Suman Kumar Das vs Sabita Rani Das

The appellant husband appeals to this court from a judgement and decree dated 18th September, 2017 dismissing his suit. The plaint was founded on the grounds of alleged cruelty and desertion by the respondent husband.

We have gone through the affidavit of service.

On 15th July, 2019 this appeal had appeared in our list. At that time, none appeared for the respondent/wife. We directed service of notice upon her, fixing the appeal under the heading 'short hearing matters'. Thereafter, by a letter dated 20th July, 2019 this order was communicated by speed post to her by the appellant's advocate on record, according to the above affidavit of service.

None appears for the respondent. We had no option but to entertain the appeal ex-parte.

We are constrained to observe that the learned judge of the court below has taken a rigid and copybook view of the matter. He was unable to appreciate the real problem involved and its solution.

The parties were married according to the Hindu Rites under the Hindu Marriage Act, 1955, on 20th June, 1991. Within 5 days of the marriage, the appellant husband discovered some physical effects (cut mark) on the abdomen of the respondent/wife. Although the respondent maintained that it was a result of a surgical intervention, the husband developed a belief based on an information received by him that the said cut mark was the result of a surgical intervention to effect an abortion.

There is evidence on record that the couple never resided together for any significant period of time. They may have resided together only for a few days.

The husband avers in the plaint that in 2007 he tried to reconcile with the wife asking her to become a mother, but she refused.

According to Mr. Datta, a proceeding under Section 498A of the Code of Criminal Procedure, filed by the wife is still pending.

Most importantly for this entire period, which is only about 2 years, short of 30 years the couple has been living separately without any relationship with each other.

According to us, once the said physical mark of the abdomen was discovered by the husband, the respondent should have disclosed to him as to what was the cause of it. The evidence suggests, she refused to go to a doctor. Failure to give sufficient explanation for it was sufficient justification for the husband to entertain the notion that it was due to surgical abortion. Coupled with that he found the age disclosed by the wife to be false and that she was much older that what she declared her age to be. On top of that, she initiated proceedings under Section 498A of the Code of Criminal Procedure.

Mental cruelty is the feeling of deep and permanent emotional pain. Whether some one has suffered mental cruelty differs from person to person. The learned judge ought to take a subjective view based on the reaction of a reasonable and normal person.

Under the above circumstances, the learned judge ought to have held that the ground of mental cruelty was established. He erred in not doing so.

We allow the appeal.

We set aside the impugned judgement and decree dated 18th September, 2017 of the fast track court at Barasat in Matrimonial Suit No. 05 of 2010.

We pronounce a decree of divorce by dissolution of marriage between the parties.

The department is directed to draw up the decree expeditiously.

Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.