IN THE HIGH COURT OF CALCUTTA
RVW 318 of 2016 and CAN 10348 of 2016 in FA 178 of 2015
Decided On: 23.09.2019
Hon’ble Judges/Coram: Biswanath Somadder and Arindam Mukherjee, JJ.
Citation: AIR 2019 Cal 325
1. This review is in respect of a judgment and order dated 3rd August, 2016, passed by an earlier Division Bench of this Court in a first appeal bearing F.A. No. 178 of 2015. The first appeal was a matrimonial appeal preferred by the appellant/husband against the judgment and order dated 28th May, 2012, passed by the learned Additional District Judge, 14th Court at Alipore in Matrimonial Suit No. 14 of 2009, whereby the matrimonial suit was dismissed under section 27 of the Special Marriage Act, 1954. The Appeal Court after considering the respective contentions of the parties – which included several judgments cited before it – came to a conclusion, in its considered opinion, that there was no ‘irretrievable breakdown of marriage’ and the same – in the absence of other grounds being substantiated – could not be considered as a ground for divorce. The following is the concluding observation made by the Hon’ble Appeal Court while proceeding to dismiss the appeal:-
“In the light of the above and considering the fact that the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying in common things of the matter and of the spirit and from showering love and affection on one’s offspring, living together is a symbol of such sharing in all its aspects and living apart is a symbol indicating the negation of such sharing.
We find that the Trial Court was correct in its judgment on facts and law hence, these two issues are also decided in the negative. No relief can be awarded to the appellant/husband. The instant appeal meritless and it is accordingly dismissed.”
2. The appellant/husband who is the review-applicant before us has sought to raise the following grounds in order to make out a case for review of the judgment and order dated 3rd August, 2016:-
“I. For that the Hon’ble Division Bench failed to consider that there was an error apparent from the records in the matter of considering the ground of mental cruelty which has been decided in so many judgments of the Hon’ble Apex Court of India, different High Courts as well as the Hon’ble High Court at Calcutta. In this case the wife has alleged illicit relationship of the husband/petitioner with one Kakoli Mondal which she could not prove under any circumstances. In fact, the Hon’ble Division Bench did not consider the mental agony suffered by a person including mental pain which gave rise to a situation where the parties cannot reasonably be expected to live together. Again the husband as alleged of adultery in so far as the opposite party is concerned categorically stated that he was not the father of the aborted child. Taking into this together it would mean a situation of severe mental agony and amounting to mental cruelty which has been in so many words accepted by the Hon’ble Supreme Court of India and decree for divorce has been granted. Even the Hon’ble High Court at Calcutta has been pleased upon considering the judgment of the Apex Court was of the view that unfounded allegation of husband’s illicit relationship with other women would amount to a mental cruelty.
II. For that the Hon’ble Division Bench failed to consider that staying together under the same group is not a precondition for mental cruelty. A spouse can cause mental cruelty by his or her conduct while he or she is not staying under the same room. In this case the wife occupies the first floor whereupon an order of injunction has been passed by the Division Bench of this Court on 21.03.2013 in F.A.T. 302 of 2012 which subsequently was renumbered as F.A. No. 178 of 2015.
III. For that the Hon’ble Division Bench failed to consider that the judgments passed by the Hon’ble Supreme Court and subsequently followed by the Hon’ble High Court at Calcutta indicating that the parties have been residing separately for now nearly 12 years and have no relationship as between themselves would amount to a ground of desertion for which a decree for divorce can be passed.
IV. For that there has been error apparent on the face of record in considering the entire matter as a whole wherein it is apparent that categorical contention has been made indicating that the opposite party wife had led adulterous life and has alleged that the husband is otherwise connected with some other lady which categorically goes to show that the mental set of the opposite party was to castigate the husband in so many ways as possible.”
3. The learned advocate for the review-applicant, during the course of his submissions, has referred to and relied upon a Division Bench judgment of the Allahabad High Court in the case of Narain Das & Ors. vs. Chiranji Lal reported in MANU/UP/0190/1924 : AIR 1925 All 364.
4. On the other hand, on behalf of the respondent/wife, it was submitted that the review jurisdiction was not attracted in the facts of the case since the review-applicant has not been able to make out a case under the provisions of Order XLVII of the Code of Civil Procedure, 1908.
5. Even a bare perusal of the grounds reproduced hereinabove clearly reveals that the review-applicant has not been able to make out a case of any error apparent on the face of record but has merely tried to highlight certain set of facts which are all matters of record. So far as the contention as sought to be raised by the learned senior advocate representing the review-applicant is concerned that review is permissible under the provision as contained under Order XLVII Rule 1(c), i.e., “for any other sufficient reason”, he has referred to Narain Das (supra) in order to emphasize on the interpretation of the phrase, “for any other sufficient reason”. Relevant portion of the judgment of the Allahabad High Court which takes in consideration the phrase, “for any other sufficient reason” is quoted hereinbelow:-
“The words ‘for any other sufficient reason’ in O. 47, R. 1 need not be restricted to matters which are strictly ejusdem generis with those referred to in the earlier part of the rule. On the contrary, the words are not only very wide in themselves, but are intentionally so made by the legislature because of the possibility of exceptional cases arising in which obvious injustice would be worked by strict adherence to the terms of the decree as originally passed.”
6. On the other hand, the learned advocate representing the respondent/wife has referred to a decision rendered at an earlier point of time by the Privy Council in the case of Chhajju Ram Vs. Neki & Ors. reported in MANU/PR/0006/1922 : AIR 1922 Privy Council 112 in order to submit that the phrase “any other sufficient reason” is required to be interpreted as meaning a reason sufficient; on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred, consideration of other grounds of appeal which have not been decided by a former Bench or Judge as being immaterial.
7. We notice from the following observation made by the Hon’ble Supreme Court in the case of N. Anantha Reddy Vs. Anshu Kathuria & Ors. reported in MANU/SC/1268/2013 : AIR 2014 SC (Supp) 1798 that the review jurisdiction of a Court is extremely limited and unless there is mistake apparent on the face of the record, the judgment/order does not call for any review. That apart, a review jurisdiction cannot be used as an appellate jurisdiction in disguise nor does it permit rehearing of a matter on its merit:-
“9. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by the respondent No. 1 and, in the light of the view which it took, it recalled its earlier order dated 08.06.2011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 08.06.2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merit.”
8. The Hon’ble Supreme Court in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu & Ors. reported in MANU/SC/0022/2014 : AIR 2015 SC 460 has gone further to the extent of observing that even an erroneous decision cannot be a ground for the Court to undertake a review, as the first and foremost ground of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. Paragraph 35 of the judgment reads as follows:-
“35. The issue can examined from another angle. Explanation to Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. (Vide: Rajendra Kumar & Ors. v. Rambhai & Ors., MANU/SC/0542/2002 : AIR 2003 SC 2095).”
9. The decision of the Allahabad High Court in Narain Das (supra) does not take into consideration the earlier decision of the Privy Council in the case of Chhajju Ram (supra) where the phrase “any other sufficient reason” was construed to be interpreted to mean a reason sufficient; on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred, consideration of other grounds of appeal which have not been decided by a former Bench or Judge as being immaterial. Thus, the phrase “for any other sufficient reason” cannot be held to be as wide as sought to be interpreted by the Division Bench of the Allahabad High Court in Narain Das(supra) and in any event, the said judgment of the Allahabad High Court has no manner of application at all in the facts of the instant case.
10. For reasons stated above, the review fails and stands dismissed along with CAN 10348 of 2016.
11. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.