Calcutta High Court (Appellete Side)
51/Cl Smt. Sanjukta Ghosh vs 4.2026 Sri Saumyajit Ghosh on 10 April, 2026
CO 1012 of 2026
N.22Sl
151/CL Smt. Sanjukta Ghosh
v.
10.04.2026 Sri Saumyajit Ghosh
DL-05
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 in
Matrimonial Suit No.77 of 2022 pending before the
learned Additional District and Sessions Judge,
Fast Track Court – II, Sealdah, South 24-Parganas
whereby all further proceedings of Matrimonial Suit
No.77 of 2022 have been stayed on the opposite
party’s application under Section 10 of the Code of
Civil Procedure.
2. 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
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
2
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.
3. 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, 10 th Court at
Alipore and the same is pending there.
4. 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.
5. On the same day, another order was passed by the
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
3
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
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
4trial 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.
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
5
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
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 above
observations. No costs.
6. Having regard to the fact that Matrimonial Suit
No.77 of 2022 has been instituted subsequent to
Matrimonial Suit No.2681 of 2023 the impugned
order passed by the learned Trial Court under
6
Section 10 of the Code cannot be said to be
suffering from jurisdictional error to the extent it
stays trial of the subsequent suit. The same is
therefore not interfered with to that extent.
7. However, the petitioner shall have liberty to
approach the learned District Judge, South 24-
Parganas with appropriate application either under
Section 24 of the Code of Civil Procedure or Section
40A of the Special Marriage Act, 1954 seeking
transfer of either of the two proceedings before any
one of the two learned Courts or consolidation of
the two suits before any one of the two learned
Courts so that both of them can be heard and tried
analogously in terms of the mandate of Section 40A
of the Special Marriage Act, 1954. If such an
application is filed, the learned District Judge is
requested to dispose of the same, in accordance
with law, as expeditiously as possible and
preferably within a period of one month from the
date of filing thereof without granting any
adjournment to either of the parties.
8. CO 1012 of 2026 stands disposed of with the above
observations. No costs.
9. Urgent certified photocopy of this order, if applied
for, be supplied as expeditiously as possible.
(Om Narayan Rai, J.)
