Smt. Payel Sen Datta v. Sri Dipjyoti Datta

Mr. A. De, Adv. Mr. S. Lodh, Adv.

17.03.2022 : No HON’BLE MR. JUSTICE S. TALAPATRA HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY Judgment & Order (Oral) [S. Talapatra, J.] Heard Mr. A. De, learned counsel appearing for the appellant and also heard Mr. S. Lodh, learned counsel appearing for the respondent. [2] This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment and decree dated

20.05.2019 delivered in Title Suit (Divorce) 402 of 2018 by the Addl. Judge, Family Court, Agartala, West Tripura. By the said decree the Addl. Judge, Family Court has dissolved the marriage that subsisted between the parties on the ground of cruelty within the meaning of Section 13(1)(a) of the Hindu Marriage Act, 1955. [3] The prime ground on which this appeal is structured is that the respondent had assured the settlement of the matrimonial discord by way of restituting in the conjugal life and on acting of such assurance, the appellant did not file the written statement before the Addl. Judge, Family Court, Agartala. As consequence thereof, the proceeding was made ex parte and the impugned judgment dated 20.05.2019 was passed on appreciation of the evidence as adduced by the respondent. [4] Mr. A. De, learned counsel appearing for the appellant has submitted that the respondent played the trick to dissuade the appellant from taking the appropriate steps in the proceeding.

It has been noted by us that three witnesses were adduced by the respondent including himself (PW-1). It has further appeared that there had been no cross-examination of those witnesses as the appellant did not participate in the proceeding as, according to Mr. De, learned counsel, she was under impression that the respondent will settle the matter and as such, she is not required to participate in the proceeding. [5] Mr. Lodh, learned counsel appearing respondent has robustly opposed such proposition and stated that, that has been done wilfully inasmuch as the appellant having notice from the court of the Addl. Judge, Family Court, Agartala, West Tripura appeared but did not contest the suit (the petition for dissolution of marriage). The ground is not a piece of evidence. Therefore, this court may not rely on such ground. [6] Having appreciated the submission as advanced by the counsel for the parties, we are of the initial opinion that the appellant has approached this court without approaching the court of the Addl.

Judge, Family Court, Agartala, West Tripura. However, it is option of the appellant to choose the forum to challenge an ex parte judgment. The same can be reversed by the court which passed that judgment on locating satisfactory grounds and even such judgment can, by way of an appeal, be challenged in the appellate forum. [7] The question that is pertinent is whether the fact, which has been couched in the ground, can be relied for interfering with the finding/order that the suit will proceed ex parte. We have given our anxious consideration. If cannot be stated that a fact that is not proved can be relied alone for that purpose. But, from the records, it appeared that the participation that was withdrawn is not the natural action of a person who is tenaciously inclined to contest the suit, as she is intending to resist the prayer for dissolution of marriage. [8] Having a cumulative assessment of the records and the statements made in the memorandum of appeal, we are of the view that since this is a matrimonial suit, highly technical approach cannot rule the roost.

We can provide the opportunity to the appellant to contest the suit for substantive ends of justice. [9] Having observed thus, we set aside the impugned judgment and decree dated 20.05.2019, not on merit, but for purpose of affording an opportunity the appellant. Accordingly, the said judgment and decree is set aside. [10] In the result, the appeal stands allowed. The suit being Title Suit (Divorce) 402 of 2018 is remanded. The court of the Addl. Judge, Family Court, Agartala, West Tripura shall afford a further chance to the appellant to file the written statement. Such written statement shall be filed by the appellant within the stipulated time as would be provided by the Addl. Judge, Family Court, Agartala, West Tripura without seeking further extension of time. Thereafter the suit is to be drawn to its logical end through several stages, prescribed for determination of the suit. We would further observe that the suit which is pending since 2018 requires expeditious disposal. In view of that, all endeavours shall be made to dispose of the suit within a period of 6(six) months from the date of filing of the written statement. The decree be drawn accordingly. Send down the LCRs thereafter. Pending application, if any, stands disposed of. JUDGE JUDGE Moumita