sandip C.O. No. 3081 of 2018
18.12.18 Dr. Swarnali Gupta
Dr. Santanu Gupta
Mr. Rabindra Narayan Dutta,
Mr. Arun Kr. Ghosh,
Mr. Sibasis Ghosh,
Mr. Hare Krishna Halder,
Ms. Debjani Bandyopadhyay … for the petitioner.
Mr. Probal Mukherjee, Sr. Adv.,
Mr. Bhaskar Mukherjee … for the opposite party.
The revisional application under Article 227 of
the Constitution of India is at the instance of the wife,
the respondent in a matrimonial suit filed by the
opposite party and is directed against Order No. 83
dated July 16, 2018 passed by the learned Additional
District Judge, 5th Court, Barasat, District North 24 –
Parganas in Matrimonial Suit No. 43 of 2011.
The opposite party filed the said matrimonial
suit seeking dissolution of his marriage with the
petitioner on the ground of cruelty. The said petition for
divorce has been captioned as one under Section 13 of
the Hindu Marriage Act, 1955.
The wife entered appearance and has been
contesting the suit by filing written statement. In the
written statement, the wife has stated that her
marriage with the petitioner was solemnized under the
provisions of the Special Marriage Act, 1954. The said
marriage was not solemnized according to Hindu Rites
and Customs as alleged by the husband in the petition
The cross-examination of the P.W. 1 was fixed on
July 16, 2018. The wife on the said date filed three
applications, one for dismissal of the matrimonial suit
on the ground that the marriage since has been
solemnized under the provisions of the Special
Marriage Act, 1954 cannot be dissolved by a proceeding
under the provision the Hindu Marriage Act, 1955.
The second application was for framing of a
preliminary issue regarding the maintainability of the
suit and the third application was for shifting the suit
from the peremptory hearing board.
The wife on the said date, i.e. on July 16, 2018
prayed adjournment of the hearing of the suit.
The learned trial Judge in view of the direction
passed by this Court for expeditious disposal of the
matrimonial suit refused to grant adjournment to the
wife and after rejecting the said application for
adjournment proceeded to deal with the
aforementioned three applications.
The learned Trial Judge by the order impugned
dismissed the application filed by the wife for dismissal
of the suit on the ground of maintainability holding,
inter alia, that the husband is seeking the divorce on
the ground of cruelty but wrongly captioned the
petition for divorce as one under Section 13 of the
Hindu Marriage Act, 1955 and such wrong mentioning
of the Section does not render the suit invalid,
particularly when the wife claimed her maintenance
pendente lite by filing an application under Section 24
of the Hindu Marriage Act, 1955 and obtained an order
in her favour on the said application.
The learned Trial Judge dismissed the
application filed by the wife for framing of a preliminary
issue regarding the maintainability of the suit holding
that such an issue has already been framed in the suit.
Mr. Sibasis Ghosh, learned advocate appearing
on behalf of the petitioner contends that until and
unless a petition for divorce is not suitably amended by
converting the same one under the provisions of
Special Marriage Act, 1954 the opposite party cannot
maintain the suit for divorce under the provisions of
the Hindu Marriage Act,1955 as the marriage between
the parties was solemnized under the provisions of the
Special Marriage Act, 1954.
Heard Mr. Ghosh. Perused the materials on
The petition for divorce although has been
captioned as one under Section 13 of the Hindu
Marriage Act, 1955 but the husband/opposite party is
seeking dissolution of his marriage with the
wife/petitioner on the ground of cruelty..
The marriage solemnized according to Hindu
Rites and Customs can be dissolved at the instance of
either of the parties to the marriage on the proof of any
of the grounds mentioned under Section 13 of the
Hindu Marriage Act, 1955.
Section 13(1)(ia) of the said Act provides cruelty
as one of the grounds for divorce. The said provision of
the said Act is quoted below for ready reference:-
13. Divorce.-(1) Any marriage solemnized, whether
before or after the commencement of this Act, may, on
a petition presented by either the husband or the wife,
be dissolved by a decree of divorce on the ground that
the other party-
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
A marriage solemnized under the provision of the
Special Marriage Act, 1954 can be dissolved by a
decree of divorce at the instance of either of the parties
to the marriage on the proof of any of the grounds
mentioned under Section 27 of the said Act.
Section 27 (1)(d) of the aforesaid Act also provides
cruelty as one of the grounds for divorce. The said
provision of the said Act is quoted below for ready
Divorce.- (1) Subject to the provisions of this Act
and to the rules made thereunder, a petition for divorce
may be presented to the district court either by the
husband or the wife on the ground that the
(d) has since the solemnization of the marriage
treated the petitioner with cruelty.”
There cannot be any doubt that Section 27 (1)(d) of the
Special Marriage Act, 1954 is akin to Section 13(1) (ia)
of the Hindu Marriage Act,1955.
“Cruelty” under both the aforementioned
provisions are the conduct and/or action of the erring
spouse on which the other spouse is seeking the
dissolution of marriage. Therefore, the opposite party
can get the relief as prayed for in the suit on the proof
of the ground of cruelty which is similar under the
provisions of both the above mentioned Acts. Therefore,
caption of the petition for divorce has no significance in
the matter of maintaining a suit for divorce on the
ground of cruelty. It is mere a procedural irregularity
cannot effect the maintainability of the suit. The said
irregularity is always open to rectification.
The filing of such kind of applications at the stage
of peremptory hearing of the suit reflects the malafide
intention of the wife to arrest the progress of the suit
which this Court highly deprecates.
With the above observation, C.O. No. 3081 of
2018 is dismissed.
No order as to costs.
The learned trial Judge is requested to dispose
of the suit expeditiously without granting any
unnecessary adjournment to either of the parties
preferably within a period of six months from the date
of communication of this order.
It is however made clear that in the event of
default in making the payment of regular maintenance,
the direction for expeditious disposal of the suit will not
be given effect to.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties subject to
compliance with all requisite formalities.
(Biswajit Basu, J.)