Calcutta High Court (Appellete Side)
Smt. Anindita Dutta Majumdar vs Sri Santanu Ranjan Dutta on 24 December, 2024
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IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Madhuresh Prasad
And
The Hon'ble Justice Supratim Bhattacharya
F.A. 21 of 2022
Smt. Anindita Dutta Majumdar
Versus
Sri Santanu Ranjan Dutta
For the Appellant : Mr. Indrajeet Dasgupta
Ms. Puspita Bhowmik
For the Respondent: Mr. Moni Sankar Chattopadhyay.
Heard On : 26.09.2024
Judgement Delivered On : 24.12.2024
Supratim Bhattacharya, J.:
1. Through the petition before the Trial Court the
respondent/petitioner/husband had prayed for decree of nullity
annulling the marriage held on 25.04.2012 in between the parties
under Section 25 (i) and had also prayed for other relief /reliefs.
2. The Trial Court passed decree of nullity on contest and thereby
annulled the marriage.
3. Being aggrieved by and dissatisfied with the judgment dated
07.10.2021 passed in Matrimonial Suit No. 169 of 2013, by the
Ld. Additional District Judge First Court, Alipore, District- South-
24-Parganas, the appellant/wife has preferred the present appeal.
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4. The appellant /wife herein was the respondent while the
respondent/husband herein was the petitioner before the Trial
Court.
5. The matrimonial suit was earlier adjudged by the Trial Court on
04.08.2015 allowing the prayer for annulment of marriage.
Against the said judgment the wife had preferred an appeal before
the Hon’ble Court. A coordinate Bench of this Court had disposed
of the said appeal being FAT No. 479 of 2015 on 08.03.2019 and
remanded the said suit by passing the following:
“4. The suit is remanded to the trial court to be tried afresh. It is for
the learned Judge to decide whether to hear it at the argument
stage on the basis of the available evidence or to reopen the taking
of evidence by the court. Such decision is left to the learned Judge.
He is requested to redetermine the suit within six months of
communication of this order.”
On remand the Ld. Trial Court adjudicated the lis by passing the
impugned judgment after taking further evidence of the witnesses
both on behalf of the petitioner/ husband and the
respondent/wife.
6. Facts of the instant lis
From the pleadings in the petition filed by the husband (respondent
herein) praying for annulment it transpires that the parties to the suit
are by religion Hindu and their arranged marriage was registered on
25.04.2012 as per the Special Marriage Act, 1954. On 27.04.2012
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and 29.04.2012 the wife refused to have physical relation with the
husband. Thereafter on 29.04.2012 the parties left for Manali for
honeymoon. It has been stated that there also the wife avoided the
husband on the plea that she was not yet mentally prepared. The
husband wanted to have discussion with the wife but the wife did not
show any interest to the approach of the husband. The husband had
once again tried to make things easier during the night of 02.05.2012
and had requested the wife to discuss about the matter but the wife
kept silent and did not show any willingness. On 03.05.2012 the
husband again tried to discuss the issue with the wife but the wife
was stern, reacted harshly towards the petitioner and became
abusive. On 22.09.2012 the wife went to her office. That evening, the
father of the wife informed the husband that his daughter will not
return to her matrimonial home that night as she has fallen sick and
shall remain at his house. The husband went to his in-laws house
and arranged for his wife’s medical treatment. On the very next day
when the husband intended to visit his in-laws house his father-in-
law asked him not to come as there was no one to open the door
which surprised and shocked the husband.
On the next day the husband got infected with Dengue and had to be
admitted to the hospital. The respondent had recovered from illness
but she did not visit her husband in the hospital. After recovery the
husband went to his in-laws house and requested his wife to return
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to his house but the wife refused. On 10.03.2013 once again the
husband went to his in-laws house and requested her to return but
she stated that the doctor has advised her to take bed rest for two
months as such she is unable to go to her matrimonial home. The
husband thereafter on several occasions tried to contact his wife over
telephone but the wife on each and every occasion was reluctant on
one pretext or the other to have conversation with the husband. All
the attempts of the husband to bring his wife back failed. Finally,
after the expiry of two months the husband went to the wife’s house
and insisted his wife to return to her matrimonial home. The wife for
the first time directly revealed that as their marriage is an arranged
marriage she has realized that she never liked the
petitioner/respondent and will never be able to make any physical
relation with him and that the petitioner is not a suitable husband for
her. After coming to know the feelings of his wife the husband felt
insulted and lost all the charm of life.
It has also been stated that the wife taking the alibi of illness left her
matrimonial house. The entire episode was pre-planned with the
active cooperation and knowledge of her parents. The husband has
also stated that the marriage was not consummated owing to the
wilful refusal of the wife. As the said marriage has not been
consummated the husband has prayed for annulment of the marriage
and a decree of nullity.
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Per contra, the wife has stated that there was no approach from her
husband as regards to physical relationship as such there is no
question of refusal to have physical relationship. The wife has stated
that the story of being intimate with her by her husband on the dates
alleged is absolutely false. It has been stated that the husband being
the only son, is always under the control and advice of his mother.
He behaved strangely and did not use to respond to any situation.
The appellant has claimed that her husband never tried to be
intimate during the entire period of her stay at her matrimonial home
and the said fact is known to the family members of her husband.
She has stated that on 20.09.2012 she had fever regarding which she
informed her husband, but her husband had not taken any step in
this regard and the wife remained in her matrimonial home without
treatment. Thus, in the morning of 22.09.2012 she left for her
parental home wherefrom she was taken to a doctor by her father.
She has further stated that her husband has indulged in falsehood as
he did absolutely nothing for her treatment and has not paid a single
penny. The petitioner was reported to be suffering with dengue by
pathological report dated 24.04.2012 when she was still unwell and
as such she could not visit him in the hospital. Her father had visited
the husband at the Cosmos hospital, where her mother-in-law had
treated her father rudely. Her father however remained in touch with
the son-in law constantly till his son-in-law got fully cured.
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7. The wife has further alleged that the mother-in-law used to check her
bag when she went outside and had seized the key of her cupboard
and locker on the very first day. It has also been alleged that the
husband did not show any interest to consummate the marriage.
8. Mr. Indrajeet Dasgupta Ld. Counsel representing the appellant
assisted by Ms. Puspita Bhowmik has submitted that
i) If the husband/respondent was so eager to have
consummation of the marriage the husband should have
prayed for restitution of conjugal rights, which the husband
has never prayed for which proves the fact that the husband
was not at all eager to have consummation of the marriage.
ii) He has further submitted that the allegation of separating the
bed by the wife is absolutely false and there is no proof in this
regard.
iii) He has further submitted that the Court has wrongly
considered the deposition of the respondent to be an
admission of the petitioner’s case. During the cross-
examination the wife has stated about not willing to stay with
her husband only as a reaction to the husband abandoning
her during her illness.
iv) The Ld. Counsel has further submitted that the
appellant/wife has never made any false statement before the
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court. Her truthful statements have been wrongly interpreted
against her.
v) The Trial Court has been misdirected by its perception of
there being weakness in the appellant’s defence. Whereas it is
settled law that the petitioner has to make out a case and
cannot rely upon alleged weakness of the defence stated by
the defendant to make out a case.
Relying upon the aforesaid facts and circumstances the Ld. Cousnel
has stated that the judgment and decree is unsustainable and has
prayed for allowing the present appeal.
9. Mr. Moni Sankar Chattopadhyay Ld. Counsel representing the
respondent /husband has submitted as follows:
i) That during cross-examination, the appellant wife has
admitted the fact that the marriage has not been
consummated, so from the evidence itself it is proved that
there is non-consummation of the marriage.
ii) The Ld. Counsel has further stated that even today the
husband is willing to stay with the wife.
iii) He has further submitted that there being admission on
behalf of the wife so the question of stigma as regards to
incapacity, or otherwise does not arise at all.
iv) He has further submitted that the wife has stated that she
does not wish to stay with the husband as such there is no
8question of keeping the marriage alive. If the said marriage is
not terminated, keeping in view the admitted non
consummation, it will create hardship to both the parties and
will be a misery and horrible for the parties.
v) Ld. Counsel has further submitted that the husband has tried
his level best on several occasions during the earlier days of
the marriage to lead a peaceful life with his wife and had on
several occasions even gone to his in-laws house to bring back
his wife but the hostile attitude of his wife has resulted in a
barren life. Being insulted on several occasions by his wife
and her family members the husband has not preferred any
application for restitution. As such not praying for restitution
cannot be a ground for not granting the order of annulment of
marriage on the ground of non-consummation, which in the
instant case is an admitted fact.
vi) Relying upon the aforesaid facts and circumstances the ld.
Counsel has submitted that the order passed by the Trial
Court is a reasoned order and needs no interference.
10. Thus, the moot point for consideration is as to whether the
Judgment passed by the Ld. Trial Court is in accordance with law
or not.
11. To reach to the ultimate conclusion this court delves into the
entire evidence on record. The husband has deposed that the wife
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refused to have physical relation on 27.04.2012 and initially he
thought that as their marriage had just taken place so his wife
requires time. He has further deposed that on 29.04.2012 when
they had gone to Manali for honeymoon he had tried to be
intimate with his wife but there also his wife avoided him on the
plea that she was not yet mentally prepared. He has further
deposed that he wanted to have discussion with the respondent to
overcome any uneasiness that may be prevailing, and they could
come closer but his wife did not show any interest to such an
approach. He has further deposed that on 02.05.2012 during the
night he had once again requested his wife to discuss about the
matter as to whether she has any problem but his wife kept silent
and did not show any intention to cooperate. Once again on
03.05.2012 after returning from sightseeing he had again tried to
discuss the issue with his wife but his wife treated him roughly
and harshly. He has further deposed that whenever he tried to
make his wife understand about the true meaning of marriage and
relation between the husband and wife his wife had become
abusive and had shown stern attitude towards him. He has also
deposed that after returning from honeymoon at Manali the
behaviour of his wife towards him became worse and his wife
could not bear him. It has also been stated by him that his wife
had separated her bed and had strictly asked him not to think of
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any physical relation with her and also not to disturb her in this
issue.
12. The husband during his cross-examination has deposed that
the wife had gone to her paternal house because of her illness and
thereafter he had tried to bring her back but failed and gradually
he became frustrated and also aborted the process of discussion
to solve the problem. From the evidence of the husband it also
transpires that just after the marriage and till the period when the
wife went to her in-law’s house that is for a period of about 5
months, the tussle continued and it also transpires that after 3 to
4 months of their marriage the husband realized that the problem
could not be solved, as a result he had informed about the
problem to his family members and they had also tried to solve the
dispute through discussion with the family members of his wife.
The wife had left the matrimonial house voluntarily. It also
transpires that the husband had visited his in-law’s house to solve
the dispute but the same has not been fruitful.
On venturing into the evidence of the wife it reveals that in the
first line of her cross-examination the wife has stated that she is
not willing to stay with her husband and she has also volunteered
that she is stating so as because her husband had abandoned her
during her illness.
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The wife has also deposed that just after the very next day of their
marriage she came to understand that her husband is not fit for
her and it would not be possible for her to continue their marital
life. She has also deposed that due to non-cooperation of her
husband and his family members on the very next date of her
marriage she was disturbed. She had tried on her part to
consummate the marital life with her husband but she has failed.
In the same breath she admits that she has not mentioned in her
examination-in-chief that she had tried on her part to
consummate the marital life. The wife has also deposed that she
had not initiated any proceeding against her in-laws at the
beginning. Only 5 years after residing at her parental house she
lodged a criminal case against her husband and in-laws, before
the Survey Park Police Station being No. 31 dated 17.02.2017
under Section 498A/406/34 of the Indian Penal Code. She has
further admitted that she was not aware even about the death of
her mother-in-law prior to the filing of the criminal case against
her husband and her mother-in-law and has also volunteered that
nobody had informed her about the death of her mother-in-law.
Thus, from the evidence of the parties it transpires that the
husband has stated with details, mentioning the dates as regards
to his approach towards the wife for consummating the marriage.
Whereas the wife has stated once that she had tried on her part to
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consummate the marriage which had failed. Such statement is
also without reference to any details such as dates, place etc. The
statement, therefore, when compared to the husband’s statements
in the deposition made with details, appears unacceptable. She
has not stated anywhere else as regards to her approach for
consummating the marriage.
Section 25(i) of the Special Marriage Act, 1954 states as follows:
“25. Voidable Marriages- Any marriage solemnized under this Act
shall be voidable and may be annulled by a decree of nullity if,-
(i) the marriage has not been consummated owing
to the wilful refusal of the respondent to consummate the
marriage”
From the aforementioned section it transpires that a marriage
solemnized under the Special Marriage Act may be annulled by a
decree of nullity subject to fulfilment of two conditions. One, if the
marriage has not been consummated and secondly, that non
consummation of the marriage is because of the wilful refusal of
the respondent to consummate the marriage.
As regards the marriage being non-consummated, from the
evidence of the parties it reveals that both the contending parties
are ad idem on this issue that the marriage has not been
consummated. So the issue of non-consummation is laid to rest
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and there is no controversy as regards to non-consummation of
the marriage.
13. The next facet of the issue is whether non consummation of
the marriage is because of the wilful refusal of the respondent to
consummate the marriage.
While dealing with non-consummation of the marriage under
Section 25 of the Special Marriage Act the Court is to see whether
there is wilful refusal of the respondent to the suit to consummate
the marriage.
On a holistic consideration of the appellant’s oral evidence at the
trial we find that during her examination-in-chief she has denied
the allegations leveled by the petitioner. She has also leveled
allegations against her mother-in-law that she was treating the
appellant with cruelty. She has also stated about her father being
subjected to rude behavior when he had gone to visit her ailing
husband. She has flatly denied the assertions made by the
petitioner that he had participated in her treatment when she was
ill, paid the medical expenses, got himself medically examined to
establish the fact that he was potent and competent to
consummate the marriage.
During cross-examination, however, stark inconsistency emerged
in the deposition of the appellant before the Trial Court casting a
cloud of doubt over the credibility of her deposition. During cross-
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examination she has flatly stated that she is not willing to stay
with the petitioner. Firstly, the reason for such statement has
been stated to be the fact that he abandoned her during her
illness. Later she has stated that it is not possible for her to stay
with the petitioner. As regards, the appellant going abroad
without informing her husband, she has admitted to the same but
by assigning a reason that she did not inform him as there was no
contact between them. She has admitted to the case of the
petitioner that after marriage they went to Simla and Manali for
honeymoon. She has stated about going voluntarily. She has
stated in specific terms as follows:
“Later on just after the very next day of our marriage I came to
understand that the petitioner is not fit for me and it would not be
possible for me to continue our marital life. …
I have not mentioned in my affidavit-in-chief that I had tried on my
part to consummate out marital life. …”
Having stated so, she has made a vague and general assertion
without any details whatsoever as regards the date, time or place,
that she had tried on her part to consummate the marital tie with
the petitioner but failed. Having made such statement, in the
same breath she goes on to state that she has not mentioned in
her affidavit-in-chief that she ever tried to consummate the
marital life.
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Though in examination-in-chief she has stated that the husband
had not bothered to visit or take care when she was ill, in the
cross-examination she has stated about the husband visiting the
doctor during the course of her treatment.
In the cross-examination she has also admitted that she went to
her paternal house and started to reside there from 22nd
September 2012. Further, in cross-examination on 07.09.2021
she has stated that she used to take information about the health
of her mother-in-law, thereafter she proceeds to state that she
was not even aware about the death of her mother-in-law, which
occurred on 02.01.2016. Oblivious of such fact she even
proceeded to lodge a criminal complaint alleging torture by the
mother-in-law. She has specifically stated that it is too late for
reconciliation.
Having cast the responsibility of non-consummation or
incompetence of the husband, in her further cross-examination
on 15.09.2021 she has stated that she never went to hospital for
his medical checkup. She has ended her cross-examination on
that day by making a statement “I have no objection to declare the
marriage as void one on the ground of non consummation.”
Keeping in view the stark inconsistencies in the deposition, as
noted above in the background when the appellant has expressed
a specific no objection to declaration of marriage as void on the
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ground of non-consummation, we are of the unambiguous opinion
that the Trial Court was right in upholding the case of the
petitioner and proceeding to decree the annulment of marriage on
the ground of non-consummation.
In view of the admission of the wife recorded in her cross-
examination and such admission being based on the
circumstances wherein she found that the petitioner was not fit for
her and that she could not continue matrimony with him, the
question of casting any stigma upon either of the parties by going
into the issue of one or the other being incompetent to
consummate does not arise, moreso, since the present case is not
one under Section 24 of the Act.
From the evidence adduced by the parties noted above it has
transpired that the husband has time and again made endeavour
to consummate the marriage but the wife has stated only once and
that too evasively without any specific suggestion as to the fact of
her initiative to consummate the marriage.
14. Thus, from the discussions made above it is clear that there
has not been any consummation of the marriage. Based on the
convincing evidence backed by details at the trial we are inclined
to accept the case of the husband that the appellant wife was
unwilling to consummate the marriage. In spite of attempts by the
husband there has been non consummation of the marriage. This
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goes to prove wilful refusal of consummating the marriage by the
respondent/ wife.
15. Thus, this Court if of the view that the impugned judgment
does not require interference.
16. Thus, the instant appeal being F.A. 21 of 2022 is
dismissed without any cost.
17. Parties shall be entitled to act on the basis of the server copy
of the judgment and order placed on the official website of the
Court.
18. Urgent certified photo copies of this judgment, if applied for,
be given to the parties upon compliance of the requisite
formalities.
I Agree,
(Madhuresh Prasad, J.) (Supratim Bhattacharya, J.)
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