The suit for dissolution of marriage on the ground of irretrievable breakdown is not maintainable under the Hindu Marriage Act, and allegations of cruelty must meet the standard of preponderance of probabilities to warrant a divorce.

Dipankar Datta, J.

1. The judgment and decree dated April, 2003 passed by the learned Additional District Judge, 2nd Court, Hooghly in Matrimonial Suit No.322 of 2007 is under challenge in this first appeal. The suit, which had been instituted by the respondent for dissolution of marriage, was decreed by the learned judge on the ground of irretrievable break down of marriage although the respondent had sought for divorce on the ground of cruelty and desertion.

2. At the time of hearing of the appeal, Mr. Chatterjee, leaned senior advocate for the respondent submitted that he had presented a cross-objection urging that the suit ought to have been decreed on the grounds set out in the plaint. He further submitted that even if we were minded to hold that the marriage could not have been dissolved on the ground of its breaking down irretrievably, the ground of cruelty and desertion ought to be considered.

3. On perusing the order-book of this appeal, we noticed that the respondent entered appearance through his learned advocate at the initial stage when the application for stay was considered by a coordinate Bench. He had also been represented by his learned advocate when a coordinate Bench endeavoured to bring about a reconciliation between the parties but such endeavour failed because of the respondent’s adamant attitude. Almost six months later, the cross-objection was presented by the respondent without the same being accompanied by an application under section 5 of the Limitation Act. Citing Order 41 Rule 22 of the Code of Civil Procedure (hereafter the CPC), Mr. Chatterjee contended that notice of appeal had not been served on the respondent and, therefore, limitation had not commenced and that the cross-objection could not be held to be barred by time. Reliance was placed by Mr. Chatterjee on two decisions of coordinate Benches of this Court reported in 1991 (1) CHN 377 (Sabita Dutta v. Abir Chandra Dutta) and 2003 (1) CHN 287 (Gopal Chandra Das v. Saraswati Basak) in support of his submissions.

4. Mr. Chaturvedi, learned advocate for the appellant placed for our consideration the decision of the Supreme Court reported in AIR 2011 SC 2439 (Mahadeve Govind Gharge & ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Kornataka) to contend that the respondent being fully aware of the fact of presentation of appeal by his wife challenging the decree for divorce, it is too late in the day for him to contend that since no notice of appeal has been served, the time to file the cross-objection has not yet reached. It has further been contended that the conduct of the respondent is not at all bona fide. He filed the cross-objection only after the previous coordinate Bench took sort of an adverse view against him finding him to be adamant. According to him, the cross-objection being time barred and there being no prayer for condonation of delay, the same ought not to be entertained by us.

5. Paragraph 55 of the decision being relevant is quoted below:

“55. If we examine the provisions of Order 41 Rule 22 of the Code in its correct perspective and in light of the abovestated principles then the period of limitation of one month stated therein would commence from the service of notice of the day of hearing of appeal on the respondent in that appeal. The hearing contemplated under Order 41 Rule 22 of the Code normally is the final hearing of the appeal but this rule is not without any exception. The exception could be where a party-respondent appears at the time of admission of the appeal, as a caveator or otherwise and argues the appeal on merits as well as while passing of interim orders and the court has admitted the appeal in the presence of that party and directs the appeal to be heard finally on a future date, actual or otherwise, then it has to be taken as complete compliance with the provisions of Order 41 Rule 22 of the Code and thereafter, the appellant who has appeared himself or through his pl