JUDGMENT
S. Narayan, J.
1. This is an appeal by the Petitioner-wife against the judgment and order dated 9.6.1992 passed by the Additional District Judge, 10th Court Alipur, whereby her prayer for a decree of divorce under Section 27 of the Special Marriage Act, 1954, on the ground of cruelty, was refused.
2. The Petitioner, Bina Tewari, asserted solemnization of her marriage with the Respondent, Chandra Prakash Munshi, as per the provision of Special Marriage Act, 1954 before the Marriage Officer of District 24 Parganas on 2nd November, 1988. Since both of them then happened to be next door neighbours, some intimacy grew between them and, ultimately, they decided to marry and, accordingly, they went for a certificate of their marriage as such. After the solemnization of the marriage the respondent, however, left the petitioner to her father’s place and assured her that he would take her to the matrimonial home after securing an employment for himself. Sometime, thereafter, when the petitioner met the respondent, he became furious and abused her in filthy language and even denied the marriage. Subsequently, in the month of January, 1990 the respondent insisted the petitioner on signing some blank papers and, on her refusal to do so, she was physically assulted by him. It has been thus alleged by the petitioner that the respondent treated her with cruelty both physically and mentally and also that the marriage was never consumated at all. There was thus a necessity for the petitioner to seek for a decree of divorce.
3. The respondent while contesting the claim of a decree of divorce, contended inter-alia that he had been forced to marry the petitioner on the point of threat and not wilfully. The petitioner and her anti-social associates had practically forced him to go to the registration office and there was a registration of the marriage as such against his desire. No notice of marriage was given earlier to the date of the marriage. Since there was no real marriage between the parties, the question of taking the petitioner to the matrimonial home never arose. The parties never had a conjugal life for a single day and, accordingly, the question of treating the petitioner with cruelty both physically and mentally did not arise at all. The respondent emphatically denied the allegation of cruelty and prayed for refusal of the prayer for a decree of divorce as sought for.
4. The Learned Court below after having distinctly examined the evidence adduced on the record upheld the solemnization of the marriage between the parties under the provisions of the Special Marriage Act and disbelieved the allegation of cruelty whatsoever levelled against the respondent. It was further held that there was, in fact, no wilful refusal from the side of the respondent towards the consummation of the marriage. In the opinion of the Court below, therefore, the petitioner was neither entitled to a decree of divorce under Section 27 of the Special Marriage Act, nor a decree of nullity as contemplated under Section 25(1) of the said Act.
5. Being aggrieved by the above findings of the Court below the petitioner- wife has come up with the present appeal and has assailed the judgment mainly on the ground that it was not based on proper appreciation of the evidence on the record.
6. So far as the solemnization of the marriage was concerned, the petitioner- wife did assert in her petition that the marriage had been duly solemnized as per provision of the Special Marriage Act, 1954 in the office of the Marriage Officer for the District of 24 Parganas. The relevant marriage certificate was also available on the record as Exbt. 1. There was not a whisper in the petition as to the marriage being solemnized under some threat, coercion or fraud. It was rather contended therein that the parties were next door neighbours and an intimacy grew up between them and, therefore, both of the them decided to marry. It is noticeable that those facts were also categorically asserted in her oral evidence recorded on 21.1.1992 but sometime later on the petitioner was brought to dock again for further examination-in-chief, wherein she stated that she did not go through the papers which he had signed at the registered office and that she put her signature on those papers as only told by the respondent. This sort of subsequent statement was obviously an after-thought development and also running quite contrary to her earlier statements either in her petition or from the dock and, therefore, that becomes more or less unacceptable. It is further well to notice that a witness, namely, S.K. Bhattacharya, examined on behalf of the petitioner, also supported the registration of the solemnization of marriage between the parties.
7. The respondent, of course, contended in his written statement that the registration of his marriage with the petitioner was done against his desire and it was under certain threat given to him from the side of the petitioner. He, however, did not choose to substantiate this version in his oral evidence and he rather admitted the solemnization of marraige. He further deposed that he was willing to live with the petitioner as husband-wife. There was no denial of the petitioner’s case either in his written statement or from the dock that at the relevant point of time they lived as next door neighbour in different portions of the same house as tenants and, accordingly, they had developed some intimacy between them and, ultimately they decided to marry each other.
8. Whatelse could be the better evidence then what has been noticed above to prove the solemnization of the marriage between the parties ? We would, therefore, certainly record our concurrence to the finding of the Court below as to the solemnization of the marriage between the parties as per marriage certificate dated 2.11.1988, issued by the Marriage Officer of District 24 Parganas (N &S), vide Exbt. 1.
9. A pertinent question has, of course, been posed with regard to the consummation of the marriage. On this point, there was no controversy between the parties; and it would be derived from the pleadings as also the evidence on the either side that the marriage between the parties could not be consummated for one or the other reason. The petitioner-wife, in para-8 of her petition as also in her examination-in-chief and cross examination clearly submitted that there was no consummation of the marriage and that they did never stay together after the marriage as husband-wife. The respondent also likewise submitted in para-11 of written statement as also in his cross examination that they never lived together as husband-wife after the marriage. That being as such, the non-consummation of the marriage was an admitted fact. The only question that remains to be looked into was the resultant legal implication. In this regard, the law was as explicit as contained in Section 25 of the Special Marriage Act which provides that any marriage solemnized under the said Act shall be voidable and may be annulled by a decree of nullity if the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage. Hence, the element of forceful refusal has to be examined in a particular case before granting a decree of nullity.
10. Be it first recorded that the wilful refusal to consummate does not mean merely neglecting to comply with the request to consummate. In an ordinary course, the consummation must be proposed to the refusing party with such tact, persuasion and encouragement as an ordinary spouse would use in the attending circumstances and the refusal cannotes a settled and definite decision arrived at without just excuse. In the instant case, what we find is that the parties while going for the marriage had mutual understanding that the petitioner-wife would continue to live with her parents till the respondent-husband secures an employment and was in a position to take her to the matrimonial home. In this context, the petitioner submitted in her oral evidence that ever since the marriage she was staying at her father’s residence because the respondent did not secure good service and also did not take her to his residence. In a position like this, we can not but hold that there could not be any proposal with persuasion and encouragement as an ordinary spouse made from the side of the petitioner-wife for the consummation of the marriage and, accordingly, there does not and can not arise a wilful refusal of consummation from the side of the respondent-husband. Beside this, there was some other compelling circumstance against the consummation of the marriage and that would be inferred from a letter in the writing of the petitioner addressed to the respondent and duly admitted in the cross examination of the petitioner. This letter, Exbt. A, depicts that the members of the parental house of the petitioner were not agreeable to the marriage and, accordingly, they had put restraint over the petitioner; and the coercion was to the extent of even beating her so as not to allow her to meet the respondent. There was also admission in this letter of the fact that someone from the side of her parents went out even to assault the respondent. That being as such, the non- consummation of the marriage was obviously for the reason that there was a good deal of restraint put from the side of the petitioner’s parental home so as not to allow the parties to consummate the marriage.
11. For the reason aforesaid even though there was no consummation of the marriage between the parties, the marriage was not voidable and there was no remedy available by way of granting a decree of nullity so as to dissolve the marriage under Section 25(i) of the Special Marriage Act.
12. As to the prayer for a decree for divorce under Section 27(1)(d) of the Act on the ground of cruelty, as actually prayed for by the petitioner, it has been seen above that as per admitted case of the parties they had no occasion to live or to stay together after the solemnization of the marriage for one reason or the other; and in that view of the matter it becomes practically un-acceptable that there could be an occasion in which any sort of cruelty would occur. The petitioner of course incidentally alleged that some months after the marriage when she went to the respondent and asked him as to why he was not taking her to the matrimonial home and what happened about his services, he abused and assaulted her saying that he would not honour the marriage and asked her not to meet her again. Probably, it was with regard to this incident that a specific date as on 2.11.1989 had been mentioned in the petition as one of the two dates, when the cause of action for the petition arose. Another date of cause of action was January, 1990 when the petitioner was alleged to have treated her with cruelty both physically and mentally. As regards, the incident of cruelty dated 2.11.1989 she stated in her cross examination that no incident took place between the parties on 2.11.1989. Moreover, there was no corroborative evidence adduced on the record for any such allegation; and there was simply oath against oath of the parties. The allegation whatsoever made by the petitioner does not, however, appear to be convincing at all in face of the admitted fact that the parties had never any occasion to live or stay together after the solemnization of the marriage.
13. There was an additional ground as well to dispel the allegation in view of what has been depicted from the letter, Exbt. A, written by the petitioner to the respondent, which speaks otherwise. Surprisingly, it would be derived from the said letter, Exbt. A, that the petitioner, instead of ventilating any grievance against the respondent, has expressed her mind that in spite of restraint put by the members of her parental house she would not betray him and would not go for her re-marriage with someone else and she would rather prefer to commit suicide. She also expressed her anxiety in the letter, Exbt. A, for the welfare of the respondent praying God that something untow.ard may not happen with him.
14. In the facts and circumstances as noticed above, no question of cruelty, be it physical and mental, arises in the instant case. It has been rather amply demonstrated on the record that the parties were willing to go for consummation of the marriage but for certain adverse circumstances like the petitioner getting no employment for some time and the coercive restraint put by the members of the parental home of the petitioner. A decree of divorce as prayed for the dissolution of the marriage was thus not a legal recourse open for the petitioner and there was no valid ground for the same at present.
15. In a matrimonial suit, it is not an event or two, which would matter, to determine a vital issue of the dissolution of marriage. It is the totality of all relevant facts and the circumstances, even those of post-suit, which have to be taken notice of to avoid multiplicity of litigation and to do complete justice. The instant case was of a young couple, who developed intimacy while living together in two different tenanted portions of one and the same house for some time and also while studying together in one institution and ultimately, they went for a registration of marriage as per a certificate fully granted, The marriage was of course not consummated as yet but not on account of wilful refusal.
16. In order to resolve the controversy and the stalemate, in reality, so as not to prolong the litigation and to do a complete justice in the case, the facts that have now emerged may be recaptulted as follows :
(i) The marriage between the parties was duly solemnized under the provisions of the Special Marriage Act, 1954;
(ii) The marriage was not consummated for two years prior to the suit, but not for the reason of wilful refusal by the respondent;
(iii) The marriage was not consummated due to intervention of and the restraint put by the members of the parental house of the petitioner;
(iv) The respondent-husband has now established his carrier as a businessman and was in a position to take the petitioner to the matrimonial home;
(v) The respondent-husband was willing to honour the marriage and to live with the petitioner as husband-wife;
(vi) The petitioner-wife has expressed her loyalty with and also confidence in the respondent-husband with determination not to go for her re-marriage.
The state of facts as noticed above, in our considered opinion, would most certainly suggest to go for a suitable relief like a decree for judicial separation so as to enable the parties to develop a mutual understanding with confidence and to exercise their free will in the matter.
17. In the premises, this appeal succeeds in part. The judgment and the order, passed by the Court below, are set aside with a direction that a decree for judicial separation for one year, being the proper relief in the case, be passed in accordance with the provision of law under Section 27(A) of the Special Marriage Act, 1954. It shall be open to the either party to move the Court below to rescind the decree during the said period, if it is considered just and reasonable to do so.
There shall be no order as to costs.