Gauhati High Court
Sri Pranay Jyoti Buragohain vs Additional District Judge on 16 September, 2019
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/4
GAHC010207142019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 47/2019
1:SRI PRANAY JYOTI BURAGOHAIN
S/O- SRI PRABHAT BURAGOHAIN, R/O- BORKOLA, GARGAON, P.O. AND
P.S. SIMALUGURI, DIST.- SIVASAGAR, ASSAM.
2: SMTI. PRAGGYA JYOTI GOGOI
W/O- SRI PRANAY JYOTI BURAGOHAIN D/O- SRI SUJIT KUMAR GOGOI
R/O- AMGURI TOWN WARD NO. 6 P.O. AND P.S. AMGURI DIST.- SIVASAGAR
AND PRESENTLY RESIDING AT- C/O- SRI ABHENDRA BORAH VILL.-
HATIMURIA P.OHUYAN HAT P.S. TEOK DIST.- JORHAT ASSAM
VERSUS
1:ADDITIONAL DISTRICT JUDGE
OFFICE OF THE DISTRICT JUDGE, DIST.- JORHAT, PIN- 785001, ASSAM.
Advocate for the Petitioner : MR. A SATTAR
Advocate for the Respondent :
BEFORE
HONOURABLE THE CHIEF JUSTICE (ACTING)
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 16-09-2019 [A.K. Goswami, CJ (Acting).] Heard Mr. P.P. Borthakur, learned counsel for the appellants. On the request of Mr. Borthakur, the Additional District Judge, Jorhat, arrayed as respondent in the present proceeding, is struck off.
Registry will do the needful.
This appeal is presented by the appellant No.1 Pranay Jyoti Buragohain and Page No.# 2/4 the appellant No.2 Praggya Jyoti Gogoi, whose marriage was solemnised on 24.08.2017, against the judgment & order dated 05.07.2019 passed by the learned Additional District Judge, Jorhat in Title Suit (Marriage) No.123/2018, dismissing the joint petition filed by the present appellants under Section 28(1) of the Special Marriage Act, 1954 (for short, "1954 Act") for dissolution of their marriage by a decree of divorce by mutual consent.
A perusal of the aforesaid judgment goes to show that the Court had made efforts for reconciliation between the parties but the same bore no fruitful result. Both the parties were heard on 05.07.2019 and their statements were also recorded. The learned trial Court made the following observations in Paragraphs 4, 4.1, 4.2, 5, 6 & 7, which read as follows:-
"4. The petitioners have testified that the marriage between them was solemnized on 24.8.2017 at the office of Marriage Officer, Sivasagar, Assam. Prove of marriage is Ext.1, the original Marriage Certificate issued by the Marriage Officer, Sivasagar. It is stated that no issue is born out of the wedlock between the parties. The petitioners have been living separately since October, 2017 due to temperamental differences; they have not resumed cohabitation since then. It is also stated that now there is no possibility of their living together as husband and wife. Ext-2 is the permanent residential certificate; Ext.3 Driving License, Exhibit-4 is Elector Photo Identity care, Ext-5 is Elector Photo Identity card, Ext.6 is the Identity Card, Ext.7 is permanent Residential certificate, Exbt-8 is Caste certificate and Ext.9 is the petition u/s 28(1) of Special Marriage Act.
4.1 Vide their joint statement, the petitioners have also stated that both of them have amicably settled their claims and dispute vis-à-vis, each other, related to their marriage with regard to stridhan, permanent alimony and maintenance (past, present and future) etc, in full and final.
4.2 The petitioners state that nothing shall remain due towards each other qua this marriage. Both the petitioners stated that there is no case/ complaint/petition pending against each other except the present case and in future not to file any case/ complaint against each other/respective family members at any point of time in future with regard to this marriage. Both the Page No.# 3/4 parties undertook that they would abide by all the conditions mentioned in the petition.
5. From the joint statement of the petitioners and the documents placed on record, it has come on record that the petitioners were married on 24.8.17 and have been living separately since October, 2017 on account of temperamental differences. From their joint statement I am also satisfied that there is no collusion between the petitioners in filing this petition and their consent for divorce is free from any force, fraud, threat, pressure, corrosion or undue influence. The petitioners have voluntarily decided to part ways amiably and seek dissolution of marriage by way of mutual consent in terms of settlement.
6. In view of above, as this petition complies with Section 28(1) of the Act, it is accepted. However, marriage of the petitioners cannot be dissolved at this stage keeping in view the provision of Section 28(2) of the Act which provides for a minimum waiting period of 6 months from the date of presentation of their first motion petition under section 28(1) of the Act.
7. In view of the above, the petitioners are advised to reflect during this period and make further sincere efforts of reconciliation and revival of their matrimonial bond. In case, the petitioners failed to resolve their differences and resume cohabitation and still feel that revival of their matrimonial relationship is not possible and they use to pass permanently they may take appropriate step and seek dissolution of their marriage as per provision of Section 28(2) of the Act after statutory period of 6 months."
The learned trial Court though had accepted the petition filed under Section 28(1) of the 1954 Act, declined to dissolve the marriage on the ground that in terms of Section 28(2) of the 1954 Act, a minimum waiting period of 6(six) months from the date of presentation of their first motion petition under Section 28(1) of the 1954 Act had not elapsed.
In the instant case, the petition under Section 28(1) of the 1954 Act was registered on 29.10.2018 and then transferred to the Court of the learned Additional District Judge, Jorhat. By an order dated 30.10.2018, case was fixed on 04.05.2019, Page No.# 4/4 which is after a period of 6(six) months from 30.10.2018. As the Presiding Officer was absent on 04.05.2019, the case was put up on 05.07.2019 for necessary order.
The date of registration of the application has to be construed as the first motion, which in the instant case is 30.10.2018. When the impugned judgment was passed more than 6(six) months had already elapsed. Therefore, it is evident that the learned trial Court misdirected in holding that 6(six) months' period had not elapsed from the date of presentation of the first motion under Section 28(1) of the 1954 Act. The learned trial Court had, however, noted that the provisions contained in Section 28(1) of the 1954 Act had been complied with. Thus, the learned trial Court was otherwise satisfied that the appellants have voluntarily decided to part ways amicably and seek dissolution of marriage by way of mutual consent in terms of the settlement.
In that view of the matter, the impugned judgment of the learned Additional District Judge, Jorhat cannot be sustained in law. Accordingly, the same is set aside and quashed and the marriage between the parties is dissolved in terms of the joint petition filed by them under Section 28(1) of the 1954 Act.
Decree be drawn up accordingly.
With the above observations and directions, the appeal stands disposed of.
Sd/- Sd/-
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant