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High Court of Judicature at Calcutta
BHASKAR BHATTACHARYA & PRASENJIT MANDAL
Shampa Mukherjee
Versus
Pranab Mukherjee
F.A. No.308 of 2008
Decided On : 03-08-2009
HINDU MARRIAGE ACT, 1955 - SECTION 10, 12 - CRUELTY - JUDICIAL SEPARATION - GROUNDS FOR - SUPPRESSION OF DEFORMITIES - CONCEALMENT OF MEDICAL CONDITION - MENTAL CRUELTY - INTERPRETATION OF CRUELTY - RELEVANCE OF PRIOR NEGOTIATIONS AND CONDUCT - APPLICABILITY OF JUDICIAL PRECEDENTS.
Fact of the Case:
Husband filed for annulment of marriage or, in the alternative, for judicial separation on grounds of fraud and cruelty. He alleged that he discovered after the marriage that his wife had deformities in her body, including breasts like those of a male person and black spots on her back, which were concealed from him. He also alleged that she treated him with cruelty by returning home late, ringing the bell loudly, and slamming the door shut, and by becoming a witness against him and his sister in a criminal case under Section 498A of the Indian Penal Code.
Finding of the Court:
The court found that the husband's allegations of physical deformities and concealment were not supported by the evidence. It noted that the parties had negotiated the marriage and that the husband and his family had seen the wife before the marriage. The court also found that the husband had consummated the marriage and that the parties had gone on a honeymoon to Puri. The court further found that the wife's conduct in returning home late and ringing the bell loudly did not constitute cruelty. The court also found that the wife's becoming a witness against the husband and his sister in the criminal case was not an act of cruelty, as she may have been interrogated by the police during the investigation and the police may have made her a witness based on the results of the investigation.
Issues: 1. Whether the wife's alleged physical deformities and concealment thereof constituted fraud and cruelty. 2. Whether the wife's conduct in returning home late, ringing the bell loudly, and slamming the door shut constituted cruelty. 3. Whether the wife's becoming a witness against the husband and his sister in a criminal case under Section 498A of the Indian Penal Code constituted cruelty.
Ratio Decidendi: 1. The court held that the husband's allegations of physical deformities and concealment were not supported by the evidence. It noted that the parties had negotiated the marriage and that the husband and his family had seen the wife before the marriage. The court also found that the husband had consummated the marriage and that the parties had gone on a honeymoon to Puri. 2. The court held that the wife's conduct in returning home late and ringing the bell loudly did not constitute cruelty. The court noted that the wife was a teacher and may have spent some time at her parents' house after school hours. 3. The court held that the wife's becoming a witness against the husband and his sister in the criminal case was not an act of cruelty, as she may have been interrogated by the police during the investigation and the police may have made her a witness based on the results of the investigation.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the trial court, and dismissed the suit on contest without costs.
PRASENJIT MANDAL, J.
(1.) This first appeal is directed against the judgment and decree dated 30.09.2005 passed by the learned Additional District Judge, Sixth Court, District South 24 Parganas at Alipore in Matrimonial Suit No.47 of 1996 whereby the learned Additional District Judge decreed the suit against the wife/appellant.
(2.) The respondent filed the suit for annulling the marriage by a decree of nullity under Section 12 of the Hindu Marriage Act, 1955 alternatively for judicial separation under Section 10 of the said Act. The husband/respondent and the wife/appellant were married according to the Hindu rites and ceremonies on 3rd June, 1996 after negotiation. Thereafter, they lived together. On the night of Phoolsajya, that is, on 05.06.1996 the husband/respondent discovered that the wife/appellant did not possess breasts like those of a female person and she had a black spot line on her back. On noticing such deformities, he informed his mother of the fact next morning. The marriage was not consummated. The parents of the wife/appellant suppressed such deformities. The appellant is a primary school teacher and she compelled the respondent to take her to Puri immediately after the marriage. The respondent had no relation with his elder brother though they reside in the same house. But the appellant mixed with the family of his elder brother and she became a witness against the husband and his sister in a criminal case under Section 498A of the Indian Penal Code. She treated the respondent with cruelty for which it was impossible for the respondent to live with her. So the respondent filed the suit for the reliefs already stated.
(3.) The appellant contested the suit by filing a written statement denying all the material allegations. She contended that marriage was duly held after negotiation and then it was registered. Immediately after the marriage, the husband arranged for honeymoon at Puri and they stayed at Sonali Hotel in Puri and visited local sights. The respondent is a practising advocate of the High Court, Calcutta and he himself along with other members of his family went to see the wife and after seeing her from a close range, the marriage was settled. Thereafter, the marriage was consummated. The averment of the plaint relating to deformity is not true. Nothing was suppressed. The appellant was examined by medical experts and it was found that the allegation of the respondent with regard to deformities was false. She did not do any act of cruelty at all. So the allegation of fraud and cruelty as stated by the respondent is false. The suit should, therefore, be dismissed.
(4.) Upon taking evidence on behalf of both the sides, the learned Additional District Judge decreed the suit granting the relief for judicial separation against the appellant from the date of decree. Being aggrieved, the appellant has filed this first appeal. Upon consideration of the submission of the learned Advocate of both the sides and on perusal of the materials-on-record, we find that admittedly, the marriage between the appellant and the respondent was solemnised according to Hindu customary rites on 03.06.1996 and that the ceremony of phoolsajya was held on 05.06.1996 as per customary rites in the house of the respondent. Admittedly, Astamanglya was held and immediately thereafter the parties went to Puri for honeymoon and they stayed at Sonali Hotel in Puri. Admittedly, the appellant is a primary school teacher and she has been residing in the house of her husband.
(5.) Admittedly, the husband is an advocate of this Honble Court and from the evidence on record, we find that the husband and other members of their family are in the habit of lodging several cases, G.D. entries, etc. over the family matters. Admittedly, the husband was married previously and that marriage was dissolved by a decree for dissolution of marriage. Admittedly, thereafter, the respondent married the appellant for the second time. The respondent
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