In an interesting turn of events, we witnessed how the Calcutta High Court which is the oldest High Court in India and so also one of the most reputed one in a most learned, laudable, landmark, logical and latest judgment titled X vs Y in FAT 264 of 2022 in the exercise of its civil appellate jurisdiction that was heard and decided finally on May 22, 2025 has set aside the decision of the Trial Court that arose from the “patriarchal and condescending approach” of the Trial Judge and in its wisdom deemed it fit to grant divorce to a husband on the grounds of cruelty. To put it differently, we thus see that the Calcutta High Court has allowed an appeal against the ex parte dismissal of the husband’s suit for divorce prima facie on the ground of cruelty and desertion. We thus see that the Division Bench comprising of Hon’ble Mr Justice Sabyasachi Bhattacharyya and Hon’ble Mr Justice Uday Kumar has minced absolutely just no words to hold most unequivocally stating that, “The entire mindset of the learned Trial Judge appears to spring up from a patriarchal and condescending approach, thereby attributing a condescending role to the husband, to advice his wife properly and also to condone cruel acts of the wife by trying to “bridge the gap” between the parties.”
It needs to be borne in mind that the Division Bench observed that the Trial Court Judge, by the impugned judgment, overlooked the fact that the wife (respondent) did not adduce any evidence of her own despite having filed a written statement and also did not cross-examine the husband. We also need to bear in mind that the Trial Court had passed an ex parte decree in February 2018 against a matrimonial suit that had been filed in 2015. While taking potshots, the Division Bench also pointed out that the Trial Court Judge, by the impugned judgment, overlooked the fact that the wife (respondent) did not adduce any evidence of her own despite having filed a written statement and also did not cross-examine the husband.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sabyasachi Bhattacharyya for a Division Bench of the Calcutta High Court comprising of himself and Hon’ble Mr Justice Uday Kumar sets the ball in motion by first and foremost putting forth in para 1 that, “The present appeal has been preferred by the appellant/husband against the ex parte dismissal of the appellant’s suit for divorce on the ground of cruelty and desertion.”As we see, the Division Bench then points out in para 2 that, “None appears at the time of call on behalf of the respondent. Accordingly, we take up the appeal for hearing ex parte.”
Most glaringly, we see that the Division Bench observes in para 3 disclosing and holding that, “By the impugned judgment, the learned Trial Judge overlooked the fact that the respondent/wife did not adduce any evidence of her own despite having filed a written statement and also did not cross-examine PW1 (the plaintiff/husband). That apart, it transpires even on a cursory perusal of the impugned judgment that the learned Judge proceeded entirely on a tangential perception of his own, without adverting at all to the materials on record.”
Do note, the Division Bench notes in para 4 that, “In fact, this Bench has previously come across similar judgments by the same learned Trial Judge, and in the opinion of this court, the learned Trial Judge is in the habit of using the same words and same syntax in judgments passed in respect of different matrimonial suits. Such possibility is also borne out by the language used by the learned Trial Judge and we are sure that if an enquiry is conducted, it will be found that the self-same language has been used in matrimonial matters by the learned Trial Judge in several other suits as well. Some of the words used by the learned Trial Judge are entirely de hors the pleadings of both the parties and creates a Deja vu in the mind of the court, since we have come across the same phrases in other matrimonial judgments as well, authored by the same Judge.”
Do also note, the Division Bench then notes in para 5 that, “For example, the learned Trial Judge, in his judgment, observes that “no doubt, the wife is fond of making derogative and ugly remarks against her husband which amounts to mental cruelty justifying the decree of divorce” but that “it was the helpless lamentation of the lady urging for a blissful happy life.” The learned Trial Judge further observed that to his mind, the husband who was not so careful to rectify the “frailty conduct of his own, then certainly it is open to criticism by his wife”. The learned Trial Judge goes on to hold that may be the lady was somewhat discourteous, rude and abusive in the matter of criticism of the “crocked” conduct of her husband but it cannot be termed as unruly attitude with the sole object to cause genuine annoyance to her husband.”
Further, the Division Bench points out in para 6 that, “Again, the learned Trial Judge observed that “no doubt the lady did file complaint” as a “progressing action”. However, it is surprising that such comment is even beyond the pleadings of the husband, since the appellant/husband only alleged in his plaint that threats of initiating criminal cases were issued by the respondent/wife but never alleged, either in his pleadings or in his evidence, that the wife ever actually filed a complaint.”
Furthermore, the Division Bench then observes in para 8 that, “The learned Trial Judge further gives his solicitous advice to the effect that although it is quite reasonable and sensible to appreciate even in a trifling difference of opinion the parties can desert themselves voluntarily “transactional period” but that in such circumstances there must be reasonable and sensible role from the side of the husband to bridge the gap.”
Be it noted, the Division Bench notes in para 9 that, “The entire mindset of the learned Trial Judge appears to spring up from a patriarchal and condescending approach, thereby attributing a condescending role to the husband, to advice his wife properly and also to condone cruel acts of the wife by trying to “bridge the gap” between the parties.”
Notably, the Division Bench points out in para 10 maintaining that, “Such observations have nothing to do with the law on the subject. The settled law in matrimonial disputes is that the court has to look at the conduct of the parties from their perspective and to come to a finding as to whether there is any cruelty, either mental or physical, perpetrated by either of the spouses against the other so as to make it impossible for normal conjugal life to be led together by them.”
Going ahead, the Division Bench puts forth in para 11 that, “The learned Trial Judge, not stopping there, further observed that “it is a fair expectation that the marriage has irretrievably broken down so a decree of divorce is being the legitimate claim of the petitioner”. The learned Trial Judge held in his judgment that the husband is “conspicuously silent what kind of nobility or morality he had rendered to his wife during separation period leaving apart wife from her husband should not be the impurity with the aim and object of the conjugal life but it can be safely concluded that separation of the lady was a compulsion as her husband is guilty of his lustful attitude”. Such “lustful attitude”, unfortunately, is not reflected even from the pleadings of the wife.”
Lamentably, the Division Bench points out in para 12 that, “The learned Trial Judge goes on to say that practically speaking the husband was never “haunted by any compunction”, thereby putting to shame any fiction writer of note.”
While taking potshots at Trial Court’s judgment, the Division Bench then further points out in para 14 that, “There are several other literary jargon used inappropriately and merely to flash the vocabulary of the judge without fitting in the flowery terms in their proper place. The learned Trial Judge even says that, looking at the demeanour of the wife, he thinks “it is not impossible to realize that the relief of feministic instinct what is still left after decay has every chance of reunion with the husband if he is awakened from his sleeping stage of doing vices and vulgarity”. The learned Judge holds that at this stage refusal of it would be “unsagacious and impractical”.”
Most significantly, the Division Bench encapsulates in para 25 what constitutes the cornerstone of this notable judgment postulating that, “Certain other important aspects also are required to be gone into. First, the wife did not lead any independent evidence in support of her defence case. Also, the wife did not cross-examine the husband, who examined himself as PW1. The examination-in-chief of the husband fully corroborates the plaint case and, as held above, certain instances of mental cruelty sufficient to compel the parties to live separately and have their separate ways have been made out. In the absence of cross-examination and independent evidence being led by the wife, the allegations should have been accepted by the learned Trial Judge as sacrosanct by application of the doctrine of non traverse.”
No less significant is that the Bench points out in para 26 that, “We further find from the conduct of the wife that the element of animus revertandi on her part is entirely missing.”
Equally significant is that the Bench notes in para 27 that, “The wife did not participate in conciliation proceedings and did not participate in the suit after filing her written statement before the court of first instance.”
Not stopping here, the Bench then also reveals in para 28 stating that, “Not only that, there was a previous order of this court whereby the parties were sent for mediation. Surprisingly, the wife abstained from mediation, which prompted a coordinate Bench, in its order dated April 10, 2023 passed in the present appeal, to observe that the Bench may penalize the respondent for not participating in the mediation proceedings in spite of the order of the Bench and the report filed by the learned Mediator in that regard.”
In addition, the Bench points out in para 29 that, “Despite the same, the respondent/wife had been repeatedly absent when the matter was called on for hearing and even today.”
Needless to say, the Bench states in para 30 that, “It clearly shows that the marriage between the parties has broken down irretrievably.”
It would be instructive to note that the Bench hastens to add in para 31 stating that, “As per the current view of the Hon’ble Supreme Court, in cases where the marriage between the parties has broken down irretrievably beyond repair and there is no animus displayed by either of the parties to return to their matrimonial life, the same should be treated to be cruelty by each of the spouses against the other and if such a relationship is perpetuated with the blessings of the court, it would tantamount to cruelty being perpetrated on both spouses.”
Most forthrightly, the Bench propounds in para 32 holding that, “Taking into consideration such view of the Hon’ble Supreme Court and on our above assessment of the evidence on record, we are convinced that the impugned judgment is not only perverse for having relied on extraneous circumstances, but also for not having adverted to the relevant considerations germane for adjudication of the suit, as discussed above.”
Most rationally, the Division Bench observes in para 33 holding that, “Hence, we find that in view of the uncontroverted allegations of the husband having been duly proved in his evidence, the appellant/husband is entitled to a decree for divorce, if not on desertion, on the ground of cruelty.”
As a corollary, the Bench then holds in para 34 that, “Accordingly, FAT 264 of 2022 is allowed ex parte, thereby setting aside the impugned judgment and ex parte decree dated February 17, 2018 passed by the learned Additional District Judge, First Court at Sealdah, District – South 24 Parganas in Matrimonial Suit No. 227 of 2015. A decree of divorce on the ground of cruelty is hereby granted to the plaintiff/appellant against the defendant/respondent.”
For clarity, the Bench then clarifies in para 36 holding that, “Interim order, if any, stands vacated.”
On a serious note, the Division Bench directs in para 37 expounding that, “We intend to observe here that we are just stopping short of making any serious adverse comment against the learned Trial Judge, merely because such comment could have an adverse effect on the service career of the learned Judge. However, we expect that the learned Judge concerned shall be aware in future about copy-pasting his previous judgments and in going on his own tangential curve of wishful imagination instead of adverting to the facts and materials on record in the particular case before him. If any future instance of such act on the part of the learned Trial Judge is noticed, the same may be directed to be entered into his service book.”
Finally, the Division Bench then concludes by directing and holding in para 38 that, “Urgent photostat certified copy of the order, if applied for, be supplied to the parties at an early date.”Sanjeev Sirohi
