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
16
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
24one 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
