A decree for divorce under Section 27(1)(d) of the Special Marriage Act, 1954, on the ground of cruelty, cannot be granted if there is no evidence of cruelty by the respondent towards the petitioner.

( 1 ) THIS is an appeal by the Petitioner-wife against the judgment and order dated 9. 6. 1992 passed by the Additional District Judge, 10th Court Alipur, whereby her prayer for a decree of divorce under Section 27 of the Special Marriage Act, 1954, on the ground of cruelty, was refused.

( 2 ) THE Petitioner, Bina Tewari, asserted solemnization of her marriage with the Respondent, Chandra Prakash Munshi, as per the provision of Special Marriage Act, 1954 before the Marriage Officer of District 24 Parganas on 2nd November, 1988. Since both of them then happened to be next door neighbours, some intimacy grew between them and, ultimately, they decided to marry and, accordingly, they went for a certificate of their marriage as such. After the solemnization of the marriage the respondent, however, left the petitioner to her father's place and assured her that he would take her to the matrimonial home after securing an employment for himself. Sometime, thereafter, when the petitioner met the respondent, he became furious and abused her in filthy language and even denied the marriage. Subsequently, in the month of January, 1990 the respondent insisted the petitioner on signing some blank papers and, on her refusal to do so, she was physically assulted by him. It has been thus alleged by the petitioner that the respondent treated her with cruelty both physically and mentally and also that the marriage was never consumated at all. There was thus a necessity for the petitioner to seek for a decree of divorce.

( 3 ) THE respondent while contesting the claim of a decree of divorce, contended inter-alia that he had been forced to marry the petitioner on the point of threat and not wilfully. The petitioner and her anti-social associates had practically forced him to go to the registration office and there was a registration of the marriage as such against his desire. No notice of marriage was given earlier to the date of the marriage. Since there was no real marriage between the parties, the question of taking the petitioner to the matrimonial home never arose. The parties never had a conjugal life for a single day and, accordingly, the question of treating the petitioner with cruelty both physically and mentally did not arise at all. The respondent emphatically denied the allegation of cruelty and prayed for refusal of the prayer for a decree of divorce as sought for.

( 4 ) THE Learned Court below after having distinctly examined the evidence adduced on the record upheld the solemnization of the marriage between the parties under the provisions of the Special Marriage Act and disbelieved the allegation of cruelty whatsoever levelled against the respondent. It was further held that there was, in fact, no wilful refusal from the side of the respondent towards the consummation of the marriage. In the opinion of the Court below, therefore, the petitioner was neither entitled to a decree of divorce under Section 27 of the Special Marriage Act, nor a decree of nullity as contemplated under Section 25 (1) of the said Act.

( 5 ) BEING aggrieved by the above findings of the Court below the petitioner- wife has come up with the present appeal and has assailed the judgment mainly on the ground that it was not based on proper appreciation of the evidence on the record.

( 6 ) SO far as the solemnization of the marriage was concerned, the petitioner- wife did assert in her petition that the marriage had been duly solemnized as per provision of the Special Marriage Act, 1954 in the office of the Marriage Officer for the District of 24 Parganas. The relevant marriage certificate was also available on the record as Exbt. 1. There was not a whisper in the petition as to the marriage being solemnized under some threat, coercion or fraud. It was rather contended therein that the parties were next door neighbours and an intimacy grew up between them and, therefore, both of the them decided to marry. It is noticeable that those facts were a