Calcutta High Court (Appellete Side)
Unknown vs Jagadishwar Prasad Chaturvedi on 20 May, 2011
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
HON'BLE JUSTICE PINAKI CHANDRA GHOSE, J.
AND HON'BLE JUSTICE SOUMEN SEN, J.
F.A. No.371 of 2008 with CAN No.8159 of 2008 SMT. NILANJANA CHATURVEDI (NEE DAS) .... DEFENDANT/APPELLANT
-Versus-
JAGADISHWAR PRASAD CHATURVEDI .... PLAINTIFF/RESPONDENT For the Appellant : Mr. Ashoke Kumar Banerjee, Sr. Adv., G.P. Mr. P.S. Biswas, Adv.
For the respondent : Mr. Tarun Kumar Banerjee, Adv.
Mr. Biswajit Basu, Adv.
Mr. Anjan Debsarkar, Adv.
Mr. Susenjit Banik, Adv.
Ms. Ria Banerjee, Adv.
Heard on : 29.04.2011.
Judgment on : 20th May, 2011
Soumen Sen, J. : The appeal is directed against the judgment and decree passed in Matrimonial Suit No.24 of 2000 (Jagadishwar Prasad Chaturvedi Vs. 2 Smt. Nilanjana Chaturvedi) dated 8th July, 2008 passed by the Court of Additional District Judge, Third Court, Alipore.
The wife preferred the instant appeal. The plaintiff respondent husband also preferred a cross-objection under Order XLI Rule 22 of the Code of Civil Procedure against the same judgment and order.
The said judgment and decree has been passed on the basis of admission by the respondent wife. The learned Court below proceeded to pass a decree of dissolution of marriage on the basis of admission made by the parties.
We feel that the basis of the said judgment is clearly erroneous and contrary to the provisions of the Special Marriage Act, 1954.
Both the husband and the wife are dissatisfied with the said judgment and decree for different reasons and while the wife preferred an appeal against the said judgment and decree, the husband respondent preferred the cross-objection as mentioned hereinabove.
In or about December 14, 1999 the respondent husband initiated a matrimonial proceeding under Section 22 of the Special Marriage Act for restitution of conjugal rights. Unfortunately the order sheet records it as an application for a decree of divorce on mutual consent. Subsequent thereto, a 3 proceeding was initiated by the wife on 18th April, 2000 under Section 36 of the Special Marriage Act for maintenance of two children. The wife filed her written statement in the main proceeding on June 26, 2000. Simultaneously, with the filing of such written statement a counter-claim was filed by the plaintiff on June 26, 2000 under Section 35 of the Special Marriage Act in which the wife has claimed for a decree for damage tentatively assessed at Rs.24 lakhs against the husband respondent and alleged paramour. The wife further claimed maintenance and education expenses for the children at the rate of 12 thousand per month till they attain majority, decree for alimony and necessity of the children with the wife.
Thereafter, on 1st August, 2000 the husband filed suggested issues and the Court below fixed 6th September, 2000 for framing of issues and filing suggested issues by the appellant wife. It appears subsequently the Court below extended the time till November 22, 2000 for framing of issues and suggested issues to be filed by the parties. Thereafter, on November 26, 2000 it appears that suggested issues again have been filed by the husband. The plaintiff/respondent on the same date also filed a petition under Section 6 Rule 17 praying, inter alia, for amendment of the petition under Section 22 of the Special Marriage Act.
The respondent in the amendment application alleged that subsequent to the filing of the application for restitution of conjugal rights, the said respondent was subjected to mental cruelty and the behavior of the appellant wife was most 4 discourteous, mala fide and grave. The wife refused to stay with the husband when a request was made to her on 12th May, 1999. The wife made wild, defamatory and reckless allegations against the husband and had fabricated stories alleging adultery thereby causing physical and mental torture upon the plaintiff husband. The said amendment application was allowed by an Order No.22 dated January 9, 2001.
By the said amendment, the plaintiff has practically converted the application for restitution of conjugal rights to an application for divorce under Section 27(1)(d) of the Special Marriage Act, 1954.
It is interesting to note that the original plaint was filed on December 14, 1999 and the amendment application was filed on November 12, 2000 after the wife had filed the written objection, counter-claim and the suit was fixed for framing of issues.
The marriage was solemnized between the plaintiff and the defendant on December 26, 1987 at Calcutta and the same was registered under the Special Marriage Act 1954. After solemnization of the marriage, the parties were residing at the married hostel of the Jawaharlal Nehru University at Delhi till March 1989 and thereafter, the respondent got a job as lecturer in the University of Calcutta and shifted to Calcutta in or about April 1999. 5
The plaintiff does not have any independent accommodation in Calcutta nor he had any acquaintance or relation at Calcutta. On the basis of the request made by his in-laws the respondent agreed to stay with them at Flat No.188 Shyamnagar Road, Calcutta. The respondent is the only daughter of her parents. The said parents for the well-being of the plaintiff and the defendant decided to construct two storied building in a plot of land owned by the father-in-law at Garia. The construction of the building started sometimes in 1992 and completed in 1994. During their stay at Shyamnagar Road, a female child was born on July 1992 who was later on given the name as Mayurakshi. After the construction of the said house at Garia, the entire family along with in-laws had shifted to the said house and they started living together since March 1995. On 14th May, 1995 a male child was born, namely, Atin. The said two storied building is having two bathrooms, one big dining space in each floor. Entire ground floor was given to the appellant and respondent for their use, occupation and enjoyment along with their children. The parties appear to have lived together as husband and wife in the said Garia Flat till 12th of May, 1999 when it is being alleged by the wife that the husband had suddenly left the house in the early morning by expressing his desire to put an end to the said marriage and his desire to marry Sudha Singh.
The respondent husband, however, had a different story to tell. According to the husband he managed to get an alternative accommodation and it had become difficult for him to stay with his in-laws, sacrificing his self-respect since 6 he was abused by the in-laws and the wife and he had to listen to defamatory and derogatory words from his in-laws and the wife for staying with them at the in-laws place. The husband would say that he had requested the appellant to shift to the alternative accommodation but the said appellant refused and accordingly he had no other option but to leave the house on 12th May, 1999.
The appellant in her written statement and the counter-claim alleged that after the male child was born on 14th May, 1995, she had to leave Calcutta on 26th October, 1995 for Jawaharlal Nehru University in order to complete his thesis on Ph.D in Geography. Leaving the said new born child in Calcutta with her parents and the husband the appellant stayed at Delhi from 26th October, 1995 till 12th January, 1996 and thereafter returned to Calcutta on 13th January, 1996. It was during such period that the husband taking advantage of the absence of the appellant developed an adulterous relationship with one of his students, namely, Sudha Singh, who had been visiting the said flat regularly and would remain in the said flat for hours together on the plea of tuition from the respondent with the door of the flat remain closed during such long stay. In spite of the objections and dissentment expressed by the in-laws, the said respondent had refused to change his habit. It is further alleged by the wife that in fact the in-laws found the respondent and his paramour in a compromising position which had led to quarrel and disturbance in the family. In spite of protests and remonstrations, the respondent refused to change his habit and this has caused mental cruelty to the wife and the wife is accordingly entitled apart 7 from seeking a divorce on the ground of adultery and cruelty, damages in terms of Section 35 of the Special Marriage Act, 1954.
The appellant, however, denied such allegations and had reiterated that he has been ridiculed and defamed and had an uncomfortable and unpleasant stay at the in-laws place. The respondent ultimately could get an alternative accommodation and shifted to the said accommodation. The appellant has deliberately withdrawn herself from the society of the plaintiff and the allegation of adultery and cruelty by the wife is mischievous, discourteous, mala fide and the same has caused mental cruelty which entitles the husband to claim a divorce under Section 27(1)(d) of the Special Marriage Act, 1954.
It is interesting to note that the allegation of adultery was made by the wife as early as on 15th October, 1999. Although the said letter was marked as "Exhibit 2" but the learned Court below unfortunately did not advert to the said letter at all. No material has been produced before us to show that the contents of the said letter has been contradicted by any other evidence.
It further appears that the learned Judge proceeded on the basis of a sentence being uttered by the wife in the cross-examination that she wants divorce. On the basis of such a single utterance, the learned Court below applied the principle under Order 12 Rule 6 and arrived at a conclusion that since both the parties are praying for divorce hence a divorce can be granted on the basis of admission of the parties.
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Before the said conclusion in one single paragraph, the Court made a one sentence observation that there is no evidence that is sufficient to prove that the husband used to lead adulterous life.
The learned Judge was required to arrive at a definite finding on cruelty and adultery on the basis of the materials on record and could not have passed such decree on the basis of such misconceived admission. The learned Trial Judge was not exercising a jurisdiction under Section 28 of the Special Marriage Act, 1954. The learned Trial Judge should have arrived at a definite finding of adultery and/or cruelty either in terms of Section 27(1)(d) or Section 35 since there are other consequences to follow on the basis of such finding.
Moreover it appears that since some issues were filed before the Court below, the Trial Court ought to have framed the issues upon settling the same and thereafter should have proceeded to decide the claim and the counter-claim.
However, the order that we propose to pass it may not be necessary for us to go into such evidence in detail at this stage since we feel that any discussion on such evidence might ultimately influence the outcome of the applications pending before the Court below.
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We are remanding the matter before the Court below with a direction to decide both the claim and the counter-claim finally by framing issues and decide both the applications preferably within a period of six months from the date of communication of the Order. It is expected that the Trial Court should proceed with the matter as expeditiously as possible and should not permit any unnecessary adjournments. The parties are directed to assist the Court in deciding the said matter so as to enable the Trial Court to decide the matter within the aforesaid time frame. In the event, the Trial Court feels that after framing of the issues any fresh evidence is called for the parties may be permitted to adduce such additional evidence on such issues. The evidence already on record, however, would be taken into consideration while deciding the matter finally along with any additional evidence that may be adduced upon settlement of issues. The Court below is also directed to take into consideration Exhibit 2, namely, the letter dated 15th October, 1999 which was prior to initiation of the proceeding under Section 22 of the Special Marriage Act, 1954 and other evidence already on record.
The parties, however, should not be permitted to lead any evidence on the documents already on record nor any cross-examination should be allowed on the documents that have already been exhibited from part of the record. However, the same would not preclude the parties from adducing further evidence that may be found necessary upon settlement of issues. The relevancy 10 and cogency of such evidence would be finally decided by the Court below while disposing of the matter finally. The Court below must arrive at a definite finding on cruelty and adultery and/or desertion on the basis of pleading and evidence adduced or might be adduced upon remand.
The cross-objection has been preferred on the ground that although the Court below has held that no ground of adultery could be proved but the said Court had failed to exercise its jurisdiction by not granting the decree for divorce on the ground of cruelty since failure to prove a case of adultery leads to the conclusion that it causes mental cruelty to the other spouse. In this regard the respondent relied upon an unreported judgment on January 21, 2011 (F.A.No.164 of 2005 Smt. Sumita Gupta Vs. Sri Kisholay Gupta) passed by the Division Bench of this Honourable Court presided over by one of us (Justice Pinaki Chandra Ghose) in which it has been held that if the case of adultery is found out to be false, it amounts to mental cruelty.
Unfortunately, the said judgment would not come to the rescue of the respondent in this case since on the basis of the material on record and the evidence adduced by the parties before the Court below, we declined to accept the finding of the Court below in respect of cruelty and adultery. Accordingly the question of applying the ratio of the said unreported judgment does not and cannot arise in the present case. It is only when the case of the wife on adultery 11 is disbelieved then only the plaintiff husband could have claimed mental cruelty. In view thereof the cross-objection fails.
Accordingly, the judgment and decree passed on 8th July, 2008 is set aside, however, there shall be no order as to costs.
(Soumen Sen, J.) I agree:
(Pinaki Chandra Ghose,J.)