NANDITA ROY NEE GHOSH Vs. ASISH KUMAR ROY

JUDGEMENT

(1.) The instant appeal has been preferred by the appellant wife against the Judgement and decree dated 12.9.89 passed by the learned Additional District Judge, 14th Court, Alipore thereby dismissing her matrimonial suit No. 39 of 1992 wherein she prayed for a decree of divorce against the husband respondent under the provisions of section 13 of the Hindu Marriage Act on grounds of cruelty, both mental and physical and desertion. The husband respondent contested the above suit in the Trial Court denying all the material allegation contained in the petition for divorce and his specific case was that the appellant wife sometime after her marriage developed illicit and adulterous relationship with one Sibapada Banerjee the husband of the respondent's elder sister which became a public scandal injuring the social position of the respondent and the members of his family but the petitioner wife i.e. the present appellant did not mend her ways and on her own consent the respondent took him to her father's jpise at Baranagar on 26th August, 1979 for spending a few days there. Since then the petitioner has not come back to her matrimonial home. According to the appellant she was neglected in her matrimonial home since her marriage where she had to perform only the household duties and that the inmates of the house never treated her well with dignity and even her own brother was not allowed to enter into the house when he came to see her at one occasion. It is the case of the appellant by way of subsequent amendment of the plaint that on 25.8.79 she was mercilessly assaulted by the husband who drove her out of his house for which she had to leave her matrimonial home with her daughter in single clothing leaving everything behind. It is the case of wife that the husband respondent and his family members had challenged her chastity, undermined her status, forcing her to cook and attend the household duties only and she was never allowed to participate in any family discussion or gathering. It is her case that she was even compelled to entertain the clients of her husband who happened to be a business man. She was even accused by the husband and his family members that her parents used to come not to see her but to collect money which she had stolen from her husband to help her parents. When she protested she was maltreated, abused and assaulted with blows and slaps given by the husband. Another objection was taken before the Trial Court by the husband/respondent that the matrimonial suit was not maintainable under the provisions of the Hindu Marriage Act as their marriage was solemnised and registered under Special Marriage Act. It is to be considered by us whether the learned Trial Judge has rightly dismissed the petitioner's suit for divorce filed under the provisions of the Hindu Marriage Act.

(2.) At the outset it may be pointed out that the husband/respondent after the appeal was heard in part appeared and proved for permission to contest the appeal which was allowed by us by our order dated 26.2.96. It is also interesting to note that on 4.3.96 the learned Advocate appearing for the respondent that Shri Chowdhury learned Advocate appearing for the respondent submitted that his client did not want to contest the appeal and as such Shri Chowdhury sought for our percussion to retire. In support of his submission Shri Chowdhury filed a letter dated 3.3.96 written by the husband respondent to him stating that he was not required to represent him before the Court at the time of hearing of the appeal and that he did not want to contest the same. Under the circumstances Shri Chowdhury was permitted to retire and the appeal was ultimately heard exparte.

(3.) The learned Trial Judge on consideration of the evidence on record has come to a finding that the suit is not maintainable under the provisions of the Hindu Marriage Act. It is his finding that the marriage was solemnised and registered under the provisions of the Special Marriage Act and as such the suit was not maintainable under the provisions of the Hindu Marriage Act. Although the learned Trial Judge has found the suit to be not maintainable under the provisions of the Hindu Marriage Act, he has decided the suit on merit and has dismissed the same on consideration of the other issues relating to cruelty, desertion and adultery. Coming to his finding regarding the maintainability of the suit under the provisions of the Hindu Marriage Act we are of opinion that the said finding is erroneous and not sustainable in law in view of the cogent evidence on record. Admittedly the marriage was solemnised between the parties on 28.5.70 at 7 A.M. in the paternal house of the appellant at Baranagar in the evening. Admittedly both the appellant and the respondent belong to Brhamo Sect. Under section 2 of the Hindu Marriage Act the said Act applies later alia to any person who is a Hindu by religion in any of its forms of development, including a Virashaiva, a Linguyait or a follower of the Brahma. Parthana or Aryasamaj. Under section 2(3) of the said Act the expression 'Hindu' in any portion of the Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in the section. It would also be relevant at this point to refer to the section 7 of the Hindu Marriage Act (hereinafter referred to as the Act) regarding the ceremonies for Hindu Marriage which is quoted below :-