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Patna High Court

Manoj Kumar @ MunnaversusNita Bharti

Decided
Disposal
DISPOSED

Holding

The marriage, though validly solemnised, is dissolved on the ground of frustration/cruelty, and the appeal is allowed.

Summary

The appellant Manoj Kumar and respondent Nita Bharti were married under the Special Marriage Act on 4 October 2007. Nita alleged cruelty, dowry demands, caste abuse and an attempted murder by Manoj, and filed a divorce petition under Section 27 of the Act. The Family Court dismissed the petition, holding the marriage void ab initio for alleged non‑compliance of Section 12, and therefore refused to consider any divorce relief. On appeal, the Patna High Court examined the marriage certificate, held it conclusive evidence of a valid marriage under Section 13, and rejected the lower court’s interpretation of Section 12. Relying on the doctrine of frustration and the facts of prolonged separation, subsequent remarriage and a child, the Court dissolved the marriage on the ground of cruelty and frustration. The appeal was allowed and a decree of dissolution was ordered.

Issues considered

  • Whether the marriage solemnised under the Special Marriage Act is void ab initio for alleged non‑compliance of Section 12
  • Whether the petition for divorce under Section 27 is maintainable
  • Whether the doctrine of frustration can be invoked to dissolve a subsisting marriage
  • Whether the marriage certificate is conclusive evidence of a valid marriage

Legislation cited

Subjects

  • Special Marriage Act
  • divorce
  • void marriage
  • Section 12
  • Section 13
  • Section 27
  • cruelty
  • doctrine of frustration
  • marriage certificate
  • remarriage
  • child welfare
  • dowry
  • caste discrimination

Judgment

     IN THE HIGH COURT OF JUDICATURE AT PATNA
              Miscellaneous Appeal No.151 of 2023
                              In
                FIRST APPEAL No.47 of 2018
======================================================
Manoj Kumar @ Munna Son of Yadunandan Prasad Yadav, Resident of
Mohalla - Station Road, Rajendra Nagar, Ward No. 30, P.S. - Begusarai
Town, Distt. - Begusarai.
                                                       ... ... Appellant
                            Versus
Nita Bharti Wife of Manoj Kumar, Daughter of Bishundeo Paswan,
resident of Village - Baghi, Ward No. 25, P.S. - Begusarai, Muffasil,
District- Begusarai.
                                                    ... ... Respondent
======================================================
Appearance :
For the Appellant/s    :    Mr.Alok Kumar Sinha, Advocate
                            Mr.Pramod Man Bansh, Advocate
For the Respondent/s   :    Mr.Kumar Vikram, Advocate
======================================================
   CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                           and
         HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
                    ORAL JUDGMENT
  (Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)

 Date : 17.03.2026
         Heard learned counsel appearing on behalf of the

 appellant and learned counsel for the respondent.

              2. The present appeal taken on our board, which

 preferred against the impugned judgment dated 28.02.2018 as

 passed by learned Principal Judge, Family Court, Begusarai in

 Divorce Case No. 69 of 2013, whereunder the petition as

 brought by the applicant/respondent, Nita Bharti, who is the

 wife of O.P./appellant namely, Manoj Kumar @ Munna filed

 under section 27 of the Special Marriage Act, 1954, was

 dismissed considering that marriage between the parties was
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         “void ab initio”, therefore, the question of divorce does not

         arise. Being aggrieved with aforesaid judgment, present appeal

         was preferred by opposite party/appellant, who is the husband of

         the respondent.

                      3.    The       factual       aspect   of   the   case   of

         applicant/respondent namely, Nita Bharti suggest that her

         marriage was solemnized with OP/appellant namely, Manoj

         Kumar @ Munna as per provisions available under Special

         Marriage Act before Special Marriage Officer, Teghra,

         Begusarai, on 04.10.2007. She joined her matrimonial home

         with OP/appellant and lived there for 4-5 days, whereafter she

         was assaulted and abused calling her caste name publicly as she

         was the member of scheduled caste community by the

         OP/appellant and his family members, who had further raised a

         demand of Rs. Five Lakhs in cash and one Katha of land at

         Begusarai, due to non-fulfillment of which, she was drove from

         her matrimonial home.

                      4. It also transpires that marriage was a love marriage

         without any intimation to parents of the parties and

         subsequently the applicant/respondent qualified the medical

         entrance examination and joined her MBBS course in Mahatma

         Gandhi Medical Science College, Vardha in the year 2013.
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         During aforesaid period, the OP/appellant visited to her on

         several occasions and also tortured her during said visit. On one

         of such occasion i.e. on 20.02.2013, the appellant made an

         attempt to commit murder of applicant/respondent, Nita Bharti

         by strangulating her, upon refusal of demand of Rs. 25,000/-.

         The information qua aforesaid occurrence had given to police,

         who did not take any action in view of the relationship of

         applicant/respondent with OP/appellant. On 25.02.2013, the

         applicant/respondent came to her parental place Baghi,

         Begusarai, and narrated the entire facts to her parents, who

         called a panchayat on 18.03.2013 at their place, wherein the

         OP/appellant namely, Manoj Kumar @ Munna with his parents

         were present and again raised their demand qua dowry and

         humiliated the applicant/respondent on caste line, whereafter a

         criminal      complaint       case    No.   530C/2013   was   lodged.

         OP/appellant namely, Manoj Kumar @ Munna is from different

         caste (not a member of scheduled caste community) and he,

         therefore, alleged to humiliate the applicant/respondent publicly

         in her caste name being the member of scheduled caste

         community.

                      5. Citing all such reasons, the divorce petition was

         preferred by applicant/respondent, Nita Bharti for dissolution of
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         her marriage with Manoj Kumar @ Munna (OP/appellant) with

         a demand of Rs. Five Lakhs as permanent alimony. Considering

         the pleading of the parties, the learned Family Court, Begusarai

         framed the following issues for just and proper decision of the

         case, which are as under:

                     I. Whether the matrimonial petition as framed is

                     maintainable?

                     II. Whether the O.P. (appellant) has after the

                     solemnization of the marriage treated the petitioner

                     with cruelty?

                     III.        Whether O.P. (appellant) has deserted the

                     petitioner for a continuous period of more than two

                     years immediately preceding the presentation of the

                     petition?

                     IV. To what relief if any the parties are entitled?

                   6. To substantiate the claim, the applicant/respondent

         Nita Bharti has examined altogether four witnesses namely,

         PW1 Nita Bharti (applicant/respondent), PW2 Vishundeo

         Pswan, the father of the applicant/respondent, PW3 Murlidhar

         Ram and PW4 Ramudgar Singh. Besides these oral evidence,

         the following documentary evidences were exhibited before the

         learned Family Court on behalf of appellant/respondent, which
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         are as under:

                    Exhibit ‘1’ – Complaint application of Complaint Cas

                    No. 534C/2013;

                    Exhibit ‘2’ – Ordersheet in complaint case No.

                    534C/2013;

                    Exhibit - ‘3’ – Plaint of Matrimonial Case No.

                    81/2013;

                    Exhibit – ‘4’ – Evidence of respondent Manoj Kumar

                    @ Munna in Matrimonial Case No. 81/2013;

                    Exhibit ‘5’ – Certified copy of the Complaint Case No.

                    645C/2013; and

                    Exhibit ‘6’ – Order of the Hon’ble High Court, Patna

                    passed in Criminal Miscellaneous No. 1846/2014.

                   7. Contrary to the aforesaid OP/appellant Manoj Kumar

         @ Munna has examined four witnesses namely, DW-1 Manoj

         Kumar (applicant himself); DW-2 Vinod Kumar; DW-3

         Dhayant Kumar and DW-4 Sanjeet Kumar.

                   8. Besides these oral evidence OP/appellant has also

         relied upon the following Exhibits:

                    Exhibit ‘A’ ‘B’, ‘B(1)’ & ‘B(2)’ which are the

                    information under RTI;

                    Exhibit ‘C’ to ‘C/12 - Railway Tickets; and
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                    Exhibit ‘D’ Series - The bank account details.

                   9.     Considering the oral evidences, exhibits and

         materials available on record, the learned Family Court,

         Begusarai decided Issue No. 1 i.e. maintainability of the petition

         preferred by respondent Nita Bharti at the first instance and

         arrived on conclusion that as compliance of section 12 of the

         Special Marriage Act was not made, therefore, the marriage

         between the parties were not solemnized legally and as such the

         question of divorce does not arises and, therefore, on the ground

         of     maintainability       the     application   preferred   by   the

         applicant/respondent was dismissed with certain objectionable

         observations in para ‘7’ and ‘8’ of the impugned judgment,

         which completely appears unwarranted. The rest of the issues

         were not answered by the learned Family Court in view of the

         finding of Issue No. 1 as discussed aforesaid.

                   Argument on behalf of the appellant

                   10.      Learned counsel appearing for the appellant

         submitted that the judgment of learned Family Court is

         completely perverse on its face for the reason that the Issue No.

         1 qua maintainability was decided perversely particularly when

         same     appears admitted by applicant/respondent              herself.

         Admitting the marriage only, the petition was preferred by the
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         applicant/respondent before learned Family Court regarding

         dissolution of her marriage with OP/appellant under section 27

         of the Special Marriage Act.

                   11. It is submitted that the marriage was solemnized in

         terms of Special Marriage Act, 1954, whereafter a certificate on

         behalf of Marriage Officer was issued under the Act as per its 4 th

         Schedule in terms of section 13 of the Act. It is submitted that

         only after compliance of section 12, the certificate under section

         13 of the Act under 4th Schedule can be issued by Marriage

         Officer, which is the conclusive evidence of the fact that

         marriage was solemnized.

                   12. It is pointed out that the compliance of section 11

         was duly made and as for the reason that section 12 is nowhere

         mention in the schedule, it was presumed by learned Family

         Court that same was not complied with and therefore, perversely

         it was held that the marriage between the parties was not

         solemnized at any point of time, and, therefore, same is “void

         ab initio” and as such there is no occasion to press any

         application on behalf of applicant/respondent to seek divorce.

                   13. It is submitted that DW-2 & DW-4 who are the

         witnesses of marriage certificate, categorically deposed that

         after solemnization of marriage the applicant/respondent went
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         along with OP/appellant on motorcycle.

                   14. Learned counsel for the appellant relied upon the

         legal report as available through Tamali Bhattarcharjee Vs.

         Samik Baidya reported in 2003 SCC OnLine Cal 558 and

         Priyanka Tarapad Bannerji and Another Vs. State of

         Maharashtra and Others reported in 2025 SCC OnLine Bom

         493.

                   Argument on behalf of Respondent

                   15.     Learned counsel appearing on behalf of the

         applicant/respondent/wife, submitted that respondent came to

         know about the present pending proceeding somewhere in the

         1st week of November, 2025, whereafter she entered into

         appearance through her Vakalatnama dated 07.11.2025.

                   16.     It is submitted that since through impugned

         judgment the marriage of respondent with appellant was

         declared ‘void’ as same was not said to be performed in terms of

         law, she solemnized her marriage with one Saroj Kumar on

         18.12.2021 and out of said wedlock, they have now one child of

         one year. It is submitted referring to the counter affidavit dated

         27.01.2026 that appellant has spent some money for respondent

         out of love and care as a friend and has not filed any case for

         claiming compensation for the same. It is also pointed out that
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         the respondent also spent huge amount of money on the

         appellant from her stipend as she received monthly during her

         study period. It is submitted that considering the peculiar facts

         and circumstances, this application is liable to be dismissed.

                   17. Learned counsel relied upon the legal report of

         Hon’ble Allahabad High Court as available through Nirmal

         Dass Bose Vs. Km. Mamta Gulati reported in 1996 SCC

         OnLine All 586.

                                          Conclusion

                   18. Having heard learned counsel appearing for the

         parties and upon perusal of the record, it transpires to us that

         PW-1 applicant/respondent namely, Nita Bharti, PW-2 her father

         (Vishundeo Paswan), PW-3 Murlidhar Ram and PW-4

         Ramudgar Singh, categorically admitted before the learned

         Family Court through their examination-in-chief on affidavit

         that the marriage of applicant/respondent namely, Nita Bharti

         was solemnized with OP/appellant namely, Manoj Kumar @

         Munna as per Special Marriage Act on 04.10.2007 in the office

         of Special Marriage Officer, Teghra, Begusarai (Bihar).

                   19.     PW-1 Nita Bharti, in her cross examination

         supported the allegation of cruelty and caste name abuse as she

         was the member of scheduled caste community, but in cross
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         examination she categorically stated that she solemnized her

         marriage with OP/appellant namely, Manoj Kumar @ Munna

         out of her own sweet-will before the Marriage Registrar, Teghra,

         Begusarai, which was also supported by appellant and his

         witnesses during the trial.

                   20. Therefore, without discussing any further witnesses,

         it can be arrived safely on the conclusion that the marriage

         between the parties admittedly solemnized before the Special

         Marriage Officer, Teghra. The genuineness of marriage

         certificate (under Schedule 4th), which was not believed by the

         learned Family Court was also not disputed by the

         applicant/respondent during the trial.

                   21. We never came across such a perverse legal

         interpretation of law as we are witnessing in the present case.

         Learned Family Court completely ignored the provisions of

         section 13(2) of the Special Marriage Act, that “the marriage

         certificate shall be deemed to be conclusive evidence of the fact

         that marriage under this Act has been solemnized ……..”

                   22. To clarify our aforesaid observation, it would be

         apposite to reproduce paragraph 11, 12 & 13 of the Special

         Marriage Act, 1954, which are as under:

                    “11. Declaration by parties and witnesses. – Before the
                    marriage is solemnized the parties and three witnesses
                    shall, in the presence of the Marriage Officer, sign a
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                    declaration in the Form specified in the Third Schedule to
                    this Act, and the declaration shall be countersigned by the
                    Marriage Officer.
                    12. Place and form of solemnization. – (1) The marriage
                    may be solemnized at the office of the Marriage Officer, or
                    at such other place within a reasonable distance therefrom
                    as the parties may desire, and upon such conditions and
                    the payment of such additional fees as may be prescribed.
                    (2) The marriage may be solemnized in any form which
                    the parties may choose to adopt:
                    Provided that it shall not be complete and binding on the
                    parties, unless each party says to the other in the presence
                    of the Marriage Officer and the three witnesses and in any
                    language understood by the parties, - “1.(A), take thee
                    (B), to be my lawful wife (or husband).”
                    13. Certificate of marriage. – (1) When the marriage has
                    been solemnized, the Marriage Officer shall enter a
                    certificate thereof in the Form specified in the Fourth
                    Schedule in a book to be kept by him for that purpose and
                    to be called the Marriage Certificate Book and such
                    certificate shall be signed by the parties to the marriage
                    and the three witnesses.
                    (2) On a certificate being entered in the Marriage
                    Certificate Book by the Marriage Officer, the Certificate
                    shall be deemed to be conclusive evidence of the fact that
                    a marriage under this Act has been solemnized and that
                    all formalities respecting the signatures of witnesses have
                    been complied with.”

                      23. It would be apposite to reproduce the Fourth

         Schedule of the Special Marriage Act, 1954, which reads as

         under:

                                  “THE FOURTH SCHEDULE
                                       (See section 13)
                                 CERTIFICATE OF MARRIAGE

                          I, E.F., hereby certify that on the ………. day
                      of ………… 20…….., A.B. and C.D.* appeared
                      before me and that each of them, in my presence
                      and in the presence of three witnesses who have
                      signed hereunder, made the declarations required
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                      by section 11 and that a marriage under this Act
                      was solemnized between them in my presence.
                                            (Sd.) E.F.,
                                            Marriage Officer for
                                            (Sd.) A.B.,
                                            Bridegroom.
                                            (Sd.) C.D.,
                                            Bride.
                                            (Sd.) G.H.
                                            (Sd.) I.J. Three witnesses
                                            (Sd.) K.L.
                      Dated the … …...day of ….. ….. 20… …..
                      *Herein give particulars of the parties.”

                     24. In this context, it would be apposite to reproduce

         relevant part of the impugned judgment which leads to the

         conclusion to declare the marriage between the parties as “void

         ab initio” which are as under:

                    “In this connection perusal of section 12 of the Special
                    Marriage Act is very essential because it deals with
                    solemnization of marriage. Section 12 of the Act
                    envisage that marriage may be solemnized at the office
                    of the Marriage Officer or such place within a
                    reasonable distance there from in any form suited to the
                    parties. But marriage shall not be complete and binding
                    unless such party says before the Marriage Officer and
                    the three witnesses- (1)(A) take (B) to be my lawful wife
                    (or her husband).
                    On bare reading of section 12 of Special Marriage Act
                    shows that marriage can be completed and binding only
                    when the parties of the marriage declares that he takes
                    other party as wife or husband in presence of three
                    witnesses and the Marriage Officer.
                    However in the plaint it only mentioned that marriage
                    solemnized before Special Marriage Magistrate, Teghra.
                    Presence of any witness has not been mentioned in the
                    plaint which is important ingredient of the completion of
                    the marriage under section 12 of the Act.
                    In this regard it is pertinent to mention that photostat
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                    copy of marriage certificate issued under Special
                    Marriage Act by Special Marriage Magistrate ARvind
                    Kumar Khan shws that in presence of witness Vinod
                    Kumar, Sanjeet Kumar and Rajesh Kumar, the
                    respondent Manoj Kumar @ Munna and applicant Neeta
                    Bharti has made declared declaration as per provision of
                    section 11 of the Act and solemnized marriage before
                    him.
                    Section 11 does not deal with solemnization of the
                    marriage under Special Marriage Act rather section 11
                    deals with declaration by parties and witnesses which
                    says that before the marriage solemnized, the parties and
                    three witnesses shall in the presence of Marriage Officer
                    signed on the declaration in the form schedule three and
                    declaration shall be counter signed by the officer.
                    Since declaration is to be made and signed and counter
                    signed by the parties before the Marriage Officer as per
                    section 11 of the Special Marriage Act.
                    It is pertinent to note that it is practice and tradition of
                    the society that after marriage the bride is assimilated in
                    the caste of bridegroom. But, from the assertions in the
                    plaint it appears that applicant Neeta Bharti has much
                    affiliation with her parental caste as Paswan who
                    happens to be scheduled caste and since allegedly the
                    applicant had been publicly humiliated by the respondent
                    Manoj Kumar @ Munna who happens to be Yadav by
                    caste, and his family members in panchayat also because
                    of applicant Neeta Bharti being scheduled caste which is
                    one of the ground of filing of the case and dissolution of
                    marriage.
                    As such neither averment in the plaint nor marriage
                    certificate issued by Marriage Officer, Teghra, the
                    requirement of marriage of being completed and binding
                    by proclamation of parties that he takes the other party
                    as his lawful wife or husband as required under section
                    12 of the special marriage Act, has been fulfilled.
                    Since the marriage of the applicant Neeta Bharti and the
                    respondent Manoj Kumar @ Munna was not in
                    accordance with section 12 of the Special Marriage Act
                    hence the marriage certificate itself does not make
                    marriage bind and complete. In absence of marriage no
                    question of divorce. In such circumstances issue no. 1 is
                    answered in negative and decided against the applicant
                    in favour of the respondent Manoj Kumar @ Munna.”
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               25. It is relevant to reproduce the certificate of marriage

         between the parties as issued under ‘Schedule 4’ of the Special

         Marriage Act, which are as under:




                   26.    From the aforesaid observation the sole reason

         assigned to arrive to the conclusion to declare the marriage

         “void ab initio” is that: “As such neither averment in the plaint

         nor marriage certificate issued by Marriage Officer, Teghra, the
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         requirement of marriage of being completed and binding by

         proclamation of parties that he takes the other party as his

         lawful wife or husband as required under section 12 of the

         Special Marriage Act, has been fulfilled.” It was also observed

         that “the marriage certificate itself does not make marriage

         binding and complete.”

                   27. Therefore, from the aforesaid observation, it can

         safely gathered that due to non-fulfillment of legal requirement

         of section 12 of the Special Marriage Act, the marriage between

         the parties was declared “void ab initio”. Though, it was

         accepted by learned Family Court that the marriage certificate

         was issued by the Special Marriage Officer, Teghra, Begusarai

         in prescribed format.

                   28. From the plain reading of section 12 of the Special

         Marriage Act, we find that in terms of section 12(1) of the Act,

         generally the marriage may be solemnized between the parties

         at the office of Marriage Officer, or at such other place within a

         reasonable distance therefrom as the parties may desire with

         additional fees and cost as prescribed. With plain reading of

         section 12(2) of the Act, it also appears that the parties may

         solemnize their marriage in any form unless each party says to

         the other party in the presence of the Marriage Officer and the
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         three witnesses and in any language understood by the parties

         that “I (A), take thee (B), to be my lawful wife (or husband).”

                   29. From the marriage certificate of the parties which

         was issued by Special Marriage Officer, Teghra, Begusarai in

         terms of Schedule 4 (as per section 13 of the Act), it appears that

         the marriage between the parties was solemnized at the Office

         of Marriage Registrar in presence of three witnesses namely,

         Vinod Kumar (DW-2), Sanjeet Kumar (DW-4) and Rajesh

         Kumar, which was solemnized on 4th October, 2007, after

         making the required declaration under section 11 of the Act,

         and, thereafter, it was only certified that the marriage was

         solemnized between the parties “under the Act”. Meaning

         thereby that the proviso of sub-section (2) of section 12 of the

         Act, as mentioned aforesaid, was also fulfilled, which is the

         only criteria, in absence of which, it can be said that the

         marriage between the parties was not completed and binding on

         the parties.

                   30. It would be apposite to reproduce para 10 of the

         Tamali Bhattarcharjee’s case (supra), which reads as under:

                    “10. The learned Advocate for the petitioner has much relied on
                    the evidence of the petitioner as P.W. 1 which goes unchallenged
                    to establish that the marriage between the parties was not
                    solemnized. The petitioner in her evidence at page 22 of the
                    Paper Book has only stated that there was no solemnization in
                    connection with the marriage. There is no specific allegation on
                    her part that the minimum declaration which is required under
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                    the proviso to section 12(2) of the Act has not been made. On
                    the other hand it is an admitted position that after the marriage
                    a certificate of marriage had been issued by the appropriate
                    authority and in that background it is well settled that the
                    issuance of certificate is a strong indication that all the
                    formalities prior to issuance of such certificate have been
                    complied with. Section 13 of the Act deals with the Certificate of
                    Marriage and it lays down very clearly that when the marriage
                    has been solemnized, the Marriage Officer shall enter a
                    certificate thereof specified in the schedule in a book to be kept
                    by him i.e. to say Marriage Certificate Book and clause (2) of
                    the said section further lays down that on a certificate being
                    entered into the Marriage Certificate Book by the Marriage
                    Officer the certificate shall be deemed to be conclusive evidence
                    of the fact that a marriage under the Act has been solemnized.
                    Section 18 of the Act further lays down regarding effect of
                    registration of marriage and clearly indicates that where a
                    certificate of marriage has been finally entered into the
                    Marriage Certificate Book the marriage shall be deemed to be a
                    marriage solemnized under the Act from the date of entry in
                    such Book. From all these provisions it is evident that it is not
                    open to the petitioner to challenge the marriage simply on the
                    allegation that marriage was not solemnized as per the
                    provisions of the Act.”

                   31. It would further be apposite to reproduce para 5 & 6

         of Priyanka Tarapad Bannerji’s case (supra), which reads as

         under:

                    5. Once a Marriage Certificate was issued to the parties under
                    the Special Marriage Act, it is conclusive evidence of the
                    legality and solemnity of the marriage until it is set aside for
                    any valid reason by an appropriate authority or by the Court of
                    law. The law would not permit any person or authority to
                    discard or not to give effect to such marriage certificate.
                    6. We may also observe that Section 13 of the Special Marriage
                    Act, 1954 provides for “Certificate of marriage” which ordains
                    that when the marriage has been solemnized, the Marriage
                    Officer shall enter a certificate thereof in the form specified in
                    the Fourth Schedule in a book, to be kept by him for that
                    purpose and to be called the Marriage Certificate Book and
                    such certificate shall be signed by the parties to the marriage
                    and the three witnesses. Sub-section (2) provides that on a
                    certificate being entered in the Marriage Certificate Book by the
                    Marriage Officer, the Certificate shall be “deemed to be
                    conclusive evidence” of the fact that a marriage under the
                    Special Marriage Act has been solemnized and that all
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                    formalities respecting the signatures of witnesses have been
                    complied. When such is the provision and the sanctity, the law
                    would accord to a marriage certificate issued by the Registrar,
                    which continuous to be legal and valid, the petitioner cannot
                    have any grievance. The marriage certificate dated 23
                    November 2023 issued to the petitioner and her spouse Mr.
                    Rahul Verma is legal and valid and fully recognized by the
                    Indian law. There cannot be any other opinion.


                    32. Moreover, the suit by the applicant/respondent Nita

         Bharti was not brought for declaration of marriage as void rather

         same was brought for dissolution of marriage. Interestingly, two

         witnesses of marriage, who are Vinod Kumar (DW-1) and

         Sanjeet Kumar (DW-2) who are witnesses of marriage

         certificate in their clear terms of deposition stated that marriage

         of OP/appellant was solemnized with respondent before the

         learned trial court but their testimony qua solemnization of

         marriage were completely ignored by the learned Family Court.

                    33.    Therefore, interpretation of section 12 of the

         Special Marriage Act as made by the learned Family Court

         appears completely perverse on its face, where after due

         compliance of all the legal requirements, the marriage certificate

         was issued after due entry in marriage register in support of

         solemnization of marriage by the learned Marriage Registrar,

         Teghra, Begusarai (Bihar).

                    34. Non-taking consideration of testimony of DW-2 &

         DW-4 also made the impugned judgment bad in the eyes of law
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         and, moreover, the relief which was not sought for was granted

         by ignoring the factual aspects raised on oath that admittedly the

         marriage of applicant/respondent namely, Nita Bharti was

         solemnized with OP/appellant, where prayer was sought for

         dissolution of their marriage under section 27 of the Special

         Marriage Act.

                    35. It is pertinent to note that the proviso appended to

         section 12 (2) of the Special Marriage Act, 1954 as well as

         schedule 4 thereto, were not subsequent insertions or

         amendments, but formed an integral part of the enactment itself.

         Both provisions were legislatively conceived and drafted

         contemporaneously with the parent statute, having been

         incorporated at the very inception of the act as enacted on 9 th

         October, 1954. The same came into force along with the act

         w.e.f. 1st January, 1955, thereby reflecting the clear legislative

         intent that the proviso to section 12(2) and schedule 4 must be

         read harmoniously as component of the original statutory

         scheme and, as such, we find that “marriage certificate” is also

         the conclusive evidence of the fact that after due compliance of

         proviso of section 12(2) of the Special Marriage Act, marriage

         between the parties was solemnized. Proviso of section 12(2) of

         the Special Marriage Act cannot be looked into isolation and,
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         therefore, the view taken by Division Bench of Kolkata High

         Court in Tamali Bhattacharjee case (supra) and by Bombay

         High Court in Priyanka Tarapad Bannerji case (supra) are

         appearing more legally convincing to us. We find that in view of

         aforesaid single Judge view of Nirmal Dass Bose case (supra)

         of Allahabad High Court, as referred by respondent, is not a

         correct interpretation of section 12(2) of the Special Marriage

         Act and same is not convincing to us.

                    36. In view of aforesaid factual and legal discussion,

         we have all reason either to “allow” this appeal or remand it

         back to the learned trial court.

                    37. But, we took a “pause”, considering the post

         consequences either of allowing present appeal or to remand it

         back for fresh consideration in view of prayer qua dissolution of

         marriage under section 27 of the ‘Act’ as issue Nos. 2, 3 & 4 left

         unanswered by learned Family Court. In either conditions, the

         effects which we probablized are:-

                    (i) To keep both parties in limbo for next so many

                    years.

                    (ii) To disturb the marriage of respondent with one

                    Saroj Kumar, with whom she solemnized marriage,

                    after passing of statutory period in view of Section 30
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                    of the Special Marriage Act, where one male child was

                    also born.

                    (iii) Child who is ‘one year’ old will be grown and

                    groomed seeing legal fight of mother, which certainly

                    in conflict with his best interest.

                    38. Therefore “dissolution of marriage” is the only

         solution, for complete justice.

                    39. But, at same time, we are also mindful of the legal

         positon that we cannot exercise power under Article 142 of the

         Constitution of India for complete justice.

                    40. At this juncture, our judicial consciousness poses a

         question to us: being a constitutional court “are we helpless?”.

         This is particularly so, when we are convinced that

         respondent/applicant cannot perform her marital obligation with

         appellant due to the aforesaid compelling circumstances.

                    41. Hence, this is an occasion to view the present

         episode in a more progressive manner by importing the

         “Doctrine of frustration”.

                    42. As a Constitutional Court it is of paramount

         importance to touch upon all the possible scenarios, which can

         result in delivery of justice. Solemnization of marriage is a

         pious concept which does not only involve a husband and wife
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         but society at large. And keeping in view the best interest of the

         parties, best possible way to deliver justice should be adopted.

         The court highlights that “Justice should not only be done, but

         must also be seen to be done”. Going with the essence of above

         mentioned phrase, the court will fail in its duty, if it will not

         discuss the prospective probabilities which can ensure the just,

         reasonable and conscious delivery of justice.

                    43. The        Indian     Jurisprudence   suggests   that   “

         Procedural law is the handmaid of Justice and not its

         mistress”, which enables the court to adopt flexible approach

         rather than taking a rigid view of the prescribed law.

                    44. At the outset, it is not in dispute that the marriage

         between the parties was solemnized in accordance with law

         under the Special Marriage Act, 1954 and continued for a

         certain period, thereby creating a legally valid and subsisting

         matrimonial bond. The statutory presumption attached to such

         marriage stands fortified by the mandate of Section 13(2) of the

         Act, which accords conclusiveness to the certificate of marriage.

                   45. It must be acknowledged that though marriage is

         not a commercial contract, it undeniably embodies a bundle of

         reciprocal obligations—cohabitation, fidelity, companionship,

         emotional support, and exclusivity. Where these foundational
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         obligations stand extinguished not by mere estrangement but by

         subsequent conduct that legally and morally negates the marital

         bond, the continuance of marriage becomes impossible in

         substance. In such circumstances, the Court cannot remain

         bound by the mere form of the relationship when its essence has

         ceased to exist.

                   46. A marriage solemnized under the Special Marriage

         Act, 1954 stands on a fundamentally different footing from

         marriages governed by personal laws. It is a secular and civil

         institution, brought into existence not by religious rites or

         sacramental ceremonies, but by free consent of parties

         expressed before a statutory authority. The Supreme Court in

         Supriyo v. Union of India 2023 SCC Online SC 1348 has

         recognized that the Act provides a framework for a non-

         religious, civil form of marriage, thereby underscoring its

         contractual character. The essence of such marriage lies in legal

         formalization through procedure and mutual consent, which

         aligns it closely with the concept of a civil contract. A marriage

         solemnized under the Special Marriage Act, 1954 stands on a

         fundamentally distinct footing from marriages governed by

         personal laws. The Supreme Court in Supriyo v. Union of

         India, particularly in Para 25, has unequivocally held that the
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         Act is a ‘secular and a religious law’, enacted as an alternative

         to marriages rooted in religion. Further, in Para 475, the Court

         explicitly recognized that the legislative intent of the enactment

         was to provide a framework for civil marriage. Unlike

         sacramental marriages, the formation of a marriage under the

         Act is not dependent upon rites or customs, but upon statutory

         conditions, declaration, and registration before a Marriage

         Officer, thereby emphasizing consent and legal formalization.

         Such a structure bears the essential attributes of a civil contract

         —offer, acceptance, capacity, and formalization under law.

         Thus, while not a contract in the strict commercial sense, a

         marriage under the Special Marriage Act possesses a contractual

         foundation, being a union created by free consent of parties and

         regulated by statute, rather than by religious sanction. Although

         marriage is not strictly a commercial contract, in cases governed

         by secular statutes such as the Special Marriage Act, the

         contractual underpinnings of marriage permit limited doctrinal

         borrowing from contract law, particularly where continuation of

         marital obligations becomes impossible. The doctrine of

         frustration, embodied in Section 56 of the Indian Contract Act,

         is founded on the principle that law does not compel

         performance of that which has become impossible. When
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         applied in the matrimonial context, particularly to civil

         marriages under the Special Marriage Act, this principle

         manifests in situations where the foundation of marriage—

         cohabitation,         consortium,          mutual       obligations—stands

         irretrievably destroyed.

                   47. The doctrine of frustration, as evolved in contract

         law, operates where an unforeseen event renders the

         performance of obligations impossible or destroys the very

         foundation upon which the relationship rests. Transposed into

         matrimonial jurisprudence, the doctrine applies where the

         substratum       of    marriage—mutual         trust,    exclusivity,   and

         consortium—is irreversibly destroyed, leaving no scope for

         restoration. The law, in such a situation, must recognize reality

         over fiction.

                   48.     The present case transcends the conventional

         doctrine of irretrievable breakdown of marriage. Irretrievable

         breakdown of marriage contemplates a situation where the

         marriage has failed due to prolonged separation, incompatibility,

         or absence of cohabitation. It is not merely a case where the

         marriage has failed due to incompatibility or prolonged

         separation; rather, it is one where subsequent events—most

         notably the lawful remarriage of the respondent-wife and the
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         birth of a child—have rendered the performance of marital

         obligations wholly impossible. The doctrine of frustration, as

         invoked herein, goes a step further—it applies where the very

         performance of marital obligations has become impossible due

         to supervening circumstances. The impossibility herein operates

         at multiple levels—moral, practical, and legal—thereby

         justifying the application of a doctrine analogous to frustration

         in order to recognize reality over legal fiction.

                   49.     The Law Commission of India has described

         irretrievable breakdown as a situation where “no reasonable

         probability remains for spouses living together again” .

         However, frustration is a more compelling condition—it arises

         not merely from lack of possibility of reconciliation, but from

         the destruction of the legal and moral framework of marriage

         itself. Thus, while irretrievable breakdown addresses the failure

         of marriage, frustration addresses the impossibility of its

         continuation. In the present facts, the second marriage and

         resultant altered circumstances have rendered the first marriage

         incapable of subsistence in any meaningful sense. Comparative

         matrimonial law strongly supports the approach that where the

         essence of marriage is lost, the law must facilitate dissolution

         rather than perpetuate a hollow relationship. Similarly,
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         jurisdictions such as Australia and Canada have adopted no-fault

         divorce regimes, where the central inquiry is whether the

         marriage has ceased to function as a social and emotional unit.

         The emphasis is not on assigning blame, but on recognizing the

         practical reality that continuation of such marriage serves no

         purpose. Comparative legal scholarship indicates that countries

         such as the United States, Germany, and Australia treat

         breakdown of marriage as a primary ground for dissolution,

         prioritizing individual welfare and societal stability over rigid

         formalism. The underlying rationale across these jurisdictions is

         consistent: the law must not compel parties to remain bound in a

         relationship that has lost its substance. Where the marital bond

         is reduced to a mere legal shell, its continuation is contrary to

         justice.

                    50.    The Family Court, instead of adjudicating the

         petition for divorce on its own merits within the statutory

         framework of Section 27, proceeded to declare the marriage

         void ab initio. Such a finding, in the considered opinion of this

         Court, travels beyond the pleadings and the evidence available

         on record, inasmuch as no sufficient ground was established to

         attract the provisions governing void marriages. The course

         adopted by the Family Court, therefore, suffers from a
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         jurisdictional and legal infirmity, and the proper approach ought

         to have been an adjudication confined to the grounds pleaded

         under Section 27 of the Act.

                   51.     Be that as it may, subsequent events assume

         decisive significance in the present case. It has been brought on

         record that pursuant to the decree dated 28.02.2018 passed by

         the Family Court, the respondent-wife contracted a second

         marriage on 18.12.2021. The said remarriage was solemnized

         after a substantial lapse of time, well beyond the statutory

         period contemplated under Section 30 of the Special Marriage

         Act, which permits remarriage upon expiry of the limitation

         period for filing an appeal, in the absence of any subsisting legal

         impediment. There is nothing on record to suggest that the

         respondent-wife         had     notice     of   any   pending     appellate

         proceedings at the time of entering into the second marriage.

         The remarriage, therefore, appears to have been entered into in

         good faith and in due compliance with law. Out of the said

         wedlock, a child has also been born, whose welfare and legal

         security cannot be ignored.

                   52. It would be apposite to produce Sec. 30 of the

         Special Marriage Act 1954 which is as follows :

                   30. Remarriage of divorced persons.―Where a
                   marriage has been dissolved by a decree of divorce, and
                   either there is no right of appeal against the decree or if
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                   there is such a right of appeal, the time for appealing has
                   expired without an appeal having been presented, or an
                   appeal has been presented but has been dismissed either
                   party to the marriage may marry again.


                    53. In this backdrop, the developments that have taken

         place are not merely subsequent in time but are transformative

         in nature, striking at the very root of the original matrimonial

         relationship. The marital bond between the appellant and the

         respondent has, in effect, lost its substratum and survives only in

         a formal legal sense. The parties have lived apart for a

         considerable duration, and the possibility of restoration of

         matrimonial life is wholly illusory.

                    54. While it is true that the doctrine of frustration, in its

         strict contractual sense, is not directly applicable to matrimonial

         law, the underlying principle—that a relationship rendered

         incapable of performance by supervening circumstances ought

         not to be artificially preserved—can be judiciously invoked.

         Constitutional courts are empowered to adopt Purposive

         Interpretation to advance justice and to put an end to litigation.

         The Rule of interpretation suggests that Constitutional Courts

         must be at work to fulfill the legislative intent. Marriage, though

         not a commercial contract, embodies reciprocal and enforceable

         obligations such as cohabitation, fidelity, companionship, and

         exclusivity.      Where        these       essential   obligations      stand
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         extinguished, not merely by estrangement but by subsequent

         conduct that negates the very foundation of the marriage, the

         continuance of such a bond becomes impossible in substance.

                    55.    Further, the conduct of the parties, including

         initiation of criminal proceedings, complete erosion of trust, and

         cessation of cohabitation, clearly brings the case within the

         ambit of Section 27 of the Special Marriage Act, warranting

         dissolution of marriage. Any attempt at this stage to unsettle the

         subsequent marriage would not only result in manifest injustice

         but would also adversely affect the rights, legitimacy, and

         welfare of the child born from the second wedlock, as well as

         the settled expectations of the parties involved therein.

                    56. This Court has also considered the question of

         remand; however, remand is not to be resorted to as a matter of

         course. In the present case, the material facts stand admitted or

         are otherwise clearly established on record. No useful purpose

         would be served by remanding the matter, as it would merely

         prolong litigation and perpetuate uncertainty, without advancing

         the cause of justice.

                    57.     In view of the above, this Court is of the

         considered opinion that the present case represents a rare but

         compelling situation where the doctrine of frustration must be
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         invoked in matrimonial law.

                    58. The marriage, though validly solemnized, has lost

         its essential character due to subsequent events that render its

         continuation impossible. The legal bond survives only as a shell,

         devoid of substance, purpose, or enforceability. To compel

         parties to remain in such a relationship would amount to

         enforcing a legal fiction at the cost of justice. The law cannot

         insist upon the preservation of a bond that has ceased to exist in

         every meaningful sense.

                    59.    Therefore, in order to do complete justice, to

         uphold the dignity of the parties, to secure the welfare of the

         child, and to serve the broader interests of society, this Court

         finds it appropriate to dissolve the marriage by applying the

         doctrine of frustration, treating the matrimonial bond as having

         become incapable of performance.

                    60. Accordingly, marriage of OP/appellant namely,

         Manoj        Kumar        @      Munna     stands   dissolved   with

         respondent/applicant namely, Nita Bharti.

                    61. Department/Office is directed to prepare decree,

         accordingly.

                    62. Before parting with the judgment, this Court

         expunged the following observation as observed by the learned
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         Family Court as in our considered opinion, the observation is

         completely unwarranted and not related with the issues involved

         and same therefore expunged, being based upon personal

         experience and opinion of the presiding officer.

                        “It is pertinent to note that it is practice and

                    tradition of the society that after marriage the

                    bride      is    assimilated     in    the   caste    of

                    bridegroom…. ..”

                                          (Page ‘6’ of the impugned judgment)

                        “Since after marriage the applicant Neeta

                    Bharti had been converted into Yadav Caste from

                    Paswan i.e. scheduled caste to backward but she

                    has obtained MBBS degree fraudulently as

                    member of scheduled caste community in

                    collusion with the respondent Manoj Kumar @

                    Munna Yadav. Hence, the MBBS degree of the

                    applicant Nita Bharti is liable to be cancelled and

                    applicant Nita Bharti and the respondent Manoj

                    Kumar @ Munna are liable to return money

                    received as stipend during MBBS course by the

                    applicant Neeta Bharti…. ….”

                                          (Page ‘8’ of the impugned judgment)

                    63. Parties to bear their own cost.
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                    64. Trial court record along with copy of the judgment

         be sent to the learned trial court.



                                                     (Chandra Shekhar Jha, J.)

                    Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

                      65. I have gone through the judgment written by my

         esteemed Brother the Hon'ble Justice C.S. Jha. While fully

         concurring with the observation and finding as well as the ultimate

         conclusion arrived by my esteemed brother, I would like to record

         the following few lines to supplement the judgment.

                      66. The Hon'ble Justice C.S. Jha has recorded the

         reasons for dissolution of marriage on the following grounds:-

                                            “57.     In view of the above, this
                                 Court is of the considered opinion that the
                                 present      case    represents   a   rare   but
                                 compelling situation where the doctrine of
                                 frustration must be invoked in matrimonial
                                 law.
                                            58. The marriage, though validly
                                 solemnized, has lost its essential character
                                 due to subsequent events that render its
                                 continuation impossible. The legal bond
                                 survives only as a shell, devoid of substance,
                                 purpose, or enforceability. To compel parties
                                 to remain in such a relationship would
                                 amount to enforcing a legal fiction at the
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                                 cost of justice. The law cannot insist upon
                                 the preservation of a bond that has ceased to
                                 exist in every meaningful sense.
                                            59.     Therefore, in order to do
                                 complete justice, to uphold the dignity of the
                                 parties, to secure the welfare of the child,
                                 and to serve the broader interests of society,
                                 this Court finds it appropriate to dissolve the
                                 marriage by applying the doctrine of
                                 frustration, treating the matrimonial bond as
                                 having become incapable of performance.”


                      67. My esteemed brother, Hon'ble Justice C.S. Jha,

         decided to dissolve the marriage between the parties by applying

         ‘Doctrine of frustration’. It is true that Section 27(1)(d) of the

         Special Marriage Act contemplates a ground of treating the

         petitioner with cruelty since the solemnization of marriage. It is

         needless to say that the term cruelty has not been defined either in

         the Special Marriage Act or in the Hindu Marriage Act. In

         Paragraph nos. 90, 99 & 100 of the judgment titled Samar Ghosh

         v. Jaya Ghosh reported in (2007) 4 SCC 511, the Hon'ble

         Supreme Court was pleased to observe as hereunder:-

                                                     “90.   We have examined and

                                         referred to the cases from the various

                                         countries. We find strong basic similarity in

                                         adjudication of cases relating to mental cruelty

                                         in matrimonial matters. Now, we deem it

                                         appropriate to deal with the 71 st Report of the
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                                         Law Commission of India on “Irretrievable

                                         Breakdown of Marriage.

                                                     99. Human    mind    is   extremely

                                         complex and human behaviour is equally

                                         complicated. Similarly human ingenuity has no

                                         bound, therefore, to assimilate the entire

                                         human behaviour in one definition is almost

                                         impossible. What is cruelty in one case may

                                         not amount to cruelty in other case. The

                                         concept of cruelty differs from person to

                                         person depending upon his upbringing, level of

                                         sensitivity, educational, family and cultural

                                         background, financial position, social status,

                                         customs, traditions, religious beliefs, human

                                         values and their value system.

                                                     100. Apart from this, the concept

                                         of mental cruelty cannot remain static; it is

                                         bound to change with the passage of time,

                                         impact of modern culture through print and

                                         electronic media and value system, etc. etc.

                                         What may be mental cruelty now may not

                                         remain a mental cruelty after a passage of

                                         time or vice versa. There can never be any

                                         straitjacket formula or fixed parameters for

                                         determining mental cruelty in matrimonial

                                         matters. The prudent and appropriate way to

                                         adjudicate the case would be to evaluate it on

                                         its peculiar facts and circumstances while

                                         taking     aforementioned        factors     in

                                         consideration.”

                      68. In sub-paragraph (vi) & (vii) of paragraph no. 101,

         the Hon'ble Supreme Court refers to "Sustained unjustifiable

         conduct and behavior of one spouse actually affecting physical and
Patna High Court MA No.151 of 2023 dt. 17-03-2026
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         mental health of the other spouse. The treatment complained of

         and the resultant danger or apprehension must be very grave,

         substantial and weighty, studied neglected, indifference or total

         departure from normal standard of conjugal kindness causing

         injury to mental health or deriving sadistic pleasure........" are

         instances of cruelty.

                      69. It is also hold by the Hon'ble Supreme Court that

         prolonged separations of ones spouse from the association of

         other, denial of maintaining conjugal and marital relationship are

         also instances of cruelty though not under the facts and

         circumstances of the case amounts to desertion or complete

         abandonment of marriage.

                      70. In Rakesh Raman v. Kavita, reported in (2023) 17

         SCC 433, the Hon'ble Supreme Court considered the actual matrix

         of the matter and found that the husband and wife were living

         separately for last 25 years, no child was born from the wedlock.

         The couple initially cohabited as husband and wife barely for 4

         years. Repeated attempts of the Court for resolution/settlement

         yielded no result. Both the parties made bitter allegations against

         each other. Aforesaid act and conduct were considered as cruelty

         perpetuated by the respondent to the Appellant. Similar decision

         was reiterated by the Hon'ble Supreme Court in a very recent case

         of Naomi Chakraborty v. Aparna Chakraborty reported in 2025
Patna High Court MA No.151 of 2023 dt. 17-03-2026
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         SCC OnLine SC 2798. The Hon'ble Supreme Court found that

         there was long period of separation without any hope for

         resolution. It is hold by the Hon'ble Supreme Court in the instant

         case that marriage was solemnized in the year 2023 and

         matrimonial litigation between the parties commenced within two

         years of marriage and had been continuing for the last 22 years.

                      71. In the instant case, marriage was solemnized under

         the Special Marriage Act on 4th October, 2007 subsequently the

         Plantiff filed the suit for dissolution of marriage in 2013, till date

         the spouses are living separately. There has been no conjugal

         relationship during these long period of time. The respective

         spouses do not have any empathy, feeling of love, affection and

         respect for each other. The marital relation is now a dreary

         incident. These facts are indeed instances of reciprocal cruelty by

         and between the parties.

                      72. On similar score, we can also rely on the judgment

         in the case of Ruchi Wadhawan v. Amit Wali reported in 2024

         SCC OnLine Del 5497. The Delhi High Court followed the

         judgment in Samar Ghosh (Supra) and also referred to the

         decision of the Division Bench of the High Court in Simran Batra

         @ Lata Batra v. Davinder Kumar Kapor reported in 2024 SCC

         OnLine Del 5432, wherein the parties were granted divorce taking

         into the account the long period of separation while observing that
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                    "Long continuous separation is a facet of mental cruelty. Severing

                    ties, in the long run, may do more good than bad to the parties’

                    psychological health."

                                 73. The High Court of Chhattisgarh in Arpit Kumar

                    Agrawal v. Sarika Agrawal reported in 2025 SCC OnLine CHH

                    10817 dissolved the marriage between the parties on the ground of

                    cruelty on factual score that they are living separately for more

                    than 10 years.

                                 74. Thus, "Doctrine of frustration" which has been

                    introduced by my esteemed brother as a ground of divorce is

                    supplemented by me holding inter alia that continuous

                    uninterrupted, prolonged separation by and between the parties

                    had caused deep frustration in the core of their heart, such

                    frustration caused by the other spouse is a form of cruelty within

                    the meaning of Section 27 (1) (d) of Special Marriage Act.

                                 75. For the reasons stated above, the instant Appeal

                    deserves to be disposed of in terms of paragraph nos. 59 to 62 of

                    this judgment.

                                 76. Order accordingly.


                                                               (Bibek Chaudhuri, J)
Rajeev/-
AFR
U     T


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