Calcutta High Court
FAT/20/2026 of RONI DEY Vs MOMITA SARKAR on 10 September 2026
Court No.11 J.Das CALCUTTA HIGH COURT IN THE CIRCUIT BENCH
10.09.2026
Court No.11
J.Das
CALCUTTA HIGH COURT
IN THE CIRCUIT BENCH AT JALPAIGURI
APPELLATE SIDE
FAT 20 OF 2026
IA No.CAN/1/2026
Sri Roni Dey
Vs.
Smt. Momita Sarkar
Ms. Rima Sarkar
…For the appellant
Ms. Suparna Paul
…For the respondent
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1. This appeal is against an order and decree dated 1 August 2025 passed in MAT Suit No.298 (12) of 2025.
2. By the impugned judgment the Learned Additional District Judge, (1st Court) at Siliguri has come to a finding that the mutual divorce application was not maintainable since there was no pleading that the parties had stayed together even for a single day.
3. Briefly, the appellant and the respondent were married on 7 July 2024 under the Special Marriage Act, 1954 before a Marriage Officer. Thereafter, irreconcilable differences arose between the parties and the parties had jointly filed a proceeding seeking mutual divorce under the Special Marriage Act, 1954.
4. By the impugned judgment, the Learned Trial Court has proceeded on the ground that the marriage between the parties was a voidable marriage since the same had not been consummated. Based on this reasoning, the Learned Judge dismissed the mutual divorce application as not maintainable.
5. Both the appellant and the respondent are represented and submit that the question of the marriage having been consummated or not was not an issue before the Court. The pre-conditions to the filing of an application for mutual divorce under the Special Marriage Act 1954 is that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
6. In this case, the marriage was solemnized on 7 July 2024 and the instant application for mutual divorce was filed on 1 December 2025 i.e. more than one year after the marriage.
7. In such circumstances, the finding of the Learned Single Judge that the application under section 28 of the Special Marriage Act was not maintainable is erroneous, hypertechnical and based on a misinterpretation of the Act.
8. For the above reasons, the impugned judgment and decree is set aside. The matter is remanded back to the Trial Court for hearing the application afresh in accordance with law.
[Ravi Krishan Kapur, J.]
[Supratim Bhattacharya, J.]