Calcutta High Court (Appellete Side)
51/Cl Smt. Sanjukta Ghosh vs 4.2026 Sri Saumyajit Ghosh on 10 April, 2026
CO 1013 of 2026
N.22Sl
151/CL Smt. Sanjukta Ghosh
v.
10.04.2026 Sri Saumyajit Ghosh
DL-06
Ct-06
(S.R.) Mr. Aasis Kumar Das, Adv.
Mr. Suman Chattopadhyay, Adv.
... for the petitioner.
Mr. Subhojit Seal, Adv.
Mr. Rajdeep Mantha, Adv.
Mr. Soumya Khan
... for the respondent/opposite party.
1. This revisional application is directed against an
order dated December 15, 2025, passed by the
learned Additional District and Sessions Judge,
Fast Track Court – II, Sealdah, South 24-Parganas
whereby all further proceedings of Misc Case No.13
of 2022 have been stayed.
2. Misc. Case No. 13 of 2022 owes its genesis to an
application under Section 36 of the Special
Marriage Act, 1954 which has been filed by the
petitioner in connection with Matrimonial Suit
No.77 of 2022 instituted by the petitioner for a
decree of divorce interalia on the grounds of cruelty
and desertion.
3. The opposite party has also filed a suit for divorce.
The said suit had initially been filed in the Family
Court, Saket Court Complex, New Delhi and was
registered as SMA 32 of 2022. The petitioner
approached the Hon’ble Supreme Court by way of
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an application seeking transfer of the SMA 32 of
2022 pending before the Family Court, Saket Court
Complex, New Delhi to the Court of the learned
District Judge, Alipore, South 24-Parganas. Such
application was allowed by the Hon’ble Supreme
Court by an order dated August 2, 2023 whereupon
the said suit being 32 of 2022 stood transferred to
the learned District Judge at Alipore.
4. Upon transfer, the said suit was renumbered as
MAT Suit No.2681 of 2023. The said suit being
MAT Suit No.2681 of 2023 has been transferred by
the learned District Judge to the Court of the
learned Additional District Judge, 10th Court at
Alipore and the same is pending there.
5. Since Matrimonial Suit No. 2681 of 2023 (erstwhile
SMA 32 of 2022) had been instituted earlier than
Matrimonial Suit No. 77 of 2022 (instituted by the
petitioner before the learned 2 nd Fast Track Court at
Sealdah), therefore, the opposite party filed an
application under Section 10 of the Code in
Matrimonial suit No.77 of 2022 praying for, inter
alia, for stay of the proceedings of Matrimonial Suit
No. 77 of 2022. Upon such application being filed,
the proceedings of Matrimonial Suit No.77 of 2022
were stayed by the learned Trial Court by an order
dated December 15, 2022, which has been assailed
by the petitioner by filing CO 1012 of 2026.
6. On the same day, another order was passed by the
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said learned Trial Court thereby staying Misc. Case
No.13 of 2022, which has been initiated by the
petitioner under Section 36 of the Special Marriage
Act. The said order has been assailed by filing the
C.O. 1013 of 2026 which has been heard and
decided today by setting aside the order impugned
therein by passing the following order:
7. Mr. Das learned Advocate appearing for the
petitioner submits that the order impugned suffers
from jurisdictional error inasmuch as, a proceeding
under section 36 of the Special Marriage Act, 1954,
which is for grant of alimony pendente lite could not
have been stayed merely by reasons of Matrimonial
Suit No.77 of 2022 having been stayed on the
opposite party’s application under Section 10 of the
Code of Civil Procedure, 1908.
8. Mr. Seal learned Advocate appearing for the oppiste
party submits that the learned Trial Court has
committed no error in passing the order impugned
inasmuch as in terms of Section 40A(2)(b) of the
1954 Act, if two petitions are filed for a decree of
divorce under section 27 of the 1954 Act whether in
the same District Court or in a different Court in
the same District, both the petitions should be tried
and heard together by that District Court.
9. He further submits that marriage has broken down
irretrievably and there is no chance of revival. In
support of his such contention, he relies on the
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judgments of the Hon’ble Supreme Court in the
case of Naveen Kohli vs Neelu Kohli reported at
(2006) 4 SCC 558; Samar Ghosh vs Jaya Ghosh
reported at (2007) 4 SCC 511 and K. Srinivas Rao
vs D.A. Deepa reported at (2013) 5 SCC 226.
10. The learned Trial Court has passed the order
impugned believing that the order passed by the
said learned Court thereby staying all further
proceedings of Matrimonial Suit No.77 of 2022, on
the opposite party’s application under section 10 of
the Code, would as a necessary consequence lead to
the stay of all further proceedings of Misc Case No.
13 of 2022 as well.
11. Section 10 of the Code reads thus:
10. Stay of Suit:- No Court shall proceed with the
trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously
instituted suit between the same parties, or between
parties under whom they or any of them claim litigating
under the same title where such suit is pending in the
same or any other Court in 1[India] have jurisdiction to
grant the relief claimed, or in any Court beyond the
limits of India established or continued by the Central
Government and having like jurisdiction, or before 4[the
Supreme Court.
Explanation.–The pendency of a suit in a foreign Court
does not preclude the Courts in India from trying a suit
founded on the same cause of action.
12. A meaningful reading of the said provision would
show that what is required to be stayed upon all
conditions mentioned in Section 10 being satisfied
is the “trial” of the subsequent suit and not
interlocutory proceedings in connection therewith.
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13. It is well settled that the object of the prohibition
contained in Section 10 of the Code is to prevent
Courts of concurrent jurisdiction from trying two
parallel suits simultaneously in order to avoid
inconsistent findings on the matters in issue and
that the provision of section 10 of the Code is in the
nature of a rule of procedure which neither affects
the jurisdiction of the Court to entertain or deal
with the latter suit nor creates any substantive
right. It is, therefore, equally well settled that the
said provision does not bar passing of interlocutory
orders. [See: Indian Bank v. Maharashtra State
Coop. Marketing Federation Ltd. reported at
(1998) 5 SCC 69]
14. In such view of the matter, it was not open to the
learned Trial Court to stay all further proceedings of
Misc. Case No. 13 of 2022 under Section 36 of the
1954 Act.
15. Moreover, the object of the provisions of section 36
of the 1954 Act is to save the wife from vagrancy
and destitution during continuance of the
matrimonial proceedings. It is a provision aimed at
ensuring social justice and procedural equality. If by
dint of an application under section 10 of the Code,
even proceedings under Section 36 of the 1954 Act
are stayed, the very grain and object of the said
provision would be stultified.
16. As regards the judgments of the Hon’ble Supreme
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Court in the cases of Naveen Kohli (supra), Samar
Ghosh (supra) and K. Srinivas Rao (supra) are
concerned, the same pertain to dissolution of
marriage by the Hon’ble Supreme Court on the
ground of irretrievable breakdown of marriage.
Irretrievable breakdown of marriage is not yet a
ground for divorce under the 1954 Act. Indeed the
Hon’ble Supreme Court can still grant a decree of
divorce on the ground of irretrievable breakdown of
marriage in exercise of its plenary Constitutional
powers under Article 142 of the Constitution of
India but such powers are not available to the High
Courts and the other Civil Courts. Moreover, the
limited scope of the present revisional application is
to determine whether the order impugned whereby
all further proceedings of Misc. Case No.13 of 2022
have been stayed is proper or not. The said
judgments therefore do not help the opposite party
at all.
17. For all the reasons aforesaid, the impugned order
dated December 15, 2025 by which all further
proceedings of Misc. Case No.13 of 2022 pending
before the learned Additional District and Sessions
Judge, Fast Track Court – II, Sealdah, South 24-
Parganas deserves interference. The same stands
set aside. The proceedings of Misc. Case No.13 of
2022 will therefore continue.
18. C.O. 1013 of 2026 stands disposed of with the
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above observations. No costs.
19. Urgent certified photocopy of this order, if applied
for, be supplied as expeditiously as possible.
(Om Narayan Rai, J.)
