Dismissed

Horil Kumar Rajak v. Anita Devi Alias Gudia

Jharkhand HC7 Nov 2022FA/249/2017

Case brief

AI extract

What is this about?

The High Court dismissed a First Appeal in a divorce suit for non-prosecution. The court held that the appellant failed to file an application to produce a judgment of divorce as additional evidence, thereby preventing the respondent from responding, leading to dismissal without deciding the appeal on merits.

What did the court decide?

First Appeal No. 249 of 2017 dismissed for non-prosecution.

Horil Kumar Rajak Vs Anita Devi Alias Gudia — Matrimonial and Divorce | Jharkhand HC (2022)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

(Civil Appellate Jurisdiction)

¶3

First Appeal No. 249 of 2017

¶4

Horil Kumar Rajak, S/o late Sukharaj Ram Rajak, resident of village-Patratu Basti, near S.D.O. Office, Ramgarh, PO&PS- Ramgarh, Dist.-Ramgarh

¶5

...... Appellant

¶6

Versus

¶7

Anita Devi @ Gudia, daughter of Ramuna Ram, resident of village-Sikarhata Khurd, PS-Sikarhata Khurd, District-Bhojpur (Bihar), at present resident of village-Patratu Basti, near S.D.O. Office, Ramgarh, PO&PS- Ramgarh, Dist.-Ramgarh ..... Respondent

¶8

---------------

¶9

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant : Mr. Pramod Kumar Choudhary, Advocate For the Respondent : Mrs. (Dr.) Vandana Singh, Amicus

¶10

---------------

¶11

Order No. 09/ Dated: 7th November 2022

¶12

Against the judgment dated 30^th May 2017 and the decree prepared on 8^th June 2017 which was signed by the Principal District Judgecum-Family Court Judge on 22^nd June 2017 in M.T.S. No.280 of 2014 (in short, divorce suit), Horil Kumar Rajak has filed the present First Appeal on the ground that Anita Devi @ Gudia with whom his marriage was solemnized on 30^th November 2012 had a subsisting marriage with Binod Rajak which was solemnized on 13^th June 2006 at Bokaro Steel City.

¶13

The appellant had instituted the divorce suit on the ground of contravention of section 5 of the Hindu Marriage Act, 1955, that his marriage solemnized with the respondent was liable to be declared void. The appellant raised another plea for seeking divorce on the ground that the respondent had voluntarily deserted him and ever since 30^th November 2012 when marriage was forcibly performed in a Shiv temple at Ramgarh the marriage did not consummate.

¶14

The present First Appeal was filed on 30^th August 2017 with delay of 61 days which was condoned by an order dated 3^rd May 2018 passed in I.A. No.8280 of 2017.

¶15

The proceedings in the present First Appeal reveal that the appellant did not take sufficient interest in prosecuting the appeal. It further appears that inspite of service of summons, the respondent did not appear in the present proceeding and, therefore, Mrs. (Dr.) Vandana Singh, the learned

¶16

¶17

First Appeal No. 249 of 2017

¶18

counsel was appointed as Amicus to argue this appeal on behalf of the respondent, vide order dated 10^th October 2022.

¶19

The appellant has produced a copy of the judgment dated 21^st January 2013 passed in T.M.S. No.124 of 2012 to establish that as on the date of his marriage in a Shiv temple at Ramgarh, the marriage of the respondent with Binod Rajak was subsisting. He has further pleaded that in T.M.S. No.124 of 2012, a decree of divorce by mutual consent has been granted by the Principal Judge, Family Court, Bokaro by judgment dated 21^st January 2013.

¶20

The aforesaid judicial order passed in T.M.S. No.124 of 2012 could have been a substantial ground to lay a challenge to the judgment passed in M.T.S. No.280 of 2014. But there is no application by the appellant under Order XLI Rule 27 of the Code of Civil Procedure to take the judgment in T.M.S. No.124 of 2012 as additional evidence in the present proceeding. The response of the respondent, therefore, could not be taken on record and while so the aforesaid judgment in T.M.S. No.124 of 2012 cannot be considered by the Court in the present proceeding.

¶21

Mr. Pramod Kumar Choudhary, the learned counsel for the appellant states that inspite of his best efforts he could not persuade the appellant to file an appropriate application and swear the affidavit. The learned counsel for the appellant submits that he has no instruction to press this First Appeal on merits.

¶22

In the aforesaid circumstances, we are inclined to dismiss the present First Appeal for non-prosecution.

¶23

Ordered accordingly.

¶24

We have adopted this procedure for the reason that once we deliver a judgment on merits the same may cause substantial injury and prejudice to the appellant and, therefore, by dismissing the present First Appeal for non-prosecution we have provided an opportunity to the appellant to prosecute this case in future, if he so decides.

¶25

First Appeal No.249 of 2017 is disposed of in the aforesaid terms.

¶26

(Shree Chandrashekhar, J.)

¶27

(Ratnaker Bhengra, J.)

¶28

R.K.

Horil Kumar Rajak v. Anita Devi Alias Gudia

Case brief

What is this about?

What did the court decide?

Horil Kumar Rajak v. Anita Devi Alias Gudia

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vikram Pandey Vs Anupama Pandey

MD Sajid Arfi Vs Anjum Aara

Sandeep Kumar Singh Vs Amalesh Kumar

Hemlin Biswas Dadel Vs Latare Toppo

Mr Manoj Kumar Sah Vs Sheela Devi And Anr.

Sanjay Kumar Gadyan Vs Mitu Kumari Lachiramka