Mat.App. 6/2009 BEFORE HON’BLE THE CHIEF JUSTICE MADAN B LOKUR THE HON’BLE MR JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER (CAV) By Goswami, J This is an appeal under Section 28 of the Hindu Marriage Act, 1955 again st the judgment and decree dated 16.9.06 passed by the learned District Judge, J orhat in Title Suit (M) No. 45/03. 2. By the judgment and decree under appeal, the marriage between the respon dent No.1 and the proforma respondent No.2 of the appeal, was dissolved by a dec ree of divorce granted under Section 13(1)(i) and (ia) of the Hindu Marriage Act , 1955. The present appeal is preferred by the respondent No.2 of Title Suit No (M)45/03. 3. We have heard Sri A.D. Choudhury, learned counsel for the appellant. Non e appears for the proforma respondent No.2, though, the proforma respondent No.2 is represented by counsel. The respondent No.1 herein, the petitioner in T.S.( M) No. 45/03, has chosen not to enter appearance. 4. Mr. Choudhury, learned counsel for the appellant, at the outset, has su bmitted that neither the husband nor the wife has preferred any appeal against t he judgment and decree dated 16.9.06 whereby the decree of divorce was granted. He has further submitted that the appellant has preferred this appeal, being agg rieved by the finding recorded by the learned trial court while deciding the Iss ue No.3, namely, Whether the respondent No.1 was living in adultery with the respondent No.2. The present appellant was the respondent No.2 in the suit and the learne d trial court had decided the Issue No.3 in the affirmative. 5. The learned counsel submits that the aforesaid Issue No. 3 was decided o n a perverse appreciation of evidence on record. He states that the present appe llant is the wife of the brother of proforma respondent No.2, who had taken care of him from his childhood as the mother of proforma respondent No.2 had died w hile he was barely two years old. 6. It would appear to us that the parties to the marriage are not aggrieve d by the judgment and decree and they have accepted the same. In fact, they have also not put in appearance when the matter was taken up for consideration. It i s also to be noted that the decree of divorce was granted on the ground of cruel ty and as also on the ground that the husband was living in adultery. 7. In these circumstances, we are not inclined to judge for ourselves the c orrectness or otherwise of the finding recorded in Issue No.3 and we leave the e ntire issue open so that the appellant is not prejudiced in any manner, particul arly, in view of the fact that the decree of divorce so granted can be sustai ned on the other ground, namely, cruelty, as the said finding of cruelty has att ained finality. 8. With the aforesaid observation, the appeal is disposed of. Trial court r ecords be sent back.