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2012 Supreme(Cal) 274
CALCUTTA HIGH COURT
ASHIM KUMAR BANERJEE, SHUKLA KABIR (SINHA), JJ.
Sukhendu Das
Vs.
Rita Mukherjee
F.A. No. 63 of 2010
Decided on : 04/04/2012
Long period of separation, without more, is not a ground for divorce under the Hindu Marriage Act or the Special Marriage Act.
Headnote:
DIVORCE - HINDU MARRIAGE ACT, 1955 - SECTION 13 - SPECIAL MARRIAGE ACT, 1954 - SECTION 27 - MENTAL CRUELTY - LONG PERIOD OF SEPARATION - ARTICLE 142 OF THE CONSTITUTION - DEAD MARRIAGE - SUMMARY OF THE FACTS, FINDINGS, ISSUES, RATIO AND DECISION OF THE COURT.
Fact of the Case:
The appellant-husband filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, alleging mental cruelty by the respondent-wife. The wife did not contest the suit, and the trial court dismissed the petition, holding that the evidence did not establish mental cruelty.
Finding of the Court:
The High Court held that the grounds mentioned in the plaint did not come within the scope of Section 13 of the Hindu Marriage Act or Section 27 of the Special Marriage Act. The court also noted that there was no evidence to support the claim of mental cruelty.
Issues: 1. Whether the grounds mentioned in the plaint constituted mental cruelty under Section 13 of the Hindu Marriage Act or Section 27 of the Special Marriage Act. 2. Whether the long period of separation between the parties amounted to a dead marriage.
Ratio Decidendi: 1. The court held that the grounds mentioned in the plaint, even if taken as sacrosanct, would not come within the scope of Section 13 of the Hindu Marriage Act or Section 27 of the Special Marriage Act. 2. The court further held that the long period of separation between the parties was not yet considered a permissible ground for divorce under the law.
Final Decision: The appeal was dismissed, and there was no order as to costs.
ASHIM KUMAR BANERJEE, J. :—
PREFACE
Both the parties are Judicial Officers. They fell in love while working together and got tied in a marital knot. The dream however broke soon after the birth of the lone child. Real reason for discord is rather unknown, at least not came out in evidence. Pertinent to note, the wife did not contest the divorce before the Court below or before us. The learned Judge however declined to pass Decree of Divorce as he was not satisfied with the evidence. We patiently heard Mr. Bidyut Kumar Banerjee, learned senior Counsel appearing for the appellant/husband. We meticulously examined the evidence and pleadings. Despite our best efforts, we also could not find out any logic behind the discord that would result in a break down of marriage. It is only in the passage of time, at least now, when we heard the appeal, long period has passed the couple led a secluded life.
2. They were posted at different places, possibly, they never prayed for posting at the same station that they were otherwise entitled to, being a married couple. If one would guess that they must have persuaded their colleagues at the Registry to save them from embarrassment having posted in the same station, we would not be surprised. We adjourned this matter from time to time. We intended to have a conciliation. Despite our best efforts, we failed. The parties avoided us and did not meet us giving us an opportunity to make an attempt for reconciliation. We however frankly confess, we were cautious enough to deal with the issue, particularly when they were still serving in the State judiciary as Judicial Officers that would have the administrative superindence and control of the High Court in which we are part of. We did not pass any formal order asking them to appear before us. Had we passed that order they would have appeared before us. We saved them from embarrassment.
3. They were prudent people delivering justice to the litigants. They were delivering justice which would speak through their conscience. We appealed to their conscience and adjourned the matter from time to time. Our frantic effort and desperate appeal to them possibly did not reach the core of their heart. Had it been so, they would have obliged us.
4. We, being a part of the judicial system, must preach what we observe in Court. When time and again we urge that the marital institution must be preserved at the cost of great sacrifice by both the spouses we would least expect that the parties would give us a chance to mediate, none of them obliged us. They did not possibly think it fit considering the plight of their lone child who was deprived of her father’s affection since her birth. She is now grown up and a lady of nineteen years. Neither of the parties ascertained her wish.
5. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh reported in 2007 Volume-IV Supreme Court Cases Page-511 observed that the human mind is extremely complex. If we add a rider taking a cue from our renowned author Bamkim Chandra Chattopadhyay who spoke through Kamalakanta and described the member of the fairer sex, a complex character. He said it as a satire. At the same time we would be failing in our duty if we do not give the other version of the author where he compared lady with a coconut shell. It might be difficult to crack, however once you crack, you would find a kind hearted soul inside.
6. Paragraph 99 of Samar Ghosh (supra) being apt herein is quoted below :—
Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human valu
