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 marr iage

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 me mbers

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 hus band 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 subs tantially 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 beginnin g 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 memb ers 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 c ross-

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.

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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 ha s 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.)