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Smt. Gauri Dey Vs. Bidhu Bhusan Dey - Court Judgment

LegalCrystal Citation
Subject;Family;Civil
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 75 of 1982
Judge
ActsHindu Marriage, 1955 - Sections 23 and 23(1)
AppellantSmt. Gauri Dey
RespondentBidhu Bhusan Dey
Appellant AdvocateA.R. Paul Mazumdar, Adv.
Respondent AdvocateB. Kalita and H. Das, Advs.
DispositionAppeal allowed
Excerpt:
- - 4. whether the petitioner (is) leading a good moral life? section 23 of the act confers on the court power to pass a decree if it is 'satisfied' on matters mentioned in clauses (a) to (e) of the section. the proceedings under the act being essentially of a civil nature the word 'satisfied' means 'satisfied on preponderance of probabilities' and not 'satisfied beyond a reasonable doubt'.the court is to apply its mind to applicability of various clauses of section 23 before disposing of the case. clause (d) of sub-section (1) of section 23 of the act requires the court to be satisfied that there has not been any unnecessary or improper delay in instituting the proceeding. 2 and any other witnesses that the plaintiff may like to produce......this appeal is directed against the judgment and decree dated 13th september, 1982 passed by the learned district judge, kamrup, gauhati in divorce title suit no. 12 of 1980 smti. gauri dey v. sri bidhu bhusan dey, the plaintiff was married to smti sauri dey the defendant. he filed the petition under section 13 of the hindu marriage act for dissolution of his marriage by decree of divorce. it was contested by smti gauri dey who filed her written statement in the court of the learned district judge dated 31st october, 1980. the following issues were framed by the learned district judge : '1. whether the suit is maintainable? 2. whether there is any cause of action? 3. whether the court has got any jurisdiction to try the suit? 4. whether the petitioner (is) leading a good moral life? 5......
Judgment:

T.S. Misra, C.J.

1. This appeal is directed against the judgment and decree dated 13th September, 1982 passed by the learned District Judge, Kamrup, Gauhati in Divorce Title Suit No. 12 of 1980 Smti. Gauri Dey v. Sri Bidhu Bhusan Dey, The plaintiff was married to Smti Sauri Dey the defendant. He filed the petition under Section 13 of the Hindu Marriage Act for dissolution of his marriage by decree of divorce. It was contested by Smti Gauri Dey who filed her written statement in the Court of the learned District Judge dated 31st October, 1980. The following issues were framed by the learned District Judge :

'1. Whether the suit is maintainable?

2. Whether there is any cause of action?

3. Whether the Court has got any jurisdiction to try the suit?

4. Whether the petitioner (is) leading a good moral life?

5. Whether the petitioner is entitled to get any relief as asked for?

It would be seen that though the defendant had pleaded in paragraph 3 of her written statement that the suit was barred by limitation, the learned District Judge did not frame any issue on it. The documentary evidence was filed in the case. The petitioner examined himself on 23rd June, 1982 and he was cross-examined by the learned counsel for the defendant. The case was thereafter posted for hearing on 13th September, 1982. On that date, it seems, the defendant did not turn up when the case was called on for hearing and ex parte proceeding was taken. One more witness P. W. 2 was examined. Thereafter the learned District Judge passed the impugned order in the following terms.

'Dt. 13-9-83 -- Plaintiff present with witnesses. Other side is absent without any step. Case proceeded ex parte against the defendant. Examined one more witness. Case prima facie proved and decreed for divorce.'

2. Aggrieved by it the defendant has come up on appeal to this Court.

3. We have gone through the impugned order and the record of the Court below. We find that the impugned order passed by the learned District Judge is not in accordance with law. It is perfunctory in nature and may even be said to be not at all a speaking order. As pointed out herein above, the case was contested by Smt. Gauri Dey who had filed her written statement. She had cross examined Bidhu Bhusan Dey when he appeared in the witness box. The learned District Judge did not care to refer to any evidence adduced in the case either documentary or oral, nor did he record any finding on any of the issues. He simply said 'case prima facie proved'. It is surprising that a decree of divorce has been passed in this manner. Quite obviously the learned District Judge did not at all apply his mind to the facts of the case. There is no discussion whatsoever; no mention of facts even. The decree affected the status of two person. Important issues which so affect the parties demand a closer scrutiny. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue. Section 23 of the Act confers on the Court power to pass a decree if it is 'satisfied' on matters mentioned in Clauses (a) to (e) of the Section. The proceedings under the Act being essentially of a Civil nature the word 'satisfied' means 'satisfied on preponderance of probabilities' and not 'satisfied beyond a reasonable doubt'. The Court is to apply its mind to applicability of various clauses of Section 23 before disposing of the case. Clause (d) of Sub-section (1) of Section 23 of the Act requires the Court to be satisfied that there has not been any unnecessary or improper delay in instituting the proceeding. The defendant had pleaded in her written statement that the suit was barred by time. The District Judge should also hence have recorded a finding as to whether there had been unnecessary or improper delay in instituting the proceeding. Further, Sub-section (2) of Section 23 mandates the Court that before proceeding to grant any relief under the Hindu Marriage Act, the Court shall in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, make every endeavour to bring about a reconciliation between the parties. It was hence the duty of the District Judge in the first instance to try for reconciliation between the parties before granting the decree for divorce. Obviously he has not done so. The impugned decree manifestly suffers from the illegalities and infirmities pointed out herein above and deserves to be set aside.

4. In the result, the appeal is allowed with costs and the impugned order and decree passed by the District Judge, Kamrup in DTS No. 12/82 Bidhu Bhusan Dey v. Gauri Dey are set aside. The case is sent back to the Court below for retrial in accordance with law. The District Judge shall give full opportunity to the defendant to cross examine P. W. 2 and any other witnesses that the plaintiff may like to produce. He shall give opportunity to the defendant to lead her evidence in the case. The learned District Judge shall also take steps in accordance with Sub-section (2) of Section 23 of the Hindu Marriage Act. The record of the Court below shall be sent back without any loss of time.


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