SARASWATI SARKAR Vs. LALIT CHANDRA SARKAR

JUDGEMENT

(1.) This appeal, under Section 19 of the Family Courts Act, 1984 (in short the 1984 Act), by the wife, is against the judgment and decree dated 25-6-2008 passed by the learned Judge, Family Court, West Tripura, Agartala, in Title Suit (Divorce) No. 185/2007 filed by the Respondent husband, dissolving the marriage between the parties by a decree of divorce, on the basis of the application filed under Section 13(1A) of the Hindu Marriage Act, 1955, on the ground of non-resumption of cohabitation for a period of more than 1 (one) year, after passing of a decree for judicial separation between the parties.

(2.) The Respondent husband instituted a proceeding seeking dissolution of marriage between the parties, under Section 13 of the Hindu Marriage Act, 1955 (in short the 1955 Act), which was registered and numbered as Title Suit (Divorce) No. 59/1999, wherein a decree for judicial separation was passed on 18-4-2002. The Respondent husband being not satisfied with the decree for judicial separation passed by the learned Addl. District Judge, West Tripura, Agartala, preferred Matrimonial Appeal No. 5/2002 before the High Court, which was dismissed vide judgment and order dated 8-8-2007. A petition under Section 13(1 A)(i) of the 1955 Act has, thereafter, been filed by the Respondent husband in the Family Court, West Tripura, Agartala on 14-11-2007, registered and numbered as Title Suit (Divorce) No. 185/2007, praying for dissolution of the marriage solemnized on 12-7-1986, by passing a decree, on the ground that there has been no resumption of cohabitation between the parties after the decree for judicial separation was passed on 18-4-2002 i.e. for more than 1 (one) year. The said proceeding is contested by Appellant wife by filing written statement, while denying the allegation of adultery and cruelty levelled against her by the Respondent husband in the application, stating inter alia that since she was/is willing to live with the Respondent as husband and wife and it is because of the Respondent husband that there has been no resumption of cohabitation between the parties after passing of the decree for judicial separation, the marriage solemnized between the parties cannot be dissolved by passing a decree at the instance of the Respondent husband, on the said ground. It has further been contended that since the decree for judicial separation passed by the learned Trial Court was challenged by the Respondent husband in appeal before the High Court, the period of 1 (one) year for the purpose of Section 13(1A)(i) of the 1955 Act shall commence with effect from the date of disposal of the appeal by the Appellate Court, as the decree passed by the learned Trial Court merges with the decree passed by the Appellate Court and the petition under Section 13(1A)(i) of the 1955 Act having been filed within 1 (one) year of the passing of the decree by the High Court in the appeal preferred by the Respondent husband, no decree for dissolution of the marriage can be passed.

(3.) In the said proceeding the Appellant wife also filed an application, under Section 24 of the 1955 Act, for grant of pendente lite maintenance, at the rate of Rs. 2,000/- per month, together with the litigation expenses of Rs. 10,000/-, contending that though vide order dated 11-7-2003 passed by the learned Addl. District Judge, West Tripura, Agartala in Misc. Case No. 157/2002, arising out of Title Suit (Divorce) No. 59/1999, registered and numbered on the basis of the application filed by her under Section 25 of the 1955 Act, the Respondent husband was directed to pay a sum of Rs. 2,000/- per month w.e.f. 2003, the said amount has not been paid regularly and the Appellant having no source of income is unable to maintain herself and to bear the litigation expenses. The said application has also been contested by the Respondent husband by filing written objection, contending, inter alia, that since the Appellant wife is leading an adulterous life, she is not entitled to maintenance in view of Section 23-A of the 1955 Act and that apart she is earning Rs. 3,000/- per month working in "Sishu Griha".