IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Samapti Chatterjee
And
The Hon’ble Justice Manojit Mandal

F.AT. 217 of 2017

Sk. Maniruddin

v.

Soma Banerjee

For the Appellant : Mr. Prabal Mukherjee

Mr. Rajat Dutta

For the Respondent : Mr. Indranath Mukherjee

Ms. Sajani Roy Chowdhury

Heard on : 02.01.2020

Judgment on : 13.01.2020

Manojit Mandal J.

This appeal is directed against the judgment and decree

passed by the learned Additional District Judge, 1st Court, Hooghly in
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Matrimonial Suit No. 391 of 2013 by which the learned trial Court

dismissed the matrimonial suit which was filed by the respondent/wife

against the appellant/husband praying for dissolution of marriage under

Section 27 of the Special Marriage Act (hereinafter referred to as the “said

Act”) and also dismissed the counter-claim with direction to live separately

from each other by way of judicial separation.

2. Admittedly, the parties were married according to Special Marriage

Act on 05.01.1998 registered before the Marriage Registrar, Chinsurah,

Hooghly. The respondent/wife prayed for divorce on the ground of cruelty

and desertion. The case of the respondent/wife is that she is a Hindu by

religion, while the appellant/husband is a Muslim male and they got

acquainted through their common friend and gradually became

affectionate to each other. It was the further case of the respondent/wife

that their common friend Anjana Pal made a proposal to the

appellant/husband to marry the respondent/wife and the

appellant/husband agreed to the proposal. Although she was not ready to

marry but she was told to get the marriage registered. Subsequently,

marriage of the parties was solemnized before the Marriage Registrar,

Hooghly, on 05.01.1998 according to the provisions of the said Act.

Subsequently, she filed a title suit being T.S. No. 74 of 1998 in the Court

of learned Civil Judge (Junior Division), 1st Court, Hooghly praying for a

declaration that she was a bachelor and the certificate of marriage was not

acted upon. However, the said suit was dismissed being non-

maintainable and against the judgment of the learned Civil Judge (Junior
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Division), 1st Court, Hooghly, an appeal was preferred before the Court of

the learned Additional District Judge, Hooghly but the appeal was also

dismissed on 26.09.2005. Thereafter, MAT Suit No. 76 of 2006 was filed

by her for annulment of marriage and although in that suit, a decree was

passed in favour of her, but in appeal, this Court set aside the judgment

and decree of the trial Court. It was the further case of the

respondent/wife that since 1998, she was residing in her father’s house

while the appellant/husband was living in his house and the

appellant/husband had never shown any interest to bring her to his

house. It was also contended that although the appellant/husband

earned Rs. 50,000/-(Rupees Fifty Thousand) only per month but he never

sent any money for her maintenance. It was also contended that the

appellant/husband married her by suppressing material facts and he even

threatened her personally as well as through his men. It was further

contended that both the parties were living separately for more than

fourteen (14) years and the marital tie has irretrievably broken down and,

therefore, a decree of divorce may be passed in her favour. The application

for dissolution of marriage was filed in the Court of learned District Judge,

Hooghly at Chinsurah on 17.04.2013.

3. The suit was contested by the appellant/husband by filing a written

statement contending, inter alia, that in 1993, the parties got acquainted

with each other at Vidyasagar Mela held at Birshingha Village of Midnapur

District. Gradually, they developed love for each other and they used to

travel together at various places and their family members also visited
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each other’s house. At one point of time, the father of the respondent/wife

restricted movement of her and at that time the respondent/wife would

put pressure upon him for registration of marriage and thereafter their

marriage was registered. It was further contended that the marriage was

pre-planned and known to all the friends of the parties. The

appellant/husband denied all allegations of torture and neglect and

contended that due to ill advice of others, respondent/wife filed the suits

with false and fictitious claims for which they failed to lead peaceful

conjugal life. The appellant/husband by way of counter-claim prayed for

restitution of conjugal rights. In reply to the counter claim, the

respondent/wife contended that prayer was made by appellant/husband

only to show his good gesture but he had no intention to live with her.

4. At the trial, both sides led evidence and the learned Trial Court in

the impugned judgment rather found that allegation of desertion and

cruelty by the appellant/husband was not sustained. The learned Trial

Court also observed that the prayer for restitution of conjugal rights has

not been made by the appellant/husband with bona fide intention. The

learned Trial Court dismissed the suit as well as the counter-claim with

direction to live separately from each other by way of judicial separation.

5. Being dissatisfied, the appellant/husband has come with the present

appeal.

6. Mr. Prabal Mukherjee, the learned Senior Advocate appearing on

behalf of the appellant/husband vehemently contended before us that the

learned trial Court has committed wrong and erred in law in passing the
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decree of judicial separation. He further urged that the learned Trial Court

passed the decree of judicial separation though the ingredients of judicial

separation as mentioned in Section 23(1)(a) of the Act has not been proved.

He further urged that decree of judicial separation was passed by the

learned trial Court without considering the provision as mentioned in

Section 34(a) of the Act. In support of his argument, he has relied upon

the decision of Hirachand Srinivas Managaonkar v. Sunanda reported

in 2001 (4) SCC 125.

7. Mr. Indranath Mukherjee, learned Advocate appearing on behalf of

the respondent/wife has, on the other hand, opposed the aforesaid

contention of Mr. Prabal Mukherjee, and submitted that the learned Trial

Court in the facts of the present case rightly disbelieved the case of the

appellant/husband. He further submitted that the learned trial Court has

rightly passed the decree of judicial separation. In support of his

argument, he has relied upon the decisions reported in (2015) 4 WBLR

(Cal) 293 and AIR 2007 SC 1426 Mr. Mukherjee, therefore, prayed for

dismissal of the appeal.

8. Upon taking into consideration the submission of the learned

Advocates of both sides and on perusal of the materials on record, we find

that admittedly, the parties were married on January 5, 1998, according to

the said Act before the Marriage Registrar at Chinsurah, Hooghly.

Admittedly, the petitioner/husband married the respondent/wife out of

their pre-existing love affairs. Admittedly, the appellant/husband is a

Mohammadan by religion before and after marriage and the
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respondent/wife is a Hindu by religion before and after marriage.

Admittedly, the respondent/wife filed a title suit being Title Suit No. 74 of

1998 in the Court of the learned Civil Judge (Junior Division), 1st Court,

Hooghly, praying for declaration that the petitioner was a bachelor and the

certificate of marriage was not at all acted upon and the said suit was

dismissed. Admittedly, against the judgment of the learned Civil Judge

(Junior Division), 1st Court, Hooghly, an appeal was preferred before the

Court of the learned District Judge, Hooghly and the said appeal was

dismissed on 26.09.2005. Admittedly, on 14.01.2009, the respondent/wife

filed Matrimonial Suit No. 76 of 2006 before the learned District Judge,

Chinsurah, Hooghly, praying for annulment of marriage under Section 24

of the Special Marriage Act, 1954, and the said matrimonial suit was

decreed in favour of the respondent/wife. But in appeal, this Court set

aside the judgment and decree of the learned Trial Court. Admittedly, the

parties to the suit are living separately at their respective residential

addresses as mentioned in the cause title of the plaint. Now, the points

are to be decided in this appeal are:-

1. Whether the learned trial Judge was justified in decreeing the

suit for judicial separation?

2. Whether the respondent/wife has any justified ground to live

separately at her father’s house at Chatterjee Lane, P.O.-

Buroahibtola, P.S.-Chinsurah, Dist.-Hooghly.

9. As to the prayer for a decree for divorce under Section 27 of the Act

on the ground of cruelty, the evidence of the respondent/wife as PW 1
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including her cross-examination reveals that she was insulted and

assaulted many times by the appellant/husband and that

appellant/husband threatened her in her father’s house and that some

times, some unknown persons and the appellant/husband also over

telephone used abusive languages to her and her parents and that when

she was a college student, she was assaulted by the appellant/husband

and at that time the marriage was registered. The respondent/wife has

nowhere in that plaint as well as in her evidence stated about the

particular date or place of such assault and insult upon her by the

appellant/husband. The evidence of PW 1 is not clear as to whether such

incidents of assault or insult took place prior to the marriage or after that.

Exhibit-1 and Exhibit-2 are the G.D. Entries which disclose that the

appellant/husband teased and taunted the respondent/wife. The Exhibit-

1 proves that the G.D. Entry was lodged over the incident of Title Suit No.

74 of 1998. There is also no evidence on record about the abusive words

which were allegedly used by the appellant/husband. There is nothing on

record to suggest that the appellant/husband abused and insulted the

respondent/wife so as to cause tremendous mental pain to the

petitioner/wife. There is also no corroborative evidence on record for such

allegations. PW 2 is the father of the respondent/wife and he did not

speak anything about any incident of physical torture during his

examination. The allegation, whatsoever, made by the respondent/wife,

does not, however, appear to be convincing at all. Therefore, on

consideration of the evidence of PW 1 and PW 2 it may be concluded that

the conduct of the appellant/husband does not amount to mental cruelty.
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In the result, we are of the view that no question of cruelty, be it physical

or mental, arises in the facts of the present case. Therefore, the learned

Trial Judge was justified in holding that there is no material to suggest

that the appellant/husband treated the respondent/wife with mental and

physical cruelty.

10. As regards the desertion, the evidence of PW 1 including her cross-

examination reveals that the respondent/wife filed several cases to get rid

of matrimonial bond and that the respondent/wife married the

appellant/husband out of the pre-existing love affairs but since her family

members did not accept such relationship, she tried to get rid of the

matrimonial bond by filing different cases on different grounds. On

consideration of the above evidence, we are of the view that

respondent/wife has failed to prove that the appellant/husband deserted

the respondent/wife without any just cause. Therefore, we are of the view

that the learned trial Judge has rightly hold that the respondent/wife

failed to establish that the appellant/husband treated her with cruelty or

willfully deserted her.

11. The evidence of the appellant/husband (DW 1) including his cross-

examination reveals that he did not get any opportunity to live together

with the respondent/wife for a single day and their marriage was

solemnized on January 5, 1998, and since then they have been living

separately. In Paragraph number 16 of the written statement, the

appellant/husband has clearly and categorically stated that there was no

joint living as husband and wife in between them and the respondent/wife
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is responsible for not living together as husband and wife and non-access

in between them at the instance of the respondent/wife in spite of the fact

that he wanted to live with the respondent/wife as husband and wife as

married couple. From the above evidence of DW 1 and from the written

statement, it is proved that after marriage, the parties to the suit did not

reside together as husband and wife. Record goes to show to that though

the parties were living separately since after marriage but the prayer for

restitution of conjugal rights has been made by the appellant/husband

only on 09.7.2013. Record also goes to show that the appellant/husband

also did not make any prayer for restitution of conjugal rights by way of

counter- claim in the previous suits filed by the respondent/wife. He also

did not file any separate suit for restitution of conjugal rights and the said

prayer has been made only on 09.7.2013 when the appellant/husband

filed written statement in the present suit. From the above discussion, it

is crystal clear that the intention of the appellant/husband was not bona

fide to lead conjugal life with the respondent/wife. Therefore, we are of

the view, that the learned Trial Court has rightly dismissed the counter-

claim filed by the appellant/husband.

12. Under these facts and circumstances of the case, we are of the view,

that a decree for divorce for dissolution of the marriage was thus not a

legal recourse open for the respondent/wife and there was no valid ground

for the same at present.

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13. In order to dissolve the controversy and the stalemate, in reality, so

as not to prolong the litigation and to do a complete justice in the case, the

facts that have now emerged may be recapitulated as follows:-

(i) The marriage between the parties was duly solemnized under

the provisions of the Special Marriage Act, 1954;

(ii) The appellant/husband did not get any opportunity to live

together for a single day with the respondent/wife;

(iii) Both the parties to the suit are living separately since after

marriage and;

(iv) The appellant/husband was willing to honour the marriage

and live with the respondent/wife as husband and wife but

the respondent/wife is not willing to live with the

appellant/husband as husband and wife.

14. The state of facts as noticed above, in our considered opinion would

must certainly suggest to go for a suitable relief like a decree for judicial

separation so as to enable the parties to develop a mutual understanding

with confidence and to exercise their free will in the matter.

15. The learned Advocate appearing for the appellant/husband

submitted that the learned trial Court passed the decree of judicial

separation though the ingredients of judicial separation as mentioned in

Section 23 of the Act has not been proved. We fail to accept such
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submission of the learned Advocate appearing for the appellant/husband

as because the Trial Court has enough power to pass a decree for judicial

separation under Section 27A of the Act if it is just and proper with regard

to the circumstances of the case in a proceedings under this Act pertaining

to dissolution of marriage by decree of divorce while the trial Court thinks

that attempt should be made to save the marriage from breaking and the

spouses may be given the opportunity to rethink and reconcile.

16. Learned Advocate appearing for the appellant/husband further

submitted that Section 34(a) of the Act has not been considered in passing

impugned judgment and order and, so, the impugned judgment should be

set aside. We fail to accept such contention made by the learned Advocate

appearing for the appellant/husband as because Section 34(a) of the Act

will not apply in the present case as no decree for dissolution of marriage

by way of divorce has been passed.

17. The decision of Hirachand Srinivas Managaonkar (Supra) is of no

assistance to the appellant/husband as because in that case the Hon’ble

Apex Court observed that the petition for divorce was rightly dismissed

and the provision of Section 23 of the Hindu Marriage Act was discussed in

relation to a petition for divorce and in the present case the learned Trial

Court has passed the order of judicial separation under Section 27A of the

Act and not a decree of divorce.

18. In that view of the matter, we are of the view that learned Trial Judge

was justified in dismissing the suit and the counterclaim and in passing

the decree for judicial separation under Section 27A of the Act. Therefore,
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the appeal is without any merit and it should be dismissed affirming the

judgment and decree passed by the learned Trial Judge.

19. Accordingly, the appeal is dismissed. The judgment and decree

dated 18th January, 2017, passed by learned Additional District Judge, 1st

Court, Hooghly, in Matrimonial Suit No. 391 of 2013 is hereby affirmed.

20. In the result, the order of stay granted earlier stands vacated.

Respondent/wife is at liberty to proceed with the case pending before the

learned lower Court below.

21. Considering the circumstances, there will be no order as to costs.

22. Let a copy of this judgment along with Lower Court record be sent

down to the Trial Court for information.

I agree.

(Samapti Chatterjee, J.) (Manojit Mandal, J.)