Gauhati High Court
Page No.# 1/7 vs Smt Gitanjali Mahanta on 26 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010008392017
2025:GAU-
AS:11379-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./42/2018
DRI JYOTI PRAN KUMAR
S/O SRI DEBEN CH. KUMAR, R/O GOTANAGAR, GUWAHATI, P.S.
JALUKBARI, DIST. KAMRUP (M), ASSAM, GUWAHATI 12
VERSUS
SMT GITANJALI MAHANTA
D/O LATE JOGEN MAHANTA, R/O BORDADHI SATRA, P.O. GERUA, P.S.
HAJO, DIST. KAMRUP (R), ASSAM, PIN 781102
For the Appellant : Mr. A. Dhar, Adv.
For the Respondent :
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Date of hearing : 26/08/2025.
Date of Judgement : 26/08/2025
JUDGEMENT AND ORDER (ORAL)
(Michael Zothankhuma, J)
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1. Heard Mr. A. Dhar, learned counsel for the appellant-husband. No one
appears for the respondent-wife even-though, this Court had observed in the last
order that the matter would be heard ex-parte if no one appeared for the respondent
on the next date.
2. The appellant-husband has put to challenge the impugned judgement dated
27/10/2017 passed by the Court of Principal Judge, Family Court-II, Kamrup(M),
Guwahati, dismissing FC(C) Case No. 287/2013, by which the appellant-husband had
prayed for grant of a decree of divorce under section 13 of the Hindu Marriage Act,
1955.
3. The appellant’s counsel submits that the appellant had married the
respondent-wife on 04/02/2003 as per the Hindu rights and rituals. Though both of
them thereafter started their conjugal life in the house of the appellant, the
respondent -wife left the matrimonial home at the instance of the respondent’s
parents – Aunt on 25/06/2007. No child was born out of their marriage as it was never
consummated.
4. The respondent-wife thereafter instituted a criminal case against the
appellant on the ground of the appellant demanding dowry and subjecting her to
mental and physical torture. Though reconciliation attempts were made, the same
proved futile.
5. The appellant’s counsel submits that the filing of a criminal case under
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Section 498(A)/325/307/323 IPC against the appellant amounted to physical and
mental cruelty. He further submits that as the respondent-wife had left the
matrimonial home in the year 2007, there has been an irretrievable break-down of
marriage and there was no scope of reviving the marriage after 18 years of
separation. He submits that the rejection of the appellant’s petition by the learned
Family Court was perverse and the basis for rejecting the appellant’s application for
dissolution of marriage was in violation of the decision of the Supreme Court in the
case of Rani Narasimha Sastry Vs. Rani Suneela Rani [2019 SCC OnLine SC
1595] and in the case of K. Srinivas Rao Vs. D.A. Deepa [(2013) 5 SCC 226].
6. We have heard the learned counsel for the appellant.
7. As can be seen from the records, the appellant-husband and the
respondent-wife were married on 04/02/2003 and the respondent had apparently left
the matrimonial home on 25/06/2007. The appellant thereafter had filed a petition for
a Decree of Divorce under section 13 of the Hindu Marriage Act, 1955, due to which
the Family Court framed the following issues :-
“1. Whether the respondent has treated the petitioner with cruelty?
2. Whether the petitioner is entitled to get a decree of divorce as prayed for?
3. To what relief/reliefs, the parties are entitled?
Thereafter, this Court framed additional issue :-
Whether the respondent deserted the petitioner for a continuous period
not less than two years immediately preceding the presentation of the instant
petition?
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8. The learned trial Court thereafter decided issue no.1, by holding that the
appellant failed to adduce any cogent evidence to prove that the respondent-wife had
treated the appellant with cruelty.
9. With regard to issue no.2, the learned trial Court came to a finding that the
institution of a criminal case by the respondent-wife against the appellant-husband for
physical assault for which the appellant was convicted, appeared to support the fact
that the respondent-wife was compelled to leave her matrimonial home. The learned
Trial Court further held that a perusal of the evidence of witnesses did not reveal any
sincere effort by the appellant-husband to bring back the respondent wife to the
matrimonial home. As such, the learned Trial Court came to a finding that the
appellant-husband failed to prove that the respondent -wife had deserted him. The
learned Trial Court thus held that the appellant-husband was not entitled to get a
decree of divorce. It also held that the prayer for permanent alimony of Rs. 50 lakhs
submitted by the respondent-wife through a separate petition, stood rejected, in view
of the prayer of the appellant-husband being rejected.
10. As can be seen from the records, the respondent-wife had filed a criminal
case against the appellant under section 498(A)/325/307/323 IPC, which was
registered as G.R. Case No.4087/2007 in the Court of the Judicial Magistrate First
Class (JMFC), Kamrup. The learned Trial Court thereafter convicted the appellant
under section 323 IPC and sentenced him to undergo simple imprisonment for 3
(three) months. However, the learned trial Court did not find the appellant guilty under
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section 498(A)/325/307 IPC.
11. The decision of the learned Judicial Magistrate, First Class in GR Case No.
4087/2007 was put to challenge in Criminal Appeal No. 86/2010. Criminal Appeal No.
86/2010 was thereafter dismissed by the Sessions Judge, Kamrup(M), Guwahati.
However, the Session Court held that instead of awarding imprisonment in the instant
case, imposition of fine would be in the interest of justice. Accordingly, the sentence
part of the order of conviction passed by the learned JMFC, Guwahati, sentencing the
appellant to undergo simple imprisonment for 3 (three) months was modified by
directing him to pay a fine of Rs. 1000/-, in default, simple imprisonment for 2 (two)
months.
12. The judgement dated 25/02/2011 passed by the learned Sessions Judge,
Kamrup (M), Guwahati, in criminal case No. 86/2010 was put to challenge in Criminal
Revision P. No. 178/2011 before this Court. This Court thereafter modified the
impugned judgement dated 25/02/2011 passed in Criminal Appeal No. 86/2010, by
releasing the appellant on probation under section 4 of the Probation of Offenders Act,
1958, while upholding the conviction of the appellant.
13. As can be seen from the facts of the case, due to the criminal case filed by
the respondent-wife, the appellant has been made to undergo criminal proceedings in
various Courts since the year 2007 till disposal of Criminal Revision Petition No.
178/2011 in August, 2012.
14. In the case of Rani Narasimha Sastry (Supra), the Supreme Court held
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that it cannot be accepted that no cruelty was meted out to the husband, when he
has been made to undergo trial in which he is acquitted, on the allegation of
committing an offence under section 498(A) IPC, leveled by his wife. In the case of K.
Srinivas Rao (Supra), the Supreme Court held that the filing of a case under section
498(A) IPC by the wife against the husband, which was subsequently withdrawn,
amounted to causing mental cruelty to the husband. It also held that just because the
husband and wife did not stay together, did not mean that the parties did not cause
cruelty to each other. Staying together under the same roof is not a pre-condition for
mental cruelty. In a given case, while staying away, a spouse can cause mental cruelty
to the other spouse by his / her conduct, even while he or she is not staying under the
same roof.
15. Though the learned Family Court had come to a finding that the appellant-
husband did not make any sincere effort to bring back the respondent wife to the
matrimonial home, on the flip side, it cannot be denied that the respondent-wife also
did not appear to make any attempt to go back to the matrimonial home. Instead the
respondent-wife had filed a criminal case against the appellant-husband under
sections 498(A)/325/307/323 IPC. Though the appellant-husband was acquitted of the
offences under section 498(A)/325/307 IPC, the appellant was convicted under section
323 IPC. The initiation of a criminal case against the appellant-husband would, in our
mind, also constitute mental cruelty even though they did not live under the same
roof. Further, the couple having stayed separate for the last 18 years, we are of the
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view that the appellant had made out a case of mental cruelty. We are accordingly of
the view that the appellant is entitled to be granted a decree of divorce in terms of
section 13 of the Hindu Marriage Act, 1955, as the impugned judgment passed by the
learned Family Court is not in consonance with the decisions of the Hon’ble Supreme
Court quoted above. Consequently, the impugned judgment dated 27/10/2017 passed
by the Court of Principal Judge, Family Court, Kamrup (M), Guwahati, in FC(C) Case
No. 287.2013 and the decree passed, is hereby set aside.
16. The prayer for the appellant-husband for grant of divorce decree is allowed.
17. Decree to be drawn up accordingly.
18. Send back the TCR.
19. The above being said, it is noticed that the prayer of the respondent-wife for
granting of permanent alimony by way of a separate petition submitted during the
proceedings of FC(C) Case No. 287/2013, had been rejected due to the dismissal of
the appellant’s case by the learned Trial Court. However, as the appellant’s prayer has
now been allowed in appeal, the respondent-wife is given the liberty to file a separate
application for grant of permanent alimony, if so advised, before the concerned Family
Court.
JUDGE JUDGE Comparing Assistant
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