Calcutta High Court
Smt. Gitika Bagchi vs Subhabrota Bagchi on 25 September, 1995
Equivalent citations: AIR1996CAL246, 100CWN646, AIR 1996 CALCUTTA 246, (1996) 100 CAL WN 646, (1997) 1 RECCIVR 115, (1996) MARRILJ 498, (1997) MATLR 144, (1997) 1 CIVLJ 872
ORDER R. Bhattacharyva, J.
1. This First Appeal arises for the suit being decreed under Section 25 of the Special Marriage Act, 1954, by the Id. Additional Dist. Judge in Matrimonial Suit No. 32 of 1990 on 18th of January, 1992, followed by a decree dated 10th of February, 1992.
2. The case represents the broken heart of the two spouses who laboured hard for 8 years to be united. It has now become a harrowing tale which requires elucidation as the husband wants to avoid the marital tie via Court by a decree.
3. The undisputed facts of the case are that the petitioner and the respondent, both co-employees of the 'Aajkal Patrika' though of different religion developed intimacy with each other which culminated in a marriage between the two on 17th of June, 1988, in substantial compliance with the provisions of the Special Marriage Act, 1954.
4. Consummation of marriage was allegedly stalled by her from the inception of marriage for two reasons :
(i) transfer of properties of her mother-in-law in her favour; and
(ii) embracing of Christianity.
5. There was such hostility demonstrated by the relations of the petitioner, who underwent such a marriage with a woman of opposite religion. Hopes interwoven in her mind that a maiden visit by her along with the petitioner to his paternal home would dissipate all unhappiness. The claim was initially deferred. It was substituted by a claim of her to snap of all connections with his relations.
6. They were alien to each other despite marriage, in religion, as the respondent, in defiance of marital bond, retained her surname. It was a glaring example of her alienation from the marital life.
7. To make her claim amenable, the petitioner advised her to forsake the path of hostility. It would be a harbinger of peace as the parents might be favourably disposed of to her claim.
8. The visit to the residence of the parent-in-law on 24-10-1988 i.e. on the day of "Kojagari Lakshmi Puja" cast a gloomy reflection.
9. Her mind since saturated with aversion to Hindu faith, she became a victim of a religious psychosis. Her apathy filled to the brim and the hope of marital peace doomed.
10. The marital home never became the bed of roses. Even the unbriddled endeavour of the colleagues could not make up the differences. Both decided to cross their swords on various grounds among which manipulation of age of the respondent by her was one of the dominant factors. It was a mental sore for the petitioner who had no knowledge of her actual age. To add insult to the injury, the persistent wilful refusal to consummate the marriage by the respondent crept in openly and the marital harmony torn to pieces. The claim founded on the non-consummation of marriage and fraud perpetrated by her drove the petitioner to Court, as he, on the fulfiment of statutory conditions, craved for justice in the shape of annulment of marriage.
11. The respondent in her written statement has launched a major offensive that allegations are frivolous. The age was not manupulated but lowered of which the petitioner was the prime moves. It was the aim and object of his not to render the marriage with infamy, as the disclosure of the actual age might disdain them before the relations.
12. In her written statement, she has claimed that the consummation of marriage is a proven fact. The longing for transfer of property of his mother in her favour, as alleged is a travesty of fact. The aborrence, infidelity and aversion are convenient pleas to suit his objectives.
13. The petitioner's attempt to filch money from her when resisted was the premonition of all evil which trigerred off the dispute.
14. The ld. trial Court framed six issues and answered the claim of non-consummation of marriage and fraud in the affirmative when this Appeal spiralled up to this Court for reversal of judgement and decree.
15. Mr. Rakhit, the Id. Advocate, appearing in support of the Appeal for the wife, has argued the case with greater momentum. In his usual fairness, he has canvassed that the ld. Court below has made an undue assumption of fact and law. An error has been committed, for which, the judgement and decree could not be sustained and the same should be displaced by a decree of dismissal of the suit.
16. To crown succeess of his contention, he has given the background of the case which, according to him, will throw considerable light to reach a conclusion. To streamline his argument, he is candid that there are certain admitted facts, which according to him, should receive due premium. They have consequent bearing and relevance on the factual exposure of the case.
17. He has referred to in his argument, since blessed by the pleadings and evidence, that the parties are/were the co-employees of the reputed Newspaper 'Aajkal'. They married each other under the Special Marriage Act, 1954, on 17th of June, 1988 and, the antenuptial intimacy for well over 8 years promoted such marriage. It is not available, in absence of evidence to the contrary, that there is no unfavourable blow of wind in the marital life of the two for months together after the marriage. Now the marital atmosphere was surcharged with tension and distrust during that period, however, long and short it may be. They shifted their place of abode from Italgacha Road to sister's rented accommodation. The petitioner-husband is the lone male issue of his father. He has a sister living who was given in marriage in 1985 with one Swapan Kumar Biswas. Not to speak of the brother there is no slim evidence that the sister harboured any animus against the parents. It may be treated to be a special significance of the case as it may provide ample food to seal the allegation of non-consummation of marriage.
18. We will deal with this aspect of the matter not here and now, but in appropriate place.
19. Mr. Rakhit is emphatic in his submission that the marriage has not been consummated soon after the marriage or any time thereafter, as found by the ld. Court below and the process of reasoning adopted in reaching such a conclusion has no bedrock. The finding of non-consummation of marriage by the ld. Court below is a strain on the evidence both oral, documentary and circumstantial. The evidence has been squeezed to provide a medicinal doctrine. But the exposure of the case, if examined and considered in minute details, it will prove beyond shadow of doubt that the finding is a shadow without any substance.
20. It has been overemphasized by the ld. Court below in its unduly long judgement that the marriage was not consummated. In other words, the ld. Court below kept its fingers crossed as to the consummation of marriage.
21. The two-fold grounds have been explored by the ld. Court below to reach such a conclusion for refusing consummation one of which was the demand put up by the respondent to transfer the property of the mother-in-law in favour of her and conversion of the petitioner into Christianity. The above no-torious facts, according to the ld. Court below, since not accomplished, the long awaited consummation never saw the light of the day and the suit decreed. The lone finding of the ld. Court below that the respondent was overawed by the fraud for the discovery made that she was overaged is basically out of gear as he overlooked the worth of Ext, 'B'. It is manifest that the husband was in possession of all her certificates disclosing her age therein and therefore, it is a cry in dispair that he never knew of her age at the time of marriage. He was feigning ignorance being oblivious that it was his own machination. In other words, he was keeping the cave and pinching the chariot. He cannot take advantage of his own fraud, thus.
22. The above is a wide loophole that rests with the interpretation of the circumstances and appreciation of evidence by the ld. Court below.
23. Mr. Bhattacharjee, the ld. Advocate, appearing for the respondent-husband, in refuting the argument of his counterpart, has relied absolutely on the findings of the ld. Court below in decreeing the suit. The short submission he made about fraud is that Ext. 'B' if found to be in possession of his client, it will put client out of Court.
24. It is in this background that we address ourselves to the question as to whether the ground for non-consummation of marriage has been proved along with the plea of fraud perpetrated by the appellant-wife in the state of materials on record. We will answer the above ad seriatim.' First, we take up the plea of non-consummation of marriage.
25. The two predominant factors that weighed with the Court for keeping in abeyance the consummation of marriage were the refusal to convey the properties of this mother in favour of dauther-in-law and the conversion of husband-petitioner to Christianity from Hinduism.
26. It is legitimate to look at the state of affairs dominating the life of the spouses. It is needless to repeat that both the spouses were intensely love lorn which drove them to a marriage under the Special Marriage Act, 1954. They were yet to overcome the spell of remonce as they thought that they were made for each other. Even the evidence is silent that there was any love lost between both the spouses. A realistic line of reasoning, it accepted by a man of ordinary prudence, the claim put up by her in regard to conveying the property of mother-in-law in favour of the daughter-in-law and embracing of Christianity, as alleged, is a distant one.
27. The problem of the lis could be better answered in another way. It is noteworthy that the wife was a Christian woman about which there hovers no doubt. It is striking for the silence maintained that no term was reduced in the shape of writing or oral as condition for marriage. In the above background, change of religion, as excavated along with the transfer of property to be a ground for divorce, is devoid of context.
28. Besides, there is another overwhelming fact which affords an unfailing assurance that the boot is on the other leg when conversion is pressed into service. She was sought to have been declared as infidel. Her acrimonious drive on the day of 'Lakshmi Puja' on 24-10-1988 given currency in evidence owing to her religious psychosis is an avalanche. If we glance at the photographs it is noteworthy that it is none but the husband who put vermilion mark on the forehead. It was a consequence of marriage and her faithful adherence to Hindu faith is complete. Her maiden name since not underwent any correction in the official record is no ground to prove her frailty to Hindu faith.
29. Mr. Bhattacharjee to salvage the point has submitted that putting vermilion mark does not convey any meaning as women iit large of other communities are used to it.
30. On reading the photographs with rapt attention, the way the vermilion is put on the forehead with the aid of a ring and its acknowledgement by her signally proves that she had had no rebellious spirit against Hindu faith.
31. In the context, the episode on the day of 'Lakshmi Puja' has been exaggerated by Subrata P.W. 1 & his father P.W. 4 out of proportion as it is not agreement with the averments in paragraph 8 of the plaint.
32. The evidence of Aloke P.W. 2 & Arpan P.W. 3 on the score of conversion to Christianity has no fibre of truth. It is surprising to note from their evidence that one of them has given an account of altercation on 25-10-1988 dwelling on conversion to Christianity and transfer of property. But it is apposite to mention that both of them were married on 17th of June, 1988 and none of them gave any account of any incident prior to 25-10-1988. Nor it is highlighted in their evidence that they were ever told by Subrata soon after the marriage, her disagreement to consummate the marriage on the two issues.
33. P.Ws. 2 & 3 have not been corroborated about the transfer of property of her mother-in-law in favour of daugher-in-law. It is glaring from the evidence of P.W. 3 that he heard Gitika saying to transfer the property of Subrata in her favour which is nobody's case. Nor it has been stated by P.W. 2 Aloka that Gitika put up a claim of transfer of any property in her favour and conversion of Subrata to Christianity none of the claims has been christened, in the background of which, we cannot resist our temptation to hold that they are more royal than king.
34. This has undoubtedly raised a gulf affecting the core of their evidence, it also belies, the story of conversion to Christianity.
35. The findings of the ld. Court below that the wife-appellant never identified herself with Hindu religion; nor "she has expressed any regard or reverence for Hindu religion or any part of the religious ceremonies of Hindus" is not legitimate in view of the reasons indicated herein before. They have scant regard for truth and their evidence is devoid of merit.
36. There is another inglorious circumstance which should not be overlooked as to" why the appellant-wife would put up a claim immediately after the marriage for conversion of her husband to Christianity ? It should he borne in the mind that they were flesh and bone for the last 8 years before the marriage which in the state of materials on record could hardly generate a claim of her conversion to Christianity after the marriage. To our mind, she claim is lacklustre.
37. Returning to examine the viability of the findings about the non-consummation of marriage, the ld. Court below pivoted mostly its findings on the circumstances occupying in paragraphs 8 to 18 of the judgment. Therefore, the plea of non-consummation of marriage has become the battle ground of two rival claims. To adjudge the viability of the non-consummation and consummation of marriage, there is no embargo under the law to lake advantage of presumption which may he available to either parties to lighten the burden. The Court in Syad Akhar v. State of Karnafaka, broadly classified the presumptions into three types :
(i) Permissive presumptions or presumptions of facts;
(ii) compelling presumptions or presumptions of law-(rebuttable);
(iii) irrebuttable presumption of law or on 'conslusive proof
38. Classes (i), (ii), & (iii) are indicated in clauses (1), (2) & (3) respectively of Section 4, Evidence Act. 'Presumptions of fact' are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumptions of this kind. It is not obligatory for the Court to draw a presumption of facts. In respect of such presumptions the Act allows the Judge a discretion in each case to decide whether the fact which under Section 114 may he presumed has been proved by virtue of that presumption.
39. In case of 'presumption of law' no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it.
40. In the background of the above, if the pathology of the circumstantial evidence is considered and weighed in its proper perspective, there could be no shred of doubt that soon after the marriage, the marital astmosphere was serene. To buttress such a view, leading of amorous life for a period of 8 years before the marriage should not be given cast to the wind. It reinforces the conclusion since springs up from presumption that two young couple otherwise sound in health and mind and locked up in a room for months together, and in the background which the presumption is conclusive that consummation of marriage was an accomplished fact. The Court does not enjoy any discretion save to hold view of the operation of presumption that the marriage is a proven fact. There is no material on record which could dislodge such irrebuttable presumption. We are not at all in agreement with the findings of the ld. Court below that the marriage was not consummated. It was purely based upon conjectures and surmises.
41. Another line of approach is made by the ld. Court below in regard to suspension of consummation of marriage on the ground of refusal to transfer the property of her mother-in-law in her favour. Such finding is really preposterous. It may be recalled that the sister and the husband-respondent was not at daggers drawn. "There could be no earthly reason for the wife-appellant to put up claim of transfer of property to the exclusion of her sister-in-law. Besides, it would be legitimate to hold that such proposal docs not flavour the claim of the respondent in view of the fact that the daughter-in-law's marriage was not approved by parent-in-law. It is devoid of logic that she put up a claim for transfer of property to the exclusion of near and dear one when the marriage was never approved by them. More, so, she did not put up with the family of the parents-in-laws. In the background of the aforenoted facts, the claim for transfer of properly of her mother-in-law in her favour is a more fictitious than real. Therefore, the two lines of approach to suspend the consummation of marriage fall through like a pack of cards. The ld. Court below since over-stepped the line of reasonings, we cannot uphold it and reverse it.
42. Mr. Rakhit has made a lofty claim that the suit is barred since time ran out as stipulated by Section 25(iii) of the Special Marriage Act, 1954. This claim is frosty as the time begins to run from 4-11-1988. The suit instituted within one year thereafter does not bring the case within the mischief of second proviso to S. 25 of the Special Marriage Act.
43. The period antecedent to 4-11-1988 was a suspicion which ripened into belief when service record of the office was consulted and fraud exposed.
44. Mr. Rakhit lias next submitted most precisely that Ext. 'B' dated 14-2-1988 is the fountain of relief for the appellant to undo the plea of fraud. The said Ext. discloses purportedly that the respondent intimated his counterpart in the shape of writing about his being in possession of all her certificates of the Board & University. Here the date inserted on Ext. 'B' is, 14-2-1988, when the marriage yet to fructify. The marriage was solemnized on 17th of June, 1988. There was no evidence of antenuptial disloyalty to each other. We have reason to hold for the tangible materials on record that they were smitten with love. As such, there could be no earthly reason to write such a chit by respondent Subrata to the appellant Gitika. They were the cobrethen of the quill which should not go unnoticed. It is really startling that Subrata could write a letter to Gitika about her certificates with whom be used to converse everyday. There was no scope for him to write a chit. Therefore, Ext. 'B' is not a creditworthy document to impeach the fraud. The fraud as envisaged by Section 25(iii) of the Special Marriage Act, 1954, has its absolute mooring in the Indian Contral Act, 1872. Section 17 of the Indian Contract Act defines fraud which has been categorised as follow :--
(a) the suggestion as to a fact, of that which is not true by one who does not believe it to be true;
(b) the active concealment of fact by one having knowledge or belief of the fact;
(c) a promise made without any intention of performing it;
(d) any other act fitted to deceive;
(e) any such act or omission has the law specifically.
45. Looking to the anatomy of the elements of fraud as envisaged in Section 17 of the Indian Contract Act, 1872, the case of the respondent-petitioner for the act committed by the appellant verges on the said Section. The concealment of over age by 3 years showing her to be younger than the respondent constituted fraud attracting the operation of Section 25(iii) of the Special Marriage Act, 1954.
46. Mr. Rakhit has relied on Tapan Ranjan v. Joll Das, ; Raghunath Gopal Daftadar v. Sau, Vijaya Raghunath Daftardar, ; Ranibala Debnath v. Ramkishna Debnath, (1969) Cal 73 WN 751. The facts of the cases of the rulings under reference are not all fours to the facts and circumstances of the case at hand. In the Tapanranjan, the Court held that an arranged marriage is not invalid unless it is in consequence of threat or liberty. In Ranibala, our Court held that the definition of fraud in Section 17 of the Contract Act, 1872, cannot be adopted lock, stock & barrel to fit in with the Hindu Marriage Act, 1955. In the context, we are tempted to say that the operation of Section 17 of the Indian Contract Act, 1872, in relation to coercion of fraud has not been omitted from the body of the Special Marriage Act, 1954. In Daftar-dar's case the Court held that mere nondisclosure prior to marriage or concealment of curable epilepsy disease of a girl and false representation made that she was healthy does not amount to fraud.
47. Therefore, none of the cases cited by Mr. Rakhit could come to the aid of him of rescue his client from the dilemma.
48. Mr. Bhattacharyya has made a weighty submission that the allegations made in the written statement of the appellant, since constituted mental cruelty to the husband which entitled him to a decree", if the Court is of the view that his client was unable to prove his own case. However, to examine the potentiality of his claim, our voyage to the pleadings and evidence in quest of truth provide adequate materials which do not illumine his claim. Only by way of amendment of the pleadings and proof thereof such relief could be explored. The case Bhagat v. D. Bhgat, relied on therefore is of no help to him, as the factual exposure of the instant case predominantly is not identical with the facts of the decision under reference. The whole structure of this argument has no real foundation.
49. The plea of non-consummation of marriage is a blue print for divorce. The point raised is, thus, disposed of.
50. We, therefore, agree with and approve of the reasoning and the conclusions reached by the ld. trial Court on fraud under Section 25(iii) of the Special Marriage Act, 1954, and, accordingly, we affirm the findings of fraud. We are not inclined to agree with reasoning and the conclusions to the effect that the marriage was not consummated. To repeat we, therefore, reverse the findings of the ld, Court below u/S. 25(i) of the Special Marriage Act. Appeal, therefore, fails without costs.
S. K. MUKHJEE, J.
51. I agree with conclusion.
52. Appeal dismissed.