1. This appeal is at the instance of the husband who is a respondent in an application by the wife under Section 10(1)(b) of the Hindu Marriage Act for judicial separation. The case of the applicant wife is that on the 17th February, 1959. the petitioner-wife, respondent herein, went through a form of marriage with the respondent-appellant herein, in accordance with the Hindu rites and rituals at 'Suruchi Kutir', Jublee Part, Tollygunge, Calcutta. In or about the year 1955. the petitioner was introduced to the respondent by a common acquaintance and in course of four years following the said introduction, a mutual love and affection developed in between the petitioner and the respondent which ultimatly culminated in the aforesaid marriage of the petitioner with the respondent. Just after the marriage, the petitioner started living with the respondent at 4/A, Benode Saha Lane, Calcutta and resided there upto 15th August, 1961. On the 3rd August, 1960. a male child named Sudev, was born of the aforesaid wedlock to the petitioner by the respondent. On 19th June, 1962, a female child, named Sonali, was born of the said wedlock. The petitioner is a working girl and has been earning since her marriage in various capacities and in different places and is at present in the employ of a private firm and has to work hard absolutely to maintain the family. The respondent, it is alleged, is Free Lance Artist (Painter) and Bohemain in character and bears no positive responsibility of the family and does not duly discharge the duty and obligation to the children expected from the father. The respondent for the last few years started ridiculing the petitioner in respect of her concept of morality and her way of looking at things and the way of leading her life. The petitioner during the time was in Government service for more than ten years. The respondent on account of his mental delinquency began suspecting the petitioner in respect of her morality and chastity and made accusation against the petitioner of being immoral as a result whereof, the petitioner suffered in mind and tendered resignation and left the permanent Government service of ten years in the month of July, 1963. Because of financial stringency the petitioner was forced again to seek employment and joined the service in the month of December, 1967. On the joining of the present service by the petitioner, the respondent has again started treating the petitioner with such mental cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to the petitioner to live with the other party. The respondent almost regularly began to make reckless and unbridled allegations of un-chastity against the petitioner which are absolutely false causing untold mental pain and psychological injury. It is alleged that the respondent further charged the petitioner in presence of the children with gross immorality and adultery which has no basis at all. The respondent stated that the appellant-husband did not show any consideration in respect of the mental and physical requirements, feelings and sentiments of the petitioner especially against the background of her hard and onerous duty in the office. It is further stated that the appellant's brother at the instance of the appellant-husband abused the petitioner and threatened the petitioner in presence of the children and also insulted the petitioner in respect of her moral character. these pleadings, the petitioner prayed for a judicial separation and other reliefs.
2. The respondent-appellant denied all the allegations made against by the wife. It is further stated that the application for judicial separation is not maintainable in view of Section 30 of the Special Marriage Act. 1954 as there was no marriage between the petitioner and the respondent in the eye of law as the same was solemnised within the prohibited period of one year from the date of decree of divorce obtained on 19th December. 1958, from the Hon'ble High, Court at Calcutta in Matrimonial Suit No. 1 of 1957. It is stated that the said fact was not within the knowledge of the respondent at the time of the marriage as stated hereinbefore. It is further stated that the petitioner became so much intimated with Sri Amal Chakraborty that she even did not care the advice of her mother and that she neglected her duty towards the family and the children or to the respondent. The money which she actually earned was spent for her illicit love affairs with the said Amal Chakraborty. It is also stated that the children did not like their mother's intimacy with Amal Chakraborty. On these allegations, the parties came to trial. The learned District Judge held in favour of the wife and passed the decree for judicial separation whereupon the appellant-husband preferred this present appeal. Before the appeal was heard, we asked the parties to be present in Court and asked both the wife and the husband whether it is possible even now to continue in a matrimonial home but the wife particularly did not agree and in that view, nothing could be done.
3. At the hearing, the appellant contended that as the respondent-wife was married to another person and got a decree for divorce under the Special Marriage Act on the 19th December. 1958, the respondent-wife's marriage with the appellant was a nullity, inasmuch as, the petitioner-wife was not free to marry before the lapse of one year under Sec. 30 of the Special Marriage Act.
4. On behalf of the respondent-wife, Mr. Banerjee did not contest and stated that it is so and the marriage could not have been solemnised legally on the 17th February, 1959 after the wife got a decree for divorce on the 19th December, 1958. Under Section 5(1) of the Hindu Marriage Act, it has been provided that a marriage may be solemnised between any two Hindus, if neither party has a spouse living at the time of marriage. In this case, under Section 30 of the Special Marriage Act, the marriage was dissolved by mutual consent. Under Section 30 of the Special Marriage Act, after the dissolution of the marriage, the spouse cannot marry within a year from the date of such dissolution or in the other words, neither party can marry within a year. It is found that though the marriage has been dissolved but one year has not expired then neither of the parties to the marriage is competent to remarry, and it must be deemed to have a spouse living at the time of the marriage within the meaning of Section 5(1) of the Act. It is conceded by both the parties that such marriage will be a nullity.
5. In that view of the matter, in our opinion, the marriage being a nullity, the application for judicial separation is not maintainable and must be dismissed. The appeal must, therefore, be allowed on the ground that the marriage being a nullity as it is conceded by both the parties and as we feel so. the application for judicial separation is not maintainable: though we allow the appeal, we hold that the marriage between the appellant and the respondent is a nullity. Then the question arises regarding the fate of the spouse's child born to the appellant and the respondent. Both parties concede that they will be legitimate children in view of Section 16 of the Hindu Marriage Act.
6. In the result, the appeal is allowed with costs in favour of the appellant. [(24-7-1974) By the Court: The said cost is assessed at a consolidated sum of Rupees One Hundred Seventy. Let this order form part of decree in our judgment dated March 22, 1974.]
R. Bhattacharya. J.
7. I agree with My Lord that the appeal shall be allowed with costs and the original proceedings started by the respondent before the District Judge, 24 Parganas for judicial separation and other reliefs under the provisions of the Hindu Marriage Act, 1955, shall be dismissed on the declaration that the marriage between her and the appellant before us is null and void. I shall, however, make some addition besides the findings of My Lord.
8. The allegations of the petitioner in the petition before the original court are verv simple. They were acquainted with each other for a considerable period and for mutual love and affection they were married according to Hindu rites and ceremonies on 17-2-1909. Out of the wedlock two children, one son Sudhir and the other a daughter Sonalee by name, were born to them. It is alleged that the appellant Biswanath Mitra developed suspicion about the moral character and chastity of the petitioner An-jali Mitra without any valid reason or basis. The allegation further is that Biswanath went so far as to make false allegations of adultery against Anjali. The prayer for judicial separation is on the ground that Biswanath had been treating the petitioner with such mental cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for her to live with her husband.
9. The husband Biswanth contested the proceedings by filing a written statement. He has denied the material allegations about mental cruelty. It has been alleged that Anajli used to treat him with inhuman conduct and threats. Biswanath was introduced to Anjali only about 3 or 4 months before their marriage. He was not informed that a divorce ca.se was pending between Anjari and another man with whom she was married before and that she had obtained a divorce against that first husband. It is also stated that Anjali had been mixing with one Amal Chakraborty, a fiance of hers and that there is illicit relation between her and Amal. The husband has taken the plea that in view of Section 30 of the Special Marriage Act 1954, the marriage between him and Anjali was a nullity as it was solemnised within a year 'from the date of the decree of divorce obtained by Anjali against her former husband.
10. In this case, besides the wife and the husband, there is no other witness. In matrimonial proceedings court must decide the issues on sufficient and proper evidence and it should be seen that before the ties of marriage are interfered with, convincing, reliable and sufficient materials are to be relied upon for proof of allegations made by the petitioner in particular on whom lies the onus of proof of allegations for the relief sought for. In the instant case the petitioner-wife wanted to say that the husband openly called her unchaste and imputed false allegation of immorality in presence of children and servants or other persons. The husband denied the allegations during evidence and stated that the association of Anjali with Amal Chakraborty was nasty and their intimacy was not desirable. In cross-examination Anjali admitted that she had occasions to go out with Amal Chakraborty to Kal-yani and to Zoo but she added that her children were in their company. The husband's allegation about wife's close and illicit intimacy with Amal Chakraborty cannot be thrown out altogether. The wife being the petitioner must prove her case of mental cruelty on the basis of abuses and loud imputation about her character in presence of third parties to get the relief. On the reading of the evidence on record, I should hold that the petitioner has failed to prove her case. No reason has been given why she did not examine any witness to support her allegation regarding the conduct of Biswanath. The learned Judge below appears to have been carried away by sentiments. He should have scrutinised the evidence and the circumstances. Aniali wanted to say that she had to give up a job as her husband cast reflection against her character being a worker outside. From the evidence it appears that she was ill and that her husband took the prescription of the doctor and arranged for her treatment. The story of giving up of the job for ill-treatment by the husband cannot be accepted. In my view the petitioner has completely failed to prove the allegation of mental cruelty by her husband.
11. With regard to the husband's plea about the nullity of the marriage, the admitted position is that the petitioner obtained a decree for divorce under the provisions of the Special Marriage Act, 1954 against her former husband and that within a period of one year, the marriage between Anjali and Biswanath was solemnised according to Hindu rites and ceremonies. Section 30 of the Special Marriage Act. 1954, runs as follows:--
'When a marriage has been dissolved by a decree and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, and one year has elapsed thereafter but not sooner, either party to the marriage may marry again.'
From the above provision of law there can be no doubt that a party to a decree of divorce or dissolution of marriage is prohibited by law on the basis of which the marriage is dissolved, to marry again until after the expiry of one year following the passing of the decree. Clearly, therefore, the decree does not become absolute and effective unless a year has elapsed since the passing of the decree and until the decree is effective, that is to say during the year subsequent to the date of decree, it would be deemed that a marriage in question is in force and the parties to the proceedings for divorce have their spouse living. A matter like this has been considered in the case of Battie v. Brown, (1913) ILR 38 Mad 452, Turner v. Turner, ILK 48 Cal 636 - (AIR 1921 Cal 5171 and Jackson v. Jackson, reported in (1912) ILR 34 All 203.
12. Section 5 of the Hindu Marriage Act 1955 lays down the conditions of a valid Hindu marriage. One of the conditions for such marriage is that at the time of marriage neither party must have a spouse living. In the case before us. at the time of the marriage, though Anjali. the petitioner had obtained the decree for divorce under the Special Mar-riage Act 1054, yet one year had not elapsed from the date of the decree and therefore she had a spouse still living in view of my above discussion and therefore the marriage with Biswanath was not a valid marriage. It was void ab initio. Moreover, due to the prohibition in Section 30 of the Special Marriage Act, as quoted above, Anjali could not have married within one year of the decree obtained by her and as such the marriage of Anjali with Biswanath was against the law and void. In view of the discussion we cannot but hold that the marriage of Anjali with Biswanath was void and therefore the petitioner's application for judicial separation under the Hindu Marriage Act was not maintainable and the same is liable to be rejected.
13. One point I shall lastly mention, as it cropped up during the argument. A question arose as to status of the children of the parties. The appellant, the father of the children showed some anxiety on this question. Section 16 of the Hindu Marriage Act, 1955, is relevant on the issue and according to this provision the children of the void marriage between Anjali and Biswanath would be deemed to be their legitimate children as the said marriage has been declared in this appeal null and void mentioned in Section 11 due to the contravention of the condition specified in Clause (i) of Section 5 of the Hindu Marriage Act, 1955.