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Sri Amitava Ghosh vs Smt. Sefali Ghosh on 24 September, 2019

IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side

Present:- Hon’ble Justice I. P. Mukerji
Hon’ble Justice Md. Nizamuddin

FA No. 159 of 2015

Sri Amitava Ghosh

Vs.

Smt. Sefali Ghosh

For the Appellant : Mr. Gopal Chandra Ghosh, Adv.

For the Respondent : Mr. Amal Kumar Mukhopadhyay,
Mr. Uttiya Ray,
Mr. Arnab Roy, Adv.

Judgment on : 24.09.2019

I. P. MUKERJI, J.

Both the parties are Hindus. The appellant husband sued the respondent wife

under Section 25(1) read with Section 27(d) of the Special Marriage Act, 1954,

in the court below claiming that the alleged marriage between them was a

nullity and alternatively for its dissolution by a decree of divorce.

The facts are like this.

The appellant husband said in the suit that on 27th August, 2007 he got

married to the respondent under the said Act. The marriage was duly registered

by the Marriage Officer, Barasat, North 24 Parganas. Thereafter, being fearful of
the marriage not being accepted by the husband’s family, the couple separated

and started living in their respective homes.

According to the appellant husband’s version, the respondent wife is perverted.

She is a professional dancer. During dancing sessions he noticed erotic

behaviour by her by indulging in acts of undesirable physical proximity with

her male colleagues. In July, 2008 he requested her to get socially married but

she replied that she committed a mistake marrying him and refused to

consummate the marriage. By the end of 2008, they separated.

The appellant says that he never co-habited with the respondent. He had

requested her to stay at the matrimonial home which she refused. The wife’s

relatives are said to have abused the appellant on many occasions. A criminal

case under Section 498A of the Criminal Procedure Code was also started by

her. For non-consummation, the marriage was a nullity according to the

husband.

Now let us see what the respondent wife had to say.

The marriage took place by registration on 27th August, 2007, under the said

Act. On 21st November, 2007 the ceremonial marriage according to hindu rites

and customs took place. The couple started to live together in the respondent’s

maiden home, as the mother of the appellant did not accept the marriage. He

started torturing her by demanding Rs.1 lakh. Subsequently he deserted her.

The respondent tried to meet him but was denied access by his family

members.

Two material issues were framed by the learned Judge of the court below:-

a) Was the marriage avoidable for not being consummated owing to the wilful

refusal of the respondent?

b) In the alternative whether the appellant treated the respondent with

cruelty?

The learned judge came to these findings:

“Considering entire facts and circumstances I am to hold that the plea
as taken by the petitioner that the respondent/wife after her marriage
with the petitioner under the SectionSpecial Marriage Act, 1954 wilfully refused
to consummate their marriage alternatively she treated the petitioner with
cruelty is not proved beyond reasonable
doubt………………………………………. After hearing the submission for both
sides and after going through the case record I find no reliable evidence
or document which goes to show that the petitioner expressed his
willingness to continue his conjugal life with the respondent rather from
evidence of D.W. 1 and D.W. 2 it has well established the respondent is
very much eager to continue her conjugal life with the petitioner. When
admittedly after prolonged love affairs the marriage of the parties to the
suit was solemnized under the SectionSpecial Marriage Act, 1954, then why she
will keep her away from the petitioner without having any cogent ground.
Moreover, the present respondent is neither a celebrity not a person of
repute in the society, then why unnecessarily she will use the marriage
certificate as a passport.

Admittedly the respondent lodged a criminal case being G.R. No. 1506
of 2012 corresponding to Basirhat P.S. Case No. 343 dated 14.5.12 u/s.
498A/406/384 of SectionI.P.C. against the petitioner and it is unchallenged that
said case is still pending. So, unless and until ld. trial Court of that case
holds that the allegation as made by the complainant/respondent is not
only disproved but is false, by that time, it cannot be said that the
respondent treated the petitioner with cruelty by making false
allegation…………….Having considered entire facts and circumstances, I
am fully agreed with the submission of Ld. advocate for respondent
accordingly I am to hold that the petitioner has hopelessly failed to prove
his case beyond reasonable doubt. So, he is not entitled to get Decree for
nullity of marriage alternatively for dissolution of marriage by a Decree of
divorce.

Finding above, the instant suit fails.”

The evidence as adduced by the parties is most unsatisfactory. Nevertheless I

shall discuss the evidence adduced by them.

The appellant gave evidence. He said in his examination-in-chief that the

respondent thought that the marriage would “stand on the way” in the career of

the respondent as a professional dancer. However, she wanted the status of a

married lady. She intended to lead a “carefree life”. Hence, she asked the

respondent to keep the marriage a secret and decided to live separately.

The deviant and erotic behaviour of the respondent with her male colleagues in

the profession of dancing was elaborated upon in paragraph No. 7 of the

examination-in-chief, by the appellant.

When the proposal came for the marriage of the respondent’s younger sister the

appellant proposed that they should get married socially which was refused by

the respondent saying that she had made a “blunder in marrying him”. The

respondent used to receive love letters from “some men”. On being asked about

it she slapped the appellant.

The respondent started proceedings under Section 498A of the Indian Penal

Code against him.

The marriage between them was never consummated due to the wilful refusal of

the respondent.

The appellant denied that he ever cohabited with the respondent in her house.

He denied having ever physically assaulted the respondent or demanded

Rs.1,00,000/- from her or that he left the wife’s house, not returning thereafter.

We find that the examination-in-chief of the husband was a mere reiteration of

the averments made in the petition for divorce and denial of the case made out

by the respondent in the written statement.

The second witness for the petitioner was his mother, Jyotsna Ghosh. This

evidence is of no consequence. It does not prove any of the grounds made out in

the petition. The only material thing deposed by her was that she did not accept

the marriage.

Thereafter, the respondent deposed. She also narrated her case in the written

statement and denied the husband’s case in the plaint. She more or less

reiterated the statements made in the written statement. She said that the

appellant had physically and mentally tortured her and used filthy language

and demanded Rs.1,00,000/-. The parties lived at the residence of the

respondent. On 26th September, 2009 he disappeared. The allegations in the

petition were all denied specially the insinuation made with regard to her moral

character. Nothing significant was said in her cross-examination except that

she said that after registration of the marriage the couple went to her father’s

house at Basirhat “to lead our conjugal life.” She denied that at any point of

time she refused to cohabit with the appellant. The second witness on behalf of
the respondent Bamali Boral was her sister. She deposed that the marriage

took place observing Hindu rites and customs on 21st November, 2007 at

Village Itinda, Shibtala, P.S – Basirhat, District – North 24 Parganas. She

corroborated that her sister lived in their father’s house along with the

appellant. She reiterated most of the statements made in the written statement.

This was the entire evidence led by the parties.

On examination of the evidence adduced by the parties we are not minded to

interfere with the findings of the learned judge with regard to the issues which

were framed in the suit, save and accept one issue. That issue relates to mental

cruelty. The respondent wife instituted a proceeding under Section 498A of the

Indian Penal Code making diverse allegations against the appellant. This case

was started further to an FIR lodged by the respondent wife with the police on

14th May, 2012. On 30th January, 2018 the appellant husband was acquitted.

This means that the complainant wife was unable to prove her allegations of

torture against her husband. Once a Section 498A complaint is lodged by the

wife against the husband, it has the result of immediately complaining about

whatever discord there might be between them to the state authority, namely,

the police. When this is done it immediately ruptures the matrimonial

relationship, making it icy cold. If, thereafter, the husband says that because

the wife had approached the police, it had caused him great insult and

humiliation, that his feelings for his wife have evaporated and that this action

on her part has caused him immense and permanent mental pain, the court

should tend to accept this assertion, it proved. When the husband is ultimately
acquitted of the charges it provides further support to these feelings of the

husband. In Pranay Kumar Kundu Vs. Smt. Rupanjana Kundu, a division

bench judgment of this court, reported in (2019) 2 CAL LT 79 (HC) the court

said:

“The Concise Oxford English Dictionary defines cruelty as cruel behaviour
or attitudes. It also signifies behaviour which causes physical or mental
harm to another whether intentional or not. Cruel according to that
dictionary is described as disregarding or taking the pleasure in the pain
or suffering of others or causing pain or suffering. In my opinion, any
action, conduct or behaviour of a person causing pain or suffering to his
spouse in his or her mind or affecting a person psychologically or
psychiatrically is mental cruelty. An intention to cause it must be
involved. In V. Bhagat Vs. D. Bhagat reported in AIR 1994 SC 710
(Paragraph 17), while defining mental cruelty the Supreme Court has
remarked “what is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case having regard
to the facts and circumstances of that case.” (As per Justice B.P. Jeevan
Reddy). In my view, whether a person has subjected his spouse to mental
torture is an assessment to be made by the Court in a subjective manner.
The incidents of mental torture do not form a closed category. It would
depend from case to case on the subjective satisfaction of the learned
Judge trying the case. When the Court finds that a spouse has been
subjected to mental torture it will relieve him or her from the cause of it,
i.e. marriage. It grants dissolution of the marriage by pronouncing
divorce.”

This in our opinion has happened in this case. The acquittal of the husband

was made on 30th January, 2018, after pronouncement of the decree. We take

note of this subsequent fact. I am of the opinion that in the above facts and
circumstances on a subjective assessment, the above conduct of the wife

reached considerable and permanent mental pain and agony to the husband so

as to amount to mental cruelty. On this ground the judgment and decree dated

19th march, 2013 is set aside. We pass a decree for the dissolution of the

marriage between the parties by a decree of divorce. The appeal is allowed.

I have not gone into the question of maintenance which was neither raised nor

argued. This issue is kept open to be raised and decided in any proceeding if

such remedy is available to either of the parties.

Certified photocopy of this order, if applied for, be supplied to the parties upon

compliance with all requisite formalities.

I agree,

(Md. Nizamuddin, J.) (I. P. MUKERJI, J.)

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