In a significant ruling on cruelty and irretrievable breakdown under the Special Marriage Act, the Calcutta High Court affirms the Family Court divorce decree, holding thar stray incidents of cohabitation or living together as husband and wife after separation do not constitute condonation of cruelty, since condonation is always conditional upon non-repetition of further acts of cruelty.
The Court also held that where a wife persistently insists on separating her husband from his dependent widowed mother without any reasonable basis, levels repeated unsubstantiated and grave allegations of molestation, dowry, misappropriation of property, and forced abortion, and files false criminal complaints that end in acquittal, such conduct constitutes sustained mental cruelty.
Coupled with over eleven years of separation, failed mediation, and multiple litigations, the marriage has irretrievably broken down, which itself spells cruelty to both parties and furnishes a valid ground for divorce under the Special Marriage Act, added the Court.
The Division Bench comprising Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya observed that the appellant-wife’s insistence on severing ties with the respondent-husband’s widowed mother, who was admittedly dependent on him, was unjustified because her sole ground for such insistence, alleged molestation of her minor son by the mother-in-law, was completely unsubstantiated, with no complaint lodged with the police, child welfare authority, or any independent witness.
The Court further noted that the wife’s allegation of misappropriation of her parental property by the husband in conspiracy with a developer was never pleaded in her written statement, came for the first time in her examination-in-chief, and was admittedly unsupported by any document, complaint, or particulars. The Court also found that the wife’s claim of dowry demands and forcible retention of her ornaments stood falsified by Exhibit 7, a Bengali receipt admittedly written and signed by her on October 26, 2009, acknowledging receipt of her ornaments, with no complaint ever lodged about her signature being obtained on blank paper.
The wife’s credibility as a witness was found to be seriously shaken because she denied in her examination-in-chief that the husband had arranged her medical treatment, although such denial was not part of her pleading, and she subsequently admitted the same in cross-examination. The Court further observed that the criminal case under Section 324 IPC filed by the wife against the husband ended in his acquittal for lack of proof and medical evidence, and that the wife’s conduct of repeatedly visiting the husband’s business place, using filthy language, and creating public disturbance amounted to cruelty. The Court also noted that the wife’s stray visits to the matrimonial home for 7-8 days on a few occasions after separation did not amount to condonation of cruelty, and that the animus revertendi was clearly missing on her part.
Also read Supreme Court Issues Notice on AAP MLA Naresh Balyan’s Bail Plea in MCOCA Case
Briefly, the appellant-wife, Munmun Karmakar, had challenged a divorce decree dated December 30, 2021, passed by the Family Court at Calcutta in favour of her husband, the respondent Abhishek Karmakar, on the ground of cruelty coupled with irretrievable breakdown of marriage. The couple were married under the Special Marriage Act on June 18, 2009, and a child was born to them on April 15, 2013. The wife left the matrimonial home on April 17, 2014, and the parties have since been living separately for over eleven years.
Alongside the appeal, the wife also filed an application under Order XLI Rule 27 of the Code of Civil Procedure seeking to produce a medical prescription dated January 2, 2014 as additional evidence to substantiate her allegation of forced termination of pregnancy.
