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2025 DIGILAW 886 (CAL)

Lovely Sil nee Biswas v. Ashim Kumar Sil

2025-12-18

SABYASACHI BHATTACHARYYA, SUPRATIM BHATTACHARYA

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JUDGMENT : Sabyasachi Bhattacharyya, J. 1. The present appeal has been preferred by the defendant/wife in a suit for divorce, against a judgment decreeing the respondent/husband’s suit for divorce against the appellant. 2. The suit was filed, inter alia, on the grounds of desertion, cruelty and adultery. 3. It is pointed out by learned counsel for the appellant that none of the grounds were discussed at length by the learned Trial Judge but the impugned decree was passed primarily on the ground of irretrievable breakdown of marriage. 4. It is submitted that irretrievable breakdown of marriage, by itself, is not a ground recognized under Indian Law for grant of divorce. 5. Learned counsel submits that insofar as the ground of desertion is concerned, the cause of action for the suit allegedly arose in the month of March, 2011 whereas the suit was filed in the year 2011 itself. 6. Section 13(1)(b) of the Hindu Marriage Act, 1955, which contemplates the ground of desertion as one of the grounds for divorce, clearly stipulates that unless two clear years pass between the arising of the cause of action and the filing of the suit, no suit for divorce can be decreed on such ground. 7. Such test having not been met in the present case, it is argued that the suit could not have been decreed on the ground of desertion in any manner and was not so granted by the trial court as well. 8. Insofar as adultery is concerned, it is pointed out that the same was also not proved. 9. More importantly, learned counsel for the appellant argues that the learned Trial Judge did not independently come to any specific finding of cruelty against the present appellant/wife. 10. Despite the same, the learned Trial Judge granted divorce only on the ground of irretrievable breakdown of marriage. 11. By placing reliance on the judgment of Shilpa Sailesh vs. Varun Sreenivasan reported at (2023) 5 SCR 165 , learned counsel for the appellant argues that divorce was granted on the ground of irretrievable breakdown in the said case by the Hon’ble Supreme Court by invoking its jurisdiction under Article 142 of the Constitution of India, which permits only the Supreme Court to pass any decree or order to do complete and substantial justice between the parties. 12. 12. However, such power was not available to the learned Trial Court, which granted the decree of divorce. 13. Learned counsel also relies on an unreported judgment of the Hon’ble Supreme Court in the matter of Rinku Baheti v. Sandesh Sharda, where the Hon’ble Supreme Court took into consideration all judgments, including that of Shilpa Sailesh (supra), and held that the Hon’ble Supreme court has the power under Article 142 of the Constitution of India to grant a decree of divorce even on the ground of irretrievable breakdown of marriage. 14. The case of Rakesh Raman vs. Kavita reported at (2023) 3 SCR 552 was also considered therein. 15. In the case of Rakesh Raman (supra), although the Hon’ble Supreme Court took a view that irretrievable breakdown amounted to cruelty, the Hon’ble Supreme Court, in the case of Rinku Baheti (supra), held that such power was exercised under Article 142 of the Constitution of India. 16. In such view of the matter, it is pointed out that the appellant/wife, having not been guilty of cruelty and still wanting to live together with the respondent/husband, no case of irretrievable breakdown or cruelty has been made out. 17. Thus, it is argued that the impugned judgment and decree ought to be set aside. 18. Learned counsel for the respondent places reliance on Rakesh Raman (supra) and argues that in the said judgment, the Hon’ble Supreme Court did not exercise merely its powers under Article 142 of the Constitution of India but also laid down the law that irretrievable breakdown of marriage is a component of cruelty and thus, comes within the contemplation of Section 13(1)(a), tantamounting to cruelty by itself. 19. Thus, it is argued that the learned Trial Judge was justified in passing the impugned judgement and decree. 20. Learned counsel for the respondent/wife next hands over a photocopy of a certified copy of an order of acquittal passed in a proceeding initiated by the appellant/wife under Section 498A of the Indian Penal Code against the husband, his sister and the sister’s husband. 21. By relying on the same, it is argued that the filing of such false case, which has been disposed of by the competent criminal court, resulting in the respondent and his relatives being acquitted, itself tantamounts to an act of cruelty. 22. 21. By relying on the same, it is argued that the filing of such false case, which has been disposed of by the competent criminal court, resulting in the respondent and his relatives being acquitted, itself tantamounts to an act of cruelty. 22. Learned counsel further points out that multiple criminal complaints were lodged against the respondent and his family by the appellant/wife. 23. Such baseless allegations, it is argued, by themselves constitute cruelty sufficient to grant a decree of divorce. 24. Learned counsel for the respondent/husband further submits that since the appellant/wife ousted the respondent and his mother from their residence, a proceeding had to be initiated by the respondent mother under the Domestic Violence Act, which culminated in an order passed by the competent forum directing restoration of possession to the respondent and his mother. 25. However, the appellant/wife has preferred a revision and obtained an order of stay against the same, thereby depriving the respondent and his mother from residence in their own dwelling house. 26. This, it is argued, also amounts to cruelty. 27. Learned counsel specifically relies on the judgment of the Supreme Court rendered in the matter of Naveen Kohli vs. Neelu Kohli reported at (2006) 4 SCC 558 , where it was held by the Hon’ble Supreme Court that repeated filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty. 28. The said proposition was also reiterated by a Division Bench of the Hon’ble Supreme Court in the case of K. Srinivas Rao vs. D. A. Deepa , reported at (2013) 5 SCC 226 . 29. Only upon considering the said position, the Hon’ble Supreme Court, in Rakesh Raman (supra), came to the conclusion that irretrievable breakdown by itself is a component of cruelty. 30. In the circumstances above, it is argued that the learned Trial Judge was justified in passing the impugned decree of divorce. 31. Heard both sides. 32. The position of law is required to be ascertained first before coming to conclusions on the facts of the case. 33. We therefore take up for consideration Rakesh Raman (supra) at the outset, since in the said judgment, the Hon’ble Supreme Court considered all relevant previous judgments holding the field. 34. 31. Heard both sides. 32. The position of law is required to be ascertained first before coming to conclusions on the facts of the case. 33. We therefore take up for consideration Rakesh Raman (supra) at the outset, since in the said judgment, the Hon’ble Supreme Court considered all relevant previous judgments holding the field. 34. As rightly argued by learned counsel for the respondent before us, the Hon’ble Supreme Court relied on Naveen Kohli (supra) and K. Srinivas Rao (supra), in both of which it was observed that repeated filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty. 35. In Rakesh Raman (supra), the Hon’ble Supreme Court observed that in its considered opinion, a marital relationship which has only become more bitter and acrimonious over the years does nothing but inflict cruelty on both the sides. 36. To keep the facade of this broken marriage alive would be doing injustice to both the parties. 37. It was further held that a marriage which has broken down irretrievably, in the opinion of the Hon’ble Supreme Court, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. 38. The Hon’ble Supreme Court, on the basis of the above findings, came to the categorical conclusion that it is, therefore, a ground of dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act. 39. Thus, the said judgment clearly lays down the law of the country under Article 141 of the Constitution of India to the effect that irretrievable breakdown of marriage between the parties is itself a ground for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, therefore, bringing the said component within the purview of cruelty, which is a valid ground for grant of divorce in the Indian Law, particularly under the Hindu Marriage Act, which governs the present parties. 40. Although, in numerous judgments, the Hon’ble Supreme Court has repeatedly been requesting/recommending the Parliament to enact appropriate amendments by incorporating the ground of irretrievable breakdown as one of the grounds of divorce, fact remains that the Legislature, in its wisdom, has not yet done so. 41. Therefore, on a strict and narrow interpretation, Section 13(1)(ia) of the Hindu Marriage Act till date does not include irretrievable breakdown as a ground of divorce. 42. 41. Therefore, on a strict and narrow interpretation, Section 13(1)(ia) of the Hindu Marriage Act till date does not include irretrievable breakdown as a ground of divorce. 42. However, Article 141 of the Constitution of India vests untrammelled power on the Hon’ble Supreme Court to lay down the law of the country which, as and when enunciated, becomes the law of the land and has binding precedential value, on all subordinate courts as well as other constitutional courts. 43. Thus, the specific observation of the Hon’ble Supreme Court, taking into consideration the previous judgments in the field, to the effect that irretrievable breakdown is a ground for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, clearly lays down the proposition that irretrievable breakdown itself is included within the definition of cruelty, which is a ground of divorce under Section 13(1)(ia) of the said Act. 44. In Rinku Baheti (supra), the Hon’ble Supreme Court, while considering several judgments, came to the conclusion that the Hon’ble Supreme Court has, under Article 142 of the Constitution of India, the power to grant a decree of divorce in spite of the same being not a ground recognised by Indian Law. 45. However, a judgment is only a precedence for the exact proposition laid down therein and not whatever can be derived or inferred indirectly from the same. 46. In Rinku Baheti (supra), the Hon’ble Supreme Court was deciding an application under Section 25 of the Code of Civil Procedure for transfer of a matrimonial suit and posed before itself the question as to whether in such a proceeding, a decree of dissolution of marriage can be granted by it under Article 142 of the Constitution of India, which was answered in the affirmative. 47. Hence, the judgment is to be read in such context. 48. In the said case, the Hon’ble Supreme Court was not considering an appeal against a decree of divorce granted on the ground of irretrievable breakdown and was not adjudicating on the question as to whether such component is included within the definition of cruelty. 49. In the passing, it was observed in the same paragraph (paragraph no. 48. In the said case, the Hon’ble Supreme Court was not considering an appeal against a decree of divorce granted on the ground of irretrievable breakdown and was not adjudicating on the question as to whether such component is included within the definition of cruelty. 49. In the passing, it was observed in the same paragraph (paragraph no. 8.1) of Rinku Baheti (supra) where Rakesh Raman (supra) was referred to, that the exercise of power by the Court under Article 142(1) to grant a decree of divorce and the factors to be considered while doing so have varied with facts and circumstances of each case. 50. Such observation makes it clear that the Hon’ble Supreme Court, in Rinku Baheti (supra), neither disapproved nor overruled, by implication or explicitly, the law laid down in Rakesh Raman (supra), the latter being in consonance with the previous judgments of the Hon’ble Supreme Court itself. 51. In Shilpa Sailesh (supra), the Hon’ble Supreme Court granted a divorce decree under Article 142 of the Constitution of India in the context of considering Section 13B(2) of the Hindu Marriage Act, as to whether the waiting period for mutual consent could be waived by the Hon’ble Supreme Court. In such context, the Hon’ble Supreme Court held that the timeline (waiting period) stipulated under Section 13B(2) of the Hindu Marriage Act could be waived by the Hon’ble Supreme Court under Article 142 of the Constitution of India, which was entirely on a different footing than the present case and hence, the said judgment is not applicable. 52. Thus, in the event there is irretrievable breakdown of marriage, the same constitutes cruelty, which is a ground under Section 13(1)(ia) of the Hindu Marriage Act for granting divorce. 53. Proceeding on the above legal premise, we find that in the evidence of the wife, she had admitted that she had filed a case under Section 498A/406 of the Indian Penal Code against her husband, that is, the present respondent, his married sister and her husband. 54. She also admitted in her cross-examination that she did not file any petition showing her intention to stay with her husband in any of the cases such as in the case under the D.V. Act. 55. 54. She also admitted in her cross-examination that she did not file any petition showing her intention to stay with her husband in any of the cases such as in the case under the D.V. Act. 55. During her cross-examination, a declaration by her, written by hand, was tendered to her, which she admitted to contain her signature and handwriting and was marked as Exhibit-B. 56. Exhibit-B, in Bengali vernacular, specifically states that the appellant/wife was agreed to the dissolution of the marriage between the parties subject to the residential accommodation of the respondent/husband being transferred in favour of the appellant/wife and Rs.5 lakh being paid to the appellant/wife. 57. That apart, we also take judicial note of the fact that the marriage between the parties happened in the year 2003. 58. The parties are living separately, admittedly, since March, 2011. 59. Thus, they lived together as spouses only for a period of eight years whereas they have been living separately from 2011 till date, for almost double the time, that is, for 14 years. 60. There is no attempt from any corner by either of the parties, as evident from the records, which might have indicated animus revertandi, by any of the spouses seeking to return to each other. 61. Rather, the learned Trial Judge observed categorically that the attempts at reconciliation had failed. 62. Several criminal cases were filed by the appellant/wife, including one under Sections 498A and 406 of the Indian Penal Code, which ultimately culminated in acquittal of the respondent and his relatives. 63. Even the other cases of criminal nature, by themselves, indicate that the animus of the appellant/wife was never to return to the husband but to go on filing criminal complaints and cases against him and his family. 64. Without the appellant/wife having proved before the learned Trial Judge any reasonable basis for such complaints, rather one of them having resulted in acquittal, we also find an element of cruelty in such filing of numerous applications against the respondent/husband. Such proposition is also borne out by Naveen Kohli (supra) and K. Srinivas Rao (supra). 65. 64. Without the appellant/wife having proved before the learned Trial Judge any reasonable basis for such complaints, rather one of them having resulted in acquittal, we also find an element of cruelty in such filing of numerous applications against the respondent/husband. Such proposition is also borne out by Naveen Kohli (supra) and K. Srinivas Rao (supra). 65. Also, Exhibit-B, the declaration by the wife which is admitted to be in her handwriting and signature, clearly gives out the intention of the wife that she is otherwise agreeable to the dissolution of the marriage subject only to the respondent/husband transferring his residential house to her and paying an amount of money to the appellant. 66. In such view of the matter, we clearly find that the learned Trial Judge was perfectly justified in arriving at the conclusion that the marriage between the parties is dead for all practical purposes. 67. In line with the ratio laid down in Rakesh Raman (supra), thus, we are of the opinion that the marriage has only become a deadwood and, if sustained, would only create further cruelty for both parties against each other. 68. Maintaining such a façade, borrowing the language from Rakesh Raman (supra), would only lead to further pain and torture to the parties. 69. Thus, FA 149 of 2019 is dismissed on contest, thereby affirming the impugned judgment and decree dated May 16, 2018 passed by the learned Additional District Judge, Fast Track Court- IV, Barrackpore, District: North 24 Parganas in Matrimonial Suit No. 930 of 2011 and dissolving the marriage between the parties on the ground of cruelty by way of irretrievable breakdown of marriage. 70. Interim order, if any, stands vacated. 71. It is, however, made clear that it will be open to the appellant/wife to approach the jurisdictional court with an application under Section 25 of the Hindu Marriage Act seeking permanent alimony. 72. If such an approach is made, the learned Judge having jurisdiction shall decide such issue independently and in accordance with law, upon giving adequate opportunity of filing their pleadings and hearing to both the parties, without being unnecessarily influenced by any of the observations made above. 73. There will be no order as to costs. 74. A formal decree be drawn up accordingly. 75. Urgent photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities. 73. There will be no order as to costs. 74. A formal decree be drawn up accordingly. 75. Urgent photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities. I agree. (Supratim Bhattacharya, J.)