Swarnarekha Sarangi vs Deepak Kumar Acharya

Mr. Das, learned advocate appears on behalf of appellant-wife. He submits, his client has preferred appeal against judgment dated 17th February, 2023 made by the Family Court dissolving the marriage. It was passed ex-parte against his client. On query from Court he submits, appeal has been preferred because his client wanted to but could not adduce evidence before the trial Court. Given opportunity, his client will produce additional evidence in appeal. On further query from Court he submits, it will be with regard to omission of the Trial Court to award permanent alimony.

Co-ordinate Bench by order dated 14th July, 2023 had directed issuance of notice. The postal article has been returned un-served with endorsement ‘addressee left without instruction’. Return to sender’. In terms of M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630, paragraph 6, we accept the position to be good service on respondent-husband.

Appellant has chosen to appeal instead of applying for setting aside ex-parte judgment. Hence, we observe that appellant did not cross-examine respondent-husband for testing the evidence adduced by him in the Trial Court. In the circumstances, the evidence was accepted by the Trial Court and that is no error. Based on the evidence, there has been direction to dissolve the marriage.

We find further from impugned judgment that the trial Court was conscious of interim maintenance paid by respondent-husband till date of judgment aggregating Rs.6,52,000/- and dealt with the question under issue no.(iv). In the circumstances, we adjourn hearing of the appeal to enable appellant to file application for adducing evidence in appeal, if so advised. In event appellant does so, she must disclose her income, assets and liabilities along with any evidence she may be able to adduce regarding income, assets and liabilities of respondent-husband. We make it clear, in event application is not filed prior to adjourned date or an application without substance is filed, the appeal is likely to be dismissed.

List on 14th November, 2023.

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