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THE GAUHATI HIGH COURT AT GUWAHATI (The High Court Of Assam,Nagaland,Meghalaya,Manipur,Tripura,Mizoram and Arunachal Pradesh)

PRINCIPAL SEAT AT GUWAHATI ------CASE NO : Mat.App. 6/2009 District : Jorhat Category : 10229 (Other First Appeals. ) ------1 SMT.TAGAR HAZARIKA WIFE OF ANANDA HAZARIKA RESIDENT OF VILLAGE- BECHIMATI (KAKOJAN), IN THE DISTRICT OF JORHAT, ASSAM. Petitioner/appellant/applicant Versus 1 SMT. MONMI HAZARIKA & ORS C/O UPEN HAZARIKA RESIDENT OF 108 SRI SRI THAKUR BALAK BABAR ASHRAM, CHANDRAPUR, GUWAHATI-50. 2 SRI SONPONA HAZARIKA S/O LT. SONARAM HAZARIKA RESIDENT OF TINIKURIA GAON (KAKOJAN), IN THE DISTRICT OF JORHAT, ASSAM. Respondent/Opp. Party Advocates on record for Petitioner/app 1 A D CHOUDHURY 2 S DEKA 4 H KASHYAP

Advocates on record for Respondents 1 MR U SARMA 2 MR. D CHOUDHURY ------Summary Of Case And Prayer In Brief ------

BEFORE HON'BLE THE CHIEF JUSTICE MADAN B LOKUR THE HON'BLE MR JUSTICE A.K. GOSWAMI DATE OF ORDER : 25/02/2011 JUDGMENT AND ORDER (CAV)

By Goswami, J

This is an appeal under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 16.9.06 passed by the learned District Judge, Jorhat in Title Suit (M) No. 45/03.

2. By the judgment and decree under appeal, the marriage between the respondent No.1 and the proforma respondent No.2 of the appeal, was dissolved by a decree of divorce granted under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. The present appeal is preferred by the respondent No.2 of Title Suit No (M)45/03.

3. We have heard Sri A.D. Choudhury, learned counsel for the appellant. None appears for the proforma respondent No.2, though, the proforma respondent No.2 is represented by counsel. The respondent No.1 herein, the petitioner in T.S.(M) No. 45/03, has chosen not to enter appearance.

4. Mr. Choudhury, learned counsel for the appellant, at the outset, has submitted that neither the husband nor the wife has preferred any appeal against the judgment and decree dated 16.9.06 whereby the decree of divorce was granted. He has further submitted that the appellant has preferred this appeal, being aggrieved by the finding

Page No. 1 recorded by the learned trial court while deciding the Issue No.3, namely, “ Whether the respondent No.1 was living in adultery with the respondent No.2.”

The present appellant was the respondent No.2 in the suit and the learned trial court had decided the Issue No.3 in the affirmative.

5. The learned counsel submits that the aforesaid Issue No. 3 was decided on a perverse appreciation of evidence on record. He states that the present appellant is the wife of the brother of proforma respondent No.2, who had taken care of him from his childhood as the mother of proforma respondent No.2 had died while he was barely two years old.

6. It would appear to us that the parties to the marriage are not aggrieved by the judgment and decree and they have accepted the same. In fact, they have also not put in appearance when the matter was taken up for consideration. It is also to be noted that the decree of divorce was granted on the ground of cruelty and as also on the ground that the husband was living in adultery.

7. In these circumstances, we are not inclined to judge for ourselves the correctness or otherwise of the finding recorded in Issue No.3 and we leave the entire issue open so that the appellant is not prejudiced in any manner, particularly, in view of the fact that the decree of divorce so granted can be sustained on the other ground, namely, cruelty, as the said finding of cruelty has attained finality.

8. With the aforesaid observation, the appeal is disposed of. Trial court records be sent back.