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8.12.18 Dr. Swarnali Gupta vs Dr. Santanu Gupta on 18 December, 2018

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sandip C.O. No. 3081 of 2018
(Assigned)
Ct. 21
18.12.18 Dr. Swarnali Gupta
Versus
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
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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

for divorce.

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
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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
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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

record.

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
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the other party-

“(i)…………………………….

(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

reference:-

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

respondent-

“(a) ………………………….

(b) …………………………..

(c) …………………………..

(d) has since the solemnization of the marriage
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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.

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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.)
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