JUDGMENT Rabin Bhattacharyya, J.: This appeal is directed against the judgement and decree passed by the learned Trial Judge in Mat. Suit No. 3 of 1986 against the judgement and decree passed on 24th June, 1989 dismissing the suit on contest without cost against the respondent. Before adverting to the core problem of the lis, it is advisable to take our journey through the factual matrix which may afford considerable materials to get a grip to the controversy. 2. There is an adage in English, "Count the day in the night". This adage is applicable in all spheres of life where marital life has not been excepted. The question arises in this way:- When a marriage is solemnised or undergone, parties hover between hope and disparity. 3. It gleans from the factual exposure of the case that the parties were the lecturers of the college who had undergone the marriage under the Special Marriage Act on 10. 12. 1980 founded on negotiation where relatives of both the parties took an active role. 4. The petitioner, since devoid of accommodation, one of the rituals namely, 'Fulsujja' took place at the residence of the father-in-law. The petitioner in evidence of marriage put vermillion mark on the forehead of the respondent which lost its seat by the action of her newly wedded wife. The explanation sought for by him brought bickerings which the members of her family shared. A thick could densed over the marital life which was the premonition of all evil super added with the refusal of the respondent to agree to any sexual act from the inception of marriage. Her aversion to sexual life to become a mother seated heavily on her mind which was never unseated. Even his visit to Puri with her relatives never reflected any happiness as the petitioner all along indulged in his insatiable longing to consummate the marriage. But for the savage outburst of temper of the wife, the consummation of marriage was a far cry in wilderness. He was thrown out of the bed by her aided by assault when attempted consummation. 5. With the passage of time, the petitioner acquired a flat at Saltlake on hire purchase in the name of her wife upon payment of Rs. He was thrown out of the bed by her aided by assault when attempted consummation. 5. With the passage of time, the petitioner acquired a flat at Saltlake on hire purchase in the name of her wife upon payment of Rs. 2,040/ - in October, 1981 at the behest of the respondent, But his endeavour to make the life peaceful was foiled by the monstrous acts of the respondent who repeated her cruel performance. She blurted out that child, if any, born to them, would impair their vocational life as they were married sufficiently at an old age. The respondent secretly removed the key of the almirah. The respondent removed the marriage certificate, bank pass book, post office pass books and other important documents. The demand of key brought doleful sorrow and unhappiness as the respondent hurled invectives where his parents were not spared. He was threatened with assault by the brother of the respondent and her mother abused him in filthy languages. The respondent reached the stage of no return ad ultimately the gold ornaments were exchanged by and between the parties. The respondent was unable to perform any sexual act for her illness namely hysteria. The petitioner accordingly was constrained to approach the court for a declaration that the marriage is a nullity. 6. To resist the claim of the petitioner, the respondent has denounced the claim of the petitioner that she perpetrated cruelty. The story of removal of vermillion mark and non-consummation of marriage is a travesty of truth. The marriage was fully consummated. She could not bear the child for the contraceptive used by her husband who was a slave of perverted sexual acts and deeds which the respondent had to bear with much pain. She alone paid the money for the flat but her husband paid only one instalment once for all. The story of removal of key of the book shelf is a myth. Neither the petitioner took away the key of the Almirah nor subjected him to any cruel treatment. She wanted to be a good wife but her wishes were dashed to earth. She was always faithful to house-hold duties. The respondent paid back the initial payment made by the petitioner on account of the flat at Saltlake. The petitioner left the house with all his belongings on his own accord. She wanted to be a good wife but her wishes were dashed to earth. She was always faithful to house-hold duties. The respondent paid back the initial payment made by the petitioner on account of the flat at Saltlake. The petitioner left the house with all his belongings on his own accord. The allegation of torture and cruelty perpetrated on him by her and the members of her family at Saltlake is a contrivance to snatch a decree. 7. It is upon these premises, the parties have crossed their swords to succeed on their rival claims. 8. The learned Court below framed as many as four issues and passed a decree for dismissal, when this appeal before this court for the reversal of the judgement and decree. 9. Before we travel through the innumerable lines of the petition, objection and the evidence, there are certain admitted facts which should not be lost sight of in deciding the issues. They are the parties were the lecturers of a college at the material point of time, The parties knew each other before their marriage. The petitioner frequented visit to the residence of the respondent's father. The marriage was solemnised under the Special Marriage Act. The Fulsajyya was observed in the residence of her parent, as the petitioner was not armed with adequate accommodation. The reception ceremony took place at "Amantran". The visit to Puri by the petitioner alongwith the respondent and the members of her family remains undisputed. The return of the articles by and between the parties is also an undisputed facts. 10. The core problem of the lis is as to whether there was consummation of marriage; whether she was mentally and bodily fit to consummate the marriage and whether the acts and behaviour of her constituted cruelty to declare the marriage as void and nullity. 11. The petitioner to gain ground for his claim has examined, apart from himself (PW. 1), Sapan Kumar Bej (PW. 2), Mihir Roy (P.W. 3), Sunil Kumar (PW. 4) and Dr. G. Sil (PW. 5). To below off the claim of the petitioner, the respondent has examined, apart from herself, Dr. S. K. Paul (DW. 2). 12. The learned counsel for the appellant has attacked the judgement and decree on the foot that the learned Trial Judge failed to take a grasp of the meaning, import and implication of cruelty. G. Sil (PW. 5). To below off the claim of the petitioner, the respondent has examined, apart from herself, Dr. S. K. Paul (DW. 2). 12. The learned counsel for the appellant has attacked the judgement and decree on the foot that the learned Trial Judge failed to take a grasp of the meaning, import and implication of cruelty. According to him, she was suffering from bodily infirmity in committing sexual act which has not been controverted by her in the written statement and evidence which the Id. Trial Court overlooked. The failure to undergo sexual act on account of pain and absence of mental unprepared-ness is an indication to mental disorder or psychopathic disorder and disability of mind constituting abnormality and aggressiveness and to ward off the same, she kicked him from the bed. The evidence, according to the Id. counsel satisfies the test of incompatibility between the petitioner and the respondent. The Id. Trial Court did not visualise the evidence in its proper perspective that the act and conduct of one party is such that it would not be safe to live with the other spouse. He laid much stress on s. 27, Explanation of the Act to claim divorce alongwith the circumstances about the ill conduct of the respondent and the members of her family. According to him, the evidence galores that the ill-conduct of the mother-in-law has not been controverted nor the denial of food, nor eating of food from the hotel by him nor the assault threatened by Tarun, the brother of the respondent. The Id. court below ignored the overwhelming un-contradicted evidence in coming to the conclusion but overloaded the findings extraneous to the issues involved. The marriage according to the Id. counsel has broken down irretrievably where the chance of reconciliation is bleak which the Id. Court below overlooked and the same has thus made a mess of the whole case. 13. The claim of the learned counsel for the appellant has been refuted by the learned counsel for the respondent on the ground that wife was not guilty of misconduct in the shape of perpetrating cruelty affecting the obligations in the marital life which the petitioner had to discharge or fulfil ably and firmly. The evidence, as adduced by the petitioner-husband, is not tell-told. The evidence, as adduced by the petitioner-husband, is not tell-told. It is none but the husband who is the prime mover of the matrimonial misconduct and who, according to the learned counsel for the respondent, cannot take advantage of his own wrong. The marital tie, according to him, is a social lubricant, the flow of which must not be intercepted or throttled by any act of the parties extraneous to the marital obligations fastened on each other. The petitioner-husband developed a rumour which does not fit in with his case as the holes are too many to plug them. The respondent wife's efforts to live a happy conjugal life and performance of obligation do not suffer from any obscurity which tilted for the revolt of the husband. The decree is perfect which does not call for any interference. 14. The petitioner has claimed through out in her evidence that the respondent was the author of the cruel treatment as she did not tolerate any sexual life which she was under the matrimonial obligation to perform blended with perpetration of cruelty which never ended viz. refusal of food, behaviour which included amongst others abusing in filthy languages in presence of others and assault. The ill-treatment commenced from the inception of marriage and continued until he was forced out of the premises at Saltlake. 15. Let us take the bull by the horns and to find out from the materials on record about the viability of the claim made against each other. 16. The cruelty, as adumbrated by P.W. 1, has got more than one phase. The refusal of consummate the marriage by the respondent from the inception of marriage and bear the vermilion mark, according to the evidence of P.W. 1, showed its head which was the earliest dent in the marital life. The fear psychosis or phobia about the child birth captivated the mind of the respondent and marital obligation to undergo sexual life was deferred on the false pretext of her aversion into motherhood followed by its suspension for a year. 17. In giving publicity of her aversion and unwillingness to become a mother and suspension of sexual activities for a year, as it appears from his evidence, have been highlighted. The petitioner to keep her own wish alive and on the track as a part of marital obligation, was subjected to cruelty and mis-behaviour. 17. In giving publicity of her aversion and unwillingness to become a mother and suspension of sexual activities for a year, as it appears from his evidence, have been highlighted. The petitioner to keep her own wish alive and on the track as a part of marital obligation, was subjected to cruelty and mis-behaviour. The nature and kind of cruelties have been demonstrated by the petitioner (P.W. 1) in the shape of refusing to share the bed followed by kicking and vituperation in filthy languages which wounded the feeling and the mind of the petitioner. Even the visit of PW. 1 alongwith the respondent and family members to Puri was not the bed of roses for him. The way the respondent directed herself at Puri on bed, according to the petitioner, was the glaring act of cruelty. 18. D.W. 1 the respondent has refuted every inch of it. Her evidence gave the full picture of cruelty perpetrated by her husband. On the contrary, she was cooperative to become a mother which could not be accomplished for the use of contraceptive despite opposition. Aversion to sexual life as alleged was conjured up by the petitioner to secure a decree from the Court on the ground of non-consummation of marriage. She was very firm in her evidence that the marriage was consummated denouncing the claim of the petitioner that the she was incapable of sexual intercourse. The respondent (D.W.1) was not agreeable to bear the bestial approach of the petitioner which on protest would end in physical assault inflicted by the petitioner on her: She has overwhelmingly described in her evidence of the beastly behaviour her of husband. A few lines from the evidence would expose the cruelty of which the petitioner was responsible; "my husband's sexual appetite or hunger was disproportionately greater than his physical ability and I could not some time bear that. The precaution which adopted during intercourse was painful to me mentally. The petitioner always used condom and that was the reason as to why no baby was born out of her wed-lock" 19. This piece of evidence is sought to have been trammelled by a suggestion alone and nothing else. The entire evidence extracted above was, in fact, left untrammelled and only a portion of it is sought to have been controverted during her cross examination which is again torn from the context. 20. This piece of evidence is sought to have been trammelled by a suggestion alone and nothing else. The entire evidence extracted above was, in fact, left untrammelled and only a portion of it is sought to have been controverted during her cross examination which is again torn from the context. 20. P.W. 1 has made accusation against her that sexual life was deferred for one year at the behest of the respondent. But when pressed into service it met with blasphemy and misbehaviour. 21. Incidentally, it may be recalled that the marriage was held on 10.12.1980 and they went to Puri after the marriage and returned to Calcutta before December, 1980. It appears from the recitals of the petition. If this is held to be true, the story of torture, kicking from bed, refusal to cook food for him immediately evaporates as the petitioner was waiting for consummation of marriage for the promise held out by the respondent that it would be consummated after one year. Repeated attempts to consummate the marriage before the expiry of one year, therefore, crumble. Simultaneously, the story of refusing to bear the baby by her immediately falls like a pack of cards. P.W. 1 has conveniently made out stories to suit his end where the recitals in the petition and the evidence have raised a gulf. The evidence as to refusal by her to maintain or keep the vermillion mark on the forehead has not been attested by any convincing evidence. Even P.W.2 Sapan Kumar Bej ever made any complaint in his evidence that she refused to hear the vermillion mark told by her husband. His evidence is abreast of all ill-conduct of the respondent at Puri. The story of torture is sought to have been corroborated by P.W. 3 who never went there. It is also interesting to note from his evidence that the petitioner kept himself mysteriously silent that he had no intercourse with the respondent before they left for Puri nor P.W. 2 had ever complained of in his evidence that the partitioner had disclosed about her ill-treatment which included amongst others her refusal to consummate the marriage, since its inception. Thus, the evidence of P.W. 2 is to be taken with a pinch of salt. 22. PW. Thus, the evidence of P.W. 2 is to be taken with a pinch of salt. 22. PW. 3 Mihir is vociferous in his evidence that the petitioner told him about the non-consummation of marriage for the wilful conduct of the respondent but it appears from the Ext. 4 the letter that the allegation of non-consummation of marriage is meticulously absent in it of which P.W. 1 is the author thereof. On the contrary, she was aptly eager to bear the child will be apparent from the letter written by P.W. 1 to Mihir :-"the manner in which she enticed me to having the child" is an indicia to consummation of marriage. Dose not the evidence show that the marriage was consummated? We have reason to hold for the materials on record that the petitioner had switched on this plea, since no child was born to them. If is nothing but a device to shrieve the misconduct. We cannot place any credence to his evidence in the background of letters and also from the surrounding circumstances as to why the non-consummation of marriage did not find its room in his letter above mentioned as it was the earliest in point of time is still a mystery. His wife had a grievance against him which she might divulge to Mihir become apparent from Ext. 4. In apprehension of the above, he booked Mihir with the allegations in advance where non-consummation is surprisingly absent there. She was incapable of performing sexual life has been assiduously canvassed by P.W. 1 in his evidence. But it has been disproved by the evidence of D.W. 2 Dr. S. K. Paul who is empathic in his evidence that they did not see any sign of Gynaecological abnormality in the lady they examined. Therefore, she was incapable of sexual intercourse is a lame-plea. 23. He sought to have introduces the story of assault as threatened by Tarun, the brother-in-law of D.W. 1 at Saltlake and her refusal to part with his certificate and other articles does not bear any corroboration from the evidence both latent and patent. He has disclosed in his evidence that only his mother-in-law insulted him. In the background of the above, it would not be safe to hold that the respondent was guilty of matrimonial misconduct. The withholding of marriage certificate is a ruse for its productions to harvest relief during the trial. 24. He has disclosed in his evidence that only his mother-in-law insulted him. In the background of the above, it would not be safe to hold that the respondent was guilty of matrimonial misconduct. The withholding of marriage certificate is a ruse for its productions to harvest relief during the trial. 24. From the tenor of evidence of P.W. 1 and his witnesses, there is no microscopic evidence to accuse the respondent guilty of matrimonial misconduct. The extraction of tooth on 2.10.1989 by Dr. G. C. Sil has no casual connection with the cruel treatment meated out to him as alleged after the marriage or at any time thereafter. There is another significant fact that there was exchange of articles on 9th October, 1993 as told by P.W. 1 who left the premises as adduced by P.W. 1 on his own, suggesting thereby that union of two hearts a distant possibility. But in the background of the evidence on record, can the court pass a decree behind Ss. 24 and 27 of the Special Marriage Act as the Special Marriage Act does not contain any provision that a decree for divorce could be granted by a court when the marriage has irretrievably broken down. The relief under s. 27 of the Special Marriage Act in our view is not available but from the tenor of the evidence the fact remains that the chance of restoring marital bond is beyond any possibility. Even during their examination by the court to effect a conciliation between the parties, they grew stubborn to their own claim. 25. The learned counsels for the respondent has argued that when the marriage is found to have broken down in view of the unwilling conduct of the parties to restore to the marital tie and when the marriage, in particular, is beyond re-approachment or reconciliation notwithstanding not existing in the statute book, can a court exercise its jurisdictions to dissolve the marriage for the same being irretrievably broken down. The apex court in Sarojani vs Sudarsan Kumar, AIR 1984 SC 1562 , endorsed the view that a marital tie should not remain alive as the court found that the marriage had broken down whatever be the reason as the parties could no longer live together as husband and wife. Pursuaded by the aforesaid view the Supreme Court passed a decree for divorce. Pursuaded by the aforesaid view the Supreme Court passed a decree for divorce. This view has been again referred to in Amarendranath Chatterjee vs Smt. Kalpana Chatterjee, 1986(2) Cal. L.J. 109. 26. Our court also in Harendranath Burman vs Suprova Burman 93 CHN 102 : AIR 1989 Cal 120 granted a decree for the marriage being broken down irretrievably when the marital tie cannot be kept alive on account of accusation and counteraccusation. There the court is possessed of power to pass a decree for divorce as marriage has broken down irretrievably. 27. Further, the basic postulate of break down theory is that when a marriage has broken down without any possibility of chance to repair the same, then it should be dissolved without looking to the fault of the party. There the parties are not willing to return to the marital life where the cohabitation has come to its permanent end. The above theory since alien to the matrimonial laws is no ground to refuse relief. 28. In the background, it is not the duty of the court to find out who is on the wrong track in the matrimonial life. If the court does, a third course is taken by the court where the Union of two minds is the remotest possibility. It should be legitimate for the court, in view of the above that a decree for divorce should be effected. I am tempted to take the aid from Aboobacker Vs. Mamu 1971 KLT 663 , where His Lordships the Hon'ble Mr. Justice Krishna Iyer, J: Held: "Daily trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutually, may wash away smaller pebbles, what is to happen if intransigent incompatability of minds breaks up the flow of the stream? In such a situation, we have a breakdown of the marriage itself and the only course left open is for law to recognise what is a fact and accord a divorce". 29. Persuaded by the above view, since consistently flowing through the Judicial armory, it will be legitimate to effect a divorce by using the weapon that the marriage has broken down irretrievably between the parties. Can a court say even after that, that the marital bond should remain alive? The answer will be in the negative. 30. 29. Persuaded by the above view, since consistently flowing through the Judicial armory, it will be legitimate to effect a divorce by using the weapon that the marriage has broken down irretrievably between the parties. Can a court say even after that, that the marital bond should remain alive? The answer will be in the negative. 30. I have gone through the judgement of the learned court below meticulously and I see no reason, in background of the claim engineered by the parties under this litigation, that there is any scope to dismiss the suit. Accordingly, the only view that can be taken in this case is by allowing the appeal, setting aside the judgement and decree of the learned court below. The marriage between the appellant and the respondent dated 10. 12. 1980 is hereby dissolved by a decree of divorce holding that the marriage is irretrievably broken down and the certificate stands cancelled. Samir Kumar Mookherjee, J.: I agree with the conclusion. Appeal allowed.