RANJIT KUMAR BHATTACHARYYA Vs. SABITA BHATTACHARYYA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 22nd January, 1992 passed by the learned Assistant District Judge, 10th Court, Alipore, South 24-Paraganas in Title Suit No. 90 of 1983 and preferred by the defendant No. 1/- appellant. The plaintiff/respondent filed the above-named title suit inter alia, praying for a declaration of her right to get maintenance as well as her right of residence in the property described in item No. 1 of the plaint schedule, being premises No. 95A, Tallygunge Circular Road, New Alipore, 24-Paraganas and also for arrear maintenance alleging inter alia, that she was the legally married wife of the defendant No. 1/ appellant and their marriage was solemnised according to the Hindu rites and customs in or about 1967 and they lived together as husband and wife till November, 1977 and out of their wedlock, a child was born to them and thereafter she was driven away by the defendant No. 1 / appellant from her matrimonial home.

(2.) The defendant No. 1 / appellant in his written statement, however, categorically denied and disputed the allegations of the plaintiff that she was her lawfully married wife and that he had any obligation, to maintain her and that the alleged marriage had taken place at all, but admitted that the plaintiff/respondent, who was a widow, became intimate with the appellant and a child was born out of the intimacy, but he never induced the plaintiff to marry him and no marriage was ever solemnised between them. In fact the defendant No. 1 and the added defendant Smt. Purnima Bhattacharyya were Indian Christians by birth and they were married according to the Christian rites on or about 3rd February, 1945 at St. Johns Church, Calcutta and the marriage was still subsisting. The added defendant/ respondent No. 2 Smt. Purnima Bhattacharyya in her written statement, also denied and disputed the plaint case altogether and categorically stated inter alia that she and the defendant No. 1/ appellant were Indian Christians by birth and a marriage solemnised between them on 3rd February, 1945 at St. Johns Church, Calcutta according to the Christian rites and customs and the said marriage is now still subsisting.

(3.) The plaintiff/respondent No. 1 examined herself and also one Maniklal Chatteriee as witnesses for the plaintiff being PWs Nos. 1 and 2 respectively. The plaintiff as PW 1 in her evidence stated inter alia, that the defendant/appellant was her husband and their marriage was solemnised according to Hindu Marriage Act in August, 1967 and she did not know that her husband was a Christian; that she lived with the defendant / appellant as husband and wife for 7 (seven) years and a child was born out of the wedlock who was living with his father; that she was a maiden at the time of her marriage and she was not told that the defendant / appellant was a married man, but subsequently, came to know of it. Shri Maniklal Chatterjee as PW 2 in his evidence stated inter alia, that he knew that the defendant had married the plaintiff and they lived together as husband and wife for about 7/8 years at 70A, Chetla Road, and during such living, the plaintiff gave birth 3 to a male child; he also denied that the defendant/ appellant was a Christian and he got such information from the defendant/ appellant's family. The defendant No, 1/ appellant as DW 1 in his evidence categorically stated that the added defendant being the respondent No. 2 was his legally married wife and they were Christians by religion and he was also Christian by birth and he was married to the added defendant / respondent No. 2 on 3rd February, 1945 according to Christian rites and customs at St. Johns Church, Calcutta and produced a certificate issued by the authority which was marked as Exhibit A; that he was baptised on or about 15th June, 1919 and a certificate to prove the same was also produced which was marked as Exhibit B. He, however, admitted that he came to know the plaintiff/ respondent for the first time during 1966-67 and he had ready access to her and a male child was born as a result of such intimacy and he was still residing with the defendant No. 1/ appellant, but the defendant No. l/ appellant did not marry the plaintiff/ respondent at any point of time and that the plaintiff/respondent subsequently used to live with one Sambhu Ghosal. He also denied that he was the owner of premises No. 95A, Tallygunge, Circular Road or that he had landed properties at Sarsuna. The added defendant/respondent No. 2 as DW 2 in cross-examination denied that the plaintiff/respondent No. 1 and the defendant/ appellant were married and also categorically stated that her (DW 2) marriage with the defendant / appellant was still in force as he did not divorce her.