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,
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)
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
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.)