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Sm. Purabi Banerjee Vs. Basudeb Mukherjee - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 485 of 1966
Reported inAIR1969Cal293,72CWN905
ActsSpecial Marriage Act, 1954 - Sections 5, 13(2) and 25; ;Contract Act, 1872 - Section 15; ;Indian Penal Code (IPC), 1860 - Sections 306, 307 and 309; ;Evidence Act, 1872 - Section 114
AppellantSm. Purabi Banerjee
RespondentBasudeb Mukherjee
Appellant AdvocateChittatosh Mookerjee and ;Ajit Kumar Chakravarty, Advs.
Respondent AdvocateBejoy Kumar Bhose and ;Dilip Kumar Banerjee (II), Advs.
DispositionAppeal dismissed
Cases ReferredNeta Ram v. Jiwan Lal
- bijayesh mukherji, j.1. this is an appeal by the wife sm. purabi banerjee whose petition dated august 14, 1963, for annulling, by a decree of nullity, her marriage on april 26, 1963, with the respondent basudeb mukherjee, on the ground that her consent to the marriage was obtained by coercion and fraud, just the ground under section 25, clause (iii), of the special marriage act, 43 of 1954, fails before the learned chief judge, city civil court, calcutta.2. on april 26, 1963, when purabi and basudeb were married, purabi was 23 or thereabouts and basudeb 28 or thereabouts.3. on august 1, 1962, basudeb started coaching purabi -- then a b. a. student of scottish church college, calcutta, and residing under the care of her uncles and aunts in their joint family residence at 235, barrackpore.....

Bijayesh Mukherji, J.

1. This is an appeal by the wife Sm. Purabi Banerjee whose petition dated August 14, 1963, for annulling, by a decree of nullity, her marriage on April 26, 1963, with the respondent Basudeb Mukherjee, on the ground that her consent to the marriage was obtained by coercion and fraud, just the ground under Section 25, Clause (iii), of the Special Marriage Act, 43 of 1954, fails before the learned Chief Judge, City Civil Court, Calcutta.

2. On April 26, 1963, when Purabi and Basudeb were married, Purabi was 23 or thereabouts and Basudeb 28 or thereabouts.

3. On August 1, 1962, Basudeb started coaching Purabi -- then a B. A. student of Scottish Church College, Calcutta, and residing under the care of her uncles and aunts in their joint family residence at 235, Barrackpore Trunk Road, Calcutta 36. Basudeb was engaged so, on the recommendation of Purabi's cousin -- one Asim Ganguli alias Nantu whose colleague in office Basudeb was, Basudeb's remuneration was no more than Rs. 36 a month for lessons of 2 hours a day but for 3 days a week, as the averment in the third paragraph of Purabi's petition is, or Rs. 35 a month for lessons of one hour a day for 3 days in a week, as is Basudeb's evidence. It does not matter which. What matters is that the parties -- Basudeb and Purabi -- got to know one another so, and that too as the teacher and the taught.

4. The allegations Purabi makes, with a view to having a decree of nullity, she prays the Court for, are rested on fraud and coercion. Fraud, because before his marriage with her, Basudeb paints himself to be what he is really not: son of a quondam Deputy Chief Accounts Officer, South Eastern Railway, owner of vast properties spread over Calcutta, Bhowanipur and Howrah, going to England early in 1963 for higher studies, the sure prospect of being appointed a junior officer at Durgapore with a lucrative salary and a free house etc. etc., no less because Purabi was made to sign certain papers on April 26, 1963, at the office of the marriage registrar on the 'sop' that that would pave the way for her parents' approval; not that that was the form of marriage gone through under the Special Marriage Act, 1954. And coercion, because in or about February 1963, some six months after Basudeb had started coaching her, he gave Purabi to understand that marry him she must; else he would put an end to his life and hers too.

5. Basudeb, in his written statement, denies such statements Purabi attributes to him, and submits: Purabi knew well enough what he was like and what his family was like. In full knowledge thereof, she married him of her own accord, with fraud or coercion nowhere near. Indeed, it was a case of mutual attraction and love culminating in a lawful marriage.

6. At the trial, Purabi examines herself and her father, Pulak Chandra Banerjee, Branch Manager of the United Bank of India at Jorhat, Assam; whereas Basudeb examines himself and two friends of his: Biswanath Mukherjee and Anup Dutta, witnesses to the marriage on April 26, 1963. This is all the oral evidence led at and during the trial.

7. The documentary evidence consists mostly of letters written by Purabi to Basudeb, as also letters to and fro between Pulak Banerjee on one hand and Basudeb and his people on the other. Exhibit 'F' is the certificate of marriage dated April 26, 1963, issued under Section 13 of the Special Marriage Act, 1954.

8. The learned trial Judge disbelieves Purabi, believes Basudeb, whom he refers to as 'a bright young man' and by whose frank and straightforward evidence he is 'very much impressed', and finds as a fact that Purabi 'went through the formalities of the marriage knowing fully well what she was doing'. Naturally, therefore, he dismisses Purabi's petition for annulment of the marriage, treating such a petition as a suit under the rules of the Court. Hence this appeal by her.

9. Mr. Chittatosh Mookerjee, appearing for the appellant Purabi, contends: the marriage under the Special Marriage Act, 1954, is secular in nature. A marriage as this must be struck down as void, so long as it is not found as a fact that it has been consented to within the meaning of the Contract Act, 9 of 1872, Section 13 of which lays down that there must be consensus ad idem. That is to say, the parties to the marriage, Purabi and Basudeb, must be shown to have agreed to the same thing in the same sense. But that is far from the case here. Basudeb took it as a conclusive marriage. Purabi did not. She took it only as a step to obtaining the consent of her parents to the marriage, which was to come later, as she was given to understand by fraud practised upon her by Basudeb. Fraud apart on the date of the marriage and before, she was a victim to coercion too. Basudeb had coerced her so, by threatening that he would put an end to his life and hers as well, if she would not agree to marry him. That being so, free consent, real consent, on the part of Purabi, is not simply here. Consent, such as it is here, is, therefore, vitiated by fraud and coercion by the conjoint operation of Sections 14, 15 and 17 of the Contract Act, 1872, and the impugned marriage cannot stand.

10. If the premiss upon which Mr. Mookerjee rests his contention is right, the conclusion he comes to, the, conclusion he asks us to draw, must be equally right. Section 25 of the Special Marriage Act provides just so:

'25. Voidable Marriages -- Any marriage solemnized under this Act shall be voidable and may be annulled by a decree

of nullity if--



(iii) the consent of either party to the marriage was obtained by coercion or fraud as defined in the Indian Contract Act 1872.'

But is the premiss right? Can it be said upon evidence that Purabi's consent, as we find here, has been vitiated by fraud and coercion? That is the point debated before us, Mr. Bhose, who appears for the respondent Basudeb, contending that, upon the whole of the evidence, Purabi's consent is free, and nothing but free. That she backs out later, concludes Mr. Bhose, is wholly irrelevant.

11. To fraud first. The allegations on that admit of a clear dichotomy: (i) what was said and done by Basudeb before April 26, 1963, the date of the marriage, and (ii) what was said and done by him on April 26, 1963, the date of the marriage.

12. The allegations about Basudeb's misdeeds, before the date of the marriage, may be noticed one by one. In December 1962, only four months after he had started coaching Purabi, he broached to her a topic as this: 'what do you want your husband to be like? Through Asim (Purabi's Nantuda) your mother wants me to ascertain your wish'. Purabi replied that her parents' choice was her choice too. But she confesses, she did not ask Asim, her Nantuda, if he had told Basudeb anything about her marriage. Not that any fraud lurks here. It does not. But Basudeb was only breaking the ice and preparing the ground for further and still further talks on the question of Purabi's marriage, though it was none of his business, a mere private tutor on Rs. 35 a month as he was.

13. During the Christmas of 1962, Basudeb, it is said, did a lot of puffing before her pupil Purabi. Going to England for higher education early in 1963, his mother determined to send him so, his father, then dead, was the Deputy Chief Accounts Officer of the South Eastern Railway, as set out in paragraph 6 of Purabi's petition, or the Chief Accounts Officer, as stated in her evidence, holding vast properties in different parts of Calcutta, Bhowanipore and also at Howrah, his eldest brother being a big shot, he too would be going to Durgapur soon enough on a much better job -- such was the self-laudation Basudeb is said to have indulged in before his pupil. Worse, at or about this time, he reverted to the topic of marriage again -- his own marriage though. His mother would marry him before he would be leaving for England, Various proposals from distinguished families of Calcutta were coming for his marriage. But he had nothing but disdain for them. What he was after was a homely bride of his choice and that too from a middle-class family: just the family Purabi belongs to; taking care to add to Purabi at the same tune: 'Your manners are most charming and yet homely but without any taint of artificiality.'

14. But Purabi did not swallow such talks, though they were meant to be swallowed by her. She chafed them, as she says on cross-examination, and said to Basudeb: 'Coach me. Speak not about these things'. That, however, did not daunt Basudeb. Towards the end of January 1963, he east off all pretext and said to Purabi straightway: 'What say you if I offer myself to your parents to marry you?' Purabi resented it and replied: 'Get on with my lessons and write to my parents if you like'.

15. This is an outline of all that Basudeb is supposed to have said and done before the date of the marriage on April 26, 1963, so far as allegations of fraud are concerned. Basudeb denies that he had stated or done anything of the kind. The question, therefore, is: who is to be believed -- Purabi or Basudeb? The trial Judge, the Court of facts, believes Basudeb and disbelieves Purabi. No doubt, he has an advantage over us, in that he has heard and seen them both, whereas we are dealing only with 'the dead body' of the evidence. All the same, ours is a Court of facts too. So, to go that way only will be to indulge in scamping. Are there any other matters on which we can conclude whether the trial Judge is right or wrong? There are; not one, not two, but many. To notice what they are, we now proceed.

16. Purabi used to address Basudeb as Tumi, as she herself admits on cross-examination and as her letters, one after another show. That is not the normal way of a pupil addressing her teacher. Basudeb in turn used to address Purabi as 'Rubi': the shortened name to which, Purabi admits on cross-examination, she responded, and with so much warmth too, as would presently be seen. What is seen, therefore, is not the relation simpliciter between a pupil and her teacher. What is seen instead is much more. But how much more? Let Purabi's letters, supplemented by oral evidence where necessary, answer it:

(i) On November 16, 1962, Purabi presented Rabindra Nath Tagore's Purabi to Basudeb with a distich written in her own hand, a specimen indeed of fine penmanship. Rendered into English, the distich, and that follows read: On the path of journey

These few days' acquaintance Yet the mind's lyre plays the Tune of remembrance:

Your Rubi,

16-11-62: Ext. E(1).

She did not stop writing this distich only. She also wrote on the next page of the book, in its vacant space:

'To one from whom I received very particular help in my last examination of the great university -- to the lotus like hand of that great one with a good heart and that of a friend too -- I lift this book, the very title of which will serve as my introduction:


Calcutta 36': Ext. E(2). Purabi denies that she had purchased Rabindra Nath Tagore's Purabi and presented it to Basudeb. But her own handwriting, the envy of a calligraphist, belies it. Basudcb, a mere private tutor as he was, refused to accept the present. That is what Basudeb says and that is what rings true upon the whole of the evidence. Such refusal on his part cut Purabi to the quick. But what did she do? She presented the book once more with a chit, Ext. 'E', which bears, in the beautiful handwriting again:

'Know you what has been the result of your saying: 'I won't take the book? Alas! You know not. With great effort, I restrained my tears, wiping off the residue which I could not, and that too out of your sight.': Ext. E. Only then Basudeb accepted the present. And who would not in his position, barring a few, a very few indeed, directly outside the stress of passion and fixed in calms of lofty contemplation.

(ii) On January 11, 1963, at 9 p.m. Purabi wrote another chit, Ext. A (18), to Basudeb:

'(Fountain) pen after (fountain) pen --Looks like a return present -- eh? This sort of a thing I like immensely. So do you too, I hope. And 'the epistle you write ****** you will write with this. Is that not so?' (iii) Another chit written by Purabi to Basudeb. but undated, reads:

'Oh. It happened. What a tremendous thing. He loves.': Ext. A (16). (iv) Apparently, Purabi does not like the garment Basudeb puts on one day. She sends to him another undated chit which bears:

'From tomorrow on, wear not this garment. Nobody will believe that your hand is not the hand of a woman unless she sees it. So soft indeed. Around and about there are people and people. Hence this chit': Ext. A (20). (v) Still another undated chit, Ext. A (21), written by Purabi to Basudeb reads:

'Rubi: Rubi. From a great distance came floating a call as this. A two-lettered name. I liked it very very much, Felt shy about it But resist it I could not. I heard it with my ears, touched it with my mind and felt it with my heart. How wonderful. Isn't it Who knows if the mind at one end takes a dip in the waters of the other end. What think you Good gracious! What a shameless girl. When the moon's rays have spread over everything, you have been caught, my friend, and so you are a captive of mine.' Very truly does Basudeb say in chief that Purabi liked the name shortened into 'Rubi'. Very untruly does Purabi say, towards the close of her cross-examination, she was made to address Basudeb as 'Tumi' forcibly. Such a mode of address in a spate of letters, radiating love and affection, shows spontaneity and joy, not any manner of a force anywhere. (vi) One more undated chit, Ext. A (19), written by Purabi to Basudeb bears: 'Tomorrow do wait between 2 and 2-15 p.m. with tickets for 'Bhranti Vilas' (Comedy of Errors) -- eh? Do not get angry. My body burns in anger.'

17. Interrupting the review of Purabi's letters and chits -- many more remain to be reviewed yet -- let her admission, on cross-examination, about some of those that go before, be recalled:

'All these small chits were written for Basudeb: Exts. A(18) to A(22):'

A(22) is a mistake for A(21) which was originally marked as Exhibit A(22), presumably through mistake, as the marks put on the exhibit itself and the list of documents admitted in evidence, go to show. But Purabi explains that she did not understand the implication of writing letters to Basudeb and that she had lost her balance then. The second explanation may be true. Desperately in love with Basudeb, she did exhibit imbalance. But the first explanation that she, a girl of 23, as she herself admits, and an undergraduate student at that, reading in the 4th year B.A. class, did not understand the implication of writing such amorous letters, is apt to draw largely on the belief of a prudent man.

18. To the letters again.

(vii) Love offered by Purabi and accepted by Basudeb, the consent of Purabi's parents was thought necessary, and very rightly too. Indeed, Basudeb raised the matter. Purabi thereupon asked him to write to her mother a letter which was drafted by Purabi in that unmistakable, beautiful handwriting again. It was so drafted perhaps in the first week of March 1963, as is Basudeb's evidence. A draft as this, marked Ext. A(7), over the signature of 'Basu', written by Purabi, to the address of her mother, referred to here as Masima (auntie) shows Basudeb as the supplicant for Purabi's hand and makes the following amongst other points:

1. A note as this will take you by considerable surprise.

2. Purabi's examination is drawing close and my responsibility too is about to come to an end.

3. I have landed myself in a new job at Durgapore. My prospects there are so good.

4. As I am about to part from her, I discover that she has become mine, unknowingly though. You may perhaps think that I have misused the affection and trust you have reposed in me. But, believe me, no sin pollutes my mind.

5. I have thought and thought, Purabi I do want. So I entreat you only for this little, and nothing else: do give me Purabi.

6. Rest assured -- and so I say with emphasis -- never, never, she will have to suffer lack of care in my hand. I have not stated anything to her. On your part, do not say anything which may harm her examination.

7. You know how my home is like. My mother has no objection. Asimda knows not anything about it. You are the first person whose consent I seek.

8. Perhaps, you want to give Purabi to a much better and bigger groom. But, my dear auntie, is not the peace of mind itself a big factor (to be taken into reckoning)? Purabi's mind and heart is such that verily I can make her happy. So I hope. And for that only I get into this job at Durgapore.

9. Pray, do not take me amiss. Such then is the draft in Purabi's unmistakable handwriting. And even in chief, she admits so:

'I made a draft of a letter to be written by the respondent to my parents.' So she did, 'as she said she knew the temperament of her parents', just what Basudeb says in chief.

There is another draft made by her, Ext. A(8), in the nature of a reminder by Basudeb to Purabi's mother, the burden of which is the same: Purabi is mine. Pray, give her to me.

(viii) On Baisakh 6, 1370 B. S., corresponding to April 19, 1963, or thereabouts, only a week ahead of the marriage on April 26, 1961, Purabi wrote on a khata (exercise book) this to Basudeb:


I am bankrupt today by giving you all. Now on, all songs will be ringing through the holes of the flute of my heart.

But who knows in whose quest you wander about by setting fire to all your days. Who makes you weep so overwhelmingly you love.

Your Rubi.' Ext. E(3). Such a letter, the last one before the marriage, as also all others, get into evidence without objection and the formal proof having been waived, as the trial Judge's endorsement in the 4th column of the list of exhibits admitted in evidence goes to show. The suggestion to Basudeb, on cross-examination, is that he had purchased the khata on which Purabi proclaims her bankruptcy by pouring out her heart to Basudeb. Say, he did, though Basudeb denies the suggestions. But did he purchase her handwriting too and the ringing note of love? In a way, he did. If it was a purchase, it was a purchase for the consideration of love. But he did not forge her handwriting. And for all we see, Basudeb is incapable of writing such beautiful language which Purabi can write.

19. This completes our review of Purabi's letters and chits for Basudeb before the marriage and that too in the light of the relevant oral evidence. Necessarily, this completes too the first branch of allegations on which Purabi's case of fraud rests. Such documents speak for themselves. Purabi was in love with Basudeb. Purabi was mad after him. Nothing that we see here surprises us. A girl of 23 and a young man of 28 are closeted together week in week out and for months on end. It is only to be expected that one will be attracted to the other and that they will speak of things other than dry lessons in Special Bengali, Economics and English which were Purabi's subjects for the B. A. Examination. They did no more. So, if we have to go by such letters and chits, the consent of Purabi, a grown-up of 23 is writ large upon them all. Naively does Purabi say that she wrote those love letters at Basudeb's suggestion with a view to enabling him to produce them before the members of his family and thereby to introduce her to them. Equally naive is she when she says that the implication of such letters was not understood by her. She herself admits that she spoke to her friends about her writing letters as these to Basudeb. Manifestly, she was happy and proud that she had one to whom she could write in this vein. Truly does Basudeb say in Chief:

'Our love was mutual and reciprocal. It was spontaneous.'

Again, on cross-examination :

'2/3 months after (i. e. after August 1, 1962) I understood that Purabi was attracted towards me. After that, I felt attraction for her. At first I refused to reciprocate the feelings and on that account I refused the book (Rabindra Nath's Purabi). But subsequently she made a note and then I accepted it.' What the note is: Ext. E, has been noticed in the foregoing lines.

20. But what has been the basis of this love? Instead of leaving the two lovers to answer it, our unpleasant duty is to probe the matter and to find out an answer for ourselves, upon the whole of the evidence If we find that such love comes through a corrupt polluted channel, namely, fraud as alleged, we are in duty bound to undo it, no less the marriage, only a consequence of such love. Upon the whole of the evidence again, we are clear in our mind that fraud does not pollute this love. Here are our reasons for the ground covered so far, for the first branch of allegations on fraud.

One, Purabi did not succumb to the talks of marriage initiated by Basudeb. On the contrary, she was annoyed and asked Basudeb not to speak about these things. This is what she says on cross-examination.

Two, she knew well enough that Basudeb passed the B. A. Examination while serving in the office of the Railways at Sealdah where Asim, her Nantu-da, was working too. Such a big man's son --the son of a Deputy Chief Accounts Officer or a Chief Accounts Officer of the Railways -- and with vast properties in Calcutta, Bhowanipur and Howrah, would sit for the B.A. examination while working as a clerk, instead of having completed his studies first before entering into service. The suggestion put to Purabi on cross-examination that Basudeb had to take a job, before completion of his studies, for want of money, has the merit of probability in it. And this probability is rendered almost to a certainty by the evidence of Basudeb that, having toiled as a clerk in the Co-operative Credit Society of the railways ever since 1955, where Asim has been working too since 1952-53, he passed the B.A. examination, 7 years later, in 1962. 'Earn while you study' is a good motto no doubt. But generally it is for the lowly placed, nor for the sons of big men. We do not put it any the higher.

Three, what is more, such a one, Basudeb, son of an officer higher up and having properties here and there in Calcutta and its suburbs, would be working on a pittance of Rs. 35 a month. To think so is to think almost the unthinkable. Certainly a consideration as this could not have escaped the attention of Purabi, aged 23, and the daughter of a Branch Manager of a Bank on Rs. 1,600/- a month, as her father Pulak Banerjee's evidence is on his emoluments.

Four, the probability -- and a very great probability at that -- is that Basudeb did not indulge ever in the vulgarity of displaying wealth and vaunted pedigree, none of which he had. His father was only an Assistant Accounts Officer. Indeed, he could not. So it appears to us as it appears to the learned trial Judge. Because, if he would be aping greatness which was not his, in fact, he stood the risk of being exposed by Asim Ganguly, his colleague in the office and Purabi's Nantu-da, any moment.

Five, Basudeb's evidence is that Purabi knew all too well what his financial condition was like and where he was working. More, she knew too that he was not well off. The learned trial Judge accepts his evidence. So do we. Purabi's denial is no doubt there. But the trial Judge rejects it. So do we, upon the whole of the evidence.

Six, such evidence of Basudeb receives striking corroboration from what Purabi says and does. She says on cross-examination:

'I did not ask him (Asim alias Nantu-da) about the pay of Basudeb. I was not interested in the actual income of Basudeb. I was not interested in the property of Basudeb.'

This sounds true. She was Interested only in Basudeb's love. And what does she do Her evidence on cross-examination is the answer:

'I went to Sibpore in December 1962 ......... Basudeb used to stay at Sibpore.'

6 Ambika Ghosal Lane at Sibpore is Basudeb's home. So, Purabi has had the opportunity to see what his lover's home was like -- a palace or a hovel.

Seven, the tall talks about going to England for higher education which, going by Purabi's evidence, come to a Course in Librarianship, no less about getting a lucrative job as a junior officer at Durgapore with a free house -- talks which Purabi attributes to Basudeb -- have produced disbelief in our mind, as they have produced disbelief in the mind of the learned trial Judge. Such a one, a mere clerk in the railways and a private tutor on Rs. 35 a month, would not ordinarily dream even of going to England for higher studies. Basudeb, the whole of the evidence completely satisfies us, had not dreamt so either. Far less had he given airs in that fashion to her pupil. Here also Basudeb's evidence In chief, without any cross-examination on the point, tells:

'I told Purabi that I went to Durgapore as Upper Division Clerk. I nevertold her that I was going there as JuniorOfficer.'

The draft letter in the hand of Purabi,Ext. A(7), for example, to her mother,prepared for Basudeb, noticed already,tells all the more. Not a word is thereabout Basudeb's going to England orjoining the post of a junior officer atDurgapore. Only a job at Durgaporewith good prospects is referred to. Thepost of an Upper Division Clerk has certainly prospects. By the way, Purabi'sfather, Pulak Banerjee, started his careeron Rs. 16 a month (or Rs. 60?) and nowgets Rs. 1,600/- a month. And Basudebdid get the Durgapore post he was speaking of. On this point, there is a littlemore in that draft. Basudeb confesses,as Purabi puts it, that there are groomsfor Purabi far more deserving than he.So no extolling you find here. What youfind is recognition of Basudeb being notmuch in status and the like.

21. The appellant Purabi cannot, therefore, succeed on the first branch of allegations she makes, with a view to establishing fraud on the part of Basudeb. We are completely satisfied upon the whole of the evidence, as the learned trial Judge is, that Basudeb did or said nothing which smacks of fraud. It is just an ordinary case of mutual attraction and love, for which neither Basudeb nor Purabi, placed as they were, is much blameworthy, save that Basudeb, if he continued in his refusal to accept Rabindra Nath's Purabi and all that followed, would have gained indeed an enviable stature.

22. Before the second branch of allegations charging Basudeb with fraud is taken up, Purabi's complaint about coercion may be examined. And her complaint is: early in February 1963, Basudeb offered to coach her every day instead of three days a week. Purabi appreciated the offer which, however, was turned into activities of a different sort: proposals to save her from the tyranny of her mother and brother and to agree to marry him, accompanied by threats all the time that should she not come to his aid, he would put an end to his own life and hers too. That embarrassed her and made her look so small, in case she would fail to stop what she was threatened about. Such Is the averment in paragraphs 10 and 11 of her petition for a decree of nullity. Such is her evidence too. But asked by the Court why she did not bring this to the notice of her guardians, she gave no reply. Basudeb, in his sworn testimony, denies he had ever said so. Not that he spoke never of suicide. He did, but in a different context. Marriage over, he went to Durgapore where everybody knew that he was married. Should anything happen to the contrary, he might have said that he had no other alternative but to commit suicide to save himself from humiliation. But that is not coercing Purabi into marriage. That may well be coercing Purabi not to run away from the marriage, an accomplished fact.

23. As between the two versions -- one of Purabi and another of Basudeb -- we prefer, upon the whole of the evidence. Basudeb's to Purabi's. Of the letters and chits reviewed so far, at least two are after February 1963. One is that draft, Ext. A(7), by Purabi in the first week of March 1963, with a view to helping Basudeb to write so to her mother whose temperament she was familiar with, and eo naturally too. Had she been coerced, as she alleges she was, she could not have brought herself to make so excellent a draft. The other is that that writing in the khata, Ext A(3), by which she gives her all to her beloved, Basudeb, proclaims her consequential 'bankruptcy', and speaks of all her songs ringing thenceforth through the holes of the flute of her heart. One coerced does not, and, indeed, cannot, write a letter as this. On this alone, it can be held in safety -- and it is held so -- that coercion is nowhere near. And then, as we review in due course the remaining letters written by Purabi to Basudeb, after their marriage on April 26, 1963, it will be clearer still that nothing like any coercion was there or could be there.

24. Because of such patent consideration it is hardly necessary that we deal in detail with what coercion at law is. But only this may be said. By the conjoint operation of Section 25, Clause (iii), of the Special Marriage Act, 1954, and Section 15 of the Contract Act, 1872, coercion, in the context of facts here, would mean threatening to commit any act forbidden by the Penal Code. To put an end to Purabi's life -- and that is one of the threats given by Basudeb, as Purabi alleges, wrongly though -- is to kill Purabi outright. That is certainly an act punishable and forbidden too by the Penal Code. To commit suicide -- the other alleged threat Purabi attributes to Basudeb, wrongly again -- is certainly not to do an act punishable by Penal Code. Suicide no doubt is self-murder. But one committing suicide places himself or herself beyond the reach of the law, and necessarily beyond the reach of any punishment too. But it does not follow that it is not forbidden by the Penal Code. It is very much indeed. Section 306 of the Penal Code punishes abetment of suicide. Section 309 punishes an attempt to commit suicide. Thus, suicide as such is no crime, as, indeed, it cannot be. But its attempt is; its abetment is too. So, it may very well be said that the Penal Code does forbid suicide. Thus, the two threats Purabi attributes to Basudeb will amount to coercion at law. But her difficulty is that what she attributes to Basudeb has not been believed and is not capable of being believed either, upon the whole of the evidence.

25. Now the second branch of the allegations on the basis of which fraud is sought to be foisted upon Basudeb, is being taken up. Purabi's B. A. Examination for which alone Basudeb could come in contact with her, was over on April 24, 1963. And only two days later, namely, on April 26, 1963 the marriage of Purabi and Basudeb was solemnized under the Special Marriage Act. This is how it happened, according to Purabi. The very day her examination was concluded, Basudeb called on her at their Barrack-pore Trunk Road residence and asked her to come over to the office of the Marriage Registrar at Wellington Street to sign some papers, which if signed, would facilitate obtaining the consent of her parents. It was also arranged that Purabi would report herself at the United Coffee House, Shymbazar, on April 26, 1963, 'at noon'. She did just so, only to be taken to the Wellington Square Office of the Marriage Registrar, where she signed some printed sheets, in presence of others whom Basudeb introduced as his office friends, but without understanding that thereby she was marrying Basudeb. She asked not a word to the marriage officer about the papers she was signing. She believed on the other hand that she would get the consent of her parents if she signed the papers.

26. Basudeb denies the allegations. His version is that Purabi came to the marriage officer's office of her own on April 26, 19C3. She took the requisite oath. Other formalities were gone through as usual. Purabi signed the papers of her own free will in a complete understanding of what she was doing. Marriage solemnized so, Purabi told him that she would inform her parents about the marriage.

27. In such evidence, Basudeb is supported by his office colleague and friend for the last 8 years, Biswanath Mukher-jee, his second witness, he being the first, and also Anup Kumar Dutta, another friend of his, an employee of Metal Box & Co., and the third and last witness on his behalf. Both of them say, Purabi came alone. Whereas Biswanath says that Purabi came perhaps in a taxi, Anup does not give vent to such a doubt and states that Purabi Devi came alone in a taxi. How Purabi came, alone or escorted by Basudeb, does not appear to be so important. What is really important is whether any deceit was practised upon her in obtaining her signatures or her signatures were her mental acts as they were her physical acts. Both these witnesses are definite that Purabi fully understood that she was being married and that she was marrying of her own free will.

28. Nothing that we see can enable us to disbelieve such evidence. These two witnesses are no doubt friends of Basudeb. But they are the most natural witnesses. Who else would witness such marriage except friends? Certainly, strangers would not be brought in as witnesses. It is said that offices were open that day. Could they have, therefore, witnessed the marriage? But it is too late to say so now. Nothing like any attempt has been made at the trial to show that they were present in their respective offices throughout the day on April 26, 1963,

29. Again, Biswanath Mukherjee's address is 4A, Bejoy Mukherjee Lane. And Basudeb admits having given that address before the Marriage Registrar, presumably in the notice of intended marriage under Section 5 of the Special Marriage Act, 1954, read with the Second Schedule thereto, where there are columns for specifying the address of the parties intending to marry. The marriage certificate, Ext. (F), does not contain any such column nor any address. Basudeb says that he was then residing at 4A, Bejoy Mukherjee Lane and, therefore, gave that address. On behalf of the appellant we have been addressed on this. But why? What hinges on it? The question of notice is not at issue at the trial, presumably because, as rightly pointed out on behalf of the appellant again, of Section 13, Sub-section (2), of the Special Marriage Act, 1954, by virtue of which the certificate of marriage we see before us, Ext, (F), shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting signatures of witnesses have been complied with. So there the matter should rest, save that the following from Purabi's evidence on cross-examination may be recalled:

'At that time (26-4-63) I had willingness of marriage.'

30. In sum, agreeing with the learned trial Judge, we accept the evidence of Basudeb and his witnesses, reject that of Purabi. self-defeating as it appears to be, though it pains us to say so, and find as a fact that Purabi did marry Basudeb on April 26, 1963, under the Special Marriage Act, 1954, before Marriage Officer P. K. Basu in his office at 38/2, Wellington Street, Calcutta.

31. A conclusion as this is strengthened so much the more by letters written by Purabi to Basudeb after their marriage on April 26, 1963. Here is a review of these letters in order of date.

32. I, May 16, 1963: Exhibit A(1). An inland letter written by Purabi to Basudeb in his Shibppre address: No. 6 Ambika Ghosal Lane, it begins thus:

Oh the uncultured one.

Oh poor fellow, what a suffering: Not seven, not five; no; only one wife. Now I shall hear you beginning to sing:

'Oh my beloved, how long shall I be waiting.'

The Bengali word used is 'Bau'. Purabi says in her evidence, she knows, as indeed she must, 'Bau' means wife. Then, the writer of the letter Purabi counsels patience, because of her inability to come every day, suggests visiting the pictures on Sunday in order to see the film 'Nirjan Saikatey' (Lonely Beach), and goes on:

'Well, auntie was asking me yesterday : Have you loved anybody? I said, I will let you know when I do.' Purabi writes of her getting darker because of her moving about in the sun, asks Basudeb to wait for her on Friday at 4 p. m, at the meeting place, and reports of Nantu-da's desire that she should now go to Jorhat (where her parents are), adding:

'Yes. I go this time. And that will enable me to talk things over. Nantu-da said too that the next stage was registry. Alas. Poor Nantu-da.' Purabi is, therefore, anxious to broach the topic of her marriage before her parents and makes a fuss of Nantu-da's ignorance of their marriage having been registered already under the Special Marriage Act, 1954, some three weeks ago. Purabi then explains: why this letter--

'Not sure whether I can speak you on the telephone or not. Hence this letter.' Thereafter she enquires of Basudeb's health and concludes: 'Write off the laws on the subject of falling into love. As for me, I adopt myself, even though I suffer and suffer. Because you are with me and in me, in my bed, in my dream, and in my waking hours too. Using the handkerchief? Take off the grease by washing it in water, else your face will burn. What more shall I write? From afar, here goes of my own a flying wee thing. Taking it? Rubi: yours and yours alone. 16-5-1963.'

33. Does a letter as this bear the marks of fraud, coercion and deceit in the recent past, of which we have heard so much? It does not On the contrary, Purabi acknowledges herself to be the wife of Basudeb and renews her love to him with redoubled warmth, in a language which is all her own and shows her to be a talented young lady.

34. II. May 22, 1963: Ext. A(2).

Here is another inland letter written by Purabi to Basudeb to his Sibpore address. The points worth noticing here are-

1. An appointment again with Basudeb between 2 and 2-15 p. m., so that she may not return home late at night --which makes people at home laugh at her expense.

2. Let not Basudeb's mother tell Nantu-da that she had been to Basudeb at Sibpore all to herself.

3. An auntie was asking her: Why did she go to Sibpore. She answered: for nothing particular. The rest of what happened she will tell Basudeb when they meet.

Then the letter asks for Basudeb's Durga-pore address, enquires of his health and runs:

'Yesterday night, while seated on the roof, I sang and sang, and fourteen songs at that one after another. After a long, long time, I sang so many songs. Growing jealous -- eh? ............ Beware. Do not venge me by doing something in the extreme on Saturday. If you do, you will have your deserts. Understand? ...' Then the letter concludes with these two well known lines of Rabindra Nath that rhyme with each other: To give you something my mind yearns No matter whether you need it or not.

34A. This letter also evidences neither fraud nor coercion. It evidences instead a loving wife out to make her beloved happy in spite of the great handicap of a clandestine marriage they have gone through, without the girl's parents and relations knowing anything about it. And what is apt to arrest one's attention is Purabi's reference to Basudeb's possibility of doing something in the extreme, for which he is warned in a lovely manner, only becoming of a wife, forced to keep her wifehood in secret. Herein lies the answer to the appellant's contention that the marriage has not been consummated. It has not been consummated because of difficulties all around fostered by the secret marriage. Not that it has not been consummated, because there has been no marriage, as the contention is. And for such restraint, both Purabi and Basudeb deserve unstinted praise.

35. III. May 29, 1963: Ext. A.

Basudeb has gone to Durgapore to join his post as Upper Division Clerk, not a junior officer. The distance between Barrackpore Trunk Road and Durgapore is greater than the distance between Barrackpore Trunk Road and Sibpore. So Purabi addresses Basudeb as Sudurikeshu: one who is so far off. The longer distance makes the letter longer too. Purabi has seen Basudeb off at Howrah Station. So the letter begins:

'Well, the train steamed off. By-and-by your image become reduced to a point.'

Apparently, Basudeb, just as the train started, burst into some sort of inelegance, going by the standard of the families he and Purabi belong to. So, she comments:

'Well, say why you are so uncultured: Just at the time of leaving, oh, the scene you created, even though mother was there. Even Nantu-da said, it was not right for you to do so.' Purabi enquires about the new place (Durgapore) and comments:

'Today you are not by me, I am not ashamed to confess, right from Sunday night I am in a slough of despond. I feel like addressing the people of the universe thus: 'Mon ami, Bring him back to me'. Do you know the meaning of Mon ami? A French word this, meaning: I love you.' In that Purabi does not seem to be quite correct. The French words do not mean just that. They mean: my friend. Be that as it may, Purabi is pining for Basudeb. Somewhat of a lonely house on Monday morning and the opportunity afforded thereby tempts her much too much to call Basudeb on the telephone. Then off to Nantu-da again:

'Do you know Nantu-da doubted and doubted for a long enough time whether our affair is true or not. To get rid of his doubt, he asked me again.' What is it that Purabi alludes to here? What can it be save her marriage with Basudeb which she regrets not, but affirms, in a veiled manner though? The love-lorn Purabi then gives a graphic description of how she is passing her days:

'That day, that is, on Tuesday night, I dreamed: 'Reposing my head on your breast, I have been lying. And you? You are fondling my head.' Purabi then entreats her darling to live with care and nicely too, free from worry and anxiety, not being extravagant in his expenses, restraining his temper, and not to be so outspoken. She writes too about her girl friends, Arati, Manisha and another, the jealousy they have for her success, she alone being the victorious amongst the four, and Manisha taunting her for her outburst: 'My mind is restless always. To me the world has become a desert.' -- to which Manisha replies: 'Alas, the world is full of trees and plants. And still you call it a desert'. Dealing with other matters which are not material for the purpose of this unfortunate litigation, this letter of Purabi to Basudeb runs:

'(i) I am thinking, I inform Haridas about our affairs. How long will that poor fellow live in hope for me?

(ii) Arati said: Your very look makes me feel that you have done everything. Manisha retorted: Everything happens, if there is everything.

(iii) Well, from you I have not kept back anything that can be given.' Purabi concludes the letter, subscribing herself as 'Your Purabi', but adds a post-script, stating amongst other things, how nice it would be if Basudeb could come on Saturday and singing: 'Rubi who is yours and yours alone.'

36. Here also, in a letter written on May 29, 1963, a little more than a month after the marriage on. April 26, 1963, we find not even a soupcon of a suggestion that Purabi signed the relevant marriage papers without understanding that she was actually marrying Basudeb, or that she was led into the marriage by fraud and coercion. On the other hand, all that she writes is so consistent with her marriage, an accomplished fact by then.

37. IV. June 10, 1963: Ext. A(3).

(Perhaps this letter -- a dateless one --was written a day earlier. The date: June 10, is being spelt out from the postal stamp upon the envelope.)

Purabi here goes a step further, as indeed a wife does, and addresses Basudeb, now at Durgapore, as Pranpratimesu: one who is as dear as life itself. She begins:

'It is no longer possible for me to address you by name. How shall I address you then?'

Then she refers to Basudeb having left the other day, and continues:

'Well, you went away the other day, and I remained full both in body and mind. A nightlong dream I had: I am lying with my head right on your breast and you are caressing my head with your palm, but without teasing me.'

As many times as I think of it, my body shivers and my heart shakes'. Has Purabi a premonition of the bad days to come? Because she also writes:

'Well, if you do not get me, then you will say -- will you not: 'Well, she is ............ I have got her first'. Know not what is this and what will it be.' Premonition over, Purabi continues:

'Only one thing rings in my ears. Let the whole world testify against me. Still you are mine.' So then concludes:

'You have been with me these few days. I am not alone: Accept whatever you like.

Rubi who is yours and yours alone.'

38. V. June 10, 1963: Ext. A(4). Basudeb has come and gone back to Durgapore. Therefore, Purabi is anxious to know whether he has arrived safe or not, by having availed himself of the early morning train in the midst of an inclement weather. She is leaving for Jorhat that day. That is why, she says, the sky and the air are weeping. Between this newly married couple some exchange of ideas must have been there, as is so natural, during Basudeb's last visit to Calcutta from Durgapore, about their future plan of unfolding the marriage to Purabi's family. Purabi is, therefore, apprehensive:

'For Heaven's sake, do not go back now. I shall then lose my face.' Going back upon what? Not upon any promise to marry, because marriage is eome 45 days old by now, but upon the marriage itself, lest perhaps Purabi's conservative parents at Jorhat, for which place she is leaving today, when told all about it, revolt against the very idea. Such apprehension on the part of a girl of 23, who has taken the great risk of marrying Basudeb without her parents' approval, is only to be expected. Then, Purabi complains of dullness, cautions Basudeb to take care of his health, not to stir out at night etc., conveys him 'much love, good-wishes, and something else', and concludes her letter. What that something else is plain to be guessed.

39. VI. June 23, 1963: Ext. A(5).

Purabi is at Jorhat now, under the care of her parents far, far away from Sibpore, Durgapore and Basudeb too. Still she writes to Basudeb at his Durgapore address: 'from under the curtain in darkness' and conveys the joyous news:

'Parents have agreed. Indeed they had to.' She apprehends trouble too:

'Now the only fear is Mamu Sona (a maternal uncle called so in endearing term). He is always after creating troubles.' Then she advises Basudeb how he will reply to her father's letter which will greet him soon. She says too, Basudeb's mother do write expeditiously as well, so that the ground which is now prepared may yield result and the marriage over again under the Hindu rites -- that is the term on which her parents have come down -- may be performed as soon as possible.

40. VII. July 28, 1963: Ext. A(6).

Purabi has come back to Calcutta. Her father has come back too and gone to Basudeb's Sibpore residence. The asirbad ceremony is arranged for. In this context, Purabi writes to Basudeb giving all sorts of advice:

1. The two teeth of Basudeb are to be extracted. Indeed, Basudeb himself had said one day he would.

2. He must have a hair cut so that no hair reaches the neck.

3. He is not to invite his office friends, meaning, presumably, those who were witnesses to her marriage on April 26, 1963.

4. Basudeb will have to remain silent so that none from her side can, speak ill of him.

July 31 is Basudeb's birthday. So Purabi conveys him her love, good wishes and also that which makes him so happy. But she makes one importunity. She will come back on the day following the 15th, that is, August 15, 1963: the date of a formal function at Basudeb's. The night of the 15th will pass off somehow.

41. Here ends our review of Purabi's letters. Pulak's letters, and letters from Basudeb. his mother and his brother Shyama Charan to Pulak are there too. They do not call for an elaborate review as goes before. Pulak's letter to Nantu dated June 17, 1963, Ext. A(17), is there too, calling for detailed information about Basudeb and stating that after the marriage registered under the Special Marriage Act, he has to go in for a ceremony of marriage under the Hindu rites, if only to maintain the show of a marriage for his prestige and the like. Suffice it to note that the asirbad ceremony of Basudeb is over. He is presented with a watch too on that occasion, as is the evidence of Pulak himself. The date of the marriage under the Hindu rites is fixed too: August 13, 1963. But on return home after performing the asirbad ceremony of Basudeb, Pulak does not find Purabi She has gone to Serampore at her maternal uncle's place, Mamusona again. Pulak and his wife bring their daughter back to Calcutta. Purabi has then changed. She says, there has been no marriage. Pulak, therefore, cancels the marriage to be held on August 13, 1963. The date he does so is August 3, 1963, as he says. He is asked to reconsider it. But he confirms his previous decision by a telegram sent on August 8, 1963, 'Ext C(1):

'Cancellation of Purabi's marriage made on third instant stands. Regret inability to reconsider.'

So much love ends up so abruptly. Why this crisis in marriage? Evidence gives no clear answer. And we leave it at that with a heavy heart.

42. Nothing more need be said, though a lot more can be said yet. Because, upon all that goes before, there can be one and only one finding of fact: that neither fraud nor coercion vitiates the impugned marriage. It is the natural culmination of mutual and spontaneous love between Purabi and Basudeb, Purabi having consented to such marriage on April 26, 1963, of her own free will, and in full understanding that she was marrying Basudeb that day.

43. In the circumstances, non-examination of Asim alias Nantu or Marriage Officer P. K. Basu, made a point of on behalf of the respondent, appears to be neither here nor there. The more so, as it appears, upon evidence, that Asim is now siding with Basudeb, That apart, he Court may draw a presumption adverse to a party which does not call material witnesses. Not that the Court must. Here, upon the whole of the evidence, the Court will not. Equally barren is the contention on behalf of the appellant that Purabi comes of a very conservative family -- a background which, it is said, the trial Judge has lost sight of. But, evidence is overwhelming that Purabi did marry Basudeb of her free will on April 26, 1963, no matter the type of family she comes of. Another criticism of the judgment under appeal is that the learned Judge refers to Purabi as one having been habituated to the company of men, studying as she did in a co-educational institution: the Scottish Church College. The learned Judge might have perhaps spared himself this sort of a remark, even though Purabi herself refers in her letter dated May 29, 1963, Ext. A, to one Haridas as her first love. But that cannot alter the main conclusion, the trial Judge has come to, by a jot or a title.

44. The authorities referred to on behalf of the appellant cannot take her far. In Mehta v. Mehta, (1945) 2 All ER 690, an English girl went through a ceremony of marriage in Bombay with an Indian, the ceremony having been conducted in Hindustani, a word of which the girl did not understand and so naturally too. She took the ceremony as one for her conversion to Hindu faith only, to which she had previously agreed. Though a certain amount of naivety is seen on the part of the girl in disclaiming such marriage for which indeed she had come to Bombay all the way from England, can the ratio of this decision be assimilated here Can the facts of this decision be predicated of Purabi, a Bengali girl of 23, knowing English well enough, and going through a ceremony of marriage, every part of which she understood, and at the end of which she signed in English? Clearly, a negative answer is indicated. In Kelly v. Kelly, (1933) 148 LT 143, the Jewish girl regarded the ceremony as a form of betrothal only, and no more; certainly not as the Jewish religious ceremony which would make her and the respondent husband and wife. Say that or anything like that of Purabi here? That is unsayable in the context of the wealth of facts discussed in the foregoing lines. Again, the girl in (1933) 148 LT 143 went to her home in Scotland after the betrothal ceremony and she and the respondent never co-habitated. Here also, upon evidence Purabi and Basudeb never cohabitated. No doubt, Purabi's letter dated May 22, 1963, Ext. A(2), to Basudeb contains a racy reference to it, indirectly though. But that appears to be of the least materiality. What is of the utmost materiality is that the parties went through a lawful ceremony of marriage on April 26, 1963. That is enough, cohabitation or no cohabitation. In Sandip Kumar Sinha v. Joyoti Mitra, F. A. No. 651 of 1964 (Cal) -- a decision rendered by A. C. Sen and A. K. Das, JJ., on July 28, 1965, and not yet come into the reports, on facts it was found that Joyoti's consent to the marriage under the Special Marriage Act, 1954, was obtained by coercion and fraud, some love-letters notwithstanding. Sure enough, a case cannot be an authority on a point of fact: Neta Ram v. Jiwan Lal, : AIR1963SC499 . So, we leave it at that. Quoting Tolstoy on the Law and Practice of Divorce, 6th Edition, page 112, it is emphasized on behalf of the appellant, and very rightly too, that the test to go by is real consent. But that is just what we find, upon the whole of the evidence, as the learned trial Judge does.

45. In the result, the appeal fails and be dismissed. This is, however, pre-eminently a fit case where each party should bear its costs. We order so.

S.K. Datta, J.

46. I agree.

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