The Calcutta High Court remarked that the husband and wife being raised and grown up in different environments have a collective duty to create a congenial atmosphere and the same is not a one-way traffic.

The Court was dealing with a batch of two appeals filed by the wife challenging the judgment and decree of the Trial Court in a proceeding for the dissolution of marriage having granted and the application for restitution of conjugal rights having dismissed under the Hindu Marriage Act, 1955 (HMA).

A Division Bench comprising Justice Harish Tandon and Justice Madhuresh Prasad said, “The two persons grown up and raised in a different atmosphere have a reciprocal and/or collective duty to create a congenial atmosphere which cannot be said to be a one way traffic. It is a collective duty of both husband and wife to wither the trivial issues which are normal in a matrimonial life and mutual respect to the decision of each other appears to be the hallmark of the society. Even the Constitution recognises equality in gender and, therefore, the husband to be put on higher degree than that of the wife is unacceptable.”

Advocate Sabyasachi Chatterjee represented the appellant/wife while Advocate Swagata Dutta represented the respondent/husband.

In this case, prior to the application for restitution of conjugal rights, the husband/respondent filed an application under Section 13 (1) (a) of the HMA alleging that the wife perpetrated cruelty upon him and, therefore, the marriage between them to be dissolved. The marriage between the parties was solemnised in 2011 and since then the wife was alleged to have been treating the husband with great hardness and perpetuated cruelty by abusing in the corset and using insulting languages. She was also alleged to have beaten him sometimes and when the husband’s mother was hospitalised prior to the marriage for treatment of fracture, she did not tolerate the same and used filthy languages.

The wife suffered from a mental illness or incomplete development of mind and was highly aggressive or seriously impossible in her conduct and needed a medical treatment as per the husband. He also fell down from the staircase once and suffered deep cut injury due to her torture. Hence, due to many such incidents, the husband started residing separately from the wife. Thereafter, the Trial Court granted dissolution of marriage and dismissed the application for the restitution of conjugal rights. Being aggrieved by this, the appellant/wife approached the High Court.

The High Court in the above regard observed, “The emphasis on the word “still” appearing in the Examination-in-Chief of the respondent/husband appears to be misplaced and cannot lead to a loss of love and affection towards the other nor can be presumed to have a disharmony in the matrimonial relationship which has been withered subsequently. In a common parlance, the word “still” connotes the continuance of such love and affection despite the storm in the relationship and, therefore is not a word of negative concept as perceived by the learned Judge. The word „still‟ should not be emphasised by the learned Judge in the negative sense more particularly, on the nuances of the cruelty which stands on a higher pedestal than of a normal wear and tear of a matrimonial life.”

The Court added that filing an application for restitution of conjugal rights subsequent to the filing of an application for dissolution of marriage does not percolate a negative concept as held by the Judge. The said Judge had held that what prompted her not to file the said application for restitution of conjugal rights before the application for dissolution of marriage and surreptitiously jumped to the conclusion that it would invite an adverse inference.

“Another incident of a complaint lodged by the appellant/wife with the police station and arrest of the respondent/husband and his mother is projected as an incident of cruelty. The evidence of the respondent/husband and the second witness on his behalf is clear indicative of the fact that there was no arrest as the respondent/husband and the mother was allowed to go home after certain enquiry without any bail being granted in this granted. Even the complaint (Exhibit-DW 1) does not constitute the elements of cruelty but a mere recording of an incident that the husband left the matrimonial home without intimating the appellant/wife who is residing in the matrimonial house”, it noted.

The Court said that the observation of the Judge that in a happy marriage the wife provides the climate and husband the landscape is an archaic notion which has gradually eroded with the advancement of society in all respect and hence, the Judge was swayed by the emotions and inappropriate appreciation of facts.

Accordingly, the High Court allowed the application for restitution of conjugal rights, dismissed the application for dissolution of marriage, and set aside the impugned judgment.

Cause Title- ABC v. XYZ


Appellant: Advocates Sabyasachi Chatterjee, Dyutiman Banerjee, Sandipan Das, Subhrajit Saha, Anindita Chatterjee, Badrul Karim, Kiron Sk., Sanajit Roy, and Saumava Ganguly.

Respondent: Advocate Swagata Dutta

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