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2016 Supreme(Cal) 970
IN THE HIGH COURT AT CALCUTTA
Rakesh Tiwari, Mir Dara Sheko, JJ.
Subhransu Sarkar - Appellant
Vs.
Indrani Sarkar (Das) - Respondent
F.A.T. No. 154 of 2013
Decided On : 23-12-2016
For the Appellant : Mr. Srijib Chakraborty, Ms. Susmita Ghosh
The grounds for divorce under the Special Marriage Act, 1954, and the principles governing cruelty and desertion in matrimonial disputes.
Headnote:
SPECIAL MARRIAGE ACT, 1954 - DIVORCE - CRUELTY - DESERTION - [1] SUIT FOR DIVORCE UNDER SPECIAL MARRIAGE ACT, 1954 WAS MAINTAINABLE SINCE MARRIAGE WAS REGISTERED UNDER THE ACT AND CONSUMMATED AFTER SOCIAL MARRIAGE AS PER HINDU RITES AND CUSTOMS. [2] CRUELTY IS A CONDUCT WHICH MAY BE PHYSICAL OR MENTAL, OR BOTH, CAUSING IN CONTINUATION BY ONE AFFECTING THE OTHER TO SUFFER IRREPARABLY. [3] DESERTION INVOLVES TWO ESSENTIAL CONDITIONS: (1) FACTUM OF SEPARATION, AND (2) INTENTION TO BRING COHABITATION PERMANENTLY TO AN END (ANIMUS DESERENDI).
Fact of the Case:
Husband filed for divorce on grounds of cruelty and desertion. Wife denied allegations, claimed marriage was not consummated until social marriage under Hindu rites and customs, and alleged husband's cruelty and extramarital affairs. Trial court dismissed the suit.
Finding of the Court:
1. The suit for divorce under the Special Marriage Act, 1954 was maintainable since the marriage was registered under the Act and consummated after social marriage as per Hindu rites and customs. 2. The appellant failed to prove the ground of cruelty by leading satisfactory and corroborative evidence. 3. The respondent's desire for staying separately with her husband for the purpose of betterment and settlement of her parents-in-law could not be ruled out, and such desire should not be viewed to blame her. 4. The respondent's eagerness to resume her conjugal life despite her husband's mixing with other women indicated that she did not have the intention to bring cohabitation permanently to an end.
Issues: 1. Whether the suit for divorce under the Special Marriage Act, 1954 was maintainable? 2. Whether the appellant proved the ground of cruelty? 3. Whether the respondent deserted the appellant?
Ratio Decidendi: 1. The term 'cruelty' is not defined in any statute and must be construed in light of the specific circumstances of each case. 2. To establish desertion, the deserting spouse must have the intention to bring cohabitation permanently to an end, and the deserted spouse must not have consented to the separation and must not have given reasonable cause for the other spouse to leave the matrimonial home.
Final Decision: The appeal was dismissed, and the trial court's judgment dismissing the suit for divorce was upheld.
Mir Dara Sheko, J.
1. Being aggrieved by the judgment and decree of dismissal dated 14.12.2012 delivered by learned Additional District Judge, 7th Court at Alipore District 24th Parganas (South) in M.A.T. Suit No. 110 of 2010, the husband/plaintiff/appellant (who will be referred to hereafter as the appellant) preferred this first appeal.
2. Since this is a first appeal and it is heard only at the instance of Learned Advocate for the appellant for non-appearance of anybody on behalf of the wife/defendant/respondent, (who will be referred to hereafter as the respondent) the Bench requires to examine the case both in fact and law. Therefore the facts as contended by the parties in accordance with their pleadings are set out hereunder.
3. Case of the appellant in brief, is that out of pre-marriage friendship, he got married with the respondent on 2nd day of March, 1997, under the Special Marriage Act, 1954. The respondent used to come to the house of parents of appellant at Garia almost thrice a week since 1996, and ultimately social marriage was held at the instance of Parents of both sides as per Hindu Rites and Customs on 7th day of December, 2000 and their marriage was thereafter duly consummated by residing together as husband and wife.
4. The appellant noticed that while after one week of social marriage the respondent came to reside in her matrimonial home, she withheld herself from taking part in the household works and on flimsy pretexts started disobeying and insulting parents of the appellant with a view to persuade the appellant to live in the house of respondent’s parents either as their domesticated son-in-law, or, as monthly tenant in a portion of respondent’s father’s house, which was refused by the appellant.
5.The appellant further stated that the respondent took away all of her ornaments and kept the same in custody of her parents; that She would live in the appellant’s house hardly for 7/8 days in a month and the rest days of the month in her parents’ house. Even despite request by some of the neighbouring friends of the appellant, she failed to change such obstinate attitude of the respondent.
6. The appellant stated that once in November, 2001 the respondent had left her matrimonial home and though came back after a period of four months but her behaviour remained unchanged. To overcome the situation, the appellant also consulted psychologist and psychiatrist apart from accompanying the respondent to different temples and sacred places, but in vain.
7. The appellant further asserted that during stay in this way the respondent though was conceived in November 2001, but as she did not want to be mother at that time the appellant had to give consent for abortion, and accordingly the respondent was aborted in 2002.
8. The appellant stated further that after some period of said abortion the respondent was taken on tour to PURI along with his colleague and his family, but the respondent assaulted the appellant there in their presence, and similar incident happened at Shilong, and in that occasion in presence of parents of the respondent. Though she was loved by the parents of the appellant, but the respondent also assaulted her mother-in-law.
9. The appellant further asserted that due to such misbehaviour though the marital relationship had become gradually strained the respondent in or about January, 2003 suddenly came to the appellant’s house at Garia with the proposal to resume marital life expressing desire of becoming a mother of child of their wedlock. The respondent accordingly was taken aback to resume conjugal life at Garia, where she was conceived in the month of February, 2003. But being provoked by her parents she left her marital home on the plea that the appellant’s parents would not be able to take proper care of her for which her baby “might be in danger”.
10. Further contended that the respondent ultimately gave birth to male child by way of caesar on 9.10.2003 at South Suburban Nursing Home, at a
