Calcutta High Court (Appellete Side)

Sri Krishnendu Roy vs Smt. Pritisha Bhowmik on 18 August, 2022

                                  1


               IN THE HIGH COURT AT CALCUTTA

                (Criminal Revisional Jurisdiction)

                            Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                          C.O. 2987 of 2019
                                With
                         I.A No. CAN 1 of 2022
                         Sri Krishnendu Roy
                                 Vs
                       Smt. Pritisha Bhowmik


For the Petitioner             : Mr. Soumya Dasgupta, Advocate
                                 Mr. Somnath Banerjee, Advocate
For the Opposite Party         : Shyamal Kr. Das, Advocate
                                 Mr. Ajay Barman Roy, Advocate


Heard on                        : August 12, 2022
Judgment on                     : August 18, 2022



Bibhas Ranjan De, J.

1. This is an application under Article 227 of the Constitution of

India challenging the Order no 13 dated 01.08.2019 passed by

Ld. Additional District Judge, 1st Court no.3, Barrackpore, in

connection with Mat Suit No. 19 of 2016.

2. Ld. Advocate on behalf of the petitioner/husband has contended

that the order impugned suffers from material irregularity in not

allowing the application dated 24.09.2018 with a prayer for

reconciliation/mediation which is a mandatory step to be taken

in a Mat Suit for nullity under the Special Marriage Act. It has

been further submitted on behalf of the petitioner, in the

alternative, that, the suit was filed on the ground of practicing

fraud but there is no specific averments in the suit. It has been

further submitted that purpose of marriage is to enable a couple

to settled down in life and live peacefully. Therefore, a step for

reconciliation may be a mandatory step in Mat Suit.

Accordingly, learned advocate on behalf of the petitioner prays

for setting aside the order impugned.

3. Per contra, ld. Advocate appearing on behalf of the opposite

party/ wife has submitted that prayer for reconciliation in a suit

for nullity of marriage on the ground of practicing fraud is

absolutely unnecessary. It has been submitted that the

marriage between the parties has not yet been consummated

between the parties and more over marriage was solemnized by

practicing fraud at the instance of petitioner/husband. Thereby,

ld. Advocate on behalf of the opposite party /wife sought for

rejection of the instant application under Action 227 of the

Constitution of India.

4. On perusal of the impugned order no. 13 dated 01.08.2019

passed by Ld. Additional District judge I find that this suit was

filed at the behest of opposite party/wife for nullity of marriage

on the ground that the marriage solemnized between the

parties has not been consummated due to the willful refusal of

the petitioner/husband to consummate the marriage and/or

her consent was obtained to the marriage by practicing fraud

and petitioner/husband in his written statement denied the

allegations.

5. Learned Judge disposed of three (3) applications viz. application

seeking permission to file additional written statement,

application with a prayer for recalling the Order dated

03.02.2018 whereby learned judge refused an application under

Order VII Rule 11 of the Civil Procedure Code and an

application dated 24.09.2018 with a prayer for referring the suit

for reconciliation/mediation between the parties.

6. Ld. Judge allowed the first application permitting the petitioner

husband to file additional written statement. Ld. Judge rejected

the prayer for recalling the Order dated 03.02.2018 whereby

learned Judge refused an application under Order VII Rule 11 of

Civil Procedure Code filed on behalf of the petitioner/husband.

Lastly, Ld. Judged refused the application dated 24.09.2018

filed on behalf of the petitioner/husband for referring the suit

for reconciliation/ mediation between the parties on the ground

of strong opposition by the opposite party/ wife and also on the

ground of nature relief sought for in the suit.

7. At the time of hearing both the ld. Advocates appearing on

behalf of the parties emphasized on the issue of reconciliation

only which was dealt with by the Learned Judge at the time of

considering an application dated 24.09.2018

8. Before going into the merit of this application it would be

appropriate to lay out Section 34 of the Special Marriage Act,

1954 and also Section 23 of the Hindu Marriage Act, 1955

respectively as follows:

"Section 34. Duty of court in passing decrees.--

(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that,--

(a) any of the grounds for granting relief exists; and

(b) 1[where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein], or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and

(d) the petition is not presented or prosecuted in collusion with the respondent; and

(e) there has not been any unnecessary or improper delay in instituting the proceedings; and

(f) there is no other legal ground why the relief should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the

court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: 2[Provided that nothing contained in this sub- section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.] 2[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.] 23 Decree in proceedings .

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that

(a) any of the grounds for granting relief exists and the petitioner 47 [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified 48 [***] in clause (i) of sub- section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and 49 [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

(c) 50 [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: 51 [Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub- section (1) of section 13.] 52 [(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected

and the court shall in disposing of the proceeding have due regard to the report.] 52 [(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

9. Therefore, intention of the legislature is to take an effort for

reunion of married couple before passing any decree of divorce

or that of nullity of marriage. That is why, provision for

reconciliation has been provided in both the Act of 1954 &

1955. This being the position and also considering the grounds

of the Mat suit being no. 19 of 2016 I am of the view that

Learned Judge should take an effort for reconciliation between

the parties to the suit before proceeding further in the Mat suit

no. 19 of 2016.

10. Thereby, observation of the Learned Trial Judge in respect of

application dated 24.09.2018 on the issue of reconciliation,

stand set aside with a request to take an effort for reconciliation