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2023 DIGILAW 755 (JHR)

Sushil Baskey v. Snehlata Murmu

2023-06-13

DEEPAK ROSHAN, RONGON MUKHOPADHYAY

body2023
JUDGMENT : Heard Mr. Gautam Kumar, learned counsel for the appellant and Ms. J. Mazumdar, learned counsel for the respondent. 2. This appeal is directed against the order dated 30.06.2018 passed by learned Principal Judge, Family Court, Sahibganj in Original Suit No. 175 of 2016, whereby and whereunder the suit preferred by the appellant for restitution of conjugal rites under section 22 of the Special Marriage Act, 1954 has been dismissed on the grounds of maintainability. 3. Submission has been advanced by the learned counsel for the appellant that the learned court below could not have dismissed the suit on the ground of maintainability merely on the saying that the marriage was never solemnized between the parties. It has further been submitted the learned court below should have adjudicated the suit after framing proper issues and only on account of what has been stated by the defendant the suit has been dismissed on the ground of maintainability. 4. Ms. J. Mazumdar, learned counsel appearing for the respondent on the other hand has submitted that the conduct of the appellant itself appears to create a doubt as to whether the marriage of the appellant was solemnized with the respondent or not. It has been submitted that initially the suit was preferred under section 22 of the Special Marriage Act, 1954 and when the plaintiff was directed to reply to the issue as to whether the facts and circumstances of the case would attract Section 22 of the Special Marriage Act, 1954, the plaintiff had come up with the new stand that the marriage was solemnized according to Santhali customs. It has further been submitted that the constant change in stance of the appellant / plaintiff with respect to the purported marriage solemnized with the defendant and coupled with the denial of the defendant regarding such marriage, the learned court below has rightly dismissed the suit on the ground of being not maintainable. We have considered the rival submissions and also gone through the lower court records. Initially the suit was preferred for restitution of conjugal rites under section 22 of the Special Marriage Act, 1954 by the plaintiff/appellant wherein he has clearly stated that on 11.01.2016 his marriage was solemnized with the defendant under the Special Marriage Act. It appears that no document has been brought on record by the plaintiff to substantiate such averment. Initially the suit was preferred for restitution of conjugal rites under section 22 of the Special Marriage Act, 1954 by the plaintiff/appellant wherein he has clearly stated that on 11.01.2016 his marriage was solemnized with the defendant under the Special Marriage Act. It appears that no document has been brought on record by the plaintiff to substantiate such averment. In course of the proceedings the plaintiff was directed to reply to the issues as to whether Section 22 of the Special Marriage Act is applicable in the facts and circumstances of the case and whether there is any custom prevailing in the community to the schedule tribes that a Christian can solemnize his/her marriage with a person of opposite sex belonging to the community of schedule tribes as per the Special Marriage Act. Consequent to such issues the plaintiff/ appellant had filed the reply in which he has stated that that the marriage between both the parties were solemnized according to Santhali Customs. Thus, the initial stand of the plaintiff with respect to the manner in which the marriage has taken place has undergone a sea change in his reply to the issues framed by the learned court below. Apart from the same the defendant in her written statement has clearly denied the solemnization of her marriage with the plaintiff. No doubt it is true that in the written statement the defendant has stated about the plaintiff exploiting her on the pretext of marriage but at the same time there has been a clear denial with respect to the marriage solemnized as claimed by the plaintiff. In such circumstances, therefore, the learned court below has rightly dismissed the suit as not maintainable vide order dated 30.06.2018 passed in Original Suit No. 175 of 2016. Consequently, having found no merit in this appeal, the same is, hereby, dismissed.