LAWS(CAL)-1974-3-20

BISWANATH MITRA Vs. ANJALI MITRA

Decided On March 22, 1974
BISWANATH MITRA Appellant
V/S
ANJALI MITRA Respondents

JUDGEMENT

(1.) This appeal is at the instance of the husband who is a respondent in an application by the wife under Section 10 (1) (b) of the Hindu Marriage Act for judicial separation. The case of the applicant wife is that on the 17th February, 1959. the petitioner-wife, respondent herein, went through a form of marriage with the respondent-appellant herein, in accordance with the Hindu rites and rituals at "Suruchi Kutir", Jublee Part, Tollygunge, Calcutta. In or about the year 1955. the petitioner was introduced to the respondent by a common acquaintance and in course of four years following the said introduction, a mutual love and affection developed in between the petitioner and the respondent which ultimatly culminated in the aforesaid marriage of the petitioner with the respondent. Just after the marriage, the petitioner started living with the respondent at 4/A, Benode Saha Lane, Calcutta and resided there upto 15th August, 1961. On the 3rd August, 1960. a male child named Sudev, was born of the aforesaid wedlock to the petitioner by the respondent. On 19th June, 1962, a female child, named Sonali, was born of the said wedlock. The petitioner is a working girl and has been earning since her marriage in various capacities and in different places and is at present in the employ of a private firm and has to work hard absolutely to maintain the family. The respondent, it is alleged, is Free Lance Artist (Painter) and Bohemain in character and bears no positive responsibility of the family and does not duly discharge the duty and obligation to the children expected from the father. The respondent for the last few years started ridiculing the petitioner in respect of her concept of morality and her way of looking at things and the way of leading her life. The petitioner during the time was in Government service for more than ten years. The respondent on account of his mental delinquency began suspecting the petitioner in respect of her morality and chastity and made accusation against the petitioner of being immoral as a result whereof, the petitioner suffered in mind and tendered resignation and left the permanent Government service of ten years in the month of July, 1963. Because of financial stringency the petitioner was forced again to seek employment and joined the service in the month of December, 1967. On the joining of the present service by the petitioner, the respondent has again started treating the petitioner with such mental cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to the petitioner to live with the other party. The respondent almost regularly began to make reckless and unbridled allegations of un-chastity against the petitioner which are absolutely false causing untold mental pain and psychological injury. It is alleged that the respondent further charged the petitioner in presence of the children with gross immorality and adultery which has no basis at all. The respondent stated that the appellant-husband did not show any consideration in respect of the mental and physical requirements, feelings and sentiments of the petitioner especially against the background of her hard and onerous duty in the office. It is further stated that the appellant's brother at the instance of the appellant-husband abused the petitioner and threatened the petitioner in presence of the children and also insulted the petitioner in respect of her moral character. these pleadings, the petitioner prayed for a judicial separation and other reliefs.

(2.) The respondent-appellant denied all the allegations made against by the wife. It is further stated that the application for judicial separation is not maintainable in view of Section 30 of the Special Marriage Act. 1954 as there was no marriage between the petitioner and the respondent in the eye of law as the same was solemnised within the prohibited period of one year from the date of decree of divorce obtained on 19th December. 1958, from the Hon'ble High, Court at Calcutta in Matrimonial Suit No. 1 of 1957. It is stated that the said fact was not within the knowledge of the respondent at the time of the marriage as stated hereinbefore. It is further stated that the petitioner became so much intimated with Sri Amal Chakraborty that she even did not care the advice of her mother and that she neglected her duty towards the family and the children or to the respondent. The money which she actually earned was spent for her illicit love affairs with the said Amal Chakraborty. It is also stated that the children did not like their mother's intimacy with Amal Chakraborty. On these allegations, the parties came to trial. The learned District Judge held in favour of the wife and passed the decree for judicial separation whereupon the appellant-husband preferred this present appeal. Before the appeal was heard, we asked the parties to be present in Court and asked both the wife and the husband whether it is possible even now to continue in a matrimonial home but the wife particularly did not agree and in that view, nothing could be done.

(3.) At the hearing, the appellant contended that as the respondent-wife was married to another person and got a decree for divorce under the Special Marriage Act on the 19th December. 1958, the respondent-wife's marriage with the appellant was a nullity, inasmuch as, the petitioner-wife was not free to marry before the lapse of one year under Sec. 30 of the Special Marriage Act.