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1988 Supreme(Cal) 170
High Court Of Calcutta
ANANDAMOY BHATTACHARJEE, AJIT KUMAR NAYAK
BROJA KISHORE GHOSH - Appellant
Versus
KRISHNA GHOSH - Respondent
A. F. O. D. 381 Of 1984
Decided On : 04/21/1988
ANIMESH KANTI GHOSAL, TARUN CHATTEJEE
In a divorce proceeding under the Special Marriage Act, the petitioner must prove their case of cruelty on a preponderance of probabilities, and the court may require corroboration of the petitioner's evidence unless the absence of corroborating witnesses can be satisfactorily accounted for.
Headnote:
SPECIAL MARRIAGE ACT - Cruelty - Proof - Standard of Proof - Corroboration of Evidence - Adverse Presumption against Non-Examination of Material Witnesses - Divorce - Grounds.
Fact of the Case:
The appellant, Brojo Kishore Ghosh, appealed against the decree of divorce granted to his wife, Smt. Krishna Ghosh, on the ground of cruelty under Section 27(1)(d) of the Special Marriage Act, 1954. The parties were married under the Special Marriage Act in 1971. The respondent alleged that she was subjected to physical and mental cruelty by the appellant, including beatings, verbal abuse, and denial of food and confinement. The appellant denied the allegations and asserted that the respondent had left the matrimonial home without any reasonable cause.
Finding of the Court:
The court held that the respondent had failed to prove her case of cruelty on a preponderance of probabilities. The court found that the respondent's evidence was not corroborated by any independent witnesses and that she had not satisfactorily explained the absence of such corroborating evidence. The court also found that the respondent's allegations were improbable and that she had not provided any sufficient explanation for why she would have left the appellant if she was being subjected to such severe cruelty.
Issues: 1. Whether the respondent had proved her case of cruelty on a preponderance of probabilities. 2. Whether the respondent's evidence was corroborated by any independent witnesses. 3. Whether the respondent had satisfactorily explained the absence of such corroborating evidence. 4. Whether the respondent's allegations were improbable. 5. Whether the respondent had provided any sufficient explanation for why she would have left the appellant if she was being subjected to such severe cruelty.
Ratio Decidendi: 1. The standard of proof required in a divorce proceeding under the Special Marriage Act is a preponderance of probabilities, not beyond a reasonable doubt. 2. Corroboration of the petitioner's evidence is not required as an absolute rule of law, but the court may require it unless the absence of corroborating witnesses can be satisfactorily accounted for. 3. An adverse presumption may be drawn against a party who fails to examine material witnesses who could corroborate their evidence. 4. In assessing the evidence, the court should consider the probabilities of the case and the inherent credibility of the witnesses. 5. A marriage cannot be dissolved on the ground of irretrievable breakdown alone; one of the grounds specified in Section 13 of the Hindu Marriage Act must be established.
Final Decision: The appeal was allowed, and the decree of divorce granted by the trial court was set aside.
( 1 ) THIS appeal is at the instance of Brojo Kishore Ghosh against his wife the respondent Smt. Krishna Ghosh who obtained a decree for divorce on 19-3-84 in matrimonial suit No. 58 of 1980 in the Court of 14th Additional District Judge, Alipore, 24 Parganas on the ground of cruelty under S. 27 (1) (d), Special Marriage Act, 1954. The appellant/opposite party Brojo Kishore Ghosh and the respondent-petitioner Smt. Krishna Ghosh, both citizens of India, were married in Calcutta under the Special Marriage Act, 1954 on 16th Mar. , 1971. It was an intercaste marriage. The wife, respondent before marriage was a brahmin while the husband, appellant was a non-brahmin. The appellant was a close neighbour and tenant in a premises by the side of the residence of the petitioner-respondent at 9/3, Krishna Mullick Land, P. S. Ultadanga. In or about the year 1970, the parties became known to each other, developed intimacy between them, which resulted in such marriage allegedly according to the persuasion of the appellant-husband. Apprehending non-acceptance in the family, the petitioner-respondent did not disclose the fact of her marriage to her parents or members of her family till she left her father's house at the instance of the appellant-husband stealthily and without the knowledge of anybody on 18-3-72 and went to reside in her husband's elder sister's house at 7, Rabindranath Tagore Road, P. S. Cossipore, District 24 Parganas, where they lived as husband and wife for the first time and the marriage was consummated. Being persuaded by the appellant, the respondent-wife made a statement at Ultadanga Police Station that she had left her father's house out of her own accord and that she wanted to live with her husband. About a month after that the appellant rented a house nearby at 11, Rabindra Nath Tagore Road, P. S. Cossipore, and the parties began their family life thereon from 15th April, 1972. The respondent-wife left the house of her parents with a high hope that she would live a very happy married life with the appellant for which she severed all connections with her parents. But she became disillusioned within a week or so after coming to rented accommodation at 11, Rabindra Nath Tagore Road, P. S. Cossipore, when she found her husband extremely addicted to drinks and she was subjected to cruelty both physical and mental. Almost every night the appellant would come home heavily drunk and without any rhyme and reason would abuse the respondent with filthy language and when protested by her would assault her mercilessly. Initially, the respondent-wife tolerated all this cruel behaviour expecting that the appellant would come round and would behave normally but as the days passed by it increased all the more not showing any sign of abatement. The appellant constantly suspected the chastity of his wife and reproached her, causing thereby terrible mental anguish and pain which told upon the health of the respondent. As months passed by, the respondent was subjected to further physical and mental torture in aggravated form in the shape of denial of food and confinement in the house under lock and key and merciless physical assault on her body. The respondent in the meantime contacted her mother in her house narrating her tales of woe to her who advised her to live with the appellant after adjustment and with tolerance. Things, however, did not improve in any way and the plight of the respondent-wife became more miserable and this was witnessed by even Ashim Mandal, a man of the locality of the parents of the respondent who was sent on several occasions by her mother and found her confined to the rented room under lock and key. Ultimately, the respondent was driven away from her matrimonial home on 14-7-77 by the appellant and she had not other alternative but to take shelter at the house of her parents. But there even the respondent could not escape the wrath of the appellant who visited her there on 21-7-77 and b
