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2018 Supreme(Gau) 77
IN THE HIGH COURT OF GAUHATI AT ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Ajit Singh, Manojit Bhuyan, JJ.
Biju Kumar Borah S/o Late Ghanakanta Borah - Appellant
Vs.
Minakshi Das Borah D/o Late Krishnaram Das - Respondent
Mat. App. 39/2014
Decided On : 05-03-2018
For the Appellant : Mr. Lokman Hussain, learned counsel
For the Respondent: Mr. B Acharyya, Ms. M Acharyya and Mr. Ujjal Deka, learned counsel
Headnote:
Civil Procedure Code, 1908 – Order IX Rule 13 – Family Courts Act, 1984 – Section 19 – Lower Court Records immediately – Legality and Validity – Appellant and respondent got married and out of their wedlock boy child was born used to live in house of appellant where his aunts also used to reside – According to appellant relationship of respondent with him after about three months of their marriage became sour and she used to treat him as well as his aunts with cruelty during pendency of proceeding parties entered into a written agreement which was duly registered wherein amongst other terms respondent agreed not to treat appellant and his two aunts with cruelty and not to quarrel with them in future in any eventuality parties already amicably settled to live a peaceful life by leaving aside their differences appellant abandoned the divorce proceeding midway by not taking steps proceedings somehow did not die down and remained pending – Held, Considered view that the Family Court rightly passed the impugned order and as such same does not warrant our intervention reasons assigned herein find no merit in the instant appeal and as such the appeal is dismissed order of this court passed in connected Miscellaneous staying operation of impugned order is hereby vacated – Appellant suppressed material fact of entering into the amicable settlement before Family Court while procuring ex-parte judgment and decree, showing that he did not come with clean hands sufficient prima-facie case to show that appellant obtained ex-parte judgment and decree by concealing relevant and material facts and as such respondent deserved an opportunity to discredit appellants contentions by adducing evidence – Appeal stands disposed.
AJIT SINGH, J.
This appeal under Section 19 of the Family Courts Act, 1984, has been filed by husband-Biju Kumar Bora-challenging the legality and validity of the impugned order dated 02.07.2014 passed by the Principal Judge, Family Court, No-2, Guwahati, Kamrup, whereby she has allowed wife's-Minakshi Das Borah-Misc(J) Case No. 61/2011 and set aside the exparte decree of divorce against her.
2. Appellant and respondent got married on 15.12.2003 and out of their wedlock, a boy child was born. They used to live in the house of appellant where his aunts also used to reside. According to appellant, the relationship of respondent with him after about three months of their marriage became sour and she used to treat him as well as his aunts with cruelty. The situation became so irresistible for him that, finding no other alternative, he filed F.C(Civil) Case No. 320/2007 on 29.08.2007, for dissolution of his marriage with respondent. Respondent also made appearance in the suit on 01.10.2007, but did not file her written statement.
3. Dramatically, during pendency of the proceeding, parties entered into a written agreement on 04.10.2007 which was duly registered wherein amongst other terms, respondent agreed not to treat appellant and his two aunts with cruelty and not to quarrel with them in future in any eventuality. Since, the parties already amicably settled to live a peaceful life by leaving aside their differences, appellant abandoned the divorce proceeding midway by not taking steps. However, the proceedings somehow did not die down and remained pending. But, the respondent allegedly did not honour the conditions of the agreement binding her and continued with her earlier attitude and cruel behaviour towards appellant and his aunts and hence, he again pursued the divorce proceedings and took steps. Notice to respondent was issued, but could not be served on 19.09.2008 and 20.09.2008 as she was shown to be absent in the address and as per the endorsement made in the envelope, she refused to accept the notice when it was again attempted to be served on her on 22.09.2008 Hence, the divorce proceedings proceeded ex-parte and ultimately, the Family Court decreed the suit as aforesaid vide judgment and decree dated 03.06.2009 and 18.01.2010, by dissolving their marriage.
4. Appellant then communicated the said judgment to respondent vide certificate of posting on 20.08.2009 But, in spite of her knowledge about the dissolution of their marriage, respondent stayed with appellant and at night on 02.09.2010, she attempted to kill him. The respondent also quarreled with the aunts of appellant and so, he filed a complaint before the Chief Judicial Magistrate, Kamrup, on 03.09.2010 for protecting him from her, which on being forwarded to the Latasil Police Station, was registered as Latasil Police Station Case No. 157/2010. Police subsequently arrested the respondent for an offence under Section 307 of the Indian Penal Code from the house of appellant and later on released on bail. On that day also, respondent was informed about dissolution of their marriage.
5. On 23.05.2011, respondent filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte Judgment and decree, which was registered as Misc.(J) Case No. 61/2011. In that application, she took the plea that the judgment and decree was obtained by appellant maliciously behind her back and she was never informed about the same till her arrest. She further contended that appellant made her to believe that consequent upon their amicable settlement as aforesaid, he had withdrawn the divorce proceedings and as such she was under bona-fide belief that the proceeding terminated long back and subsequent stages of the proceeding were not known to her at all. Therefore, she prayed for setting aside the ex-parte Judgment and Decree.
6. Appellant filed a written objection contending that the application was barred by limitation as responden
