Gauhati High Court
Xxxxxxxx vs Xxxxxxxx on 4 October, 2023
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/6
GAHC010193752023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./39/2022
XXXXXXXX
W/O DEO PRAKASH GUPTA
D/O MR. BIJAY KUMAR GUPTA
RESIDENT OF CHANDRA PRABHA KOLITA
OPP. HANUMAN MANDIR
PO
PS AND DIST GOLAGHAT
ASSAM
VERSUS
XXXXXXXX
W/O DEO PRAKASH GUPTA
D/O MR. BIJAY KUMAR GUPTA
RESIDENT OF CHANDRA PRABHA KOLITA
OPP. HANUMAN MANDIR
PO
PS AND DIST GOLAGHAT
ASSAM
------------
Advocate for : MR H S KALSI
Advocate for : MR. S ISLAM appearing for XXXXXXXX
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 04-10-2023 (M. Zothankhuma, J) Heard Mr. I Singh, learned counsel for the appellant/wife. Also heard Mr. A Hawari, learned counsel for the respondent/husband.
2. This is an appeal preferred under Section 28 of the Hindu Marriage Act, 1955 against the impugned judgment and decree dated 28.01.2022 passed by the learned Principal Judge, Family Court, Kamrup at Guwahati in FC(Civil) Case No. 748/2021, by which the learned Family Court has decreed the suit ex-parte, by granting a decree of divorce by dissolving the marriage between the appellant and the respondent.
3. The main challenge to the impugned judgment passed by the learned Family Court is on the ground that the appellant never received the notice that was sent by the learned Family Court.
4. The learned counsel for the appellant submits that the summon/notice issued by the learned Trial Court for the appellant was addressed to a commercial shop, i.e., M/s Gupta Watch, Ward No. 07, G.F. Road, P.O.- Golaghat, Dist.- Golaghat, Assam, while the respondent was very much aware that the appellant was actually residing in the care of Chandra Prabha Kalita, Bagicha- Chariali, Opposite Hanuman Mandir Road, P.O.- Golaghat, District- Golaghat, Assam.
5. The appellant's counsel submits that the respondent had deliberately provided the wrong address of the appellant on the divorce petition filed by him before the learned Family Court and as such, there was no question of the Page No.# 3/6 appellant receiving the summon/notice issued by the learned Family Court. He submits that due to non-receipt of the summon/notice, the appellant was unable to contest the divorce suit filed by the respondent/husband. He also submits that though the parties had gone for mediation in the month of January, 2023, during the pendency of this appeal, the mediation effort failed due to the respondent not willing to take back the appellant.
6. The appellant's counsel also submits that though the appellant was earlier residing in the said address given by the respondent, the appellant was not residing in the said address any longer and much prior to the divorce suit filed by the respondent/husband. He accordingly submits that the appellant and her child should be allowed to contest the divorce suit filed by the respondent before the learned Family Court, by setting aside the impugned ex-parte judgment and decree of divorce.
7. Mr. A Hawari, learned counsel for the respondent/husband, on the other hand submits that there was no infirmity with the address given by the respondent before the learned Family Court, as the appellant's father owned the building where M/s Gupta Watch shop was located. He submits that the summon/notice issued by the learned Family Court had also been received by someone in the premises, which had housed M/s Gupta Watch shop.
8. The learned counsel for the respondent submits that the appellant has a Bank passbook, wherein the address of the appellant is the same as written in the address given by the respondent before the learned Family Court. As such, the learned Family Court had rightly disposed of the divorce suit ex-parte, due to the appellant not appearing before the said Court intentionally. He further submits that the mediation attempt between the parties failed due to the appellant making pre conditions for going back into the matrimonial home, Page No.# 4/6 which was unacceptable to the respondent.
9. In reply to the submission made by the respondent's counsel that the appellant had a Bank passbook showing the same address, as had been given by the respondent to the learned Family Court, the learned counsel for the appellant submits that the appellant had a Bank account with United Bank of India, which was opened in the year 2009. He submits that the United Bank of India had existed in the Assam type building structure. However, as the said building had been dismantled as per the Multi-Storied Building Plan approved by the Inspector (Building), Golaghat Municipal Board, Golaghat dated 12.12.2015, which is annexed as Annexure-3 to the affidavit-in-reply filed by the appellant, the address in the pass book was no longer the address of the appellant.
10. We have heard the learned counsels for the parties.
11. The pleadings and the documents on record show that the appellant and the respondent had married on 07.07.2019 and a child had been born to them on 14.01.2021. The respondent had thereafter submitted a petition for divorce before the learned Family Court on 02.09.2021 under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 on the ground that the appellant/wife had left the respondent/husband on 20.09.2021, by leaving the matrimonial home and never returned thereto, despite repeated requests to do so.
12. The learned Trial Court issued notice to the appellant vide order dated 02.09.2021 and fixed 08.10.2021 for service report. The next order dated 08.10.2021 passed by the learned Family Court states that a perusal of the copy of the track consignment No. RS538668230IN's, relating to issue of notice to the appellant through registered post, showed confirmation of delivery of the notice. The learned Family Court thus held that it appeared that notice was properly Page No.# 5/6 served to the respondent and the respondent was absent despite proper service of notice. Hence, the instant case was directed to be proceeded against the appellant. 09.12.2021 was thereafter fixed for ex-parte hearing.
13. The order dated 09.12.2021 passed by the learned Family Court shows that the respondent submitted his evidence by way of an affidavit. The learned Family Court thereafter fixed 22.12.2021 for ex-parte hearing. The order dated 22.12.2021 passed by the learned Family Court states that it re-heard the petitioner and fixed the case on 07.01.2022 for ex-parte hearing. The order dated 07.01.2022 passed by the learned Family Court states that the petitioner was absent and it fixed the case on 24.01.2022. On 24.01.2022, the learned Family Court re-heard the petitioner and fixed 28.01.2022 for judgment. On 28.01.2022, the learned Family Court passed the ex-parte decree dissolving the marriage between the parties and issued the decree of divorce on 07.02.2022.
14. The time period between the filing of the divorce suit by the respondent and the issuing of the divorce decree is approximately five months. The learned Family Court came to a finding that notice had been properly served on the appellant on perusing the copy of the track consignment report. On perusing the track consignment report No. No. RS538668230IN, there is nothing to show as to who actually had received the said notice issued by the learned Family Court. In that view of the matter, it cannot be conclusively stated that the appellant had received the notice issued by the learned Family Court vide order dated 02.09.2021. Besides, the marriage of the parties having taken place only on 07.07.2019 and the divorce decree having been granted less than three years after the marriage of the parties, we are of the view that the appellant should be given an opportunity to contest the divorce suit filed by the respondent.
15. In view of the reasons stated above, we set aside the impugned Page No.# 6/6 judgment and decree dated 28.01.2022 passed by the learned Principal Judge, Family Court, Kamrup at Guwahati in FC(Civil) Case No. 748/2021. The case is remanded back to the learned Principal Judge, Family Court, Kamrup at Guwahati for disposal. The parties shall appear before the learned Principal Judge, Family Court, Kamrup at Guwahati on 10.11.2023, wherein the appellant herein shall submit her written statement before the learned Family Court.
16. The appeal is disposed of accordingly. Send back the LCR.
JUDGE JUDGE Comparing Assistant