JUDGEMENT

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Date of hearing and Judgment:30 th July, 2024 --------------------------------------------------------------------------------------------

ARINDAM SINHA, J. 1. The appeal has been preferred by the husband. He says the parties are Christian and their marriage was solemnized on 6th February, 2007 in J.E.L. Church, Koraput by the Reverend. According to him respondent resided in` the matrimonial home for 45 days only, during which time she frequently visited her parent’s house. In his petition he said he had earlier filed petition under section 10 of Divorce Act, 1869, dismissed on 10 th January, 2014. On 14 th April, 2014 respondent along with her father, her advocate and others had formed unlawful assembly in front of residence of his mother.

Complaint was lodged before the police, registered as F.I.R. on that day under sections 147, 148, 454, 294, 506 and 149 in Indian Penal Code, 1860. Police arrested, inter alia, respondent and she along with others were forwarded to the Court in G.R. Case no.213 of 2014. On 20 th January, 2017 petitioner happened to meet husband of his sister-

in-law. From him he came to know of respondent’s promiscuity. Inter alia, on such pleadings appellant had filed for divorce.

2. Mr. Rout, learned advocate appears on behalf of appellant but none appears on behalf of respondent. Coordinate Bench on order dated 17th March, 2023 recorded that notice had been delivered to respondent but there is no representation. This was reiterated by said coordinate Bench on 17th April, 2023. Reproduced below are paragraphs 3 to 5 from said order dated 17th April, 2023.

“3. It transpires from the record that the LCRs have already been received. Further, from the tracking report, it appears that registered letter containing the notice has been received by the respondent, but none has entered in the appearance for the respondent.

4. Let the matter be listed again on 27.06.2023.

5. In the meanwhile, if none appears to represent the respondent, the matter will proceed in absentia.”

Another Bench, to which one of us was party (M.S. Sahoo, J.), adjourned hearing of the appeal to give opportunity to respondent.

Reproduced below are paragraphs 2 and 3 from order dated 23rd February, 2024.

“2. Though notice is made sufficient against the respondent, none appears at the time of call.

3. To give an opportunity to the respondent, put up this case after three weeks.”

We by our order dated 24 th June, 2024 had requested Mr. Rout to communicate website copy of the order to learned advocate, who had appeared for respondent in the Family Court. By order dated 15th July, 2024 we recorded that Mr. Rout had filed memo dated 5th July, 2024 in the department saying, the order was served on Mr. Manoj Pattnaik, learned advocate in the Family Court, who had represented respondent. The memo is in the file. The appeal has been called on for hearing. We cannot keep on adjourning the appeal in hope that respondent will appear.

3. Mr. Rout submits, the Family Court by impugned judgment dated 3rd August, 2022, dismissed his client’s petition for dissolution of the marriage on saying, it was barred by res judicata. The marriage had broken down with no reconciliation. His client should not be tied to respondent just because his earlier attempt to obtain divorce had resulted in dismissal order dated 10th January, 2014. Ground is continuing cruelty. He seeks interference in appeal, for impugned judgment to be reversed.

4. We have perused materials on record before the Family Court.

In addition to events mentioned in paragraph-1 above, we find from the record appellant had, earlier to his dismissed proceeding, filed for divorce which proceeding he withdrew.

5. On analysis of the pleadings it emerges that incident occurred on 14