Calcutta High Court Annual Family Law Digest 2023

1. "His Intention Is To Harass Wife": Calcutta High Court Dismisses Husband's Plea To Transfer Maintenance Case Filed By Wife

Case title - Sk. Sirajuddin vs. The State of West Bengal & Anr.

Case Citation: 2023 LiveLaw (Cal) 1

The Calcutta High Court recently rejected the prayer of a man seeking to transfer Section 125 CrPC proceedings instituted by his wife before the Family Court at Burdwan seeking compensation from him.

While doing so, the bench of Justice Shampa Dutt (Paul) observed that the prayer of the husband that the case may be transferred to any Court of law except Burdwan court demonstrated that his only intention was to harass his wife.

Case Title: Sri Uttam Kumar Bose v. State of West Bengal

Citation: 2023 LiveLaw (Cal) 11

The Calcutta High Court ruled that infertility of a woman cannot be a valid ground for seeking divorce. The Court also underscored that asking for divorce by mutual consent from one's wife who is in a traumatic situation for having developed primary infertility amounts to mental cruelty within the definition of Section 498A of the IPC.

Justice Shampa Dutt (Paul) observed,

“The reason of infertility is not a ground for divorce. There are several options to become parents. A spouse has to be understanding in these circumstances as it is the other (only) who can help one to regain her/his mental, physical and emotional strength. To be able to face the world, the society in general, bravely together.”

Case Title: Nripendra Chandra Mahanta v. Smt. Pramila Mahanta

Case Citation: 2023 LiveLaw (Cal) 35

The Calcutta High Court at Jalpaiguri directed the District Judge, Cooch Behar to re-decide the application for alimony filed by a wife under Section 24 of the Hindu Marriage Act, in compliance with the proposition laid down by the Supreme Court in Rajnesh v. Neha.

The judgement of Supreme Court in Rajnesh v. Neha mandates that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court throughout the country.

Case Title: Sri Saikat Ghosh v. The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 54

The Calcutta High Court dismissed a Habeas Corpus writ petition filed by a father, for the production his children who are residing with their mother, on the ground that the ordinary remedy is available under the Guardians and Wards Act in child custody matters.

The division bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee observed:

“Indisputably there is a matrimonial dispute between the petitioner and his wife. Allegations and counter-allegations have been levelled by the parties against each other which is required to be examined with reference to evidence.”

5. Calcutta High Court Restores Rape Case Against Man Who Married Another Woman During Subsistence Of Relationship With Complainant

Case Title: Susma Kumari v. The State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 55

The Calcutta High Court has restored the rape case filed against a man who, after being in a relationship with the complainant for about six years, married another woman during the subsistence of such relationship and hid this fact from the complainant.

Justice Rai Chattopadhyay observed:

"The most relevant is the accused person to have suppressed the said facts from the defactocomplainant. These materials are sufficient to find prima facie that the accused might had a guilty mind or culpable intent to procure complainant's consent to sexual acts by misrepresentation and induced her to misconceive about his intent to sexually exploit her and not to have any serious thoughts for their relationship."

Case Title: Hasin Jahan v. State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 83

The Calcutta High Court upheld an order of the Sessions Judge, Alipore stayed the arrest warrant issued against cricketer Mohammad Shami in a cruelty and assault case filed by his wife in 2018.

The single judge bench of Justice Shampa Dutt (Paul) observed:

“In the present case the learned Session Judge passed an order of stay. The hearing of the revision is still pending. And as such in view of the Judgment of the Supreme Court in Honnaiah T.H. (Supra) the order of the learned Session Judge requires no interference.”

Case Title: In re: Piyali Mandal Majumder @ Madhumita Mandal v. State & Anr.

Citation: 2023 LiveLaw (Cal) 133

The Calcutta High Court at Jalpaiguri circuit bench has discharged a widow in an FIR under Sections 498A, 494 and 506 of IPC accusing her of marrying the husband of the complainant, on the ground that materials on record including complaint prima facie revealed that the allegations were levelled against the against the principal accused i.e. the husband of the complainant.

The single judge bench of Justice Ajoy Kumar Mukherjee observed:

“Here the materials on record including complaint prima facie reveales that allegations were leveled against principal accused, i.e., husband of defacto complainant and as such the court below ought to have held that the criminal prosecution against the present petitioner under the aforesaid section is not sustainable.”

Case Title: Sekhar Kr Roy v Lila Roy & Anr (FA 109 of 2018)

Citation: 2023 LiveLaw (Cal) 151

The Calcutta High Court has clarified that the mere transfer of money from a husband to his wife for the purchase of property would not qualify as a benami transaction.

A Division bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed,

"In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami."

9. 'Never Resided With In-Laws, Question Of Cruelty Doesn't Arise': Calcutta High Court Quashes Woman's Complaint U/S 498A IPC

Case Title: Deepak Chatterjee @ Dipak Chatterjee & Ors. v. The State of West Bengal & Anr (CRR 261 of 2020)

Citation: 2023 LiveLaw (Cal) 152

The Calcutta High Court quashed a domestic violence complaint filed by a woman against her in-laws for allegedly trying to strangulate her, upon noting that the parties never resided together.

A single-judge bench of Justice Shampa Dutt (Paul) observed that the respondent herself in her Section 164 CrPC statement said she had left her matrimonial home on 20.01.2015, but in her memorandum of complaint she claimed that her in-laws had tried to strangle her to death on 22.01.2015.

Case: Mithu Dash @ Bhuiya v State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 210

The Calcutta High Court recently quashed the criminal proceedings initiated against a woman by her husband, a practising advocate, for the alleged theft of certain gold ornaments and valuables from her matrimonial home.

A single-bench of Justice Shampa (Dutt) Paul opined that the items she was accused of stealing were “worn on a regular basis by traditional Bengali married women.” It said,

“From the materials on record, it appears that the petitioner allegedly left her matrimonial home after 29 years of marriage with:- i. One piece gold Bala (bangle) (marriage ornament), worn as a sign of a married woman. ii. One Loha covered with gold (marriage ornament), also worn as a sign of a married woman. iii. Two piece (one pair) (red) pola, covered with gold (marriage ornament), also worn as a sign of a married woman. iv. One pair Sankhabadhano churi covered with gold (marriage ornament). v. Two mobile phones. vi. One Gold chain (gents), she has taken her son with her. vii. One necklace. These ornaments/accessories as described, are worn on regular basis by a traditional Bengali married woman, who chooses to wear them. The phones which might be for her own use and the ornaments as described, cannot be the basis of a criminal case between a married couple, that too, after 29 years of marriage. These allegations, clearly do not make out any case as alleged under the Indian Penal Code against the petitioner and thus, this is a fit case where the inherent powers of this court should be exercised"

Case: Hira Bittar v The State of West Bengal

Citation: 2023 LiveLaw (Cal) 214

The Calcutta High Court recently allowed the appeal preferred by a husband against trial court order convicting him for alleged offences of mental and physical cruelty allegedly inflicted upon his spouse/ complainant.

A Single-bench of Justice Shampa (Dutt) Paul held:

Though this witness has stated that she was assaulted by the appellant and his family members and suffered bleeding injuries, there are no medical papers nor any injury report on record. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, and the environment in which they live. The conduct of the concerned party should be grave and substantial and it must be much more serious than the ordinary wear and tear of daily life. Mental cruelty is a state of mind - The feeling of deep anguish, disappointment, or frustration in one spouse caused by the conduct of the other over a long period of time may lead to mental cruelty. And such feeling and intensity are felt differently by each person. Some are stronger in mind than others. In the present case there is absolutely no evidence/proof on record of any physical cruelty.

Case: Dwaipayan Das Vs. State of West Bengal & Anr. & connected application.

Citation: 2023 LiveLaw (Cal) 230

The Calcutta High Court quashed two criminal complaints filed by a wife (“opposite party no 2"), against her husband and in-laws (“petitioners”), on various counts of domestic violence, attempted murder, criminal intimidation, etc. under the IPC.

In noting that the medical evidence on record, as well as witness statements did not corroborate with the opposite party no 2's version of events, a single-bench of Justice Subhendu Samanta quashed the criminal proceedings, and held:

“The allegation of physical and mental torture in both the cases appears to be general and omnibus. The ingredients of the offence specifically the statement of available witnesses does not disclose any specific prima facie materials by which the present petitioner can be entangled for the offences u/s 498A IPC. The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.”

Case: Ranjan Das v The State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 255

The Calcutta High Court's Circuit Bench at Jalpaiguri has recently held that cruelty contemplated u/s 498A would be different from general matrimonial disturbances faced by a couple, and that general allegations could not be made to establish a crime u/s 498A.

In upholding the appellant's conviction u/s 323 IPC for voluntarily causing hurt to his wife, while discharging him u/s 498A IPC, a single-bench of Justice Sugato Majumder held:

Cruelty contemplated in Section 498A of the Indian Penal Code is different from day to day bickering between the husband and wife. Sweeping and general allegations cannot be relied upon to conclude that offence under Section 498A of the Indian Penal Code has been perpetrated. The Trial Court committed error in coming to conclusion that the Appellant is guilty of offence under Section 498A of the Indian Penal Code. Therefore, conviction under Section 498A of the Indian Penal Code is liable to be quashed. However, conviction and sentence under Section 323 of the Indian Penal Code stands upheld, in view of oral and corroborating documentary evidence.

Case: Kalyan Panda & Ors. Vs. The State of West Bengal & Anr

Citation: 2023 LiveLaw (Cal) 264

The Calcutta High Court has quashed criminal proceedings against the petitioners, who were accused by their daughter-in-law (“opposite party no 2”) of conspiring to beat her up on several occasions.

Justice Shampa (Dutt) Paul noted that the daughter-in-law's claims were not supported by any medical evidence and that she was being treated for mental illnesses, due to which on several occasions she had been violent towards her husband.

"It is clear that even after filling the complaint, the complainant continued to WhatsApp the petitioner no. 2. There are no medical papers for the injuries sustained by opposite party no 2. Her prescriptions also advise her regarding marital therapy, anger management, etc. There are no materials on record to show that the ingredients required to constitute the offences alleged are present against any of the petitioners and permitting such a case to proceed towards trial will be an abuse of the process of law."

Case: Mrs. Nidhi Kedia Nee Chokhani v Sri Abhyudaya Kedia

Citation: 2023 LiveLaw (Cal) 267

The Calcutta High Court recently upheld a decree of divorce granted by the trial court in favour of a husband, who claimed divorce on the grounds of 'cruelty' suffered by him at the hands of his wife.

In dismissing the appeal of the wife for restoration of marital rights, a division bench of Justice Rajasekhar Mantha and Justice Supratim Bhattacharya held:

The FIR lodged by the appellant/wife is in the nature of a counterblast as because the same has been filed after the initiation of the matrimonial suit for divorce. The acts of cruelty alleged by the husband against the wife have not been condoned by the former. This Court cannot also lose sight of the fact that elderly members of the husband's family stood discharged from the criminal proceeding having regard to the frivolity of the charges brought against them. It needs no iteration either that the parties are continuing with their corrosive and divergent courses without any whisper of reconciliation.

16. Money Exchanged 10 Days Before Victim's Death Gives Presumption Of 'Dowry Death': Calcutta High Court Upholds Husband's Conviction

Case Title: Nitya Gopal Pal & Anr. v The State of West Bengal

Citation: 2023 LiveLaw (Cal) 268

The Calcutta High Court recently dismissed an appeal filed by a husband (“appellant no 1”) and his brother (“appellant no 2”) who were convicted by the trial court under Section 498A and 304B of the IPC, for causing the 'dowry death' of the victim, who poisoned herself and her daughter in her matrimonial home.

In upholding the duo's conviction, a single-bench of Justice Rai Chattopadhyay held:

The entire incident of transmission of the money as above happened ten days prior to the date of death of both the victims. The proximity of time between the alleged ill-treatment and time of death is a relevant factor so far as applicability of Section 304B is concerned and to raise presumption under Section 113B of the Indian Evidence Act and is an essential and necessary evidence for proof of a case of dowry death. The law would require the accused person, to come up with adequate rebutting evidence, to prove their innocence or to set the prosecution evidence at naught. Such statutory duty is grossly unfulfilled by the appellants, in the trial. In the considered opinion of this Court, the finding of the trial Court on the point as above renders any reconsideration or setting aside of the same due to alleged illegality or impropriety, unwarranted.

Case: Smt. Meghna Nandi (Maiti) Vs. Sri Asit Nandi & Anr.

Citation: 2023 LiveLaw (Cal) 280

The Calcutta High Court observed that an interim maintenance of Rs 4,000 per month, awarded by the magistrate in favour of a wife and her two daughters, would simply not be enough for their sustenance.

A single-bench of Justice Shampa (Dutt) Paul was seized of a revision application against the order of a magistrate rejecting the wife/petitioners prayer for enhancement of interim maintenance u/s 127 CrPC as 'premature' due to the pendency of their application for maintenance u/s 125 CrPC.

While refusing to interfere with the magistrate's order, the Bench directed the trial court to dispose of the 125 CrPC application within a period of three months, and held:

It was in no way logical to grant such a low amount as interim maintenance for 3 persons and leave the balance for the husband. Of course at the time of final disposal of the case, all factors have to be taken into consideration by the learned Magistrate, but an amount of Rs. 4000/- for three persons is just not reasonable.

Citation: 2023 LiveLaw (CaL) 308

Case: Sampa Deb (Basu) Vs. The State of West Bengal & Anr.

The Calcutta High Court has quashed a criminal intimidation complaint lodged by a man against his wife, alleging that she drove him out of her parental home where they used to reside and also beat him up.

The woman had been residing with her visually impaired mother which happens to be in proximity with her workplace. The Court weighed in factors like she is the sole bread winner and that her in-laws are also deceased.

Citation: 2023 LiveLaw (Cal) 320

Case: Manojit Basu vs. Shyamasree Basu (nee Ghosh)

The Calcutta High Court has upheld a decree of divorce passed by the Trial court, dissolving the marriage between the appellant (husband) and respondent (wife) under Section 13 of the Hindu Marriage Act, 1955 (“HMA”).

Court further upheld the trial court's rejection of custody and dismissed an appeal by the appellant for custody of his son under Section 26 HMA due to non-payment of maintenance.

20. Differentiating Between Married And Unmarried Daughter In Compassionate Employment "Sexist": Calcutta High Court

Citation: 2023 LiveLaw (Cal) 321

Case: Dipali Mitra & Ors. V Coal India Limited & Ors.

The Calcutta High Court has found that the distinction between 'married' and 'unmarried' daughters for the purpose of compassionate appointment, as per Clause 9.3.3 of the National Coal Wages Agreement-VI is ultra vires and in violation of Article 14 and 15 of the Constitution.

In dismissing the plea of the petitioners for compassionate appointment the Court noted that the most important factor for seeking the same was dependency on the deceased employee, and financial exigency.

Citation: 2023 LiveLaw (Cal) 323

Case: Surya Chandra Mishra v Mrs. Chitrangana Debnath

The Calcutta High Court has dismissed a revision application in against the orders of the trial court in a matrimonial suit, which allowed the wife/respondent adjournments and opportunities to file her written statement.

It was contended by the petitioner that the trial court could not have passed orders extending the time for filing written statements for the wife, since no formal application for the same had been made by her.

Citation: 2023 LiveLaw (Cal) 336

Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.

The Calcutta High Court has dismissed a Section 482 CrPC application filed by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.

The younger brother of the deceased, upon his suicidal death in 2015, approached the jurisdictional police station and filed an FIR, alleging that the victim had ended his life due to the "severe mental torture" perpetrated by the present petitioners. The police as well as the complainant relied heavily on a "suicide note" left behind by the deceased, allegedly implicating the petitioners.

In refusing to quash the proceedings upon observing that a cognizable case had been prima facie made out against the petitioners, a single bench of Justice Rai Chattopadhyay held:

A person, immediately before his death would only let his genuine perceptions to reveal to the world after his death and so he writes. Though the [deceased] mentioned no other person [is] responsible for his death, at the same time he mentions that his wife or child should not be allowed to see his dead body. All these are triggering to the only fact that a cognizable case [has] been prima facie made out against the petitioners. [Thus] not enough ground is available for quashing the criminal case.