Gauhati High Court
Atindra Chandra Bhattacharjee vs Dipali Bhattacharjee on 13 September, 2006
Equivalent citations: AIR2007GAU17, (2007)1GLR606, 2007(1)GLT7, AIR 2007 GAUHATI 17, 2007 (1) AKAR (NOC) 104 (GAU), 2007 A I H C (NOC) 191 (GAU), (2007) 1 GAU LR 606, (2007) 1 MARRILJ 604, (2007) 1 GAU LT 7, (2007) 4 CIVLJ 791
ORDER A.B. Pal, J.
1. Heard Mr. D. Chakraborty, learned Counsel for the petitioner and Mr. A.K. Deb, learned Counsel for the respondent.
2. This civil revision petition is directed against the judgment dated 24-5-2000 passed by the learned District Judge, West Tripura in T.S. (Divorce) No. 67 of 1998 dismissing the suit of the petitioner-husband.
3. The petitioner and the respondent got married on 6-12-74 and were blessed with a daughter in 1976. While the petitioner-husband is a primary school teacher, the respondent-wife is an employee in the department of DRDA. The marriage, however, suffered set back and on 15-2-1979, the wife left the marital home with her daughter and started to live in her parents' house. The petitioner filed on 18-1-85, a divorce suit registered as TS (Divorce) No. 4 of 85 on the ground of desertion and cruelty. That suit was dismissed. An appeal was taken against the dismissal which was registered as F.A. No. 13 of 1988. The appeal was also dismissed on 1-3-1996. The spouses, however, continued to live separately as no rapproachment was possible. The husband filed the second suit for divorce registered as TS (Divorce) No. 67 of 1998 and this time on grounds of cruelty alone under Section 13(1)(ia) of the Hindu Marriage Act. This suit was contested by the respondent-wife denying any cruelty on her part and contending, inter alia, that she was always willing to live with her husband. But her husband's extra marital relation with another woman spoiled the broth making a rapproachment and living together impossible. The question of cruelty could not be proved as admittedly there was no re-union or living together after 1979. Learned trial Court after recording a detailed discussion came to hold that the suit in the legal and factual premises is not maintainable on question of res judicata. Thus, the suit came to be dismissed. Aggrieved, the present revision has been preferred.
4. During the course of argument, the question that has surfaced is whether a revision petition against dismissal of the suit is at all maintainable in view of the clear provision in Section 28(1) of the Hindu Marriage Act which provides as follows:
28. Appeals from decrees and orders - (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of Sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
5. From the above provision, it is evident that the dismissal of the suit being a decree, the proper course was to file an appeal against the Judgment Impugned. It may also be observed here that the earlier suit was also dismissed against which the petitioner-husband preferred an appeal only. Be that as it may, this revision petition in view of the provision of Section 28(1) of the said Act is not maintainable.
6. Accordingly, this revision petition being misconceived is hereby dismissed leaving the parties to bear their own cost.