Citation: Smt. Karabi Das Alias Rupa Vs Sri Paritosh Das, AIR 2003 Cal 61
Date of Judgment: 30/01/2002
Equivalent citations: (2002) 2 CALLT 1 HC, 2002 (2) CHN 383, II (2002) DMC 730
Case No: F.A. Appeal No. 197 of 1998
Case Type: Civil Appeal
Appellant: Smt. Karabi Das
Respondent: Sri Paritosh Das
Bench: Hon’ble Justice A N Ray, Hon’ble Justice S N Bhattacharjee
Court: Calcutta High Court
- Hindu Marriage Act, 1955 – Sections – 9, 13, 13(1)(ia), 13(1)(ib)
- The marriage between the parties was solemnized in 1989. A daughter was born to them, and they resided together till 1991 thereafter Kabri Das (wife) along with the daughter left to her parent’s house.
- In 1994 Paritosh Das (husband) filed a suit for divorce on grounds of desertion and cruelty but failed to obtain it. After 2 years Paritosh again filed a suit seeking restitution of conjugal rights in lower court and succeeded in the same.
- Feeling aggrieved by this, Karabi Das filed an appeal in High Court.
- Whether a different and completely opposite finding on the very same set of facts could be entered in a later proceeding between the same parties?
Contentions of Appellant
The counsel of appellant contented that:
- Respondent is filing a different finding on same facts as his divorce petition got rejected.
- Respondent is using a long and indirect method of obtaining a divorce by filing a decree for restitution of conjugal rights so that after 1 year he could file a petition for dissolution of marriage taking the risk that the wife would not come back to the matrimonial home.
Contentions of Respondent
The counsel of respondent contented that:
- Although there are two suits but the evidence are quite different in both the cases.
- It is permissible for the Court to enter different findings on the facts on basis of different evidence. So even if the divorce fails, a later petition for restitution of conjugal rights on same facts might succeed because of a different burden of proof applying in the two different proceedings.
The appeal was succeeded with no cost, and the husband’s restitution petition was dismissed.
For obtaining divorce right away, two years is needed for divorce, whereas for obtaining divorce on failure of getting restitution of conjugal rights even after a decree, a spouse has to wait for one year.
Once the pronouncement becomes final it is no longer open for Second Court to give different version of the same case having same set of facts.
Since in this case there was no appeal in divorce petition that the desertion by the wife could not lead to grant of the matrimonial relief of divorce, that pronouncement became final between the parties.
Remedies are always available to a person who is being aggrieved by some acts of others. However, one should not try to misuse remedies to fulfil his own advantage. In this case, the husband tried to use the remedy the other way around, which the court found to be unreasonable, once denied of divorce the husband with the same sets of basic facts tried to get the divorce with circuitous method.
The court said that “The restitution decree and the second petition for divorce might be a slightly more expeditious way for getting relief.” And thus, the court dismissed the restitution petition of the husband.
Drafted by: Harshpreet Kaur, Lloyd Law College.
Published On: September 22, 2021 at 19:26 IST