Dipanjali Sikdar vs Santosh Singh
2023 Latest Caselaw 2252 Cal

03.04.2023
SL No.35
Court No.8
    (gc)


                           FAT 334 of 2018

                           Dipanjali Sikdar
                                 Vs.
                            Santosh Singh

                                     Mr. Biswajit Konar,
                                     Ms. Prajaaini Das,
                                     Mr. Arijit Mahinder,
                                                    ...for the Appellant.


                 The report of the department as regards service be

             kept with the record.

                 In spite of several attempts being made to ensure

             the appearance of the respondent, the respondent is not

represented. The administrative notices appeared to

have been received on behalf of the respondent by one

"Pinki Singh". The respondent has adequate notice of

the pendency of this appeal and in spite of being aware

of the fact that this appeal is likely to be taken up for

hearing, the respondent has chosen not to contest the

proceeding.

The appellant has filed the suit for divorce under

Section 27 of the Special Marriage Act on the ground of

cruelty. In the Plaint, the appellant has clearly stated

that she was tortured by the respondent and there was

no relationship of husband and wife between them.

They have never cohabited with each other. The

appellant also refers to a few complaints made to the

local police station. The appellant claims that they

came to know each other through a common friend in

the year 2013 and became good friend which ultimately

culminated into a romantic relationship. The petitioner

was innocent and brought up in a homely atmosphere.

She could not fathom the trick played by the respondent

in convincing her to marry before a Registrar with a

promise that they would get married socially. He also

did not disclose his details or family background. The

petitioner has also stated that after she became aware

of the truth and the mundane reality, she found that on

false promise he married her. It is further alleged that

the respondent even tortured her physically and

mentally on road or in a place of visitation. The

respondent entered appearance and filed written

statement. He accepted that the present relationship

was the outcome of a friendship, but he denied that he

had taken advantage of her simplicity or innocence. He

denied any foul play before the Registry Office. He

denied all allegations of cruelty, lack of cohabitation and

desertion. He stated that he is willing to take back the

plaintiff and ready to lead happy married life. The

plaintiff examined two witnesses. The plaintiff was P.W-

1 and her mother was P.W.-2. In her examination, the

plaintiff has categorically stated that they have never

lived as husband and wife. Her husband used to

demand money from her or from her parents as the

appellant is economically well-off and was educationally

more qualified than the respondent. The mother of the

plaintiff, P.W.-2 has clearly stated that her daughter

was never taken to the house of the husband in order to

lead a life as husband and wife and they have never

cohabited with each other. It was only in January,

2015, that she came to know from her daughter that

she got married to the respondent and the said

respondent had inflicted physical and mental torture.

She referred to few incidents happened on 30th May,

2015 and 2nd June, 2015 to show that her daughter was

under constant fear and threat from the respondent.

The respondent did not lead any evidence.

It was on the basis of such evidence, the Trial

Court decided the suit. The Trial Court has come to a

definite finding from the evidence on record that the

plaintiff was able to prove non-consummation of

marriage but in deciding the said issue the learned Trial

Judge refers to Section 25 of the Special Marriage Act,

1954. Under Section 25(1) of the Special Marriage Act,

1954, the Court can pass a decree of nullity if the

marriage has not been consummated owing to the

willful refusal of the respondent to consummate the

marriage. In the instant case, it is quite evident from

the evidence of the parties that none of the parties are

willing to cohabit and there was no independent

evidence of the respondent to show that the marriage

was consummated. The respondent did not file any

application for restitution of any conjugal rights. It is

important to note that the parties are living separately

for almost 10 years now and the non-appearance of the

husband in the appeal despite all methods of service

having been exhausted is a pointer to the fact that the

husband is not interested to continue with the marital

relationship. One of the grounds of which the suit was

dismissed was that the plaintiff did not file the suit for

nullity of the marriage due to non-consummation of the

marriage. The non-consummation of marriage can be a

ground for annulment of marriage. What is important

is that in the evidence it has come out that the marriage

has not been consummated. When both the parties are

living separately since April, 2014 in the face of a clear

assertion by the wife that the marriage was not

consummated and failure on the part of the husband to

clearly demonstrate his intention to cohabit and

continue with the marital relationship, in our view, the

wife will be entitled to a decree for nullity of the

marriage. We cannot say on the basis of the evidence

that there was willful refusal of the appellant to cohabit.

It appears that they were in relationship for some time

and if the husband is willing to cohabit then he would

have clearly put his intention by his acts and conducts

which is significantly absent. The husband says that he

was preparing for a social marriage but there was no

evidence to that effect. There are also economic

disparities and the allegation of the wife that he was

given a different picture about the family of the

husband and their background cannot be totally

discarded.

Under such circumstances, the appeal is allowed.

The impugned judgment is set aside.

We declare the marriage as nullity.

The marriage certificate being the Exhibit-1 is

hereby cancelled.

The appeal being FAT 334 of 2018, accordingly,

stands disposed of.

A copy of this order shall be immediately

communicated to the Registrar General of Births,

Deaths and Marriages and the Marriage Officer

concerned for making appropriate entry in the marriage

certificate book.

The department shall draw up the decree as

expeditiously as possible.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual

undertaking.

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