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Sri Suman Kumar Das vs Smt. Sabita Rani Das (Nee Das) on 23 September, 2019


Sl.No. 04

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

of service.

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

normal person.

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

requisite formalities.

( I. P. Mukerji,J. )

( Md. Nizamuddin,J. )

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