Anupam Majhi vs Minu Majhi (Halder)

Shivakant Prasad, J—In this appeal the judgment and order passed by the learned Additional District & Sessions Judge, Kakdwip, 24 Parganas (S) dated 5th September, 2013 in Matrimonial Suit No. 7 of 2013 [Re: Sri Anupam Majhi v. Smt. Minu Majhi (Halder)] has been assailed inter alia, on the grounds that the learned Trial Court has erred in law as well as in fact, inasmuch as it has been ventilated through written statements and depositions by the parties that the marriage has been broken down completely and irretrievably and there is no scope of reconciliation between the parties and as it is settled principle that in such circumstances, the Courts should convert an application under Section 13(1) Hindu Marriage Act, 1955 to one under Section 13(B) Hindu Marriage Act, 1955. Accordingly, the appellant has prayed for setting aside the judgment and the order as bad in law and in fact.

The brief facts leading to the instant case is that the petitioner and the respondent are the husband and wife and their marriage was solemnized on 27.02.2013 as per Hindu Rites and Customs at the father''s house of respondent at Village- Bamanagar under P.S. Kakdwip, District-24 Parganas (South) within the jurisdiction of the learned Trial Court.

It is contended that due to sudden illness of the respondent, the petitioner took her to Dr. B.K. Roy, M.O. Kakdwip Sub Divisional Hospital on 30th May, 2013 for her treatment and during the period of treatment the said doctor informed the petitioner that the respondent was pregnant carrying a single living foetus in her uterus and maternity of the said foetus is 19 weeks 1 day and after receiving U.S.G. report, prepared by Vivekananda Scientific Centre of Kakdwip on 02.06.2013, petitioner had taken steps for further ultrasonography examination of the respondent at ''EKO X-ray and Imaging Institute at Kolkata'' and on receiving the report on 08.06.2013 came to know that the respondent is carrying a single viable foetus of 21 weeks 3 days.

According to the petitioner the age of conjugal life between the parties was 14 weeks 4 days only as on 08.06.2013 but it was unfortunate to the petitioner that the respondent was carrying on 21 weeks 3 days as on 08.06.2013. So it was proved by medical report that at the time of marriage, respondent was an expectant mother.

The respondent/wife admitted that before her marriage with the petitioner, she had a physical relation with another person and she became pregnant before the marriage with the petitioner-husband. It is contended that the cause of action arose on 02.06.2013 as the cruelty and unchestity of the respondent proved by the clinical examination of the respondent. The respondent-wife entered appearance before the learned Trial Court by filing a written statement categorically admitting the fact that as on 02.06.2013 she was an expected mother and within few months of their marriage the relationship between her and her husband deteriorated and differences and dispute arose due to their mode of living, temperament, culture and that there is no collusion between herself and her husband and there is no chance of reconciliation between the parties.

On the above pleadings, the learned Trial Judge framed as many as four issues but has failed to frame pertinent issue relating to the grant for divorce. However, taking into consideration the issues so framed after accepting the evidence of the parties to the suit, the learned Trial Judge though came to the finding that the basic fact which emerged was that before marriage of the respondent with the petitioner, she had a physical relationship with another person as a result she became pregnant but held that in order to get decree of divorce under Section 13 of Hindu Marriage Act, 1955, the petitioner has to prove the grounds as mentioned in Section 13 of Hindu Marriage Act, 1955 and the learned Trial Judge dismissed the Matrimonial Suit without cost by the judgment dated 5.09.2013 which has been assailed before this Court.

The learned counsel for the petitioner submits that in the given facts and circumstances of the case, the learned Court instead of dismissing the suit ought to have considered the proceeding under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage to be converted into a proceeding under Section 13(B) of the said Act in order to do justice. In support of this contention, authority in the case of Rajesh Lakhotia Vs. Smita Lakhotia, (2001) 2 CALLT 311 : (2001) 2 CHN 697 : (2001) 2 DMC 624 has been relied.

In second fold argument, the learned counsel for the petitioner pointed out that the learned court below could have granted decree of divorce on admission in terms of the provision of Order 12 Rule 6 of the Civil Procedure Code itself which enjoins the provision for judgment on admission.

It is true that the question of cruelty must be determined from the whole facts and matrimonial relation between the spouses, nevertheless, the onus to prove cruelty beyond reasonable doubt to the satisfaction of the Court does lie upon the spouse.

In the Black''s Law Dictionary the cruelty has been construed as the intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage. Cf. ABUSE; INHUMAN TREATMENT; INDIGNITY.

"When William Blake opined that ''Cruelty has a human heart'', he posited the physical and emotional forms which cruelty may take. But when is one party so cruel to the other that it goes to the heart of the marriage and justifies dissolution? A New York court defined cruelty as bodily harm, or a reasonable apprehension of bodily harm, which endangers life, limb, or health and renders marital cohabitation unsafe or improper. Some states are reluctant to permit divorce when there has been only emotional suffering without physical harm. And in a marriage of long duration, some courts require that the cruelty be more extreme to justify divorce than if the relationship has been brief. Acts constituting the ground must continue over an extended period of time unless they are so severe as to shock the conscience, or raise the probability that it would be unsafe for the innocent party if the couple remain together."

In the facts and circumstances of the instant case, we are of the considered view that in order to establish that there is some mental cruelty on the husband, undoubtedly, there should be some positive evidence which can lead to a reasonable inference of causing mental cruelty.

It would be apt to go through the evidence adduced by the respondent who has categorically stated on oath that marriage between her with petitioner/husband was solemnized on 27.02.2013 as per Hindu Rites and after marriage they lived together jointly as husband and wife. During the course of their conjugal life dispute arose between them wherein she has admitted that the written statement has been signed and filed by her voluntarily prepared as per her instruction and that there is no chance of reunion. At present she is residing at her father''s house and further admitted that she had no objection regarding the prayer of plaint submitted by her husband. Adverting to the written statement filed by the respondent-wife it would clearly go to show that she has in clear crystal term in paragraph 9 of the written statement admitted that before marriage with the petitioner she had physical relationship with another man and she became pregnant before the marriage with the petitioner for such sexual relationship with that person.

We do find the substance in the contention of the learned counsel for the petitioner and we can understand the mental suffering of the petitioner due to disclosure of admitted facts of the respondent/wife being expectant mother at the time of her marriage with the petitioner which certainly has given a severe shock to the conscience of the husband/petitioner and it becomes unsafe for the innocent party to allow the couple to remain together and it does amount to mental cruelty inflicted on the petitioner apart from the fraud practiced upon him.

Thus, considering the facts and circumstances of the case we are of the view that the judgment impugned is required to be set aside and the suit be remanded back to the learned Trial Court to consider the suit afresh upon the factual and legal aspect of the case.

Accordingly, the appeal is allowed.

Copy of this judgment together with the L.C.R. be sent down to the learned Trial Court forthwith with direction to dispose of the suit as expeditiously as possible preferably within six months from the date of receipt of the L.C.R.

Urgent Xerox certified copy of this order, if applied for, be supplied to the parties on usual undertakings.