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HIGH COURT OF CALCUTTA
Sankari Prasad Das Ghosh & L.M. Ghosh, JJ.
Sadhan Kumar Roy
vs.
Sm Saraswati Roy (Banerjee)
FIRST APPEAL No. 348 of 1987 with C.O.T. No. 3421 of 1987
Decided on : February 9 & 11, 1988
SPECIAL MARRIAGE ACT, 1954 - SECTION 5, 11, 13(2), 15(f), 24(1), 25, 26, 44(1)(d), 45 - VOID MARRIAGE - JURISDICTION - SOLEMNIZATION - RESIDENCE - FRAUD, COERCION OR UNDUE INFLUENCE - MATRIMONIAL SUIT - DIVORCE - CRUELTY - CONDONATION - DELAY - CERTIFICATE UNDER ARTICLE 134A OF CONSTITUTION.
Fact of the Case:
The appellant and respondent were married under the Special Marriage Act, 1954 on 14.7.78. Subsequently, the respondent filed a Matrimonial Suit for dissolution of marriage on the grounds of cruelty and desertion. The appellant also filed a suit for restitution of conjugal rights. Both suits were dismissed for non-prosecution and default, respectively. The respondent then filed another suit for annulment of marriage and, in the alternative, for divorce on the grounds of cruelty and desertion. The appellant contested the suit and denied the allegations of cruelty and desertion. The trial court passed a decree for dissolution of marriage on the ground of cruelty.
Finding of the Court:
The High Court held that the marriage between the parties was void for contravention of the requirement regarding residence in Section 5 of the Act. The court also held that the cross-objection filed by the respondent challenging the finding of the trial court that she had failed to prove the exercise of fraud, coercion, or undue influence on her by the appellant at the time of solemnization of marriage should be allowed on a different ground, as there was no evidence of such fraud, coercion, or undue influence.
Issues: 1. Whether the marriage between the parties was void for contravention of the requirement regarding residence in Section 5 of the Act? 2. Whether the cross-objection filed by the respondent challenging the finding of the trial court that she had failed to prove the exercise of fraud, coercion, or undue influence on her by the appellant at the time of solemnization of marriage should be allowed?
Ratio Decidendi: 1. Yes, the marriage between the parties was void for contravention of the requirement regarding residence in Section 5 of the Act. Section 5 of the Act requires that when a marriage is intended to be solemnized under the Act, the parties to the marriage shall give notice thereof in writing to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given. In the present case, neither of the parties resided within the territorial jurisdiction of the Marriage Officer who solemnized the marriage, and therefore, the marriage was void for contravention of Section 5 of the Act. 2. Yes, the cross-objection filed by the respondent challenging the finding of the trial court that she had failed to prove the exercise of fraud, coercion, or undue influence on her by the appellant at the time of solemnization of marriage should be allowed on a different ground, as there was no evidence of such fraud, coercion, or undue influence.
Final Decision: The appeal was dismissed, and the cross-objection was allowed on a different ground. The suit in the court below was decreed insofar as the declaration of the marriage as void was concerned. It was declared that the marriage solemnized between the parties on 14.7.78 was void. The judgment and decree of the court below were modified accordingly.
Sankari Prasad Das Ghosh, J.
This is an appeal by the husband against a decree for dissolution of marriage on the ground of cruelty.
2. It is not disputed that a marriage between the parties was solemnised on 14.7.78 under the Special Marriage Act, 1954 (hereinafter called the "Act" for the sake of convenience) before a Marriage Officer, Shri Sisir Sen, for the District of Calcutta and 24 Parganas. Subsequently, on 28.1.80 the wife, Saswati alias Munu brought a Matrimonial Suit, being Matrimonial Suit no 58 of 1980, in the court of the District Judge at Alipore for dissolution of the marriage by a decree of divorce on the grounds of cruelty and desertion. There was an alternative prayer in that suit for a decree for judicial separation between that parties. In that suit, there was a petition by the husband-appellant. In July, 1981 about luck of territorial jurisdiction of the District Judge, Alipore to try that suit on the ground that both the husband appellant and the respondent wife admittedly resided outside the jurisdiction of the District Judge at Alipore and that the marriage was solemnised at Shyamacharan Dey Street, Calcutta, outside the jurisdiction of the District Judge, Alipore. On the basis of this petition by the husband appellant that Matrimonial Suit no. 58 of 1980 was dismissed for non-prosecution on 25.7.80. The appellant had also filed another suit, being Matrimonial Suit no 58 of 1980, in the Court of the District Judge, Chinsurah, Hooghly, against the respondent for passing of a decree for respondent of conjugal rights between the parties. That suit was dismissed for default on 3.12.80. Subsequently, the respondent filed another suit, being Matrimonial Suit no. 41 of 1984. In the Court of the District Judge, Hooghly on 18.4.84 for annulment of the marriage by a decree of nullity and for passing in the alternative, a decree for divorce between the parties.
3. The respondent alleged in the plaint that both the parties had been residing at village Chanditala under P.S. Chanditala in the District of Hooghly since their birth. They had never resided for any period of time within the territorial jurisdiction of the Marriage Officer, who solemnised the marriage on 14.7.78. Any statements made by either the respondent or the appellant in the notice of the intended marriage under section 5 of the Act or in the declaration to be made by the bridegroom and bride under s. 11 of the Act were false and baseless. The respondent had to sign such notice and/or declaration on the threat coercion and undue influence of the appellant. On 20.3.84 on enquiry the respondent first came to know of the contents of the notice under s. 5 of the Act which she was made to sign under threat and coercion on the part of the appellant. Besides waking out this case for annulment of the marriage between the parties by a decree of nullity, the respondent made out a case for dissolution of the marriage by a decree of divorce on the grounds of cruelty and desertion, in the alternative.
4. The appellant filed a written statement denying the averments in paragraph 3 of the plaint that on enquary the respondent came to know on 20.3.84 about the contents of the notice under s. 5 of the Act. It was alleged that the respondent married the appellant out of her free will and that there was no user of any threat or coercion or undue influence on the respondent for signing of the notice under s. 5 of the declaration under s. 11 of the Act. The appellant also denied any desertion of the respondent by him. He contested the prayer for dissolution of marriage also on the ground of cruelty.
5. The respondent examined seven witnesses including herself as P.W. 1. The appellant examined five witnesses including himself as R.W. 1. On a consideration of the evidence of these witnesses as well as the documentary evidences on record the learned District Judge, Hooghly was of the opinion that the respondent could not claim to get a decree of nullity of the marriage
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