IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
FAT 239 of 2018
Sri Suman Kumar Das
Smt. Sabita Rani Das (nee Das)
Mr. Prasun Kumar Datta
Mr. Amiya Kumar Datta
Mr. Swadesh Priya Ghosh
…for the appellant/husband
The appellant husband appeals to this court from a
judgement and decree dated 18th September, 2017 dismissing
his suit. The plaint was founded on the grounds of alleged
cruelty and desertion by the respondent husband.
We have gone through the affidavit of service.
On 15th July, 2019 this appeal had appeared in our list. At
that time, none appeared for the respondent/wife. We directed
service of notice upon her, fixing the appeal under the heading
‘short hearing matters’. Thereafter, by a letter dated 20th July,
2019 this order was communicated by speed post to her by the
appellant’s advocate on record, according to the above affidavit
None appears for the respondent. We had no option but to
entertain the appeal ex-parte.
We are constrained to observe that the learned judge of the
court below has taken a rigid and copybook view of the matter.
He was unable to appreciate the real problem involved and its
The parties were married according to the Hindu Rites
under the SectionHindu Marriage Act, 1955, on 20th June, 1991.
Within 5 days of the marriage, the appellant husband discovered
some physical effects (cut mark) on the abdomen of the
respondent/wife. Although the respondent maintained that it
was a result of a surgical intervention, the husband developed a
belief based on an information received by him that the said cut
mark was the result of a surgical intervention to effect an
There is evidence on record that the couple never resided
together for any significant period of time. They may have
resided together only for a few days.
The husband avers in the plaint that in 2007 he tried to
reconcile with the wife asking her to become a mother, but she
According to Mr. Datta, a proceeding under Section 498A of
the Code of Criminal Procedure, filed by the wife is still pending.
Most importantly for this entire period, which is only about
2 years, short of 30 years the couple has been living separately
without any relationship with each other.
According to us, once the said physical mark of the
abdomen was discovered by the husband, the respondent
should have disclosed to him as to what was the cause of it.
The evidence suggests, she refused to go to a doctor. Failure to
give sufficient explanation for it was sufficient justification for
the husband to entertain the notion that it was due to surgical
abortion. Coupled with that he found the age disclosed by the
wife to be false and that she was much older that what she
declared her age to be. On top of that, she initiated proceedings
under Section 498A of the Code of Criminal Procedure.
Mental cruelty is the feeling of deep and permanent
emotional pain. Whether some one has suffered mental cruelty
differs from person to person. The learned judge ought to take a
subjective view based on the reaction of a reasonable and
Under the above circumstances, the learned judge ought to
have held that the ground of mental cruelty was established. He
erred in not doing so.
We allow the appeal.
We set aside the impugned judgement and decree dated
18th September, 2017 of the fast track court at Barasat in
Matrimonial Suit No. 05 of 2010.
We pronounce a decree of divorce by dissolution of marriage
between the parties.
The department is directed to draw up the decree
Urgent certified photo copy of this order, if applied for, be
given to learned advocates for the parties upon compliance of all
( I. P. Mukerji,J. )
( Md. Nizamuddin,J. )