SRI DULAL CHANDRA BASAK vs SMTI RUMA DUTTA BASAK

This appeal under Section 28 of the Hindu Marriage Act, 1955 has been filed by the husband- Dulal Chandra Basak - challenging the legality

and validity of the impugned judgement and decree dated 26/09/2016 passed by the Additional District Judge, Sonitpur, Tezpur, in T.S.(Divorce)

No. 66/2011, dismissing the suit filed by him under Section 13 of the Hindu Marriage Act, 1955, praying for a decree of divorce of his marriage

with wife - Ruma Dutta Basak.

The brief facts are these. Appellant married the respondent on 22/11/2004 under Hindu rites and rituals. Appellant is an employee of

N.F.Railways and at the time of his marriage he did not get an official quarter. So, he kept respondent in his permanent residence at Guwahati and

used to visit her on holidays and by taking leave. But, respondent did not try to understand the situation and the practical difficulties faced by

appellant in not keeping her with him and suddenly on 30/01/2006 she left for her parental home without intimating either the appellant or his family

members. Since then, she has been staying there and did not return to her matrimonial home in spite of repeated requests made by the appellant.

Rather, she filed a petition for maintenance.

Appellant then, finding no alternative and after waiting for about 5(five) years in uncertainty, filed the petition for divorce in the court of

Additional District Judge, Tezpur.

Respondent contested the suit by filing written statement stating inter-alia that appellant did not have any official quarter for which she was kept

in his residence at Guwahati for 9(nine) months. Besides, appellant used to torture her both mentally and physically for not being able to fulfil his

demand of dowry of Rs.1,00,000/- for which she was ultimately sent to her parental home. Respondent always expressed her willingness to come

back to her matrimonial home and desired to stay there with appellant and as such prayed for dismissal of the suit.

Appellant adduced his evidence by filing affidavit on 02/05/2014 and the matter was fixed on 13/06/2014 for his cross examination. But, on that

date he could not appear as he suffered from serious spinal cord dysfunction and thereafter also he failed to appear on at least twenty dates as he

was under treatment and had to even take treatment in Bengaluru. However, he appeared for cross-examination on 22/07/2016, but respondent

sought for an adjournment which was granted by the trial court with cost of Rs.3,000/- and the matter was fixed on 06/09/2016. But, on that day

appellant could not appear before the court for cross examination as he suffered from severe pain and as such he prayed for an adjournment which

was rejected and the matter was fixed on 26/09/2016 for judgment. Although, appellant filed a petition under Order IX Rule 7 of the Code of Civil

procedure, 1908 on that day for setting aside the said order denying his cross-examination, the same was rejected by the Trial Court and vide the

impugned Judgment and decree, the suit of the appellant was dismissed. Hence this appeal.

Notice of this appeal was duly served upon the Respondent, but she did not appear. We heard learned counsel for the appellant and also

perused the records. It has been argued that the reason for absence of appellant in the trial court was beyond his control. He was suffering from

chronic spinal cord dysfunction for which he could not make himself available for cross-examination and the same fact is supported by an affidavit

as well as other medical documents. Hence, the trial court failed to consider his genuine cause for non-appearance and as such the impugned

judgment and order does not sustain a judicial scrutiny.

We completely agree with the submissions made by the learned counsel for the appellant. The fact that appellant was suffering from spinal cord

dysfunction was never challenged and/or disputed. The fact that he was under treatment was also not disputed. The trial court failed to consider

that he made himself available for cross-examination on 22/07/2016, but respondent sought for an adjournment which was granted with cost. And

the appellant could not appear on the next date due to his illness. This fact was duly intimated to the court and was also supported by an affidavit.

The trial court however rejected the petition on the ground that sufficient adjournments were already granted to the appellant. Again, on the same

reason, the petition filed by appellant on 26/09/2016 was also rejected. It is settled position of law that adjournment is to be granted by the court

on the basis of the facts and circumstances of each and every case as well as sufficiency of the reasons cited and not depending on the number of

times of adjournment already granted. The trial court failed to consider that the ground shown for absence of the appellant was sufficient and as

such ought to have been allowed in as much as he was also present on 22/07/2016, but could not be cross-examined at the instance of the

respondent. Hence, the trial court committed an error in facts as well as in law by rejecting the petition of the appellant and thereby passing the

impugned judgment and decree. As such, this court is of the considered view that the impugned judgment and decree deserves to be set aside and

there is sufficient merit in the appeal. Accordingly the appeal is allowed.

The impugned Judgment and Decree dated 26/09/216 is hereby set aside and the matter is remanded to the trial court for deciding afresh on

merit by affording adequate opportunity to the parties. Since it is a long pending case, the trial court shall make every endeavour to dispose the

same within 6(six) months and the parties are directed to participate with the proceedings efficiently.

It appears that litigation cost of Rs.10,000/- was deposited by the appellant with the Registry of this court as per direction dated 03/02/2017.

Registry is directed to make the payment to the respondent immediately.

With the above directions, appeal stands disposed of.