Swarnali Gupta vs Santanu Gupta

The revisional application under Article 227 of the Constitution of India is at the instance of the wife, the respondent in a matrimonial suit filed by the opposite party and is directed against Order No. 83 dated July 16, 2018 passed by the learned Additional District Judge, 5th Court, Barasat, District North 24 - Parganas in Matrimonial Suit No. 43 of 2011.

The opposite party filed the said matrimonial suit seeking dissolution of his marriage with the petitioner on the ground of cruelty. The said petition for divorce has been captioned as one under Section 13 of the Hindu Marriage Act, 1955.

The wife entered appearance and has been contesting the suit by filing written statement. In the written statement, the wife has stated that her marriage with the petitioner was solemnized under the provisions of the Special Marriage Act, 1954. The said marriage was not solemnized according to Hindu Rites and Customs as alleged by the husband in the petition for divorce.

The cross-examination of the P.W. 1 was fixed on July 16, 2018. The wife on the said date filed three applications, one for dismissal of the matrimonial suit on the ground that the marriage since has been solemnized under the provisions of the Special Marriage Act, 1954 cannot be dissolved by a proceeding under the provision the Hindu Marriage Act, 1955.

The second application was for framing of a preliminary issue regarding the maintainability of the suit and the third application was for shifting the suit from the peremptory hearing board.

The wife on the said date, i.e. on July 16, 2018 prayed adjournment of the hearing of the suit.

The learned trial Judge in view of the direction passed by this Court for expeditious disposal of the matrimonial suit refused to grant adjournment to the wife and after rejecting the said application for adjournment proceeded to deal with the aforementioned three applications.

The learned Trial Judge by the order impugned dismissed the application filed by the wife for dismissal of the suit on the ground of maintainability holding, inter alia, that the husband is seeking the divorce on the ground of cruelty but wrongly captioned the petition for divorce as one under Section 13 of the Hindu Marriage Act, 1955 and such wrong mentioning of the Section does not render the suit invalid, particularly when the wife claimed her maintenance pendente lite by filing an application under Section 24 of the Hindu Marriage Act, 1955 and obtained an order in her favour on the said application.

The learned Trial Judge dismissed the application filed by the wife for framing of a preliminary issue regarding the maintainability of the suit holding that such an issue has already been framed in the suit.

Mr. Sibasis Ghosh, learned advocate appearing on behalf of the petitioner contends that until and unless a petition for divorce is not suitably amended by converting the same one under the provisions of Special Marriage Act, 1954 the opposite party cannot maintain the suit for divorce under the provisions of the Hindu Marriage Act,1955 as the marriage between the parties was solemnized under the provisions of the Special Marriage Act, 1954.

Heard Mr. Ghosh. Perused the materials on record.

The petition for divorce although has been captioned as one under Section 13 of the Hindu Marriage Act, 1955 but the husband/opposite party is seeking dissolution of his marriage with the wife/petitioner on the ground of cruelty..

The marriage solemnized according to Hindu Rites and Customs can be dissolved at the instance of either of the parties to the marriage on the proof of any of the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955.

Section 13(1)(ia) of the said Act provides cruelty as one of the grounds for divorce. The said provision of the said Act is quoted below for ready reference:-

Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

"(i)..................................(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or......................................."

A marriage solemnized under the provision of the Special Marriage Act, 1954 can be dissolved by a decree of divorce at the instance of either of the parties to the marriage on the proof of any of the grounds mentioned under Section 27 of the said Act.

Section 27 (1)(d) of the aforesaid Act also provides cruelty as one of the grounds for divorce. The said provision of the said Act is quoted below for ready reference:-

Divorce.- (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent-

"(a) ...............................

(b)................................

(c) ................................

(d) has since the solemnization of the marriage treated the petitioner with cruelty."

There cannot be any doubt that Section 27 (1)(d) of the Special Marriage Act, 1954 is akin to Section 13(1) (ia) of the Hindu Marriage Act,1955.

"Cruelty" under both the aforementioned provisions are the conduct and/or action of the erring spouse on which the other spouse is seeking the dissolution of marriage. Therefore, the opposite party can get the relief as prayed for in the suit on the proof of the ground of cruelty which is similar under the provisions of both the above mentioned Acts. Therefore, caption of the petition for divorce has no significance in the matter of maintaining a suit for divorce on the ground of cruelty. It is mere a procedural irregularity cannot effect the maintainability of the suit. The said irregularity is always open to rectification.

The filing of such kind of applications at the stage of peremptory hearing of the suit reflects the malafide intention of the wife to arrest the progress of the suit which this Court highly deprecates.

With the above observation, C.O. No. 3081 of 2018 is dismissed.

No order as to costs.

The learned trial Judge is requested to dispose of the suit expeditiously without granting any unnecessary adjournment to either of the parties preferably within a period of six months from the date of communication of this order.

It is however made clear that in the event of default in making the payment of regular maintenance, the direction for expeditious disposal of the suit will not be given effect to.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.