Karnataka High Court
Mr Saurabh Dutta vs Smt Snigdha Bose on 20 November, 2015
Author: N.K.Patil
Bench: N.K.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
M.F.A. No.1797 of 2014(SMA)
BETWEEN:
MR. SAURABH DUTTA
S/O T.K. DUTTA
AGE 29 YEARS
CURRENTLY RESIDING AT
31 MARINE CRESCENT
#17-151, SINGAPORE - 440031.
AND ALSO HAVING HIS
ADDRESS AT 1A/5
LALA LAJPATH RAI ROAD
A ZONE DURAPUR - 713204
WEST BENGAL.
... APPELLANT
(BY SMT. ARADHANALAKHTAKIA, ADV., FOR
POOVAYYA & CO., ADVS.,)
AND:
SMT. SNIGDHA BOSE
D/O LATE SIDDHARTHA BOSE
AGE MAJOR
FLAT No.307, SAI SMRUTHI APARTMENT
OPPOSITE TVS SHOWROOM
NEXT TO PIZZA CORNER
RAMAMURTHY NAGAR MAIN ROAD
RAMAMURTHY NAGAR, BANGALORE - 560 016.
... RESPONDENT
(SERVED & UNREPRESENTED)
2
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND DECREE DATED 29.1.2014 PASSED IN MC
NO.2872/2013 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, BANGALORE, DISMISSING THE PETITION
FILED U/SEC 25(i) AND (iii) OF THE SPECIAL MARRIAGE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.11.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D.
WAINGANKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant-husband under Section 39 of the Special Marriage Act, 1954 is against the judgment and decree dated 29.01.2014 in M.C. No.2872/2013 on the file of Prl. Judge, Family Court, Bangalore, whereby the petition filed by the appellant-husband under Section 25(i)(iii) of the Special Marriage Act, 1954 came to be dismissed.
2. The facts in brief are as under:-
The respondent is the wife of the appellant. Their marriage was solemnized under the Special Marriage Act, 1954 and on 01.02.2013 was registered under the Special Marriage Act, 1954 before the Registrar of Marriage, Durgapur in West Bengal on 03.02.2013. After the marriage, 3 the appellant and the respondent went to Singapore on 15.02.2013. The differences arose between the appellant and the respondent. In order to resolve their marital dispute the mother of the appellant went to Singapore on 19.03.2013.
The efforts made by the mother of the appellant did not materialize on account of adamant attitude of the respondent. On 23.03.2013, respondent returned to her parental house at Ramamurthinagar, Bangalore. The appellant also came down to Bangalore from Singapore along with his father to advice the respondent. The appellant visited the respondent at her parental house. He took the respondent to Singapore back on 15.04.2013 with a fond hope of leading a happy married life. But the respondent returned to Bangalore to her parental house on 29.04.2013 informing the appellant that she is not able to consummate the marriage. She sought to dissolve the marriage by way of mutual consent by informing the family members of both the parties. The father of the appellant sent an e-mail to the respondent requesting her to 4 join the company of the appellant and review her decision to separate from her husband once for all. There was no response from the respondent. As such, the appellant issued a legal notice to the respondent expressing his desire not to continue the marital relationship with the respondent. The respondent gave a reply to the legal notice issued by the appellant agreeing for separation once for all. As such, the appellant filed a petition under Section 25(i)(iii) of the Special Marriage Act to declare the marriage between the appellant and the respondent a nullity on the ground of willful non- consummation of marriage owing to the willful refusal of the respondent to consummate the marriage in M.C. No.2872/2013.
The respondent appeared and filed her statement of objections. The sum and substance of the statement of objections filed by the respondent is that the appellant never bothered to keep the respondent with love and affection that a wife expects from her husband after the marriage and that 5 she being completely hurt by the action of the appellant did not develop any feelings of consummation. She has attributed that the appellant is having extra-marital relationship with other woman and that the respondent being hurt by the behaviour of the appellant was not able to consummate the marriage. She has denied that she committed fraud on the appellant or for that matter she had illicit relationship with other men. Hence, she sought for dismissal of the petition.
In view of the statement of objections filed by the respondent, the appellant to prove his case led his evidence as PW.1 and marked Exs.P1 to P8. But he was not subjected to cross-examination by the respondent. His evidence has gone unchallenged. The respondent led her evidence as RW.1. The learned Judge, Family Court on hearing the arguments and on appreciation of the evidence, dismissed the petition filed by the appellant by the impugned judgment and decree. 6 Aggrieved by the dismissal of the petition, this appeal is preferred.
3. We have heard the learned counsel for the appellant since the respondent remained absent despite service of notice. Perused the records.
4. The learned counsel for the appellant would submit that owing to the willful refusal of the respondent- wife to consummate the marriage, the marriage was not consummated, that the respondent who was examined as RW.1 in her evidence has admitted the suggestion put to her in the cross-examination that the marriage is broken, the consummation of marriage is not possible and the marriage is not consummated. When the marriage is not consummated for a period of more than two years and the chances of consummation of marriage are completely faded away, the learned judge ought to have allowed the petition and declared the marriage as nullity owing to the willful refusal of the 7 respondent to consummate the marriage. Hence, the learned counsel has sought to set aside the impugned judgment and decree, allow the petition filed by the appellant under Section 25(i)(iii) of the Special Marriage Act, 1954 and grant a decree as prayed for.
5. The appellant who was examined as PW-1 went on record to depose how and when the marriage was performed. He has also spoken about the attitude of the respondent-wife, the efforts made by the appellant and his father for reconciliation. The appellant has also placed on record all the necessary documents in support of his case such as Ex.P1-original marriage certificate, Ex.P2-Online flight ticket, Ex.P3-e-mail of the father of the appellant, Ex.P4-e-mail of the respondent to one Raj Thakur, Ex.P5- facebook statement, Ex.P6-office copy of the legal notice, Ex.P7-reply issued by the respondent to Ex.P6, Ex.P8-copy of another legal notice dated 26.10.2013. The evidence of PW.1 has gone unchallenged since he was not subjected to 8 cross-examination. If we go by the evidence of respondent who was examined as RW.1, she has admitted that the marriage is broken, the consummation of marriage is not possible and the marriage is not consummated. Thus, from the evidence on record it is manifest that the respondent-wife has no intention to consummate marriage. On other hand, she has admitted that the marriage is broken. Despite the sincere and honest efforts made by the appellant and the father of the appellant the relationship did not improve. Thus, it is evident that the wedlock has become deadlock. The chances of reunion of the appellant and the respondent or the consummation of marriage in future are completely faded away owing to the willful refusal of the respondent to consummate the marriage. In that case, the court is left with no other choice than to declare the marriage as nullity and to dissolve the marriage by decree of divorce on the ground of nullity. Without keeping in mind the interest of both the parties having regard to their young age, the learned judge of 9 the Family Court without taking into consideration these ground realities, has dismissed the petition filed by the appellant/husband leaving both the parties at cross road. On our re-appreciation of evidence, we are of the considered opinion that since the marriage is not consummated and that the respondent-wife has no intention to consummate the marriage even in future and that the marriage is broken as admitted by the respondent, it would be in the interest of justice to declare the marriage as nullity.
6. For the forgoing reasons, the appeal is allowed. The judgment and decree dated 29.01.2014 in M.C.No.2872/2013 on the file of the Prl. Judge, Family Court, Bangalore, is hereby set aside. The petition filed by the appellant/husband under Section 25 of the Special Marriage Act, 1954 is allowed declaring the marriage of the appellant and the respondent solemnized on 01.02.2013 and registered on 03.02.2013 before the Registrar of Marriage, 10 Durgapur, West Bengal under the Special Marriage Act, 1954 as nullity.
Sd/-
JUDGE Sd/-
JUDGE PMR