JUDGMENT
Sudhendu Nath Mallick, J.
1. The instant appeal has been preferred by the appellant wife against the Judgment 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 prayed 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 permission to retire. In support of his submission Shri Chowdhury filed a letter dated 3.3.96 written by the husband respondent to him staging that he was not required to represent him before the Court at the time of bearing 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 inter 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 Brahmo, 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:-
“Ceremonies for a Hindu Marriage-(l) A Hindu Marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking or sevan steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken”.
4. It is clear that the Act applies to the followers of Brahmo Samaj who may not be practising all the formalities of Hindu religion and in whose marriage retual ceremonies including Saptapadi as practised in others form of Hindu marriage are not necessary to make the marriage complete and legal. It is the case of the appellant that the marriage between the parties was solemnised under Brahmo rites and it was only registered under the Special Marriage Act on the same day after the marriage in Brahmo form was complete. It is her categorical evidence that all the ceremonies associated with Brahmo marriage, such as prayer by Acharya, devotional songs, exchange of garlands and rings and putting of vermilion mark on the forehead of the bride all took place with due solemnity, in presence of all the family members of both the parties. It is her evidence that one Nanibhusan Dasgupta presided over the marriage as Acharya who has since died. It is also her evidence that she signed all the papers in respect of the registration of the marriage under that Special Marriage Act after the Brahmo ceremonial marriage was over. D.W. 1 is the respondent husband. He states in his chief that after the Brahmo ceremony both he and the appellant signed the register before the Marriage Registrar and that their witnesses also signed. In cross-examination the husband has admitted that for the Brahmo ceremony marriage both the parties had mutual consent and that at the time of Brahmo ceremony marriage the parents of the both the parties were present. It is also gathered from the evidence that the Marriage Registrar under the Special Marriage Act was one Prasad Roy who is the brother of the Husband/respondent.
5. The said Prasad Roy has not however, been examined by the husband/respondent. Ext. C is the certificate of marriage issued under Section 13 of the Special Marriage Act dated 28.5.70 and there are three witnesses. But none of them has been examined by the respondent to show that the marriage registered under Ext. C was solemnised under the provisions of the said Act and not under Brahmo rites. The learned Trial Judge has disbelieved the story of Brahmo ceremonial marriage between the parties on the ground that the petitioner has not been corroborated by any other witness. But it appears that the appellant has examined one Prasanta Kumar Bhattacharjee P.W. 3 who is a co-tenant in the premises where the father and other family members of the petitioner resided at Baranagar. It is his evidence that he was a witness to the marriage between the parties which was solemnised there according to Brahmo custom. He further says that the ceremonial marriage was held prior to registration and that the marriage took place on 28.5.70. There is no reason to disbelieve this witness and the learned Trial Judge has unduly ignored the above evidence on record. There is no reason to disbelieve the evidence of the appellant and his witness P.W.3 in this regard. Accordingly we hold that the marriage between the parties were held and solemnised in Brahmo form on 28.5.70 as alleged by the appellant. Such a marriage could be registered under Section 15 of the Special Marriage Act. But ext. C purports to suggests that the marriage was solemnised and registered under the provisions of the Special Marriage Act. There cannot be two valid marriages between the same parties. It is clear from the evidence on record that the marriage between the parties was solemnised for the first time under Brahmo form. In that view of the matter the marriage certificate given under the provisions of the Special Marriage Act is redundant and should be ignored. If at all it is to be felled upon it should be treated as registration of the Brahmo marriage under Section 15 of the Special Marriage Act. Accordingly we hold that the appellants matrimonial suit brought against the husband/respondent for dissolution of marriage by decree of divorce under Section 13 of the Hindu Marriage Act is quite maintainable in form and in law.
6. Now we come to the merits of the case. The appellant has brought the suit for dissolution of her marriage by decree of divorce on ground of cruelty both mental and physical inflicted by the husband upon her and also on ground of desertion stating that she was driven out from her matrimonial home after being assaulted on 25.8.79. On subsequent amendment of the plaint it has been further stated by the petitioner that the husband along with the family members challenged her chastity and drove her out of matrimonial home on 25.8.79. The instances of cruelty as given in the plant have already been referred to us in the foregoing paragraphs of our judgment. The husband in his written statement and in his additional written statement has denied the entire story of cruelty and desertion. On the other hand in his written statement he has categorical, stated that his wife has undue, illicit and adulterous relationship with his brother-in-law one Sibapada Banerjee. It is his categorical case that the appellant’s adulterous relationship with him became a family and public scandal and that the wife being requested not to indulge in such conduct left the matrimonial home on her own accord on 26th August, 1979 for her father’s house where she has been staying there since then along with the daughter born out of their wedlock. It is also his case that he accompanied his wife to her lather’s place. It is also his case that the appellant was seen by many of his-relatives and friends at various places and he himself saw them together for the last time in the month of March, 1982 outside the enclosure of ‘Book Fair of 1982’ near Victoria Memorial Hall. In the written statement the husband/ respondent has emphasised the adulterous relationship between the appellant and the said Sibapada and has also stated in paragraph 16 of the original written statement that the petitioner/appellant has filed the suit on false allegation for dissolution of the marriage with the sole motive of regularising her illicit, unlawful and adulterous relationship with the said Sibapada who has also filed a matrimonial suit for dissolution of his marriage against his sister. In his additional written statement filed on 22.2.86 the respondent has reiterated the story of adultery against the respondent. It has been stated in the said additional written statement that her indecent and objectional association and movement with Sibapada Banerjee created irritation in the mends of the respondent and the members of his family and that she had secret meeting with said Sibapada whom he frequently contacted over phone from the place of his one cotenant. Both the parties have adduced evidence before the Trial Court. The appellant has examined herself, her brother Partha Ghosh and one Prasanta Bhattacharjee about whose evidence we have already referred to. The respondent has examined himself, one Rubi Mukherjee a friend of the appellant, one Swapan Duttagupta a co-tenant of the husband and one Gopal Banerjee who is a formal witness. Admittedly the parties have been leaving separately since August, 1979. It is immaterial whether the appellant was driven out from her matrimonial home on 25.8.79 or was escorted to her paternal home on 26.8.79. In her evidence the appellant does not say that she was driven out from the matrimonial home by the husband after assaulting her. She has however, deposed that after marriage she was requested to do all the domestic works in the house including cooking and drawing of water from the ground floor. It is, however, in her evidence that there was a cook in the house and also a electric pump. Anyway if wife has to cook food and to attend domestic works in her matrimonial home it would be too hasty to conclude that she has been treated with cruelty. The husband has categorically denied this allegations in his evidence. From the evidence on record we are unable to hold that cooking and attending domestic duties by the appellant in her matrimonial home would by themselves amount to acts of cruelty and torture perpetrated upon her by her in-laws. As we have already found, admittedly the appellant has been residing in her paternal home since August, 1979 and she has never returned to her matrimonial home since then and has no intention to do so. It would be necessary to look for the reasons why the appellant has been residing in her father’s house leaving her matrimonial home with her daughter besides the ground of cooking and attending domestic works. She has stated in the plaint that her chastity has been challenged by the husband/respondent. The husband/respondent is elequent in his written statement and additional written statement about the wife’s adulterous relationship with Sibapada Banerjee and in his opinion the appellant has brought the suit for dissolution only to regularise her adulterous relationship with Sibapada who in his turn has filed a suit for dissolution of marriage against his wife who happens to be his own sister. The appellant in her evidence has admitted her acquaintance with Slbapadn being a member of the respondent’s family. She has categorically denied the existence of any adulterous relationship with Sibapada. The husband/respondent in his evidence has said that his wife had an illicit relation with his sister’s husband i.e., Sibapada which he has seen with his own eyes. He also says that many times they used to go out on a scooter and return late at night and that Sibapada use to contact his wife over a phone of his neighbour. But there is nothing to corroborate his above evidence which the wife has emphatically denied. It is also his evidence that he has not condoned the latches of the petitioner and that he does not want a divorce and that he is ready to accept his wife and daughter. Such a stand is quite inconsistent and incongruous. In his cross-examination he says that if she is willing to stay, as husband and wife he is ready to withdraw all his allegations against her. A reasonable question naturally arises whether this can be the attitude of a normal human being when the wife has been leaving in separation since 1979. The learned Advocate appearing for the appellant has, however, drawn our attention to the evidence of the husband in cross-examination where he says that the allegation of adultery against his wife is wrong and that in 1969 i.e. before marriage he came for the first time to know that his wife was leading on indecent life. There must be same error in recording the above evidence by the Trial Court in the context of the entire evidence in record. Anyway the respondent has been constrained to admit in his cross-examination that he cannot say her an unchaste lady. In such position all his allegation of adultery against the wife must be held to be unfounded and baseless for inherent inconsistencies and for want of corroboration. D.W.2 Rubi Mukherjee does not throw any light in her evidence regarding the alleged illicit relationship between Sibapada and appellant. The husband further says that he did not give any false allegation of adultery against his wife and therefore, there is no question of repetance on his part. It is difficult to place any reliance on this evidence in view of his own admission that he cannot say whether his wife is unchaste or not. Furthermore, during the hearing of the appeal the appellant has filed an application under order 41 Rule 27 of the Code of Civil Procedure stating on oath that the said Sibapada Banerjee has got a decree of divorce against his wife in the Court of the 14th Additional District Judge at Alipore in matrimonial suit No. 1 of 1983 as per judgment and decree dated 20.4.93 xerox copies of the judgment and decree have been annexed to the application. It has been further asserted to the said application that on 20th January, 1990 the said Sibapada Banerjee had married one Anuradha Lahiri under the Special Marriage Act which has been duly registered. Xerox copy of the marriage certificate has also been annexed to the said application. In this view of the matter it is difficult to accept the respondent’s version that the appellant has filed the suit for dissolution of marriage only to regularise her relationship with Sibapada. Such a defence now falls to the ground. Now the point is when a husband makes baseless allegation against his wife of unchastity or adultery does it amount to mental torture and cruelty and does such conduct on the part of the husband give a right to the wife to stay away from the husband and to pray for divorce under the provisions of the Hindu Marriage Act. The law is quite well settled in this regard. It has been held by our High Court in a case reported in 1993(1) CHN (Amarendranath Sanyal v. Krishna SanyaJ) page 214 that it is now well settled that such false allegations against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be a valid ground for passing a decree of divorce under the provisions of Section 13(l)(ia) of the Hindu Marriage Act. It has been also held there that the post-suit allegations or events may be taken into consideration to shorten the litigation and to do complete Justice between the parties. We have already held that the allegations made by the respondent in his written statement/additional written statement against the character of the wife/appellant are baseless. He has also said in his evidence that his wife has adulterous relationship with Slbapada which we disbelieve for want of corroboration. Such baseless allegations against the character of the wife appellant must be treated as act of mental cruelty on the part of the husband/respondent so as to be a valid ground for passing a decree of divorce under the Act. The Supreme Court in his latest decision (V. Bhagat v. D. Bhagat (Mrs.)) has held that for the purpose of giving a decree of divorce on ground of mental cruelty such mental cruelty must be of such a nature that the parties cannot reasonably be asked or be expected to live together. The above case is almost similar to the present one. In the said case the husband accused the wife of adultery and the wife accused the husband of being genetically lunatic. Still then the wife was eager to continue the relationship of husband and wife. In this context the Supreme Court has observed as follows:-
“Despite all that, she says that, she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no change of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(l)(la) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore-we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.”
7. In this case the husband is accusing the wife of adultery which he says he has not condoned but still then he is eager to continue the relationship of husband and wife and would not let her go. In view of the above facts and circumstances of the case and the position of law as settled by the Supreme Court such a stand cannot be allowed. The learned Trial Judge has not properly assessed the evidence on record and has considered the issues wrongly and has wrongly dismissed the suit. Accordingly we hold that the appeal should be allowed ‘and the impugned Judgment and decree passed by the learned Trial Judge should be set aside. Accordingly the appeal is allowed ex-parte without cost. The impugned judgment and decree of dismissal passed by the learned Trial Judge be set aside. The marriage between the appellant and respondent be dissolved by a decree of divorce under the provisions of the Hindu Marriage Act. The lower Court record be sent down at once. The application under order 41 Rule 27 be treated as disposed of.
R.P. Gupta, J.
8. I agree