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Dr.Kiran Kumar vs Dr.Bini Marim Chandi on 11 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

THURSDAY ,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940

Mat.Appeal.No. 1017 of 2017

AGAINST THE JUDGMENT AND DECREE IN OP 2050/2011 of FAMILY
COURT,TRIVANDRUM DATED 08-06-2017

APPELLANT/COUNTER PETITIONER:

DR.KIRAN KUMAR
S/O.SASIDHARAN, ‘VISAK’, TC.5/1947(2), AMBALAMUKKU,
KOWDIAR, THIRUVANANTHAPURAM.

BY ADVS.
SRI.S.V.PREMAKUMARAN NAIR
SMT.M.BINDUDAS
SMT.P.S.ANJU
SRI.P.K.JANARDHANAN
SRI.R.T.PRADEEP

RESPONDENT/PETITIONER:

DR.BINI MARIM CHANDI
D/O.CHANDY ABRAHAM, RESIDING AT ENCHAKKATTIL HOUSE,
MATHILBHAGOM, THIRUVALLA P.O., PATHANAMTHITTA-689695.

SMT.MAJIDA.S
SMT.MAJIDA.S CAVEATOR
DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2018,
THE COURT ON 11.10.2018 DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ.
**************************
Mat.Appeal No.1017 of 2017
———————————————-
Dated this the 11th day of October, 2018

JUDGMENT

R.Narayana Pisharadi, J

To marry or not to marry and if so whom, may well be a

private affair. But, the freedom to break a matrimonial tie is not

(Dastane v. Dastane : AIR 1975 SC 1534).

2. The appellant is the husband and the respondent is

the wife. The husband challenges the decree of divorce passed

against him by the Family Court, Thiruvananthapuram in

O.P.No.2050/2011 filed by the wife.

3. The parties shall be hereinafter referred to as the

petitioner and the respondent as they figure in

O.P.No.2050/2011.

4. The petitioner filed O.P.No.2050/2011 against the

respondent under Section 27 of the Special Marriage Act, 1954

(wrongly stated as Section 26 of the Act in the petition for
Mat.Appeal No.1017/2017
3

divorce) on the ground of cruelty. The petition for divorce was

subsequently amended incorporating a variety of allegations

against the husband.

5. The respondent filed counter statement denying the

allegations raised against him by the wife. He also filed additional

counter statement after amendment of the petition for divorce.

6. During the trial of the case, PW1 to PW3 were examined

and Ext.A1 document was marked on the side of the petitioner. CPW1

to CPW3 were examined on the side of the respondent.

7. After appreciating the evidence on record, the Family

Court found that the petitioner succeeded in proving that the

respondent had treated her with cruelty. Accordingly, the Family

Court granted a decree of divorce dissolving the marriage

between the petitioner and the respondent, which was

solemnised on 18.8.2008, in accordance with the provisions of

the Special Marriage Act, 1954.

8. We have heard Sri.R.T.Pradeep, learned counsel for

the appellant and Smt.Majida, learned counsel for the

respondent. We had also the assistance of Dr.Sebastian
Mat.Appeal No.1017/2017
4

Champappilly, who was appointed as amicus curiae. We have

also perused the records of the case.

9. Section 27(1)(d) of the Special Marriage Act, 1954

provides that, subject to the provisions of that Act and 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 has since the solemnisation of the marriage

treated the petitioner with cruelty.

10. The petitioner and the respondent are doctors. They

were in love with each other. On 15.5.2008, they got married in

a church at Thiruvalla. Thereafter on 18.8.2008, they solemnised

a marriage under the provisions of the Special Marriage Act,

1954.

11. At the time of the marriage, the respondent was

working in a hospital. After the marriage, the petitioner got

admission for M.D course in Odisha. The respondent then

resigned his job and joined a hospital in Andhra Pradesh. During

the weekends, he used to visit the petitioner in Odisha. After

completing her post graduate course, the petitioner returned to
Mat.Appeal No.1017/2017
5

Kerala in the year 2010. She got employment in a hospital. The

respondent also returned to Kerala and he got employment in the

hospitals here. They started to reside together in an apartment

in Thiruvananthapuram.

12. We do not propose to discuss on the trifles of the

matrimonial relationship of the parties. The petitioner has

alleged numerous incidents in the amended petition in order to

show the cruel conduct on the part of the respondent. But the

simple trivialities which can truly be described as reasonable

wear and tear of married life, do not require consideration. The

petitioner has also not adduced any convincing evidence on such

trivial incidents alleged in the petition for divorce. We need only

consider the evidence adduced by the parties with regard to the

grave and weighty allegations or incidents mentioned in the

petition for divorce.

13. The main allegation against the respondent is that, he

was always suspicious of the moral character of the petitioner

and that he always used to make accusations of infidelity and

immorality against her. What is highlighted in the petition for
Mat.Appeal No.1017/2017
6

divorce is the imputations made by the respondent on the

character of the petitioner, especially the accusation of illicit

relationship by her with her colleagues in the profession.

14. An incident that took place on 14.10.2011 is projected

in the petition for divorce in order to prove the conduct and

behaviour of the respondent towards the petitioner. The details

of this incident are narrated in the petition for divorce.

15. The petitioner was examined as PW1. She has given

evidence regarding the incident that occurred on 14.10.2011.

She has stated in the examination-in-chief as follows: She had

night duty in the hospital on the previous day. After the night

duty, she had to go to her house in the morning. The respondent

told her that he would drop her at Adoor. She told him that she

would come to the apartment after night duty and she would

have a bath before going to her house. A junior doctor working

with her dropped her at the place ‘Nalamchira’, after night duty.

The respondent picked her up from ‘Nalamchira’ and took her to

the apartment. He did not like the colleague of the petitioner

accompanying her. He checked the call list in her mobile phone
Mat.Appeal No.1017/2017
7

while she was bathing. He saw the phone number of the doctor

in the call list. On the way to Adoor, the respondent quarrelled

with her in the car stating that she had illicit relationship with the

doctor who had earlier accompanied her from the hospital. He

stopped the car at ‘Chadayamangalam’ and beat her. Hearing her

sound, two passengers who were travelling on a motor cycle

reached near the car. The respondent told them that his wife

was in the car and she was with another person during the

previous day and that he had taken her from there in the

morning. Then the passengers looked at the petitioner as if she

was a woman of immoral character. The petitioner then called

her father. Her father told her that he would come and take her

home. But the respondent told her father that he would drop her

at Adoor. They reached Adoor and then her parents came there

and took her with them.

16. The evidence of PW1 regarding the incident that took

place on 14.10.2011 practically remains unchallenged in the

cross examination by the respondent. Only a bald suggestion was

made to PW1 in the cross examination that no such incident took
Mat.Appeal No.1017/2017
8

place. PW1 denied the suggestion made to her in that regard.

The respondent was examined as CPW1. In the affidavit filed in

lieu of examination-in-chief, he has only stated that the incident

on 14.10.2011 alleged by the petitioner is imaginary.

17. It is to be noted that the allegation regarding the

incident that took place on 14.10.2011 is not one introduced by

the petitioner after the amendment of the petition for divorce.

Even before the amendment, the petition for divorce contained

averments regarding this incident. After amendment of the

petition for divorce, only more details regarding the incident were

incorporated in it.

18. PW2 is a friend of the petitioner. She is a doctor. She

was a classmate of the petitioner. The evidence of PW1,

regarding the conduct of the respondent imputing infidelity on

her, is corroborated by the evidence of PW2. She has given

evidence that in the month of October, 2011 she could not

contact the petitioner over phone and then she called the

respondent. PW2 has given evidence that then the respondent told

her that the petitioner has got illicit relationship with another doctor.
Mat.Appeal No.1017/2017
9

19. The uncle of the petitioner was examined as PW3. He

has given evidence that, with a view to solve the problems

between the petitioner and the respondent, he went to the

apartment of the respondent along with the parents of the

petitioner. PW3 has given evidence that, then the respondent told

him that the petitioner has got illicit relationship with another

man. The evidence of PW3 also corroborates the evidence of

PW1 regarding the conduct of the respondent imputing

immorality and infidelity on his wife.

20. When examined as PW1, the petitioner has given

evidence that after the incident on 14.10.2011, the respondent

called her colleagues in the hospital and told them that she was

having illicit relationship with a doctor. Her colleagues asked her

about it. PW1 has stated that on account of shame, she took

leave from the hospital for a month. Ultimately, she had to

resign the job in the hospital.

21. CPW2 is a relative of the respondent. CPW3 is the

husband of the sister of the respondent. Their evidence does not

contain anything with regard to the specific allegations raised
Mat.Appeal No.1017/2017
10

against the respondent by the petitioner.

22. On an appreciation of the evidence of PW1 to PW3 and

CPW1, it can very well be found that the respondent suspected

the chastity of the petitioner and that he had told her relatives

and colleagues that she is a person having immoral and illicit

relationship with other men, especially with a doctor who was

working in the hospital with her. The incident alleged to have

occurred on 14.10.2011 is proved by the evidence of the

petitioner. This incident indicates the conduct and behaviour of

the respondent towards the petitioner. The evidence of PW1 also

proves that, on account of the conduct of the respondent,

spreading allegations of unchastity and infidelity on her, she had

to take leave from the hospital for one month and ultimately she

had to resign the job in the hospital.

23. The question now arises whether the conduct of the

respondent imputing infidelity and immorality on the petitioner

amounts to inflicting mental cruelty.

24. Mental cruelty is that conduct which inflicts upon the

other party such mental pain and suffering as would make it not
Mat.Appeal No.1017/2017
11

possible for that party to live with the other (See V. Bhagat v. D.

Bhagat : (1994) 1 SCC 337). To constitute cruelty, the conduct

complained of should be ‘grave and weighty’ so as to come to the

conclusion that the petitioner spouse cannot reasonably be

expected to live with the other spouse. It must be something

more serious than ‘ordinary wear and tear of married life’. The

court dealing with the petition for divorce on the ground of

cruelty has to bear in mind that the problems before it are those

of human beings. The psychological changes in a spouse’s

conduct have to be borne in mind before disposing of the petition

for divorce. However insignificant or trifling, certain conduct may

cause pain in the mind of another. But, before the conduct can be

called cruelty, it must touch a certain pitch of severity. It is for

the court to weigh the gravity. It has to be seen whether the

conduct was such that no reasonable person would tolerate it. It

has to be considered whether the act or conduct of the spouse is

of such a nature that petitioner could endure it as a part of

normal human life (See A. Jayachandra v. Aneel Kaur : AIR 2005

SC 534).

Mat.Appeal No.1017/2017
12

25. In the instant case, during the course of the incident

that took place on 14.10.2011, the respondent had publicly

humiliated the petitioner by telling two strangers that his wife

was sleeping with another man on the previous night. One could

imagine the mental agony and pain felt by the petitioner due to

such conduct of the respondent. Further, the respondent had

told PW2, who is a friend of the petitioner and also a doctor, that

the petitioner had illicit relationship with another doctor who was

working in the same hospital. It has also been proved that the

respondent had informed the colleagues of the petitioner in the

hospital that she was having an affair with another doctor. Thus

the respondent made her a subject of scandal in the hospital

where she was working. The petitioner had to take leave for a

period of one month and ultimately she had to resign from the

hospital on account of shame. These incidents indicate that the

respondent was in the habit of imputing infidelity and immorality

on the part of his wife. The conduct of the respondent amounted

to character assassination of the petitioner affecting her

reputation among her colleagues and friends. Injury to
Mat.Appeal No.1017/2017
13

reputation is an important consideration in dealing with the

question of cruelty.

26. Making false, frivolous and baseless accusation of

infidelity and immorality against the spouse to the colleagues of

the spouse, amounts to cruelty in law (See Iris Paintal v. Autar

Singh Paintal: AIR 1988 Delhi 121). Baseless accusation of

immorality against the spouse constitutes mental cruelty (See

Iqbal Kaur v. Pritam Singh : AIR 1963 PH 242). There can be no

more insulting injury to the wife than her own husband doubting

her chastity (See Sumanbai v. Anandrao Onkar Panpatil: AIR

1976 Bom 212). Communication of false, defamatory, scandalous

and baseless allegations against the spouse to his/her superiors

amounts to cruelty (See Savitri Balchandani v. Mulchand

Balchandani: AIR 1987 Delhi 52). Raising wild allegations against

the spouse of having illicit relations with an office colleague, per

se casting a slur on the character, integrity and morality of the

spouse, constitutes cruelty without further more (See Ashok

Kumar v. Jyoti : 2018 KHC 2845).

27. In Raj v. Kavita : AIR 2017 SC 2138, the Apex Court
Mat.Appeal No.1017/2017
14

has held that, conduct of a spouse levelling false accusations

against the other spouse which would have the effect of lowering

his/her reputation in the eyes of his/her peers, would be an act

of cruelty.

28. In Vijay Kumar v. Neela : AIR 2003 SC 2462, the

Apex Court has held that levelling disgusting accusations of

unchastity and indecent familiarity with a person outside wedlock

and allegations of extra-marital relationship is a grave assault on

the character, honour, reputation, status as well as the health of

the wife and such aspersions of perfidiousness attributed to the

wife, viewed in the context of an educated Indian wife and

judged by Indian conditions and standards, would amount to the

worst form of insult and cruelty, sufficient by itself to

substantiate cruelty in law.

29. In Narendra v. Meena : AIR 2016 SC 4599, it has

been held that, levelling of absolutely false allegations and that

too with regard to an extra-marital life, is quite serious and that

can surely be a cause for mental cruelty.

30. Learned counsel for the respondent contended that
Mat.Appeal No.1017/2017
15

the solitary incident on 14.10.2011, even if taken as proved, is

not sufficient to grant a decree of divorce on the ground of

cruelty. There is no force in this submission. Mental cruelty will

not depend upon the numerical count of incidents or only on the

continuous course of such conduct, but really go by the intensity,

gravity and stigmatic impact of it when meted out even once and

the deleterious effect of it on the mental attitude of the spouse,

necessary for maintaining a conducive matrimonial home (See

Vinita Saxena v. Pankaj Pandit : AIR 2006 SC 1662).

31. The conduct of the respondent humiliating the

petitioner imputing infidelity and immorality on her part was

indicative of his mental attitude towards her. The allegation of

cruelty is based not solely on the incident that occurred on

14.10.2011. The trauma and agony undergone by the petitioner

by the subsequent conduct of the respondent in spreading a

scandal that she had illicit relationship with another doctor

cannot be ignored. Unending accusations and imputations can

cause more pain and misery than physical beating.

32. It is difficult to establish mental cruelty by direct
Mat.Appeal No.1017/2017
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evidence. It is necessarily a matter of inference to be drawn from

the facts and circumstances of the case. A feeling of anguish,

disappointment and frustration in one spouse caused by the

conduct of the other can only be appreciated on assessing the

attending facts and circumstances in which the two partners of

matrimonial life have been living. The inference has to be drawn

from the attending facts and circumstances taken cumulatively.

An instance of misbehaviour shall not be taken in isolation. The

approach should be to take the cumulative effect of the facts and

circumstances emerging from the evidence on record and then

draw a fair inference whether the petitioner in the divorce

petition has been subjected to mental cruelty due to conduct of

the other (See Parveen Mehta v. Inderjit Mehta : AIR 2002 SC

2582). In a delicate human relationship like matrimony, one has

to see the probabilities of the case. The concept of proof beyond

the shadow of doubt is to be applied to criminal trials and not to

civil matters and certainly not to matters of such delicate

personal relationship as those of husband and wife. Therefore,

one has to see what are the probabilities in a case and legal
Mat.Appeal No.1017/2017
17

cruelty has to be found out, not merely as a matter of fact, but

as the effect on the mind of the complainant spouse due to the

acts or omissions of the other. In the case of mental cruelty,

there may not be tangible and direct evidence. In cases where

there is no direct evidence, courts are required to probe into the

mental process and mental effect of incidents that are brought

out in evidence. It is in this view that one has to consider the

evidence in matrimonial disputes (See A. Jayachandra v. Aneel

Kaur : AIR 2005 SC 534).

33. The court should bear in mind the physical and mental

condition of the parties as well as their social status, and should

consider the impact of the personality and conduct of one spouse

on the mind of the other, weighing all incidents and quarrels

between the spouses from that point of view; further, the

conduct alleged must be examined in the light of the

complainant’s capacity for endurance and the extent to which

that capacity is known to the other spouse. Intention is not a

necessary element in cruelty. The relief to the party cannot be

denied on the ground that there has been no deliberate or wilful
Mat.Appeal No.1017/2017
18

ill treatment (See Samar Ghosh v. Jaya Ghosh : (2007) 4 SCC

511).

34. In the instant case, the petitioner has been able to

prove that the respondent was in the habit of raising allegations

against her which impinge on her character and morality. He was

always taunting her accusing her of having illicit relationship with

her colleague. Any woman with reasonable self-respect and

power of endurance would find it difficult to live with such a

suspicious and taunting husband. We find that the lower court

has rightly come to the conclusion that the petitioner was treated

with cruelty by the respondent and that she is entitled to get a

decree of divorce on that ground.

35. Learned counsel for the appellant submitted that the

marriage between the petitioner and the respondent was

solemnised in a church on 15.05.2008 and the marriage was

again solemnised under the provisions of the Special Marriage

Act, 1954 on 18.08.2008. Learned counsel would contend that

the marriage between the petitioner and the respondent, which

was solemnised in the church on 15.05.2008, was a valid
Mat.Appeal No.1017/2017
19

marriage and it would prevail over the marriage solemnised as

per the provisions of the Special Marriage Act, 1954. Learned

counsel further contended that the situation being so, the

petition for divorce filed under Section 27 of the Special Marriage

Act, 1954 is not maintainable. Learned counsel would submit

that the petition for divorce should have been filed under Section

10 of the Divorce Act, 1869.

36. Per contra, learned counsel for the respondent

contended that there was no valid marriage solemnised between

the parties in the church. Learned counsel would point out that

the appellant was a Hindu and the respondent in the appeal is a

Christian and therefore, no valid marriage could have been

solemnised between them in a church. Learned counsel would

further contend that the marriage between the parties

solemnised under the provisions of the Special Marriage Act,

1954 would prevail over the invalid marriage which took place in

the church.

37. There is no dispute with regard to the fact that a

marriage was conducted between the petitioner and the
Mat.Appeal No.1017/2017
20

respondent in the church on 15.05.2008. There is also no

dispute with regard to the fact that the marriage between the

parties was subsequently solemnised under the provisions of the

Special Marriage Act, 1954 on 18.08.2008.

38. The Indian Christian Marriage Act, 1872 is not

applicable to territories which were comprised in the erstwhile

State of Travancore – Cochin existed before the 1 st November,

1956. It is expressly provided so in Section 2 of the Indian

Christian Marriage Act, 1872. The marriage between the parties

in the instant case had taken place in an area comprised in the

erstwhile Travancore State. The parties are also persons hailing

from that area. Therefore, the marriage between the parties is

not governed by the provisions of the above mentioned statute

(See also Leelamma v. Dilip Kumar : 1992 (1) KLT 651 and

Sujatha v. Jose Augustine : 1994(2) KLT 4).

39. The appellant belongs to Hindu Sambava community.

There is no convincing evidence to find that before undergoing

the ceremony of marriage conducted in the church the appellant

had professed Christianity. When examined as CPW1, the
Mat.Appeal No.1017/2017
21

appellant/respondent has stated in the cross-examination that he

belonged to Hindu Sambava community. He has also stated that

he has no religion and that he believes in Christ as well as

Krishna. He did not state that he had professed Christianity

before the marriage which was conducted in the church. He did

not state that he is a person professing Christianity. In these

circumstances, it has to be found that at the time of the marriage

solemnised in the church, the appellant was not a person

professing Christianity and that he was not a Christian at that

time.

40. At this juncture, it may also be noted that the

appellant still enjoys the benefits available in the Government

service in his capacity as a person who belongs to Hindu

Sambava community. This is a fact admitted by him in his

evidence.

41. It has come out in the evidence of CPW1 that he had

obtained a certificate from the church for solemnisation of

marriage in the church. It is also stated that he had got

certificate of marriage from the church where the marriage was
Mat.Appeal No.1017/2017
22

conducted. The appellant/respondent did not produce any such

document before the court.

42. When the marriage is not governed by any statutory

law, the validity of the marriage has to be decided in accordance

with the personal law applicable. The appellant did not produce

before the court the documents which he had allegedly obtained

from the church authorities regarding the marriage which was

conducted in the church. It follows that there was no valid

marriage solemnised between the parties in the church. If that

be so, the marriage solemnised as per the provisions of the

Special Marriage Act, 1954 is the valid marriage that existed

between the parties.

43. We also take notice of the fact that the marriage

between the parties was solemnised under Chapter II of the

Special Marriage Act, 1954. Ext.A1 is the copy of the certificate

of marriage issued under Section 13 of the Special Marriage Act,

1954. Had the marriage between the parties conducted in the

church been valid, it was not necessary for the parties to

solemnise the marriage under Chapter II of the Special Marriage
Mat.Appeal No.1017/2017
23

Act, 1954. It would have been necessary only to register the

marriage under Chapter III of the Special Marriage Act, 1954.

The very fact that the marriage between the parties was

solemnised by them under the provisions of Chapter II of the

Special Marriage Act, 1954 would indicate that the parties were

also aware and conscious of the fact that the marriage between

them conducted in the church was not valid.

44. In Deepti Rajan v. Rajasekhar : 2016 (1) KLT

470, a Division Bench of this Court consisting one of us (Justice

C.K.Abdul Rehim), has held as follows:

“If a valid marriage is established between the
spouses on a particular date, a second marriage
between the same parties will become insignificant
for the purpose of establishment of a legal
relationship under the marital tie. In certain cases,
even if a second marriage between the same
parties is solemnized, the date of such
solemnization will be of no consequence or
significance, because of the existing marital
relationship established legally, on an earlier point
of time. In such situation, the subsequent
marriage becomes void at the option of any one of
the parties to the marriage. In other words, any
Mat.Appeal No.1017/2017
24

one of the spouses may be entitled to take a
contention that the other party cannot seek for a
dissolution based on the marriage solemnized
subsequently, because the marital relationship has
already come into existence on a prior date, based
on the marriage contracted earlier”.

45. In Prabir Chandra Chatterjee v. Kaveri Guha: AIR

1987 Cal 191, the wife had filed a petition for divorce labelling it

as both under under Section 13 of the Hindu Marriage Act, 1955

and Section 27 of the Special Marriage Act, 1954. In that case,

the marriage between the parties was first solemnised according

to Hindu rites under the Hindu Marriage Act, 1955 and it was

thereafter also registered under Section 13 of the Special

Marriage Act, 1954. The Calcutta High Court held that a marriage

validly solemnised under any other form cannot, so long as it

continues, be again solemnised under Chapter II of the Special

Marriage Act and it can only be registered under Chapter III of

the Special Marriage Act. It was further held that on such

registration of the marriage under Chapter III, the marriage shall

thereafter be deemed to be solemnised under the Special

Marriage Act. It was also held that a solemnisation under Chapter
Mat.Appeal No.1017/2017
25

II of the Special Marriage Act of a marriage already duly

celebrated and solemnised under another form, as distinguished

from its subsequent registration under Chapter III, would be of

no legal effect and significance and in such a case, the earlier

marriage duly solemnised in some other form would continue to

be valid and effective as before. It was also held that in case of

existence of an earlier marriage, a purported solemnisation of the

marriage between the parties under Chapter II of the Act would

be entirely an exercise in futility and that the earlier marriage

celebrated under the Hindu rites would be the only marriage for

consideration.

46. In Anupam Das v. Mampi Das (AIR 2008 Gauhati

3), the marriage between the parties was solemnised and

registered under the provisions of the Special Marriage Act. The

marriage was again solemnised at a temple according to Hindu

rites. The wife filed a petition under Section 13 of the Hindu

Marriage Act, 1955 for dissolving her marriage by a decree of

divorce, on the ground of cruelty. The husband raised a

contention that when the marriage had been solemnised and duly
Mat.Appeal No.1017/2017
26

registered under the provisions of the Special Marriage Act, the

trial court had no inherent jurisdiction to entertain and proceed

with the divorce petition filed by the wife under Section 13 of the

Hindu Marriage Act, 1955. The Gauhati High Court noticed that

the act of “cruelty” is one of the grounds for dissolving a

marriage by a decree of divorce which is common to both Hindu

Marriage Act and the Special Marriage Act and that a wrong label

given to the petition for divorce or a wrong provision of law

quoted will not affect the power of the trial court . However, the

Court directed the trial court to proceed with the divorce petition

in accordance with the provisions the Special Marriage Act and

not under the Hindu Marriage Act. In other words, the Gauhati

High Court accepted the contention of the husband that the valid

marriage was the one solemnised under the Special Marriage Act

and not the subsequent marriage solemnised as per Hindu rites.

47. However, the dictum laid down in Deepti Rajan

(supra), Prabit Chandra (supra) and Anupam Das (supra), can

have no application to the facts of the instant case for the simple

reason that the marriage between the parties solemnised in the
Mat.Appeal No.1017/2017
27

church at an earlier point of time is not a legally valid marriage.

48. In Suman Kundra vs. Sanjeev Kundra : AIR 2015

Delhi 124, the husband filed a petition against the wife for grant

of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu

Marriage Act, 1955 on the grounds of cruelty and desertion. The

parties were Hindus. They had got married on 29.10.1986 as per

Hindu rites and ceremonies. The marriage, though a love

marriage, could not continue for very long and the relationship

soured. As a consequence, the marriage was got dissolved by a

decree of divorce on 02.06.1988. After the decree of divorce

having been passed, the parties were drawn against each other

once again and they decided to get re-married for a second time.

On 03.05.1990, their marriage was solemnized under the Special

Marriage Act. Again the parties could not reconcile their inherent

differences. On 21.07.2005, the husband filed a petition for

divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu

Marriage Act, 1955 on the grounds of cruelty and desertion. The

wife then filed an application seeking dismissal of the petition for

divorce on the ground that the marriage had taken place under
Mat.Appeal No.1017/2017
28

the Special Marriage Act and the divorce petition filed under the

Hindu Marriage Act was not maintainable. The trial court

dismissed the application filed by the wife by holding that it had

the jurisdiction to entertain the petition for divorce under both

enactments and cruelty, being a ground for divorce under both

enactments, there was cause of action for the petition for

divorce. The Delhi High Court considered the question whether a

divorce petition under Section 13 of the Hindu Marriage Act can

be dismissed merely on the premise that the same ought to have

been filed under Section 27 of the Special Marriage Act. The Delhi

High Court held that there was no inherent lack of jurisdiction to

entertain the divorce petition as the trial judge under the Hindu

Marriage Act as well as the Special Marriage Act is a District

Judge. It was held that there was no lack of inherent jurisdiction

of the forum to deal with the divorce petition. It was further held

that persons who had got married under the Special Marriage Act

cannot be given divorce in a petition for divorce filed under the

Hindu Marriage Act. However, the Court noticed that the

objection with regard to wrong provision is a matter ought to be
Mat.Appeal No.1017/2017
29

raised at the earliest stage and if it is not so done, it could be

taken as an objection having been waived by the party.

49. In the instant case also, the appellant had not raised

any specific objection before the lower court that the petition for

divorce filed under Section 27 of the Special Marriage Act, 1954

was not maintainable. There is no inherent lack of jurisdiction for

the Family Court to try the petition for divorce filed under Section

27 of the Special Marriage Act, 1954. The objection which could

have been raised by the appellant in the lower court was only

with regard to the maintainability of the petition for divorce

under Section 27 of the Special Marriage Act, 1954. He did not

raise such objection in that court.

50. In Sandhya Gupta v. Saibal Prasad : II (1999)

DMC 756, the marriage was first registered under the Special

Marriage Act, 1954. Thereafter it was solemnised according to

Hindu custom and rites. The petition for divorce was filed under

Section 13 of the Hindu Marriage Act, 1955 on the ground of

cruelty of the spouse. It was contended that since the marriage

being registered under the Special Marriage Act, 1954 at the first
Mat.Appeal No.1017/2017
30

instance, the petition for divorce could only be filed under the

Special Marriage Act, 1954. The Orissa High Court held that the

Judge, Family Court is vested with the powers to decide the

matrimonial matters both under the Hindu Marriage Act, 1955

and the Special Marriage Act, 1954 and therefore, the issue does

not relate to jurisdiction of the court, but the applicability of the

law to the case. It was held that in either case, a petition for

dissolution of marriage is maintainable before the Judge, Family

Court on the ground of cruelty and, therefore, it is not a case,

where the Court did not have jurisdiction to entertain and pass a

decree, but the question is whether the petition was to be

presented under the Hindu Marriage Act, 1955 or the Special

Marriage Act, 1954. The Orissa High Court held that filing of a

petition mistakenly under a wrong provision of law or giving a

wrong nomenclature would not oust the jurisdiction of the court,

if the relief sought in the petition can be granted otherwise under

some other provision of law. It was held that if the court was

vested with the power to deal with the application and grant

relief, only because the application or petition has been filed
Mat.Appeal No.1017/2017
31

under a misconception quoting a wrong provision of law, a party

cannot be non-suited. The Court further held that the contention

of the appellant to the effect that the petition was not

maintainable and as such the decree is a nullity, has to be

rejected. It was held that in any event, a decree for divorce on

the ground of cruelty is available to either party to the marriage

both under Section 13(1)(ia) of the Hindu Marriage Act as well as

Section 27(ii) of the Special Marriage Act and the Judge, Family

Court in both the cases had the jurisdiction to decide the matter

and therefore, the hypertechnical view that the petition having

been filed under a wrong provision of law and entertained by the

court will vitiate the proceeding, cannot be accepted.

51. In Stephen Joshus v. J.D.Kapoor: 58 (1995) DLT

57, the parties were Christians who had been married to each

other under the provisions of the Indian Christian Marriage Act,

1872. A joint petition was preferred by them under Section 28 of

the Special Marriage Act, 1954 seeking the dissolution of

marriage by a decree of divorce by mutual consent. The trial

court dismissed the petition on the ground that the marriage was
Mat.Appeal No.1017/2017
32

solemnised under the Christian Marriage Act whereas divorce had

been sought under the Special Marriage Act and therefore, the

petition was not maintainable. The Delhi High Court held that

sub-section (2) of Section 28 of the Special Marriage Act confers

jurisdiction upon the District Court to grant a decree, declaring

the marriage to be dissolved only on satisfaction that the

marriage has been solemnised under that Act and therefore,

upheld the dismissal of the petition by the lower court.

52. In Mohanraj v. Violet Chandra: ILR 1992

Karnataka 846, the husband filed a petition for divorce against

the wife on the ground of desertion under Section 27 of the

Special Marriage Act, 1954. The parties were Christians whose

marriage was solemnised under the Indian Christian Marriage

Act, 1872 according to the Christian rites in a church. The wife

contended that the marriage being one solemnised under the

Indian Christian Marriage Act, 1872 and not under the Special

Marriage Act, 1954 the petition for divorce was not maintainable.

The Karnataka High Court held that a petition for divorce under

Section 27 of the Special Marriage Act, 1954 could be filed only
Mat.Appeal No.1017/2017
33

when the marriage is either solemnised or deemed to have been

solemnised under that Act and therefore, upheld the contention

of the wife.

53. In Aulvin v. Chandrawati: AIR 1974 All 278, the

husband filed a petition for divorce against the wife on the

ground of desertion under Section 27 of the Special Marriage

Act. The parties were admittedly Christians and they were

married in a Christian church according to Christian rites. The

wife contended that since the parties were Christians and had

been married under the provisions of the Indian Christian

Marriage Act, 1872, the petition for divorce should have been

filed under Section 10 of the Divorce Act, 1869 and the petition

filed under Section 27 of the Special Marriage Act was not

maintainable. The Allahabad High Court held that the petition for

divorce presented under Section 27 of the Special Marriage Act,

1954 was not maintainable since the marriage between the

parties was neither solemnised nor registered under that Act.

54. In Prakash Martin Tegur v. Joyce Samuel: ILR

2013 Karnataka 793, the parties were Christians and their
Mat.Appeal No.1017/2017
34

marriage was solemnized as per the Christian rites and it was

registered under the provisions of the Indian Christian Marriage

Act, 1872. A joint petition for divorce was filed by the parties

under Section 28 of the Special Marriage Act, 1954. The

Karnataka High Court held that when the parties are Christians

and their marriage has been solemnized as per the Christian rites

and registered under the Indian Christian Marriage Act, petition

filed invoking the provisions of the Special Marriage Act, 1954 for

dissolution of their marriage was not maintainable.

55. The decisions referred to above would show that the

preponderance of view is that a petition for divorce under Section

27 of the Special Marriage Act, 1954 can be filed only when the

marriage is solemnised or deemed to be solemnised under the

provisions of that Act. In the instant case, we have already

found that the marriage between the petitioner and the

respondent which was solemnised in the church is not valid and

that the marriage solemnised under the provisions of the Special

Marriage Act, 1954 would prevail over it. If only the marriage

conducted between the parties in the church was valid, the
Mat.Appeal No.1017/2017
35

solemnisation of the marriage under Chapter II of the Special

Marriage Act, 1954 would have been an exercise in futility.

Therefore, there can be no doubt with regard to the fact that the

petition for divorce filed by the petitioner under Section 27 of the

Special Marriage Act, 1954 is maintainable.

56. The discussion above leads to the conclusion that the

appellant has not been able to assail the judgment and decree

for divorce passed by the lower court either on law or on facts.

The appeal is liable to be dismissed.

Consequently, we dismiss the appeal. No costs.

(sd/-)
C.K.ABDUL REHIM, JUDGE

(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/25/09/2018

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