Amicus to argue this appeal on behalf of the
respondent, vide order dated 10th October 2022.
5. The appellant has produced a copy of the judgment dated 21 st
January 2013 passed in T.M.S. No.124 of 2012 to establish that as on the date
of his marriage in a Shiv temple at Ramgarh, the marriage of the respondent
with Binod Rajak was subsisting. He has further pleaded that in T.M.S. No.124
of 2012, a decree of divorce by mutual consent has been granted by the
Principal Judge, Family Court, Bokaro by judgment dated 21st January 2013.
6. The aforesaid judicial order passed in T.M.S. No.124 of 2012
could have been a substantial ground to lay a challenge to the judgment passed
in M.T.S. No.280 of 2014. But there is no application by the appellant under
Order XLI Rule 27 of the Code of Civil Procedure to take the judgment in
T.M.S. No.124 of 2012 as additional evidence in the present proceeding. The
response of the respondent, therefore, could not be taken on record and while
so the aforesaid judgment in T.M.S. No.124 of 2012 cannot be considered by
the Court in the present proceeding.
7. Mr. Pramod Kumar Choudhary, the learned counsel for the
appellant states that inspite of his best efforts he could not persuade the
appellant to file an appropriate application and swear the affidavit. The learned
counsel for the appellant submits that he has no instruction to press this First
Appeal on merits.
8. In the aforesaid circumstances, we are inclined to dismiss the
present First Appeal for non-prosecution.
9. Ordered accordingly.
10. We have adopted this procedure for the reason that once we
deliver a judgment on merits the same may cause substantial injury and
prejudice to the appellant and, therefore, by dismissing the present First
Appeal for non-prosecution we have provided an opportunity to the appellant
to prosecute this case in future, if he so decides.
11. First Appeal No.249 of 2017 is disposed of in the aforesaid terms.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
R.K.
