Samiran Sekhar Roy v. Smt. Suparna Mandal

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon'ble Justice Jyotirmay Bhattacharya

AND

The Hon'ble Justice Sankar Acharyya S.A.T. 427 of 2014

Samiran Sekhar Roy

-Versus-

Smt Suparna Mandal

For the Plaintiff/ : Mr. Subrata Roy Karmakar.

Appellant Heard on: 7^thMarch, 2016. Judgement on: 7^thMarch, 2016.

Jyotirmay Bhattacharya, J. :-

Let the certified copy of the decree of the learned First Appellate Court which is filed by the learned advocate of the appellant in Court today, be kept with the record. This second appeal is directed against the judgement and decree dated 19^thJuly, 2014 passed by the Learned Additional District Judge, 7^thCourt, Paschim Medinipore in Title Appeal No. 2 of 2010 reversing the judgement and decree dated 31^stOctober, 2009 passed by the Learned Civil Judge (Junior Division), 3^rdCourt, Paschim Medinipore in Title Suit No. 13 of 2004, at the instance of the plaintiff/appellant.

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Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.

The plaintiff filed a suit for declaration that there was no marriage between him and the defendant, as per the Hindu Rites and Customs. He also prayed for a declaration that the marriage certificate which was issued by the Registrar of Marriage was procured fraudulently and as such, the said marriage certificate should be declared null and void. The defendant appeared in the suit and contested the same by filing written statement denying allegation made out by the plaintiff in the said suit. She claimed that there was valid marriage between the parties and a female child also born out of the wedlock of the said married couple. She further claimed that she was forced to leave the matrimonial home i.e. a rented accommodation where both of them lastly lived together as married couple. The parties led their evidence in support of their respective claims.

The learned Trial Judge was pleased to decree the suit in favour of the plaintiff by holding that the 'Saptapadi' and the other ceremonies which are required to be performed as per the Hindu Rites and Customs for a valid marriage, having not been proved in the instant case, the plaintiff is entitled to get a decree as prayed for in the suit. Accordingly, the plaintiff's suit was decreed.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the defendant filed an appeal before the learned First Appellate Court. The learned First Appellate Court reversed the judgement and decree of the learned Trial Judge and allowed the appeal by holding, inter alia, that this is a fit case where presumption of valid marriage between the parties can be drawn as it has been established that the parties lived

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together as husband and wife for a considerable period and a female child was born out of the wedlock of the said married couple.

While coming to the conclusion, the learned First Appellate Court has relied upon a decision of the Hon'ble Supreme Court in the case of Chanmuniya -vs- Virendra Kumar Singh Kushwaha & Anr. reported in (2011) 1 Supreme Court Cases at page 141. It was also held by the learned First Appellate Court that of course such presumption is rebuttable but the plaintiff has failed to rebut such presumption by giving his rebuttable evidence in this regard. When on the basis of such findings the learned First Appellate Court reversed the judgement and decree of the learned Trial Judge, we sitting in this jurisdiction do not find it necessary to disturb such findings of the learned First Appellate Court by supplementing our own reasons after re-appreciation of evidence in the place of the findings which were arrived at by the learned Trial Judge from the materials on record.

Accordingly, we hold that no substantial question of law is involved in this appeal. We do not find any reason to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

The appeal is, thus, dismissed.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.

(Jyotirmay Bhattacharya, J.) (Sankar Acharyya, J.)

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