Calcutta High Court (Appellete Side)
Saranjit Kaur (Hura) vs Inder Singh Hura on 6 April, 2026
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Supratim Bhattacharya
FA No.185 of 2022
SARANJIT KAUR (HURA)
-versus-
INDER SINGH HURA
For the appellant : Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chatterjee,
Mr. Pronay Basak,
Ms. Rajashree Tah,
Ms. Trisha Rakshit,
Ms. Aishwarya Datta,
Ms. Bidisha Chakraborty,
Ms. Sadia Parveen
For the respondent : Mr. Kallol Basu,
Mr. Atreya Chakraborty
Heard on : 19.03.2026, 25.03.2026
& 30.03.2026
Reserved on : 30.03.2026
Judgment on : 06.04.2026
Sabyasachi Bhattacharyya, J.:-
1. The present appeal has been preferred by the appellant-wife against a
judgment and decree dated December 9, 2021, whereby the respondent-
husband‟s divorce suit was decreed against the appellant-wife on the ground
2
of cruelty, also taking into account the irretrievable breakdown of the
marriage between the parties.
2. Learned counsel for the appellant-wife argues that the plaintiff-husband
failed to prove his case of cruelty as pleaded in the plaint. No independent
witness (apart from the elder brother of the husband) corroborated the case
of cruelty. Moreover, the details of the alleged acts of cruelty perpetrated by
the appellant-wife or the specific dates of such acts have not been disclosed
by the respondent-husband.
3. It is argued that admittedly, the appellant left her matrimonial home on
November 02, 2009. The appellant-wife filed a criminal case against the
husband on February 05, 2010, that is about 2½ months thereafter.
4. It is argued that the respondent-husband stated in his cross-examination
that marital dispute arose between the parties after 1½ years of their
marriage whereas in his cross-examination he stated that there were
differences of opinion between the husband and his family on the one hand
and the appellant-wife on the other from the very date of marriage, thus
contradicting his earlier stand.
5. Whereas in the examination-in-chief of the respondent-husband he alleged
that the appellant-wife picked up quarrel with him and his mother on
November 2, 2009, in his cross-examination, he admitted that he was alone
on that date and his mother had gone to the Gurudwara.
6. Apart from the above contradictions in the evidence of the respondent-
husband, the respondent never lodged any complaint regarding the alleged
3
assaults or cruel acts of the appellant-wife before the police or any other
authority, thus belying the case of cruelty.
7. Learned counsel appearing for the appellant-wife next argues that mere
acquittal of the respondent-husband in the criminal cases initiated by the
wife does not amount to cruelty, more so, since the observations made by
the criminal court are not binding on the civil court and since criminal and
civil cases are decided on different yardsticks.
8. In her complaint, the appellant-wife did not say that the husband “set fire”
but that he mercilessly assaulted her and tried to set fire to her and her
child, due to which she was compelled to leave her matrimonial home.
Thus, the allegation as to there being no explanation of the child‟s absence
on the relevant date is not germane. The wife, it is argued, never stated that
her husband is characterless; rather, the wife as well as her mother (DW-3)
denied the suggestion in their cross-examinations that the appellant-wife
was not interested to lead conjugal life.
9. Although DW-3, the mother of the appellant-wife, stated in her evidence that
her daughter has been stubborn and adamant from her childhood, it has to
be considered that DW-3 studied only up to Class-V and was aged about 65
years when she adduced evidence. Hence, her deposition has no evidentiary
value.
10. The appellant further argues that the appellant-wife is aged about 44 years
whereas the respondent-husband is 47 years old. Thus, second marriage of
the appellant is hardly possible now; also, the parties have child.
4
11. It is argued that there has been no irretrievable breakdown of marriage
between the parties but conjugal life could not be resumed due to the
pendency of cases between the parties. It is further argued that irretrievable
breakdown of marriage is not a ground for divorce under Hindu Law.
12. In support of such contentions, learned counsel cites Gurbux Singh v.
Harminder Kaur, reported at (2010) 14 SCC 301, a judgment of the Hon‟ble
Supreme Court, Chiranjeevi v. Smt. Lavanya, reported at 2006 SCC OnLine
AP 228, as well as a Gauhati High Court judgment in Mihir Sarkar v. Soma
Roy (Sarkar), reported at (2006) 3 Gau LR 655.
13. It is submitted that the husband failed to prove his case of cruelty on the
yardstick of preponderance of probabilities.
14. Lastly, learned counsel for the appellant-wife submits that in the event the
court affirms the judgment of the Trial Court, it is to be considered that the
learned Trial Judge did not grant any permanent alimony to the appellant-
wife whereas Section 25 of the Hindu Marriage Act empowers the court to do
so at the time of granting a divorce decree. Learned counsel cites two
judgments in that regard, which will be dealt with while deciding such issue.
15. Per contra, learned counsel for the respondent-husband argues that the wife
has consistently ill-behaved towards the husband and his family members
since the date of marriage, including but not restricted to abusive
behaviour, non-cooperation in the marital sphere and levelling false
allegations against the husband‟s character. The son of the parties has
been consistently kept away from the husband since his birth by the
appellant-wife. Moreover, it is alleged that the respondent-husband was not
5
consulted in decisions regarding the son‟s education, including his
admission to a boarding school at Mussoorie.
16. The wife, it is submitted, left the matrimonial home on November 2, 2009,
on the false pretext of physical abuse to her and her son and attempt to set
fire by the husband and his family. However, a police complaint in that
regard was lodged under Section 498A of the Indian Penal Code (IPC) much
later, on February 5, 2010, that is, 21 days after filing of the divorce suit.
Thus, it is clear that the said complaint was a retaliation against the suit,
which is also borne out from the cross-examinations of the wife and her
mother as well as father.
17. Learned counsel appearing for the respondent next argues that the
appellant-wife lodged two criminal cases, bearing Asansol P.S. Case No.31 of
2010 (under Section 498A, IPC) as well as Asansol P.S. Case No.15 of 2017
(under Sections 403, 406 and 120B, IPC). However, the respondent-
husband was acquitted in both cases, respectively on October 9, 2010 and
January 22, 2019, thus proving the falsity of such complaints. It is
submitted that the acquittal in both the cases was on the basis of complete
lack of evidence.
18. The respondent contends that due to the complaint of the appellant-wife,
the respondent-husband was arrested from outside his workplace and
detained in the police station for hours at a stretch. The wife‟s habit of
lodging criminal complaints against the respondent-husband and his family
at the drop of a hat was designed to cause harassment, loss of respect and
to create mental agony to the husband and his family.
6
19. It is argued that the acquittal of the respondent-husband in the criminal
cases establishes clearly the cruelty perpetrated by the appellant-wife by
lodging false complaints which gave rise to such criminal cases. In support
of such submission, learned counsel cites Rani Narasimha Sastry v.
Rani Suneela Rani, reported at (2020) 18 SCC 247, and an unreported
judgment of this Court in FAT No.193 of 2023 [Poulomi Biswas Vs. Shamik
Biswas].
20. Learned counsel for the respondent-husband next argues that the wife was
allegedly hospitalised in the month of November, 2009 despite no sign of
external injury being found on her body. Such false complaints were lodged
on the strength of the influence of the appellant‟s father, who has political
affiliations in Asansol.
21. It is argued that the husband‟s claim regarding the wife‟s behaviour,
including making reckless allegations regarding the character of the
husband, adultery with his brother‟s wife and the pressure created by the
appellant-wife on the husband for separate matrimonial home as well as her
abusive behaviour are corroborated by the cross-examination of the wife‟s
mother.
22. Lastly, learned counsel for the respondent-husband contends that the
appellant-wife withdrew from the respondent-husband‟s society from
November 2, 2009, barely four years after the marriage, and she has not
made any attempt to return to her matrimonial home ever since. The
parties, it is submitted, have been separated for about 17 years till date,
7
which clearly indicates irretrievable breakdown of the marriage between the
parties, which by itself amounts to cruelty, justifying a decree of divorce.
23. In support of such proposition, learned counsel cites a Division Bench
judgment of this Court in FA No.160 of 2022 [Sri Satadru Harh Vs. Smt.
Dolon Harh], in which the Division Bench relied on Rakesh Raman v. Kavita,
reported at (2023) 17 SCC 433, a judgment of the Hon‟ble Supreme Court.
24. Thus, it is argued that the appeal ought to be dismissed.
25. Heard learned counsel for the parties. Three primary issues fall for
consideration in the present case, which are as follows:
(I) Whether the appellant-wife is guilty of mental cruelty towards the
respondent-husband and his family;
(IIA) Whether the marriage between the parties has broken down
irretrievably;
(IIB) Whether such irretrievable breakdown can be a ground for divorce;
(III) Whether the learned Trial Judge ought to have granted permanent
alimony.
26. The above issues are dealt with as follows:
(I) Whether the appellant-wife is guilty of mental cruelty towards the
respondent-husband and his family
27. The alleged cruelty can be bifurcated into two components – pre-suit and
post-suit cruelty.
28. Before entering into the merits of the case, certain foundational dates are
required to be noted:
8
29. The marriage between the parties took place according to Sikh rites and
customs on April 27, 2005. A son was born to the parties on April 26, 2007.
The appellant-wife left her matrimonial home on November 2, 2009.
30. The divorce suit was instituted by the husband on January 15, 2010. A
criminal complaint, leading to initiation of a criminal case, was lodged by
the wife on February 5, 2010.
Pre-suit Cruelty
31. Contrary to the arguments of the appellant, the plaint case has been
corroborated not only by the husband, as PW-1, but also by his elder
brother (PW-2). Merely because P.W.2 is the elder brother of the
respondent-husband, his character as an independent and uninterested
witness cannot automatically be demeaned, or PW-2 be labelled as an
„interested witness‟; rather, since PW-2 is a family member of the husband
and has been residing in the matrimonial home of the parties all along, he is
in a position to have direct knowledge of the cruelty meted out by the wife,
as opposed to the defendant‟s witnesses.
32. PW-2 corroborated the evidence of PW-1 in its entirety, in consonance with
the plaint case. In cross-examination, the evidence-in-chief of PW-1 and
PW-2 remained substantially unshaken. Going by the yardstick of
preponderance of probabilities, the learned Trial Judge cannot be faulted for
having accepted such evidence as substantial proof of cruelty on the part of
the wife.
9
33. Much stress has been laid by the appellant on the apparent contradiction in
the deposition of PW-1 to the effect that at one place he had stated that
there was difference of opinion between the parties from the inception of the
marriage and, at another, that the marital dispute cropped up 1-1½ years
after marriage. There is a qualitative difference between “difference of
opinion” and “marital dispute”. The fact that the parties were not ad idem
on several issues from the very beginning of the marriage is not
contradictory to or mutually exclusive with the marital discord turning into
a dispute about 1-1½ years from the date of marriage.
34. Moreover, the learned Trial Judge considered the cross-examination of DW-
3, the mother of the appellant-wife as well. As per the admission of DW-3 in
her cross-examination, her daughter (the appellant-wife) was stubborn and
adamant from childhood and being in the police force, was in the habit of
imposing her will on others, including the members of her matrimonial
family. Although in another place, it has been stated that the wife was a
„civic police‟, the apparent distinction between „police‟ and „civic police‟ is not
germane and does not make a difference in the tenor of such admission of
DW-3. The learned Trial Judge also considered the admission of DW-3 in
her cross-examination to the effect that her daughter, the appellant-wife,
insulted the respondent-husband by alleging that he was characterless and
her statement that her son-in-law had illicit relation with his „Bhabhi‟ (elder
brother‟s wife). DW-3 further stated in her cross-examination that she learnt
about the illicit relation between the respondent-husband and his sister-in-
law from her daughter. Such admission corroborates the plaint case as to
10
the appellant-wife making allegations against the respondent-husband
pertaining to his character.
35. In her examination-in-chief, DW-3 stated that the respondent-husband led a
reckless life and was a vagrant and that he procured money from the
appellant‟s father on various occasions, at one instance taking
Rs.2,00,000/- for starting a business. DW-2, the father of the appellant-
wife, admitted that he had no materials to prove that the respondent-
husband took money from him. DW-3 also admitted in her cross-
examination that she and her daughter desired that her daughter stay
separately from her matrimonial home.
36. The nature of the allegations made against the respondent-husband was
grave, but those could not be substantiated in evidence. No reasonable basis
for making such allegations could even be established by the appellant-wife.
Thus, such baseless assassination of the husband‟s character itself has the
cumulative effect of perpetrating mental cruelty on the husband.
37. Learned counsel appearing for the appellant, during arguments in the
appeal, has tried to mitigate the effect of the cross-examination of DW-3 on
the ground that she studied only up to Class-V and was 65 years of age at
the time of adducing evidence. The said two factors, however, are not
relevant to alleviate the admissions by DW-3 in her deposition. The said
witness was never sought to be declared hostile by the appellant-wife;
rather, her evidence has been sought to be relied on by the appellant. Thus,
the impact of the admissions of the said witness, who adduced evidence in
support of the appellant‟s case, cannot be brushed aside.
11
38. Hence, the learned Trial Judge was justified in underscoring the cruelty
meted out by the wife against the husband and his family during their stay
together.
Post-suit Cruelty
39. Another component of cruelty is borne out by the fact that the appellant-
wife lodged a criminal complaint against the respondent-husband within a
month after institution of the suit on January 15, 2010. Such complaint
was lodged on February 5, 2010, alleging about incidents which took place
on November 2, 2009, that is, three months previously. The timing of the
said complaint, which was lodged immediately after the filing of the suit,
and the delay of three months from the date of the alleged incident clearly
bear out the fact that such complaint was a backlash to the suit.
40. Two criminal cases were lodged against the respondent-husband on the
basis of the complaints of the appellant-wife. Asansol P.S. Case No.31 of
2010 (under Section 498A, IPC), and Asansol P.S. Case No.15 of 2017
(under Sections 403, 406 and 120B, IPC), both of which culminated in
acquittal, respectively on October 9, 2010 and January 22, 2019.
41. The appellant relies on a Division Bench judgment of the Andhra Pradesh
High Court in Chiranjeevi (supra)1 to argue that mere acquittal in criminal
cases does not establish cruelty. However, in the said case, the Andhra
Pradesh High Court observed that the criminal case therein ended in
acquittal on the ground that the prosecution failed to prove the case against
1
Chiranjeevi v. Smt. Lavanya, reported at 2006 SCC OnLine AP 228
12
the accused beyond all reasonable doubt and not on the ground of no
evidence. As opposed thereto, in the present case, the criminal court
categorically held that the wife had failed to establish the prosecution case.
Notably, in the said prosecution case, only the wife, in her capacity as the de
facto complainant, deposed as PW-1 in support of her allegations. PW-2 in
the said case stated that he did not know the exact reason why the case was
filed, whereas PW-3 and PW-4, other prosecution witnesses, did not state
anything in favour of the prosecution case. PW-5 was merely the
Investigating Officer. The criminal court recorded the above observations
and on such premise acquitted the accused persons on the ground of no
evidence. Thus, the ratio of Chiranjeevi (supra)2 does not apply in the
circumstances of the present case.
42. Rather, the judgment of Rani Narasimha Sastry (supra)3 is apt in the
circumstances. The Hon‟ble Supreme Court held therein that when the
husband is acquitted of allegations under Sections 498A, IPC after
undergoing trial, it cannot be accepted that no cruelty was meted out on the
husband. The self-same proposition was followed in Poulomi Biswas (supra)4
by a co-ordinate Bench of this Court.
43. With regard to allegations of a serious nature levelled by one of the spouses
against the other, the Court is to examine whether any reasonable premise
of such accusations is made out. However, the judgments of acquittal of the
2
Chiranjeevi v. Smt. Lavanya, reported at 2006 SCC OnLine AP 228
3
Rani Narasimha Sastry v. Rani Suneela Rani, reported at (2020) 18 SCC 247
4
FAT No.193 of 2023 [Poulomi Biswas Vs. Shamik Biswas]
13
husband and his family in both the cases clearly point out to the allegations
made by the wife being baseless.
44. Also, the extremely serious allegation of illicit relationship of the husband
with his sister-in-law, as made by DW-3, the mother of the appellant, in her
cross-examination, which corroborated the plaint allegation that the wife
used to assassinate the character of the husband, go on to show that the
allegations made by the wife, which were of grave nature, were baseless,
thus, tantamounting to mental cruelty.
45. The respondent-husband was detained by the police in the police station for
9 hours, after being arrested from outside his workplace, on the basis of
another baseless complaint of the wife, which did not culminate in
conviction.
46. The above facts clearly go on to show that the allegations against the
husband were baseless and amount to cruelty.
47. The acquittal of the husband and his family from the criminal cases after
filing of the suit clearly go on to show, in conjunction with the reckless
allegations made against the husband by DW-3 in her evidence, that the
wife was in the habit of levelling irresponsible allegations against the
husband and her witnesses persisted in doing so during their deposition
even during pendency of the suit.
48. The hospitalisation of the wife post her leaving the matrimonial home due to
alleged torture by the husband and his family was called out to be a farce,
since no sign of external injury on the body of the wife was found upon such
hospitalisation. The backdrop of the hospitalisation was also explained by
14
the admission of DW-2, the wife‟s father, in his cross-examination to the
effect that he is a local leader of the ruling party in the State and has
considerable political affiliations in Asansol, being “loved by his followers”.
49. Also, there is no mention of the child of the parties being taken to the
hospital with the wife, although as per the appellant-wife, the husband and
his family attempted to set fire on her and her son on November 2, 2009,
which prompted her to leave the matrimonial home and to be hospitalised.
50. The reckless allegations in the deposition of the appellant‟s witnesses bear
out the allegations of cruelty by the wife against the husband even after the
filing of the suit.
51. In Gurbux Singh (supra)5, cited by the appellant, the Hon‟ble Supreme Court
observed inter alia that it is essential for the party who claims relief in a
divorce suit to prove that a particular part of conduct or behaviour resulted
in cruelty to him. It is held that a few instances cannot amount to cruelty in
isolation but the cumulative conduct of the parties ought to be seen. In the
present case, the above conduct of the wife and her family cannot be
brushed aside as isolated acts of cruelty. The consistent efforts of the
appellant-wife and her family was to malign the husband and his family by
lodging one false complaint after the other, even after institution of the suit,
thereby creating mental agony and loss of face in Society for the respondent-
husband and his family members. The cumulative effect of the said attempts
was sufficient to make it impossible for the parties to live together as
5
Gurbux Singh v. Harminder Kaur, reported at (2010) 14 SCC 301
15
spouses, which comes within the ambit of mental cruelty entitling the
husband to divorce.
(IIA) Whether the marriage between the parties has broken down
irretrievably
52. It is an admitted position, as borne out by the evidence of DW-3 as well, that
the parties have parted ways since 2009 and the matrimonial relation
between them has not been cordial at any point of time. The allegations
made by DW-3, the appellant‟s mother, in her deposition clearly corroborate
the deposition of PW-1 and PW-2, which is perfectly in line with the plaint
allegations of cruelty. In the absence of any proof as to torture being meted
out by the respondent or his family against the appellant or any attempt to
set fire on the appellant and her son, the parting of the wife from the society
of her husband on and from November 2, 2009 is denuded of any
justification. It is an admitted position that since the said date till now,
there has been no resumption of conjugal life between the parties. We do
not find anything on record to establish that there was any animus
revertendi on the part of the appellant-wife throughout this period. The son
of the parties has already attained majority and thus, cannot now be said to
be a bonding factor between the spouses.
53. Hence, the circumstances of the case clearly indicate that the rift between
the parties has reached a point of no-return and their marriage has spent its
shelf-life long back.
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(IIB) Whether irretrievable breakdown can be a ground for divorce
54. In Sri Satadru Harh (supra)6, this Court held that irretrievable breakdown of
marriage by itself amounts to cruelty of the parties between each other and
thus comes within the purview of mental cruelty, entitling the parties to a
divorce decree. While holding so, the Court had relied on Rakesh Raman
(supra)7, where, in a landmark decision, the Hon‟ble Supreme Court, for the
first time, unequivocally held that although irretrievable breakdown of
marriage is not by itself a ground of divorce, the same spells cruelty to both
the parties and continuing such a marriage would perpetuate such cruelty
between the parties as against each other. Thus, the term „cruelty‟ in the
context of matrimony was held for the first time by the Hon‟ble Supreme
Court to include irretrievable breakdown of marriage, bringing it within the
fold of Section 13(1)(ia) of the Hindu Marriage Act. Such pronouncement
was categorically a part of the ratio of the judgment and tantamounts to law
laid down by the Hon‟ble Supreme Court under Article 141 of the
Constitution of India.
55. In Rinku Baheti v. Sandesh Sharda, reported at (2025) 3 SCC 686, the
Hon‟ble Supreme Court considered Rakesh Raman (supra)7 but stopped
short of holding that the said judgment was passed under Article 142, as
opposed to the other judgments considered in Rinku Baheti (supra)8 where
divorce had been granted on the ground of irretrievable breakdown of
marriage, which were explicitly opined to have been passed under Article
6
FA No.160 of 2022 [Sri Satadru Harh Vs. Smt. Dolon Harh]
7
Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433
8
Rinku Baheti v. Sandesh Sharda, reported at (2025) 3 SCC 686
17
142 of the Constitution. The context of Rinku Baheti (supra)9 was a petition
under Section 25 of the Code of Civil Procedure for transfer of a matrimonial
lis, where the Hon‟ble Supreme Court was considering whether it could pass
a decree of divorce under Article 142 in such a proceeding. Importantly,
Rinku Baheti (supra)9 did not overrule, distinguish or deviate from the law
laid down by the co-ordinate Bench of the Hon‟ble Supreme Court in Rakesh
Raman (supra)8 or dilute it by labelling it to a decision under Article 142.
56. The respondent cites Mihir Sarkar (supra)9, where the Gauhati High Court
held that the decisions considered therein did not lay down any law to the
effect that irretrievable breakdown of marriage on account of long separation
between the spouses could be a ground for a decree of divorce, which
proposition was also laid down in Gurbux Singh (supra)10. However, both the
aforesaid judgments were rendered much prior to the pronouncement in
Rakesh Raman (supra)11.
57. The law relating to cruelty has undergone a sea change over the years. There
were umpteen previous judgments, spread over decades, where the Hon‟ble
Supreme Court either mulled over appropriate changes to be incorporated in
the statue book to include irretrievable breakdown of marriage as a ground
for divorce or passed divorce decrees in exercise of its extraordinary powers
under Article 142 on the ground that the marriage between the parties had
broken down beyond repair. However, the law in that regard has ultimately
9
Mihir Sarkar v. Soma Roy (Sarkar), reported at (2006) 3 Gau LR 655
10
Gurbux Singh v. Harminder Kaur, reported at (2010) 14 SCC 301
11
Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433
18
been crystallised in Rakesh Raman (supra)12, which is of seminal
importance, where the Hon‟ble Supreme Court, in no uncertain terms, held
that irretrievable breakdown of marriage, although by itself not a ground of
divorce, comes within the purview of cruelty under Section 13(1)(ia) of the
Hindu Marriage Act.
58. Thus, although irretrievable breakdown of marriage, by itself, is not a
ground for divorce, it comes within the ambit of cruelty and, as such, is a
valid ground under Section 13 (1) (ia) of the Hindu Marriage Act for grant of
a divorce decree.
59. This issue is accordingly decided against the appellant.
(III) Whether the learned Trial Judge ought to have granted permanent
alimony
60. The appellant argues that the learned Trial Judge ought to have granted
permanent alimony to the appellant-wife while passing the decree of divorce.
However, both in Rakhi Sadhukhan v. Raja Sadhukhan, reported at 2025
SCC OnLine SC 1259, and M.V. Leelavathi v. Dr. C.R. Swamy, reported at
2025 SCC OnLine SC 1724, cited by the appellant in support of such
contention, the Hon‟ble Supreme Court evidently exercised its powers under
Article 142 of the Constitution of India to fix a ballpark amount as the
quantum of alimony. Moreover, in both the said cases, there had been an
adjudication of permanent alimony by the Trial Court, which was modified
12
Rakesh Raman v. Kavita, reported at (2023) 17 SCC 433
19
by the Hon‟ble Supreme Court. Thus, it is clear that there was a prayer for
permanent alimony which was granted by the Trial Court.
61. As opposed thereto, no application under Section 25 of the Hindu Marriage
Act was filed by the appellant-wife at all, either before the Trial Court or
before this Court, at any stage.
62. As per the said provision, an application is required to be filed for the
purpose of getting permanent alimony. It is now well-settled that in support
of such application, affidavits-of-assets have to be filed by both parties and
the court has to consider the same, in accordance with the prayer of
permanent alimony made by the wife, upon taking into consideration not
only the respective incomes of the parties but their assets as well. However,
in the total absence of any such application and/or materials, there was/is
no scope of either the Trial Court or this Court passing any order of
permanent alimony. There is no judgment known to us or cited by the
appellant which lays down the law that the court can, suo moto, pass an
order of permanent alimony without there being any application seeking the
same.
63. Hence, the argument of the appellant in that regard does not merit further
discussion. Without an application to provide the contours and parameters
of the prayer of permanent alimony and without materials being adduced by
the wife in the first place in support of the same, there cannot be any scope
of granting permanent alimony by the court of its own. Thus, such
argument of the appellant is not tenable in the eye of law.
20
64. However, nothing prevents the appellant-wife to make a proper application
for permanent alimony even after this judgment, since as per the
contemplation of Section 25(1) of the Hindu Marriage Act, such an
application can be made either at the time of passing of the decree “or at any
time subsequent thereto”. Accordingly, this issue is decided in the negative.
CONCLUSION
65. In view of the above findings, this Court comes to the conclusion that the
learned Trial Judge was justified in passing a decree of divorce on the
ground of cruelty in favour of the respondent-husband and against the
appellant-wife. There is no scope for this Court to substitute any alternative
opinion of its own for that of the learned Trial Judge, since we do not find
any illegality in the impugned judgment.
66. Thus, the appeal fails.
67. Accordingly, FA No.185 of 2022 is dismissed on contest, thereby affirming
the impugned judgment and decree dated December 9, 2021 passed by the
learned Additional District Judge, Fourth Court at Asansol, District –
Paschim Bardhaman in Matrimonial Suit No.40 of 2011.
68. We make it clear that the appellant-wife will be at liberty to take out a
proper application for permanent alimony under Section 25 of the Hindu
Marriage Act before the competent civil court having jurisdiction. If such an
application is made, the concerned court will be at liberty to decide the same
in accordance with law, upon giving an opportunity to the respondent-
husband to file written objection thereto as well as opportunity of hearing to
21
both sides, on consideration of evidence adduced by the parties and in
accordance with law.
69. There will be no order as to costs.
70. A formal decree be drawn up accordingly.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
Later
All interim orders stand vacated.
(Supratim Bhattacharya, J.) (Sabyasachi Bhattacharyya, J.)
