SANDHYA GUPTA Vs. SAIBAL PRASAD GUPTA

JUDGEMENT

(1.) This is an appeal under Section 19 of the Family Courts Act against the order of the learned Judge, Family Court, Rourkela passing a decree for dissolution of the marriage between the appellant No. 1 and the Respondent.

(2.) Sri K. C. Lenka, learned counsel for the appellants assails the order for dissolution of the marriage inter alia on the ground of maintainability of the petition under Section 13 of the Hindu Marriage Act and on the ground that there was no sufficient material before the learned Judge, Family Court to hold that the appellant-wife was guilty of cruelty towards the husband and that the marriage has become irretrievable. It is his submission that the admitted case of the parties that they being in love, their marriage was registered under the Special Marriage Act at the first instance whereunder it was solemnised at Calcutta in accordance with the Hindu customs and rites, a petition under the Special Marriage Act could only be filed for dissolution of the marriage and as such, the petition under Section 13 of the Hindu Marriage Act was not maintainable nor could the learned Judge, Family Court entertain the same. It is further submitted that in view of the pleadings of the parties and on appreciation of the evidence on record, the learned Judge, Family Court could not have come to a finding that the petitioner-Respondent had proved mental cruelty against the appellant-wife to call for a dissolution of the marriage. Sri Ashok Mukherjee, learned Senior Advocate appearing for the Respondent-husband however, contends that the marriage could only be consummated after it was solemnised under the Hindu rites and customs as admitted by both the parties and not after it was registered under the Special Marriage Act and as such, the application under Section 13 of the Hindu Marriage Act was maintainable and rightly entertained by the learned Judge, Family Court. The learned Senior Counsel has further contended that on a consideration of evidence on record, there being ample evidence to show that the appellant-wife was guilty of cruelty and the marriage and the relationship of the parties had become irretrievable and as such, the decree for divorce is legal and valid.

(3.) In view of the rival contentions of the learned counsel for the parties, the question that needs determination, is whether a petition under Section 13 of the Hindu Marriage Act was maintainable and whether in the fact situation of the case, the finding of the learned Judge, Family Court that the appellant-wife was guilty of cruelty, rendering the relationship between the parties and the marriage irretrievable, calling for the extreme order of dissolution of marriage, could be sustained in law.