Sri Manishdeb Nath vs Smt. Aparupa Banerjee
2022 Latest Caselaw 7285 Cal

31.10.2022
 SL No.34
Court No.8
    (gc)
                          FA 17 of 2022

                       Sri Manishdeb Nath
                               Vs.
                      Smt. Aparupa Banerjee

                                    Mr. Gopal Ch. Ghosh,
                                    Mr. Uttam Kr. Bhattacharyya,
                                                  ...for the Appellant.
                                    Mr. Swagata Datta,
                                               ...for the Respondent.

We have heard the learned Counsel for the parties.

The appeal is arising out of the judgment and

decree dated 15th February, 2020 in a matrimonial suit

filed by the wife for divorce under Section 27(1) of the

Special Marriage Act, 1954. In the impugned order, the

learned Trial Judge did not discuss the evidence at all.

The learned Trial Judge has merely set out the facts

referred to few of the exhibits relied upon the appellant

but there was no discussion at all on the evidentiary

value of such exhibits and the reason for accepting the

plaintiff's version and rejecting the defendant's version

of the case. It is true that the cruelty has to be gathered

from circumstances but there has to be some evidence

to establish that cruelty has been perpetrated on the

plaintiff. The instances mental cruelty has been clearly

enunciated in Samar Ghosh Vs. Jaya Ghosh reported

at (2007) 4 SCC 511. The celebrated decision on

cruelty is the decision of the Hon'ble Supreme Court in

Narayan Ganesh Dastane Vs. Sucheta Narayan

Dastane reported at (1975) 2 SCC 326. The mental

cruelty is considered to be a conduct which inflicts

upon other party such mental pain and suffering as

would make it not possible for that party to live with the

other. It must be of such a nature that the parties

cannot reasonably be expected to live together.

However, from the impugned judgment, we do not

find any discussion with regard to the nature of the

evidence and of quality of the evidence. The Trial Court

is required to write a judgment on appreciation of the

evidence. It is not clear from the judgment as to

whether the exhibits marked with objection were

ultimately overruled.

Be that as it may, we feel that the Court is required

to write a fresh judgment on appreciation of evidence.

On such consideration, the impugned judgment is

set aside as it does not contain any reason.

The learned Trial Judge is directed to dispose of the

suit on the basis of the pleadings and evidence on

record. The learned Trial Judge shall give an

opportunity of hearing to the parties afresh and rewrite

the judgment uninfluenced by the observation made by

us in this judgment.

The parties are directed to place this order before

the learned Additional District Judge, 2nd Court,

Serampore, Hooghly for fresh consideration.

The hearing of the suit shall commence from the

stage of argument. The learned Trial Judge is requested

to fix a firm date for argument. The learned Trial Judge

is also requested to dispose of the suit within two

months from the date of communication of this order by

either of the parties or by the Registrar Administration-I

(L & OM) whichever is earlier.

The appeal being FA 17 of 2022, is accordingly,

allowed.

The LCR shall be sent down to the Court below

immediately along with a copy of this order. The

Registrar Administration-I (L & OM) shall ensure

compliance of this order.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

(Uday Kumar, J.)                            (Soumen Sen, J.)