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2016 DIGILAW 607 (CAL)

Polly Chakraborty nee Roy v. Sanjay Chakraborty

2016-08-03

NISHITA MHATRE, RAKESH TIWARI

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JUDGMENT : Nishita Mhatre, J. The appeal has been preferred by the wife against the judgment and decree passed by the Additional District Judge, 9th court, Alipore on 23rd July, 2014 dismissing her suit for dissolution of her marriage with the respondent-husband. 2. The marriage of the appellant and the respondent was solemnised on 16th June, 1995 and was registered on 13th July, 1995. They have a son who was born on 27th September, 1999. 3. In her plaint the appellant contended that she was compelled to leave the matrimonial home in the year 1997 because of the demands for money and other articles made by the respondent and the members of his family. After a compromise was reached between her and the respondent she returned to the matrimonial home in 1998. However, thereafter she found that there was a change in the attitude of the respondent towards her as well as their son. In the plaint the appellant has detailed the manner in which she was ill-treated by the respondent due to which she had no other alternative but to leave the matrimonial home again with her minor son. According to her she and her son have been residing with her father since then. She therefore prayed for a divorce on the ground of cruelty and desertion. 4. The respondent contested the suit by making several allegations against the appellant. Evidence was led before the Trial Court. After considering the evidence on record the Trial Court observed that there was no evidence to corroborate the appellant's claim that she was deserted and was treated with cruelty by her husband. The suit was therefore dismissed. 5. Aggrieved by that decision of the Trial Court the appellant has preferred the present appeal. When the appeal was admitted, interim relief was sought by the appellant in the form of alimony pendente lite. She disclosed that she was awarded a meagre amount under Section 125 of the Cr.P.C. which was insufficient to maintain herself and her son. 6. After considering the contentions raised by the rival parties the Division Bench of this Court directed that the respondent-husband should pay Rs.3,000/- towards the alimony pendent lite as a consolidated amount for the appellant and her son. 7. 6. After considering the contentions raised by the rival parties the Division Bench of this Court directed that the respondent-husband should pay Rs.3,000/- towards the alimony pendent lite as a consolidated amount for the appellant and her son. 7. CAN 2643 of 2016 has been filed by the appellant-wife in which she has prayed for the dissolution of the marriage between herself and the respondent under Section 13(2)(iii) of the Hindu Marriage Act, 1955. According to the appellant, an order was passed in the proceedings initiated by her under Section 125 of the Cr.P.C. on 25th February, 2009 under which she was entitled to Rs.2,000/- per month towards the maintenance of herself and her minor son. She has also mentioned in this application that there is no resumption of cohabitation between herself and the respondent for more than six years after the order of maintenance was passed under Section 125 of the Cr.P.C. Therefore, according to the appellant, she is entitled to a decree of divorce on the aforesaid ground. 8. An affidavit has been filed by the respondent-husband in which he concedes that after the order was passed by the learned Magistrate under Section 125 of the Cr.P.C., there has been no cohabitation between the parties. He has also stated that he had no objection if the marriage between the parties is dissolved by a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act, 1955. 9. Section 13(2)(iii) reads as follows: "13 (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground - (i) … … … (ii) … … … (iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) … … …" 10. The Matrimonial Suit was filed by the appellant under Section 13(1)(ia) and (ib). The Matrimonial Suit was filed by the appellant under Section 13(1)(ia) and (ib). However, there is no dispute that after the order was passed by the learned Magistrate under Section 125 of the Cr.P.C. for maintenance on 25th February, 2009, there has been no cohabitation between the parties. They have lived apart for seven years and therefore, the ingredients of Section 13(2)(iii) are fulfilled. In fact this issue could have been considered by the Trial Court itself as the judgment of the Trial Court was delivered on 23rd July, 2014 and the order for payment of maintenance had been passed on 25th February, 2009. The learned Judge has recorded that parties are not living together. Therefore, it was open for the Trial Court to consider the provisions of Section 13(2)(iii) and grant divorce in terms of the those provisions. In these circumstances, acceding to the prayer of the parties, the matrimonial tie between the parties must be dissolved. 11. Accordingly, the marriage between the appellant and the respondent stands dissolved. The appellant is entitled to a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act. 12. The appeal is allowed and the judgment of the Trial Court is set aside. The applications filed in the appeal are infructuous. 13. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities. Appeal allowed.