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Smt. Smriti Banerjee Vs. Tapan Kumar Banerjee - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberF.A. No. 167 of 1983
Judge
Reported inAIR1986Cal284
ActsHindu Marriage Act, 1955 - Section 13(1A)
AppellantSmt. Smriti Banerjee
RespondentTapan Kumar Banerjee
Appellant AdvocateDurga Sankar Mallick, ;Sabita Biswas and ;Siddhartha Sankar Sarkar, Advs.
Respondent AdvocatePuspamoy Dasgupta, ;Swapan Kumar Mallick and ;Rathindra Kr. De, Advs.
DispositionAppeal dismissed
Cases ReferredLakshmi Narayan Guin v. Niranjan Mondal In
Excerpt:
- .....on 24th november, 1981, in the court of the additional district judge, alipore for restitution of conjugal rights. the said application was registered as matrimonial suit no. 756 of 1978. the said application thereafter was transferred to the 14th court of the additional district judge, alipore and it was renumbered as matrimonial suit no. 13 of 1979. the respondent appellant contested the suit. ultimately the suit was allowed and a decree for restitution of conjugal rights was made on 13th of may, 1980. the respondent appellant was directed to come back to petitioner's matrimonial home forthwith to discharge her marital obligations towards him.3. against the said decree and judgment the respondent, appellant preferred an appeal in this hon'ble court. the said appeal was dismissed on.....
Judgment:

B.C. Ray, J.

1. This appeal is directed against the judgment and decree passed in Mat. Suit No. 4 of 1983 by Shri S. k. Sinha, Additional District Judge, 7th Court, Alipore on 1st March, 1983 allowing the respondent-petitioner's application under Section 13(1A)(ii) decreeing the suit by directing-dissolution of marriage with the respondent.

2. The facts of the case in a short compass are as follows :--

The petitioner, Tapan Kumar Banerjee was married with the respondent, Smt. Smriti Banerjee according to Hindu Rites and Customs on the 18th day of January, 1974 at 13, B. K. Moitra Road, Baranagore, Calcutta 36. The marriage was a negotiated marriage. The petitioner immediately after his marriage found that the respondent was treating him most contemptuously and during her very short stay within five years i.e. from 18th January, 1974 to 3rd November, 1978 often lost her temper and picked up quarrel with him on flimsy grounds. Though the petitioner was very much upset at such behaviour of the respondent yet he tried his best to persuade herself to adjust. But this attempt became fruitless. The respondent remained cold and apathetic towards the petitioner and used to exhibit outburst of her temper often without any cause. It has been further alleged that the appellant often went out from the Mat. home without seeking any permission from the respondent as well as from her mother-in-law. The members of the petitioner's family consist of the appellant, the respondent and his mother. On the 15th 1974 (sic) the appellant suddenly left petitioner's house without petitioner's knowledge and consent and went to her father's place. The appellant thereafter returned to the petitioner's house on the 29th June, 1974. It has been further alleged that on 14th August, 1974 the appellant again left the petitioner's house in the absence of the petitioner, without his knowledge and consent. The respondent went to her father's house and stayed there for five months, and she came back to the petitioner's house on 19th January, 1975. Again the appellant left the petitioner's house while he was out for his office and went to her father's house. Several attempts were made by the petitioner/respondent, to bring back the appellant to his house but without any result. The appellant however returned to the matrimonial home after a prolonged period of more than three years on the 3rd October, 1978. It has been alleged that the respondent-appellant was in the habit of abusing the petitioner's mother off and on in most unbecoming language. The appellant again on 3rd November, 1978 left the petitioner's house and remained in her father's house and thereafter did not come back to the petitioner's house in spite of the best attempts of the petitioner to bring her back. Thereafter the petitioner made an application under Section 9 of the Hindu Marriage Act 1955 on 24th November, 1981, in the Court of the Additional District Judge, Alipore for restitution of conjugal rights. The said application was registered as Matrimonial Suit No. 756 of 1978. The said application thereafter was transferred to the 14th Court of the Additional District Judge, Alipore and it was renumbered as Matrimonial Suit No. 13 of 1979. The respondent appellant contested the suit. Ultimately the suit was allowed and a decree for restitution of conjugal rights was made on 13th of May, 1980. The respondent appellant was directed to come back to petitioner's Matrimonial home forthwith to discharge her marital obligations towards him.

3. Against the said decree and judgment the respondent, appellant preferred an appeal in this Hon'ble Court. The said appeal was dismissed on 2nd September, 1981 and this Hon'ble Court affirmed the judgment and decree of the trial Court. It has been stated that the respondent, appellant in spite of best attempt made by the petitioner did not comply with the said decree for restitution of conjugal rights and did not come back to the matrimonial home to discharge her marital obligation with the petitioner.

4. Thereafter on 24th of November. 1981 an application out of which the instant appeal has arisen was filed under Section 13(1A)(ii) of the Hindu Marriage Act 1955 in the Court of the District Judge at Alipore for a decree for divorce by dissolving the marriage between the petitioner and the respondent-appellant on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for more than a period of one year after passing of the decree for restitution of conjugal rights made in the aforesaid matrimonial Suit No. 13 of 1979. This application was numbered as Mat Suit No. 792 of 1981.

5. A written statement was filed on behalf of the respondent-appellant objecting to the statements made in the petition that the respondent was responsible for not complying with the decree for restitution of conjugal rights and it had been stated that the respondent-appellant whenever went to her father's house took prior permission of the respondent and his mother before leaving for her parent's place. It has been further alleged that the respondent's mother used to illtreat the appellant and this was well known to the petitioner. On 9th April 1975 as soon as the petitioner left for his office his mother began to abuse and to threaten to assault the respondent with dire consequences and as such out of fear she was compelled to come to her father's place. She was expecting to return to the petitioner's house when the petitioner would come from his office. It has been also alleged that on 2nd November, 1978 the appellant's mother-in-law did not allow her to go to her father's place to celebrate Brother's day. The petitioner supported his mother in the matter of resisting the respondent-appellant from visiting her parents' place on 2nd November, 1978. On 3rd November. 1978 the appellant's brother came to meet her when the mother-in-law of the appellant directed her brother to take back his sister otherwise serious consequences would follow as a result of which the appellant had to leave her marital home on that date with her said brother. It has also been stated that out of fear the respondent-appellant did not and could not go to her marital home. It has been stated that after the passing of the decree for restitution of conjugal rights the appellant preferred an appeal before this Hon'ble Court. As soon as the appeal was dismissed the respondent by sending several letters expressed her willingness and eagerness to return to the marital home. Some of the letters were filed and made annexures to the written statement being marked as Annex. 'A' series. The petitioner also gave replies to these letters which are annexed as annex. 'B' series. It has been alleged that the respondent, the husband of the appellant, was not willing to take her back to the marital home and as such the respondent was not guilty of not complying with the decree for restitution of conjugal rights. It has been prayed that this matrimonial suit should be dismissed in limine.

6. The petitioner examined himself as P. W. 1 and the respondent-appellant examined herself as O. P. W. 1. No other witnesses were examined by the parties.

7. On 1st March, 1983 Shri S. K. Sinha. Additional District Judge, 7th Court, Alipore after hearing the learned Advocates for both the parties and on a consideration of evidence on record held that there was no restitution of conjugal rights between the parties after passing of the decree for restitution of conjugal rights within the prescribed period and as such the petitioner was entitled to get decree for divorce against the respondent. Accordingly the suit was decreed by a decree of divorce by dissolution of the marriage with the respondent. There was no order for costs.

8. Against this judgment and decree the instant appeal has been preferred being F. A. No. 167 of 1983. Mr. Durga Sankar Mallick, the learned Advocate appearing on behalf of the appellant, has submitted firstly that the respondent-appellant i.e. Smt Smriti Banerjee was always ready and willing to go back to the marital home in due compliance with the decree for restitution of conjugal rights made in Matrimonial Suit No. 13 of 1979 after the appeal filed by her failed and the decree of restitution of conjugal rights was affirmed by this Hon'ble Court. In support of this submission Mr. Mallick relied on the letters which have been filed with the written statement and marked as Annex. 'A' series. It has been also submitted by Mr. Mallick that the respondent-husband was not willing to take her back and he did not make any attempt whatsoever to bring the respondent to the marital home. In these circumstances there was no laches or refusal on the part of the appellant to comply with the decree for restitution of conjugal rights. Therefore the judgment and decree of divorce is liable to be reversed. It has been next submitted by Mr. Mallick that the decree under Section 9 of the Hindu Marriage Act 1955 was rendered on 13th of May, 1980 and an appeal being F. A. No. 351 of 1980 filed before this Hon'ble Court was dismissed on 2nd September, 1981 and the decree of the court below was affirmed. It has, therefore, been contended that the period of one year as provided in Section 13(1A)(ii) will commence on and from the date of passing of the decree by the appellate court i.e. from 2nd of September, 1981. As such the application for dissolution of marriage which was filed on 24th of November, 1981 out of which the instant appeal has arisen is incompetent inasmuch as the period of one year from the date of passing of the decree for restitution of conjugal rights has not yet been passed and the cause of action for this Matrimonial Suit No. 792 of 1981 has not arisen on the date of filing of the application for dissolution of marriage under the aforesaid section of the said Act In support of this submission several decisions have been cited at the bar by Mr. Mallick.

9. Mr. Das Gupta, learned Advocate appearing on behalf of the respondent, has on the other hand contended in the first place that after the expiry of the period of one year from the date of passing of the decree for restitution of conjugal rights and non-compliance of the said decree as is clear from the statement made by the respondent-appellant herself that after the appeal against the said decree for restitution of conjugal rights was dismissed she was willing to go back to the marital home in compliance with the decree for restitution of conjugal rights the matrimonial suit was filed. Therefore, it has been submitted that this Court is not required to consider the desire or willingness, if any, expressed by the appellant in her alleged letters which have been marked as Annexure 'A' series to dismiss the instant matrimonial suit. It has been next submitted by Mr. Dasgupta that on a proper consideration of the provisions of Section 13(1A)(ii) of the Hindu Marriage Act. 1955 the time of one year will be counted or computed from the date next to the date of the passing of the decree. In other words in the instant case the date of the decree for restitution of conjugal rights was on 13th of May, 1980 and the period of one year will commence from 14th May of 1980 and not from the date of the confirmation of the decree of dismissal made by the Court of Appeal on 2nd September, 1981 in F. A. No. 351 of 1980 as has been submitted by the learned advocate for the petitioner. It has been further submitted by Mr. Dasgupta that since the decree made under Section 9 of the said Act has been confirmed in appeal the period of one year will relate back from after the date of passing of the decree for restitution of conjugal rights in Matrimonial Suit No. 13 of 1979 i.e. on and from 14th May, 1980 and not from the 2nd September, 1981. Mr. Dasgupta in support of his submission referred to certain observation in Manchanda's The Law and Practice of Divorce 1973 publication page 567.

10. The first submission that has been advanced on behalf of the appellant that the appellant expressed her willingness to honour the decree by coming back to the Marital home immediately after the dismissal of her appeal being F. A. No. 351 of 1980 on 2nd September, 1981 and as evident from the various letters written by her to the petitioner respondent but the petitioner-respondent was not willing to take her back to file marital home. As such the decree of divorce by dissolution of the marriage between the appellant and the respondent as made by the Court below should be reversed. This submission, in my opinion, has got no substance inasmuch as after the expiry of the period of one year after the passing of the decree for restitution of conjugal rights made under Section 9 of the Hindu Marriage Act 1955 (Act 25 of 1955) the application for dissolution of marriage which has been filed has to be decreed if it is proved that there has been no restitution of conjugal rights between the parties within the said period. It is not for this Court while hearing the application for dissolution of marriage by a decree of divorce to enter into the question whether the party against whom the decree was made was willing to return to the marital home and to comply with the decree for restitution of conjugal rights after the expiry of the period of one year after the passing of the said decree.

11. As regards the second submission made on behalf of the appellant it is undoubtedly clear and transparent from a plain reading of the provisions embodied in Section 13, Sub-section (lA)(ii) that the 'period of one year' or upwards after the passing of the decree for judicial separation meant that the time mentioned in the aforesaid clause will commence immediately after the date of passing of the decree for restitution of conjugal rights. There cannot be any other meaning of the said provision. This is also the intention of the legislature while enacting this provision. In the instant case admittedly the decree for restitution of conjugal rights was made on May 13, 1980 and the instant application for dissolution of marriage by a decree of divorce under Section 13(1A)(ii) of the said Act was filed before the Court of District Judge, Alipore on 24th November, 1981 and this was registered as Matrimonial Suit No. 792 of 1981. Therefore, more than a year has passed by from the date of the passing of the decree of restitution of conjugal rights and the filing of the instant application. The question is whether the period of one year as provided in the said Section 13 which has already taken place will automatically remain stayed on the date of filing of the appeal being F. A. No. 351 of 1980 till the disposal of the appeal on 2nd September, 1981. The section itself does not expressly or by implication provides that this period of one year will remain dormant or stayed automatically on the filing of an appeal against the decree for restitution of conjugal rights even though the period has already commenced or started. The legal position in this respect is quite clear in view of the provision of Order 41 Rule 5 of the Civil P. C. where in Clause I it has been expressly provided that the mere filing of an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appeal court may order, nor shall execution of the decree be stayed by reason only of an appeal having been preferred from the decree. It has also been provided therein that the appeal court may for sufficient cause stay execution of such decree. In the instant case though the appeal was filed against the decree for restitution of conjugal rights, yet no application for stay of execution of the decree has been filed nor any order for stay was made by the appellate court. Therefore, there cannot be any question that the time which commenced to run on the basis of the provisions of Section 13(1A)(ii) of the Hindu Marriage Act, 1955 remains stayed automatically on the filing of an appeal. It has been tried to urge that the appeal is a continuation of the suit and as such the decree that has been passed in the suit will merge in the decree made by the appeal court. In support of this submission reference has been made to the decision reported in : [1985]2SCR202 Lakshmi Narayan Guin v. Niranjan Mondal In this case the decree for eviction was passed by the trial court against the tenant respondent under the provision of the Transfer of Property Act. The tenant preferred an appeal and during the pendency of the appeal the West Bengal Premises Tenancy Act 1956 came to be enforced and as such the appellate court took notice of the provision of the Premises Tenancy Act and extended the benefit of the said Act and dismissed the suit. The appeal to the Supreme Court against judgment and decree was dismissed and it was held by the Supreme Court as follows :-- 'It is well settled that when a trial court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit and when the appellate decree affirms, modifies or reverses that decree on the merits, the trial court decree is said in law to merge in the appellate decree and it is the appellate decree which rules'. In the instant case the trial court passed a decree for restitution of conjugal rights on 13th May, 1980. On appeal the appellate Court dismissed the appeal and affirmed the decree of the trial court on 2nd September, 1981. On the aforesaid finding the trial Court's decree merged in the appellate court's decree. In other words, it means that the decree for restitution of conjugal rights has been affirmed This decision cannot be considered to mean nor by any stretch of imagination it can be construed to mean that the time as regards the period of one year after the passing of the decree for restitution of conjugal rights as provided under Section 13(1A)(ii) will mean that the period of one year even though it has started to run already after the passing of the decree by the trial Court will remain stayed on the filing of the appeal and will restart after the date of passing of the appellate decree affirming the decree of the trial court. The merging of trial court's decree in the appellate Court's decree in the case of restitution of conjugal rights can only mean that where the trial court dismissed the suit for restitution of conjugal rights and on appeal the appellate Court made a decree for restitution of conjugal rights reversing the trial court's decree the time of one year as mentioned in Section 13(1A)(ii) of the said Act will commence immediately after the passing of the appellate decree. It is only in that case the argument that has been tried to be advanced on behalf of the appellant will apply i.e. the trial court's decree merged in the appeal Court's decree and the time of one year will commence immediately after the passing of the decree for restitution of conjugal rights by the appellate court reversing the decree of the trial court. There cannot be any other meaning of the provisions embodied in the aforesaid section. It is relevant to mention in this connection the observations made by Mulla in his book 'Principles of Hindu Law', page 814 with reference to the words 'after the period of...... or upwards after ..... decree' in Section 13(1A)(ii). The observations are quoted below : -- 'The period mentioned in the clause would commence from the date of passing of the decree by the Court of first instance and the same would be the date of commencement of the period when there is an appeal and the decree is confirmed. Where, however, the court of first instance has dismissed the petition and in appeal a decree for judicial separation has been passed the period would commence from the date of the decree of the appellate Court.' In Section C. Manchanda's 'Law and Practice of Divorce', 4th Edition, 1973 page 566 it has been observed that the two years period under Section 13(1A)(ii) is to be counted from the date of original decree. The fact that appeal has been filed (which is ultimately dismissed) does not enlarge the time. On the consideration of this observation and also the clear intention of the legislature as appears from a plain reading of the expressions used in the aforesaid Section 13(1A)(ii) of the said Act. I am constrained to hold that the period of one year as referred to in that section will commence to run immediately from after the date of passing of the decree for restitution of conjugal rights and not from any other date. Therefore, the submission made on behalf of the petitioner that the application for dissolution of marriage by a decree of divorce filed in the instant case wherefrom the aforesaid appeal has arisen is incompetent is without any merit whatsoever. The appeal is therefore dismissed. The judgment and decree of the court below is hereby affirmed. There will, however, be no order as to costs.

Sachindra Nath Sanyal, J.

12. I agree.


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