Calcutta High Court (Appellete Side)
Sri Santanu Kundu vs Ar Smt. Moumita Barman on 10 April, 2023
14 10.4.2023 FA 147 of 2022
Ct-08
with
I.A No. CAN 1 of 2022
Sri Santanu Kundu
Vs.
ar Smt. Moumita Barman
Mr. Ayan Banerjee
Mr. Suman Banerjee
... For the Appellant
Mr. Anirban Das
... For the Respondent
The suit filed by the plaintiff/appellant
under Section 25(i) of the Special Marriage Act,
1954 was dismissed by the learned Trial Judge.
This judgment is under challenge by filing this
appeal.
Learned Trial Judge dismissed the suit as
the husband was unable to prove that there
was willful non-consummation of marriage.
We have heard the learned counsel
appearing for the appellant. We have read
the plaint.
The petitioner alleged that the marriage was
solemnized on 25.5.2019 under the Special
Marriage Act at Shantinagar, Anandanagar,
Nischinda, P.S. Bally, District-Howrah. After
the marriage the petitioner returned to his
house and the respondent stayed at her
parental home on a plea that after completion
of her examination she would come to the
house of the petitioner.
It is alleged that the respondent never
returned to her matrimonial home, although
she told the petitioner that she would be busy
with her study for examination.
The suit was filed within few months from
the date of registration of marriage on the
ground that due to willful refusal for
consummation the petitioner compelled to file
the suit with a prayer for nullity of marriage
solemnized on 25th May, 2019.
Mr. Ayan Banerjee, learned counsel
representing the appellant, submits that in the
detailed affidavit-in-chief the appellant has
proved non-consummation of marriage. We
have, however, unable to accept the said
submission. We are of the view that the wife
has not been given sufficient chance for
consummation of marriage. Moreover, there
has to be a finding that such refusal was
willful.
In the petition the plaintiff has admitted that
the wife was unable to return her matrimonial
home due to her study, as she was preparing for
her examination. This explanation cannot be
discarded. In fact, the learned Trial Judge in
deciding the matter has relied upon the decision
of a learned Single Judge in Bina Tewari vs.
Chandra Prakash Munshi, reported in 1996
SCC Online Cal 477: (1996)1 DMC 606 to arrive
at a finding that it is difficult to conclude that the
marriage has not been consummated owing to the
willful refusal of the respondent to consummate
the marriage as envisaged under Section 25(i) of
the Special Marriage Act, 1954.
There is no evidence to show that the husband
after waiting for reasonable time tried to ascertain
from the wife as to why the wife was not being
able to return to her matrimonial home. It gives
an impression that the marriage was hurriedly
done with a clear understanding that the wife
would not be able to stay with the petitioner
immediately as she was preparing for her
examination. The burden of proof is on the
husband. It is for him to discharge the initial
onus of non-consummation of marriage, only
thereafter the onus may shift upon the wife. The
wife, however, did not contest the suit. Today,
Mr. Anirban Das, learned counsel appears on
behalf of the respondent and filed Vokalatnama in
this proceeding.
Mr. Banerjee has referred to a decision of the
Hon'ble Supreme Court in the case of
Vidhyadhar Vs. Mankikrao and Anr., reported
in AIR 1999 SC 1441 and has argued that due
to non-filing of the written statement and failure
of the wife to appear into the witness box, the
petitioner was unable to cross-examine the
defendant/wife and it is a fit case to apply
doctrine of non-traverse and be return a finding in
favour of the appellant. There cannot be any
doubt that if the statements made in the plaint
has remained uncontroverted by reason of non-
appearance and non-filing of the written
statement, the court shall presume that the
statements are correct and proceed to decree the
suit by applying the principle of non-traverse.
However, there is a rider to the said provision.
The court may require the plaintiff to prove a
particular fact and may not allow the suit to be
decreed merely on the ground of non-traverse.
The said doctrine is not of universal application
and is hedged with a discretion exercised by the
court in an appropriate case. In the instant case,
on the basis of the evidence non-consummation of
marriage due to willful neglect of the wife is not
proved.
Under such circumstances, we are not
inclined to interfere with the order passed by
the learned Single Judge.
The appeal is accordingly dismissed along
with CAN 1 of 2022.
This order shall not operate as res judicata,
in the event any subsequent suit is filed for
non-consummation of marriage, if such facts
are established.
We dismiss the appeal due to unsatisfactory
evidence of non-consummation of marriage.
(Uday Kumar, J.) (Soumen Sen, J.)
