Kakali Das Nee Sil vs Nilangshu Mohan Das on 7 July, 2017

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

PRESENT : Hon’ble Justice Dipankar Datta
and
Hon’ble Justice Debi Prosad Dey

FA 208 of 2013
with
COT 08 of 2016

Kakali Das nee Sil
v.
Nilangshu Mohan Das

For the appellant : Mr. Piyush Chaturvedi,
Mr. Amit Kumar Ghosh.

For the respondent : Mr. Jiban Ratan Chatterjee,

Mr. Krishnendu Dey.

Heard concluded on : May 17, 2017

Judgment on : July 7, 2017

DIPANKAR DATTA, J. :

1. The judgment and decree dated April, 2003 passed by the learned Additional

District Judge, 2nd Court, Hooghly in Matrimonial Suit No.322 of 2007 is

under challenge in this first appeal. The suit, which had been instituted by

the respondent for dissolution of marriage, was decreed by the learned judge

on the ground of irretrievable break down of marriage although the

respondent had sought for divorce on the ground of cruelty and desertion.

2. At the time of hearing of the appeal, Mr. Chatterjee, leaned senior advocate

for the respondent submitted that he had presented a cross-objection urging

that the suit ought to have been decreed on the grounds set out in the

plaint. He further submitted that even if we were minded to hold that the

marriage could not have been dissolved on the ground of its breaking down

irretrievably, the ground of cruelty and desertion ought to be considered.

3. On perusing the order-book of this appeal, we noticed that the respondent

entered appearance through his learned advocate at the initial stage when

the application for stay was considered by a coordinate Bench. He had also

been represented by his learned advocate when a coordinate Bench

endeavoured to bring about a reconciliation between the parties but such

endeavour failed because of the respondent’s adamant attitude. Almost six

months later, the cross-objection was presented by the respondent without

the same being accompanied by an application under section 5 of the

Limitation Act. Citing Order 41 Rule 22 of the Code of Civil Procedure

(hereafter the CPC), Mr. Chatterjee contended that notice of appeal had not

been served on the respondent and, therefore, limitation had not

commenced and that the cross-objection could not be held to be barred by

time. Reliance was placed by Mr. Chatterjee on two decisions of coordinate

Benches of this Court reported in 1991 (1) CHN 377 (Sabita Dutta v. Abir

Chandra Dutta) and 2003 (1) CHN 287 (Gopal Chandra Das v. Saraswati

Basak) in support of his submissions.

4. Mr. Chaturvedi, learned advocate for the appellant placed for our

consideration the decision of the Supreme Court reported in AIR 2011 SC
2439 (Mahadeve Govind Gharge ors. v. The Special Land Acquisition

Officer, Upper Krishna Project, Jamkhandi, Kornataka) to contend that the

respondent being fully aware of the fact of presentation of appeal by his wife

challenging the decree for divorce, it is too late in the day for him to contend

that since no notice of appeal has been served, the time to file the cross-

objection has not yet reached. It has further been contended that the

conduct of the respondent is not at all bona fide. He filed the cross-objection

only after the previous coordinate Bench took sort of an adverse view against

him finding him to be adamant. According to him, the cross-objection being

time barred and there being no prayer for condonation of delay, the same

ought not to be entertained by us.

5. Paragraph 55 of the decision being relevant is quoted below:

“55. If we examine the provisions of Order 41 Rule 22 of the Code in
its correct perspective and in light of the abovestated principles then
the period of limitation of one month stated therein would
commence from the service of notice of the day of hearing of appeal
on the respondent in that appeal. The hearing contemplated under
Order 41 Rule 22 of the Code normally is the final hearing of the
appeal but this rule is not without any exception. The exception
could be where a party-respondent appears at the time of admission
of the appeal, as a caveator or otherwise and argues the appeal on
merits as well as while passing of interim orders and the court has
admitted the appeal in the presence of that party and directs the
appeal to be heard finally on a future date, actual or otherwise, then
it has to be taken as complete compliance with the provisions of
Order 41 Rule 22 of the Code and thereafter, the appellant who has
appeared himself or through his pleader cannot claim that the
period mentioned under the said provision of the Code would
commence only when the respondent is served with a fresh notice of
hearing of the appeal in the required format. If this argument is
accepted it would amount to travesty of justice and inevitably result
in delay while causing serious prejudice to the interest of the parties
and administration of justice. Such interpretation would run contra
to the legislative intent behind the provisions of Order 41 Rule 11 of
the Code which explicitly contemplate that an appeal shall be heard
expeditiously and disposed of as far as possible within 60 days at
the admission stage. All the provisions of Order 41 of the Code have
to be read conjunctively to give Order 41 Rule 22 its true and
purposive meaning. Having analytically examined the provisions of
Order 41 Rule 22, we may now state the principles for its
applications as follows:

(a) The respondent in an appeal is entitled to receive a notice of
hearing of the appeal as contemplated under Order 41 Rule 22 of
the Code.

(b) The limitation of one month for filing the cross-objection as
provided under Order 41 Rule 22 of the Code shall commence from
the date of service of notice on him or his pleader of the day fixed for
hearing the appeal.

(c) Where a respondent in the appeal is a caveator or otherwise
puts in appearance himself and argues the appeal on merits
including for the purposes of interim order and the appeal is
ordered to be heard finally on a date fixed subsequently or
otherwise, in presence of the said respondent/caveator, it shall be
deemed to be service of notice within the meaning of Order 41 Rule

22. In other words the limitation of one month shall start from that
date.”

6. In view of the aforesaid authoritative pronouncement of the Supreme Court,

READ  The State Of Andhra Pradesh vs Raj Gopal Asawa And Anr on 17 March, 2004

the decisions cited by Mr. Chatterjee must be deemed to have been overruled

by implication on the point of limitation, which has surfaced before us, and

we hold that without an application for condonation of delay in presentation

of the cross-objection, the same is not entertainable.

7. We are also of the view, having regard to sections 21 and 23(2) of the Hindu

Marriage Act, 1955 (hereafter the Act), that if the respondent in an appeal

has not appeared before the first appellate court at any prior point of time,

most certainly information/receipt of the order by which such court fixes a

date for the parties to attend proceedings before it to enable exploration of

the possibility of a reconciliation, would amount to deemed service of the

notice of appeal for the purpose of limitation to file cross-objection.

8. However, having regard to the facts of this case and particularly when there

has been no previous decision of this Court holding the ratio of the decisions

in Sabita Dutta (supra) and Gopal Chandra Das (supra) to be inapplicable in

a matrimonial dispute arising out of the Act, we propose to consider the

cross-objection on its merits without insisting for a formal application for

condonation of delay to be filed by the respondent.

9. Appearing in support of the appeal, Mr. Chaturvedi contended that there

was absolutely no material before the learned judge to decree the suit, yet,

he proceeded in that direction on a ground not traceable in the Act. The

learned judge, it was contended, was right in holding that the plea of

desertion was not maintainable but erred in observing by a stray sentence

that cruelty had been proved. He took us through the pleadings as well as

the oral evidence of the parties to buttress his contention that no case had

been set up by the respondent in the application under section 13 of the Act

for a decision in his favour. The learned judge, according to him, did not at

all apply his judicial mind and proceeded to decide the fate of the appellant

without viewing the facts and circumstances as well as the relevant law in

the proper perspective.

10. By citing the decisions reported in AIR 2009 SC 2254 (Visnu Dutt Sharma v.

Manju Sharma), AIR 2010 SC 193 (Neelam Kumar v. Dayarani), 2008 (3)

CHN 423 (Arpita Chakraborty v. Amit Chakraborty), AIR 2009 CAL 90 (Smt.

Piyasa Ghosh v. Somnath Ghosh) and 2009 (2) CHN 44 (Swapan Kumar

Chatterjee v. Sandhya Chatterjee), Mr. Chaturvedi contended that a

marriage cannot be dissolved on the ground of irretrievable breakdown of a
marriage by a District Court or even by the High Court; and, it is only the

Supreme Court exercising power under Article 142 of the Constitution that

can dissolve a marriage on such ground. Referring to paragraph 13 of the

decision in Neelam Kumar (supra), where the earlier decision in Visnu Dutt

Sharma (supra) was considered, he argued that if a party to the marriage by

his own conduct brings the relationship to a point of irretrievable

breakdown, he/she cannot be allowed to seek divorce on the ground of

breakdown of marriage and that is exactly the case here. There is nothing to

show that the appellant had contributed in any way to the alleged

breakdown of the marriage. He, thus, prayed for setting aside of the

impugned judgment and decree.

11. Per contra, Mr. Chatterjee contended that the judgment and decree, insofar

as it does not grant divorce on the ground of cruelty, is flawed. According to

him, the pleadings backed by the evidence led by the respondent were

sufficient to hold that he had been subjected to cruelty at the instance of the

appellant within the short time they were together and that the decree may

not be touched.

12. Citing the decision of a coordinate Bench of this Court reported in [1996] 2

CAL LT 23 (Gouri Manna v. Swapan Manna) where the Bench upheld the

decree passed by the trial court based on its perception that the marriage

between the parties had broken down to such an extent that they could no

longer live together as husband and wife and that it is better to close the

chapter, Mr. Chatterjee submitted that since there was no chance of a

reunion here the parties ought to be allowed to part ways. The decision
reported in [1996] 2 CAL LT 42 (
Kankana Rani Das v. Samir Kumar Das)

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was also cited by him where the coordinate Bench upheld the decree for

divorce on the ground of cruelty.

13. Since irretrievable breakdown of marriage is not one of the specified grounds

in section 13 of the Act on which a marital tie can be dissolved, we have no

hesitation in holding that the learned judge of the trial court was wholly

wrong in decreeing the suit on such ground.

14. But our task does not end here. We would now proceed to consider as to

whether the respondent did set up a case for dissolution of marriage on the

ground of cruelty and desertion.

15. The application giving rise to the suit consists of 20 paragraphs. While the

1st paragraph indicates the date of marriage, i.e. April 20, 2006, the 2nd

paragraph reveals that the parties after marriage started residing as

husband and wife. The material allegations of cruelty and desertion are

contained in paragraphs 3 to 14. According to the respondent, the appellant

after marriage declined to perform household works on the ground of ill-

health. She was obese and the doctor attending on her had advised strict

diet. The appellant was also advised to avoid spicy food and sweets and

remain on a strict non-oily diet. However, despite such advice, she did not

pay heed and pressed the husband hard for oily food and sweets. The

appellant at her own sweet will left for her paternal home and declined to

return despite the respondent requesting that he would bring her back. The

family members of the appellant once visited the respondent’s house and

created a pandemonium by hurling abusive languages towards the
respondent and his mother by denigrating their reputation. The respondent

was constantly threatened with proceedings under section 498A of the

Indian Penal Code, if the respondent did not act as per the dictates of the

family members of the appellant. Despite the doctor’s advice, the appellant

did not stop ordering cuisine and recipes at the odd hours of day and night

and an instance had been given of the appellant ordering ‘chilly-chicken’ to

be served to her for supper and it was the respondent’s mother who was

asked to cook for her. While the respondent tried to reason with the

appellant, she started seething in rage and instantly rang her parents who,

in turn, threatened the respondent by saying that unless he carries out the

appellant’s order, they would send the police on the very same night to get

them arrested on the allegation of torturing their daughter. Under

trepidation, the appellant had to go out and search for a dish of chilly-

chicken which fortunately he could manage from a roadside hotel

whereupon the same was offered to the appellant. Time and again, the

appellant pressurized the respondent and his mother for satiating her

unusual demands. Surprisingly, the parents-in-law of the respondent never

cared to convince the appellant to behave; on the contrary, they always

encouraged, instigated and indulged her, leading to worsening of the

situation. That apart, the appellant being unable to even handle a pressure-

cooker and because of mishandling of the same the mother of the

respondent receiving injury on one occasion was also pleaded. The

respondent having protested, was abused by the appellant. On May 24,

2007, the appellant once again started abusing the respondent and his
mother and insulted them which was followed by a call to her parents on

telephone. The family members of the appellant came along and all of them

shouted and abused the respondent in filthy language. Sensing that the

situation was worsening, the respondent called for the police who intervened

and realizing that the situation was taking a turn for the worse, advised the

appellant to leave for her father’s house and stay there till the dispute is

over. Since then the appellant had been living in the care and custody of her

father. These allegations formed the plinth of the application seeking decree

for dissolution of marriage.

16. The appellant entered appearance in the suit and filed a written statement,

where the material allegations in the application were categorically denied

and disputed. According to her, after solemnization of marriage, she always

tried to adjust with the respondent for living a happy and peaceful conjugal

life but it was the respondent, his mother and sister who were reluctant to

cooperate with the appellant. It is they who used to mentally torture and

pressurize the appellant to bring further money. They also abused the

appellant in filthy language. On her failure to fulfil their demand for money,

lastly on May 24, 2007 the respondent and her mother drove the appellant

out of her matrimonial home by uttering filthy language and since then she

has been residing with her parents. She, accordingly, prayed for dismissal of

the suit.

17. The respondent was the sole witness on behalf of the prosecution whereas

the appellant was the sole defence witness. In their respective examination-
in-chief, the respondent and the appellant reiterated what they had pleaded

in the application and the written statement respectively.

18. In course of cross-examination, the respondent could not produce any

prescription of the doctor advising the appellant to avoid sweets and oily

food. According to him, it was a verbal instruction. He also stated that after

May 24, 2007, he had never visited his in-laws house to bring back the

appellant. In course of cross-examination, the appellant stated that she had

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lodged a complaint under section 498A of the Indian Penal Code on October

15, 2008 and that the summons of the suit was received by her prior to

lodging such complaint. She also stated about pendency of an application

for maintenance under section 125 Code of Criminal Procedure.

19. It was on the basis of these pleadings and oral evidence that the following

issues were framed by the learned Judge for decision:

“1. Is the suit maintainable in its present form?

2. Whether the petitioner was subjected to mental cruelty by the

respondent/wife as alleged?

3. Whether the petitioner is entitled to get decree of divorce as prayed

for?

4. To what other relief or reliefs, if any, the petitioner is entitled?”

20. Bare perusal of the judgment authored by the learned Judge reveals that the

suit was instituted on May 31, 2007 i.e. exactly a week after the appellant

left for her matrimonial home on May 24, 2007, as alleged in the application.

On the ground of non-compliance of section 13(1) (ib) of the Act, the
respondent was held not entitled to any decree for divorce on the ground of

desertion.

21. It would now be our endeavour to examine the allegation of cruelty levelled

by the respondent against the appellant and decide whether the respondent

is entitled to a decree on such ground or not.

22. We would preface our discussion by referring to two decisions of the

Supreme Court explaining what would constitute cruelty, sufficient to

attract section 13(1)(ib) of the Act. Although it is difficult to enumerate

instances of cruelty with precision, certain illustrative instances of cruelty to

guide the judicial fora while deciding whether a decree for divorce ought to

be passed or not on the ground of cruelty have been neatly laid down by the

Supreme Court in its decision reported in (2007) 4 SCC 511 (Samar Ghosh

v. Jaya Ghosh). In the recent past, the Supreme Court in its decision

reported in (2013) 5 SCC 226 (K. Srinivas Rao v. D.A. Deepa) enumerated a

few more in addition to the instances in Samar Ghosh (supra).

23. Bearing the said decisions in mind, we proceed to deal with the point. There

is a finding in the impugned judgment reading as follows:

“available evidence on record clears that the petitioner, by such
cruelty, faced to cause a reasonable apprehension in his mind that it
would be harmful or injurious for him to live with the
respondent/wife”.

24. Mr. Chaturvedi has taken strong exception to such finding by submitting

that the same is not supported by the materials on record. On the contrary,

Mr. Chatterjee has relied on the same to persuade us hold in favour of the

respondent that the decree for divorce should have been granted on the

ground of cruelty.

25. We have referred to the pleadings as well as the evidence on record above to

ascertain the worth of the finding rendered by the learned Judge, extracted

above.

26. The standard of proof applicable in a civil case is that of preponderance of

probabilities. The allegations of cruelty levelled by the respondent appear to

be trivial in nature. It is indeed difficult to find a married couple who have

not faced any conflict in their nuptial life and could be regarded as an ideal

couple. The simple trivialities which have emerged from the evidence on

record can truly be described as the reasonable wear and tear of the nuptial

life of the parties. We are not persuaded to hold that the allegations of

cruelty levelled by the respondent were of such worth that they constitute

cruelty sufficient to warrant a divorce, on the anvil of the guidance provided

by the aforesaid two decisions. This is apart from the legal position of the

factual allegations levelled by the respondent not tantamounting to proof of

fact, even on application of the test of preponderance of probabilities. The

learned Judge returned the aforesaid finding not to decree the suit on the

ground of cruelty but perceived that having regard to the attending

circumstances where the spouses were staying apart and that they had no

issue and also that the respondent was not willing to take the appellant

back, a situation had arisen where it would not be in the interest of both the

parties to continue their bitter marital relationship. It is based on such

consideration that the suit was decreed on the ground of irretrievable break

down; and that was clearly beyond the powers of the learned Judge. The

precedents cited by Mr. Chaturvedi are apt and apply on all fours here. We
unhesitatingly hold that even the finding of cruelty is perverse and not

supported by the available evidences on record.

27. Over and above the aforesaid discussions, the learned Judge does not

appear to have been mindful of section 23 of the Act. This is an additional

reason for which the judgment and decree cannot be sustained.

28. We, therefore, find no reason to sustain the impugned judgment and decree.

The same stands set aside. The appeal stands allowed; the cross-objection

stands rejected. There shall be no order for costs.

Urgent photostat certified copy of this judgment and order, if applied, may be

furnished to the applicant at an early date.

(DIPANKAR DATTA, J.)

DEBI PROSAD DEY, J. :

I agree.

(DEBI PROSAD DEY, J.)

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