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| Love and broken marriage |
Calcutta High Court
Sm. Purabi Banerjee vs Basudeb Mukherjee on 23 August, 1968
Equivalent citations: AIR 1969 Cal 293, 72 CWN 905
Bench: B Mukherji, S Datta
1. This is an appeal by the wife Sm. Purabi Banerjee whose petition
dated August 14, 1963, for annulling, by a decree of nullity, her
marriage on April 26, 1963, with the respondent Basudeb Mukherjee, on
the ground that her consent to the marriage was obtained by coercion
and fraud, just the ground under Section 25, Clause (iii), of the
Special Marriage Act, 43 of 1954, fails before the learned Chief Judge,
City Civil Court, Calcutta.
2. On April 26, 1963, when Purabi and Basudeb were married, Purabi was
23 or thereabouts and Basudeb 28 or thereabouts.
3. On August 1, 1962, Basudeb started coaching Purabi -- then a B. A.
student of Scottish Church College, Calcutta, and residing under the
care of her uncles and aunts in their joint family residence at 235,
Barrackpore Trunk Road, Calcutta 36. Basudeb was engaged so, on the
recommendation of Purabi's cousin -- one Asim Ganguli alias Nantu whose
colleague in office Basudeb was, Basudeb's remuneration was no more
than Rs. 36 a month for lessons of 2 hours a day but for 3 days a week,
as the averment in the third paragraph of Purabi's petition is, or Rs.
35 a month for lessons of one hour a day for 3 days in a week, as is
Basudeb's evidence. It does not matter which. What matters is that the
parties -- Basudeb and Purabi -- got to know one another so, and that
too as the teacher and the taught.
4. The allegations Purabi makes, with a view to having a decree of
nullity, she prays the Court for, are rested on fraud and coercion.
Fraud, because before his marriage with her, Basudeb paints himself to
be what he is really not: son of a quondam Deputy Chief Accounts
Officer, South Eastern Railway, owner of vast properties spread over
Calcutta, Bhowanipur and Howrah, going to England early in 1963 for
higher studies, the sure prospect of being appointed a junior officer
at Durgapore with a lucrative salary and a free house etc. etc., no
less because Purabi was made to sign certain papers on April 26, 1963,
at the office of the marriage registrar on the 'sop' that that would
pave the way for her parents' approval; not that that was the form of
marriage gone through under the Special Marriage Act, 1954. And
coercion, because in or about February 1963, some six months after
Basudeb had started coaching her, he gave Purabi to understand that
marry him she must; else he would put an end to his life and hers too.
5. Basudeb, in his written statement, denies such statements Purabi
attributes to him, and submits: Purabi knew well enough what he was
like and what his family was like. In full knowledge thereof, she
married him of her own accord, with fraud or coercion nowhere near.
Indeed, it was a case of mutual attraction and love culminating in a
lawful marriage.
6. At the trial, Purabi examines herself and her father, Pulak Chandra
Banerjee, Branch Manager of the United Bank of India at Jorhat, Assam;
whereas Basudeb examines himself and two friends of his: Biswanath
Mukherjee and Anup Dutta, witnesses to the marriage on April 26, 1963.
This is all the oral evidence led at and during the trial.
7. The documentary evidence consists mostly of letters written by
Purabi to Basudeb, as also letters to and fro between Pulak Banerjee on
one hand and Basudeb and his people on the other. Exhibit 'F' is the
certificate of marriage dated April 26, 1963, issued under Section 13
of the Special Marriage Act, 1954.
8. The learned trial Judge disbelieves Purabi, believes Basudeb, whom
he refers to as "a bright young man" and by whose frank and
straightforward evidence he is "very much impressed", and finds as a
fact that Purabi "went through the formalities of the marriage knowing
fully well what she was doing". Naturally, therefore, he dismisses
Purabi's petition for annulment of the marriage, treating such a
petition as a suit under the rules of the Court. Hence this appeal by
her.
9. Mr. Chittatosh Mookerjee, appearing for the appellant Purabi,
contends: the marriage under the Special Marriage Act, 1954, is secular
in nature. A marriage as this must be struck down as void, so long as
it is not found as a fact that it has been consented to within the
meaning of the Contract Act, 9 of 1872, Section 13 of which lays down
that there must be consensus ad idem. That is to say, the parties to
the marriage, Purabi and Basudeb, must be shown to have agreed to the
same thing in the same sense. But that is far from the case here.
Basudeb took it as a conclusive marriage. Purabi did not. She took it
only as a step to obtaining the consent of her parents to the marriage,
which was to come later, as she was given to understand by fraud
practised upon her by Basudeb. Fraud apart on the date of the marriage
and before, she was a victim to coercion too. Basudeb had coerced her
so, by threatening that he would put an end to his life and hers as
well, if she would not agree to marry him. That being so, free consent,
real consent, on the part of Purabi, is not simply here. Consent, such
as it is here, is, therefore, vitiated by fraud and coercion by the
conjoint operation of Sections 14, 15 and 17 of the Contract Act, 1872,
and the impugned marriage cannot stand.
10. If the premiss upon which Mr. Mookerjee rests his contention is
right, the conclusion he comes to, the, conclusion he asks us to draw,
must be equally right. Section 25 of the Special Marriage Act provides
just so:
"25. Voidable Marriages -- Any marriage solemnized under this Act
shall be voidable and may be annulled by a decree
of nullity if--
*****
*****
(iii) the consent of either party to the marriage was obtained by
coercion or fraud as defined in the Indian Contract Act 1872."
But is the premiss right? Can it be said upon evidence that Purabi's
consent, as we find here, has been vitiated by fraud and coercion?
That is the point debated before us, Mr. Bhose, who appears for the
respondent Basudeb, contending that, upon the whole of the evidence,
Purabi's consent is free, and nothing but free. That she backs out
later, concludes Mr. Bhose, is wholly irrelevant.
11. To fraud first. The allegations on that admit of a clear dichotomy:
(i) what was said and done by Basudeb before April 26, 1963, the date
of the marriage, and (ii) what was said and done by him on April 26,
1963, the date of the marriage.
12. The allegations about Basudeb's misdeeds, before the date of the
marriage, may be noticed one by one. In December 1962, only four months
after he had started coaching Purabi, he broached to her a topic as
this: "what do you want your husband to be like? Through Asim (Purabi's
Nantuda) your mother wants me to ascertain your wish". Purabi replied
that her parents' choice was her choice too. But she confesses, she did
not ask Asim, her Nantuda, if he had told Basudeb anything about her
marriage. Not that any fraud lurks here. It does not. But Basudeb was
only breaking the ice and preparing the ground for further and still
further talks on the question of Purabi's marriage, though it was none
of his business, a mere private tutor on Rs. 35 a month as he was.
13. During the Christmas of 1962, Basudeb, it is said, did a lot of
puffing before her pupil Purabi. Going to England for higher education
early in 1963, his mother determined to send him so, his father, then
dead, was the Deputy Chief Accounts Officer of the South Eastern
Railway, as set out in paragraph 6 of Purabi's petition, or the Chief
Accounts Officer, as stated in her evidence, holding vast properties in
different parts of Calcutta, Bhowanipore and also at Howrah, his eldest
brother being a big shot, he too would be going to Durgapur soon enough
on a much better job -- such was the self-laudation Basudeb is said to
have indulged in before his pupil. Worse, at or about this time, he
reverted to the topic of marriage again -- his own marriage though. His
mother would marry him before he would be leaving for England, Various
proposals from distinguished families of Calcutta were coming for his
marriage. But he had nothing but disdain for them. What he was after
was a homely bride of his choice and that too from a middle-class
family: just the family Purabi belongs to; taking care to add to Purabi
at the same tune: "Your manners are most charming and yet homely but
without any taint of artificiality."
14. But Purabi did not swallow such talks, though they were meant to be
swallowed by her. She chafed them, as she says on cross-examination,
and said to Basudeb: "Coach me. Speak not about these things". That,
however, did not daunt Basudeb. Towards the end of January 1963, he
east off all pretext and said to Purabi straightway: "What say you if I
offer myself to your parents to marry you?" Purabi resented it and
replied: "Get on with my lessons and write to my parents if you like".
15. This is an outline of all that Basudeb is supposed to have said and
done before the date of the marriage on April 26, 1963, so far as
allegations of fraud are concerned. Basudeb denies that he had stated
or done anything of the kind. The question, therefore, is: who is to be
believed -- Purabi or Basudeb? The trial Judge, the Court of facts,
believes Basudeb and disbelieves Purabi. No doubt, he has an advantage
over us, in that he has heard and seen them both, whereas we are
dealing only with "the dead body" of the evidence. All the same, ours
is a Court of facts too. So, to go that way only will be to indulge in
scamping. Are there any other matters on which we can conclude whether
the trial Judge is right or wrong? There are; not one, not two, but
many. To notice what they are, we now proceed.
16. Purabi used to address Basudeb as Tumi, as she herself admits on
cross-examination and as her letters, one after another show. That is
not the normal way of a pupil addressing her teacher. Basudeb in turn
used to address Purabi as 'Rubi': the shortened name to which, Purabi
admits on cross-examination, she responded, and with so much warmth
too, as would presently be seen. What is seen, therefore, is not the
relation simpliciter between a pupil and her teacher. What is seen
instead is much more. But how much more? Let Purabi's letters,
supplemented by oral evidence where necessary, answer it:
(i) On November 16, 1962, Purabi presented Rabindra Nath Tagore's
Purabi to Basudeb with a distich written in her own hand, a specimen
indeed of fine penmanship. Rendered into English, the distich, and
that follows read: On the path of journey
These few days' acquaintance Yet the mind's lyre plays the Tune of
remembrance:
Your Rubi,
16-11-62: Ext. E(1).
She did not stop writing this distich only. She also wrote on the
next page of the book, in its vacant space:
"To one from whom I received very particular help in my last
examination of the great university -- to the lotus like hand of
that great one with a good heart and that of a friend too -- I lift
this book, the very title of which will serve as my introduction:
16-11-62
Calcutta 36": Ext. E(2). Purabi denies that she had purchased
Rabindra Nath Tagore's Purabi and presented it to Basudeb. But her
own handwriting, the envy of a calligraphist, belies it. Basudcb, a
mere private tutor as he was, refused to accept the present. That is
what Basudeb says and that is what rings true upon the whole of the
evidence. Such refusal on his part cut Purabi to the quick. But what
did she do? She presented the book once more with a chit, Ext. 'E',
which bears, in the beautiful handwriting again:
"Know you what has been the result of your saying: 'I won't take the
book? Alas! You know not. With great effort, I restrained my tears,
wiping off the residue which I could not, and that too out of your
sight.": Ext. E. Only then Basudeb accepted the present. And who
would not in his position, barring a few, a very few indeed,
directly outside the stress of passion and fixed in calms of lofty
contemplation.
(ii) On January 11, 1963, at 9 p.m. Purabi wrote another chit, Ext.
A (18), to Basudeb:
"(Fountain) pen after (fountain) pen --Looks like a return present
-- eh? This sort of a thing I like immensely. So do you too, I hope.
And 'the epistle you write ****** you will write with this. Is that
not so?"
(iii) Another chit written by Purabi to Basudeb. but undated, reads:
"Oh. It happened. What a tremendous thing. He loves.": Ext. A (16).
(iv) Apparently, Purabi does not like the garment Basudeb puts on
one day. She sends to him another undated chit which bears:
"From tomorrow on, wear not this garment. Nobody will believe that
your hand is not the hand of a woman unless she sees it. So soft
indeed. Around and about there are people and people. Hence this
chit": Ext. A (20).
(v) Still another undated chit, Ext. A (21), written by Purabi to
Basudeb reads:
"Rubi: Rubi. From a great distance came floating a call as this. A
two-lettered name. I liked it very very much, Felt shy about it But
resist it I could not. I heard it with my ears, touched it with my
mind and felt it with my heart. How wonderful. Isn't it ? Who knows
if the mind at one end takes a dip in the waters of the other end.
What think you ? Good gracious! What a shameless girl. When the
moon's rays have spread over everything, you have been caught, my
friend, and so you are a captive of mine." Very truly does Basudeb
say in chief that Purabi liked the name shortened into 'Rubi'. Very
untruly does Purabi say, towards the close of her cross-examination,
she was made to address Basudeb as "Tumi" forcibly. Such a mode of
address in a spate of letters, radiating love and affection, shows
spontaneity and joy, not any manner of a force anywhere.
(vi) One more undated chit, Ext. A (19), written by Purabi to
Basudeb bears:
"Tomorrow do wait between 2 and 2-15 p.m. with tickets for "Bhranti
Vilas" (Comedy of Errors) -- eh? Do not get angry. My body burns in
anger."
17. Interrupting the review of Purabi's letters and chits -- many more
remain to be reviewed yet -- let her admission, on cross-examination,
about some of those that go before, be recalled:
"All these small chits were written for Basudeb: Exts. A(18) to
A(22):"
A(22) is a mistake for A(21) which was originally marked as Exhibit
A(22), presumably through mistake, as the marks put on the exhibit
itself and the list of documents admitted in evidence, go to show. But
Purabi explains that she did not understand the implication of writing
letters to Basudeb and that she had lost her balance then. The second
explanation may be true. Desperately in love with Basudeb, she did
exhibit imbalance. But the first explanation that she, a girl of 23, as
she herself admits, and an undergraduate student at that, reading in
the 4th year B.A. class, did not understand the implication of writing
such amorous letters, is apt to draw largely on the belief of a prudent
man.
18. To the letters again.
(vii) Love offered by Purabi and accepted by Basudeb, the consent of
Purabi's parents was thought necessary, and very rightly too.
Indeed, Basudeb raised the matter. Purabi thereupon asked him to
write to her mother a letter which was drafted by Purabi in that
unmistakable, beautiful handwriting again. It was so drafted perhaps
in the first week of March 1963, as is Basudeb's evidence. A draft
as this, marked Ext. A(7), over the signature of 'Basu', written by
Purabi, to the address of her mother, referred to here as Masima
(auntie) shows Basudeb as the supplicant for Purabi's hand and makes
the following amongst other points:
1. A note as this will take you by considerable surprise.
2. Purabi's examination is drawing close and my responsibility too
is about to come to an end.
3. I have landed myself in a new job at Durgapore. My prospects
there are so good.
4. As I am about to part from her, I discover that she has become
mine, unknowingly though. You may perhaps think that I have misused
the affection and trust you have reposed in me. But, believe me, no
sin pollutes my mind.
5. I have thought and thought, Purabi I do want. So I entreat you
only for this little, and nothing else: do give me Purabi.
6. Rest assured -- and so I say with emphasis -- never, never, she
will have to suffer lack of care in my hand. I have not stated
anything to her. On your part, do not say anything which may harm
her examination.
7. You know how my home is like. My mother has no objection. Asimda
knows not anything about it. You are the first person whose consent
I seek.
8. Perhaps, you want to give Purabi to a much better and bigger
groom. But, my dear auntie, is not the peace of mind itself a big
factor (to be taken into reckoning)? Purabi's mind and heart is such
that verily I can make her happy. So I hope. And for that only I get
into this job at Durgapore.
9. Pray, do not take me amiss. Such then is the draft in Purabi's
unmistakable handwriting. And even in chief, she admits so:
"I made a draft of a letter to be written by the respondent to my
parents." So she did, "as she said she knew the temperament of her
parents", just what Basudeb says in chief.
There is another draft made by her, Ext. A(8), in the nature of a
reminder by Basudeb to Purabi's mother, the burden of which is the
same: Purabi is mine. Pray, give her to me.
(viii) On Baisakh 6, 1370 B. S., corresponding to April 19, 1963, or
thereabouts, only a week ahead of the marriage on April 26, 1961,
Purabi wrote on a khata (exercise book) this to Basudeb:
"Basu,
I am bankrupt today by giving you all. Now on, all songs will be
ringing through the holes of the flute of my heart.
But who knows in whose quest you wander about by setting fire to all
your days. Who makes you weep so overwhelmingly you love.
Your Rubi." Ext. E(3). Such a letter, the last one before the
marriage, as also all others, get into evidence without objection
and the formal proof having been waived, as the trial Judge's
endorsement in the 4th column of the list of exhibits admitted in
evidence goes to show. The suggestion to Basudeb, on
cross-examination, is that he had purchased the khata on which
Purabi proclaims her bankruptcy by pouring out her heart to Basudeb.
Say, he did, though Basudeb denies the suggestions. But did he
purchase her handwriting too and the ringing note of love? In a way,
he did. If it was a purchase, it was a purchase for the
consideration of love. But he did not forge her handwriting. And for
all we see, Basudeb is incapable of writing such beautiful language
which Purabi can write.
19. This completes our review of Purabi's letters and chits for Basudeb
before the marriage and that too in the light of the relevant oral
evidence. Necessarily, this completes too the first branch of
allegations on which Purabi's case of fraud rests. Such documents speak
for themselves. Purabi was in love with Basudeb. Purabi was mad after
him. Nothing that we see here surprises us. A girl of 23 and a young
man of 28 are closeted together week in week out and for months on end.
It is only to be expected that one will be attracted to the other and
that they will speak of things other than dry lessons in Special
Bengali, Economics and English which were Purabi's subjects for the B.
A. Examination. They did no more. So, if we have to go by such letters
and chits, the consent of Purabi, a grown-up of 23 is writ large upon
them all. Naively does Purabi say that she wrote those love letters at
Basudeb's suggestion with a view to enabling him to produce them before
the members of his family and thereby to introduce her to them. Equally
naive is she when she says that the implication of such letters was not
understood by her. She herself admits that she spoke to her friends
about her writing letters as these to Basudeb. Manifestly, she was
happy and proud that she had one to whom she could write in this vein.
Truly does Basudeb say in Chief:
"Our love was mutual and reciprocal. It was spontaneous."
Again, on cross-examination :
"2/3 months after (i. e. after August 1, 1962) I understood that
Purabi was attracted towards me. After that, I felt attraction for
her. At first I refused to reciprocate the feelings and on that
account I refused the book (Rabindra Nath's Purabi). But
subsequently she made a note and then I accepted it." What the note
is: Ext. E, has been noticed in the foregoing lines.
20. But what has been the basis of this love? Instead of leaving the
two lovers to answer it, our unpleasant duty is to probe the matter and
to find out an answer for ourselves, upon the whole of the evidence If
we find that such love comes through a corrupt polluted channel,
namely, fraud as alleged, we are in duty bound to undo it, no less the
marriage, only a consequence of such love. Upon the whole of the
evidence again, we are clear in our mind that fraud does not pollute
this love. Here are our reasons for the ground covered so far, for the
first branch of allegations on fraud.
One, Purabi did not succumb to the talks of marriage initiated by
Basudeb. On the contrary, she was annoyed and asked Basudeb not to
speak about these things. This is what she says on cross-examination.
Two, she knew well enough that Basudeb passed the B. A. Examination
while serving in the office of the Railways at Sealdah where Asim, her
Nantu-da, was working too. Such a big man's son --the son of a Deputy
Chief Accounts Officer or a Chief Accounts Officer of the Railways --
and with vast properties in Calcutta, Bhowanipur and Howrah, would sit
for the B.A. examination while working as a clerk, instead of having
completed his studies first before entering into service. The
suggestion put to Purabi on cross-examination that Basudeb had to take
a job, before completion of his studies, for want of money, has the
merit of probability in it. And this probability is rendered almost to
a certainty by the evidence of Basudeb that, having toiled as a clerk
in the Co-operative Credit Society of the railways ever since 1955,
where Asim has been working too since 1952-53, he passed the B.A.
examination, 7 years later, in 1962. 'Earn while you study' is a good
motto no doubt. But generally it is for the lowly placed, nor for the
sons of big men. We do not put it any the higher.
Three, what is more, such a one, Basudeb, son of an officer higher up
and having properties here and there in Calcutta and its suburbs, would
be working on a pittance of Rs. 35 a month. To think so is to think
almost the unthinkable. Certainly a consideration as this could not
have escaped the attention of Purabi, aged 23, and the daughter of a
Branch Manager of a Bank on Rs. 1,600/- a month, as her father Pulak
Banerjee's evidence is on his emoluments.
Four, the probability -- and a very great probability at that -- is
that Basudeb did not indulge ever in the vulgarity of displaying wealth
and vaunted pedigree, none of which he had. His father was only an
Assistant Accounts Officer. Indeed, he could not. So it appears to us
as it appears to the learned trial Judge. Because, if he would be aping
greatness which was not his, in fact, he stood the risk of being
exposed by Asim Ganguly, his colleague in the office and Purabi's
Nantu-da, any moment.
Five, Basudeb's evidence is that Purabi knew all too well what his
financial condition was like and where he was working. More, she knew
too that he was not well off. The learned trial Judge accepts his
evidence. So do we. Purabi's denial is no doubt there. But the trial
Judge rejects it. So do we, upon the whole of the evidence.
Six, such evidence of Basudeb receives striking corroboration from what
Purabi says and does. She says on cross-examination:
"I did not ask him (Asim alias Nantu-da) about the pay of Basudeb. I
was not interested in the actual income of Basudeb. I was not
interested in the property of Basudeb."
This sounds true. She was Interested only in Basudeb's love. And what
does she do ? Her evidence on cross-examination is the answer:
"I went to Sibpore in December 1962 ......... Basudeb used to stay
at Sibpore."
6 Ambika Ghosal Lane at Sibpore is Basudeb's home. So, Purabi has had
the opportunity to see what his lover's home was like -- a palace or a
hovel.
Seven, the tall talks about going to England for higher education
which, going by Purabi's evidence, come to a Course in Librarianship,
no less about getting a lucrative job as a junior officer at Durgapore
with a free house -- talks which Purabi attributes to Basudeb -- have
produced disbelief in our mind, as they have produced disbelief in the
mind of the learned trial Judge. Such a one, a mere clerk in the
railways and a private tutor on Rs. 35 a month, would not ordinarily
dream even of going to England for higher studies. Basudeb, the whole
of the evidence completely satisfies us, had not dreamt so either. Far
less had he given airs in that fashion to her pupil. Here also
Basudeb's evidence In chief, without any cross-examination on the
point, tells:
"I told Purabi that I went to Durgapore as Upper Division Clerk. I
never told her that I was going there as Junior Officer."
The draft letter in the hand of Purabi, Ext. A(7), for example, to her
mother, prepared for Basudeb, noticed already, tells all the more. Not
a word is there about Basudeb's going to England or joining the post of
a junior officer at Durgapore. Only a job at Durgapore with good
prospects is referred to. The post of an Upper Division Clerk has
certainly prospects. By the way, Purabi's father, Pulak Banerjee,
started his career on Rs. 16 a month (or Rs. 60?) and now gets Rs.
1,600/- a month. And Basudeb did get the Durgapore post he was speaking
of. On this point, there is a little more in that draft. Basudeb
confesses, as Purabi puts it, that there are grooms for Purabi far more
deserving than he. So no extolling you find here. What you find is
recognition of Basudeb being not much in status and the like.
21. The appellant Purabi cannot, therefore, succeed on the first branch
of allegations she makes, with a view to establishing fraud on the part
of Basudeb. We are completely satisfied upon the whole of the evidence,
as the learned trial Judge is, that Basudeb did or said nothing which
smacks of fraud. It is just an ordinary case of mutual attraction and
love, for which neither Basudeb nor Purabi, placed as they were, is
much blameworthy, save that Basudeb, if he continued in his refusal to
accept Rabindra Nath's Purabi and all that followed, would have gained
indeed an enviable stature.
22. Before the second branch of allegations charging Basudeb with fraud
is taken up, Purabi's complaint about coercion may be examined. And her
complaint is: early in February 1963, Basudeb offered to coach her
every day instead of three days a week. Purabi appreciated the offer
which, however, was turned into activities of a different sort:
proposals to save her from the tyranny of her mother and brother and to
agree to marry him, accompanied by threats all the time that should she
not come to his aid, he would put an end to his own life and hers too.
That embarrassed her and made her look so small, in case she would fail
to stop what she was threatened about. Such Is the averment in
paragraphs 10 and 11 of her petition for a decree of nullity. Such is
her evidence too. But asked by the Court why she did not bring this to
the notice of her guardians, she gave no reply. Basudeb, in his sworn
testimony, denies he had ever said so. Not that he spoke never of
suicide. He did, but in a different context. Marriage over, he went to
Durgapore where everybody knew that he was married. Should anything
happen to the contrary, he might have said that he had no other
alternative but to commit suicide to save himself from humiliation. But
that is not coercing Purabi into marriage. That may well be coercing
Purabi not to run away from the marriage, an accomplished fact.
23. As between the two versions -- one of Purabi and another of Basudeb
-- we prefer, upon the whole of the evidence. Basudeb's to Purabi's. Of
the letters and chits reviewed so far, at least two are after February
1963. One is that draft, Ext. A(7), by Purabi in the first week of
March 1963, with a view to helping Basudeb to write so to her mother
whose temperament she was familiar with, and eo naturally too. Had she
been coerced, as she alleges she was, she could not have brought
herself to make so excellent a draft. The other is that that writing in
the khata, Ext A(3), by which she gives her all to her beloved,
Basudeb, proclaims her consequential "bankruptcy", and speaks of all
her songs ringing thenceforth through the holes of the flute of her
heart. One coerced does not, and, indeed, cannot, write a letter as
this. On this alone, it can be held in safety -- and it is held so --
that coercion is nowhere near. And then, as we review in due course the
remaining letters written by Purabi to Basudeb, after their marriage on
April 26, 1963, it will be clearer still that nothing like any coercion
was there or could be there.
24. Because of such patent consideration it is hardly necessary that we
deal in detail with what coercion at law is. But only this may be said.
By the conjoint operation of Section 25, Clause (iii), of the Special
Marriage Act, 1954, and Section 15 of the Contract Act, 1872, coercion,
in the context of facts here, would mean threatening to commit any act
forbidden by the Penal Code. To put an end to Purabi's life -- and that
is one of the threats given by Basudeb, as Purabi alleges, wrongly
though -- is to kill Purabi outright. That is certainly an act
punishable and forbidden too by the Penal Code. To commit suicide --
the other alleged threat Purabi attributes to Basudeb, wrongly again --
is certainly not to do an act punishable by Penal Code. Suicide no
doubt is self-murder. But one committing suicide places himself or
herself beyond the reach of the law, and necessarily beyond the reach
of any punishment too. But it does not follow that it is not forbidden
by the Penal Code. It is very much indeed. Section 306 of the Penal
Code punishes abetment of suicide. Section 309 punishes an attempt to
commit suicide. Thus, suicide as such is no crime, as, indeed, it
cannot be. But its attempt is; its abetment is too. So, it may very
well be said that the Penal Code does forbid suicide. Thus, the two
threats Purabi attributes to Basudeb will amount to coercion at law.
But her difficulty is that what she attributes to Basudeb has not been
believed and is not capable of being believed either, upon the whole of
the evidence.
25. Now the second branch of the allegations on the basis of which
fraud is sought to be foisted upon Basudeb, is being taken up. Purabi's
B. A. Examination for which alone Basudeb could come in contact with
her, was over on April 24, 1963. And only two days later, namely, on
April 26, 1963 the marriage of Purabi and Basudeb was solemnized under
the Special Marriage Act. This is how it happened, according to Purabi.
The very day her examination was concluded, Basudeb called on her at
their Barrack-pore Trunk Road residence and asked her to come over to
the office of the Marriage Registrar at Wellington Street to sign some
papers, which if signed, would facilitate obtaining the consent of her
parents. It was also arranged that Purabi would report herself at the
United Coffee House, Shymbazar, on April 26, 1963, "at noon". She did
just so, only to be taken to the Wellington Square Office of the
Marriage Registrar, where she signed some printed sheets, in presence
of others whom Basudeb introduced as his office friends, but without
understanding that thereby she was marrying Basudeb. She asked not a
word to the marriage officer about the papers she was signing. She
believed on the other hand that she would get the consent of her
parents if she signed the papers.
26. Basudeb denies the allegations. His version is that Purabi came to
the marriage officer's office of her own on April 26, 19C3. She took
the requisite oath. Other formalities were gone through as usual.
Purabi signed the papers of her own free will in a complete
understanding of what she was doing. Marriage solemnized so, Purabi
told him that she would inform her parents about the marriage.
27. In such evidence, Basudeb is supported by his office colleague and
friend for the last 8 years, Biswanath Mukher-jee, his second witness,
he being the first, and also Anup Kumar Dutta, another friend of his,
an employee of Metal Box & Co., and the third and last witness on his
behalf. Both of them say, Purabi came alone. Whereas Biswanath says
that Purabi came perhaps in a taxi, Anup does not give vent to such a
doubt and states that Purabi Devi came alone in a taxi. How Purabi
came, alone or escorted by Basudeb, does not appear to be so important.
What is really important is whether any deceit was practised upon her
in obtaining her signatures or her signatures were her mental acts as
they were her physical acts. Both these witnesses are definite that
Purabi fully understood that she was being married and that she was
marrying of her own free will.
28. Nothing that we see can enable us to disbelieve such evidence.
These two witnesses are no doubt friends of Basudeb. But they are the
most natural witnesses. Who else would witness such marriage except
friends? Certainly, strangers would not be brought in as witnesses. It
is said that offices were open that day. Could they have, therefore,
witnessed the marriage? But it is too late to say so now. Nothing like
any attempt has been made at the trial to show that they were present
in their respective offices throughout the day on April 26, 1963,
29. Again, Biswanath Mukherjee's address is 4A, Bejoy Mukherjee Lane.
And Basudeb admits having given that address before the Marriage
Registrar, presumably in the notice of intended marriage under Section
5 of the Special Marriage Act, 1954, read with the Second Schedule
thereto, where there are columns for specifying the address of the
parties intending to marry. The marriage certificate, Ext. (F), does
not contain any such column nor any address. Basudeb says that he was
then residing at 4A, Bejoy Mukherjee Lane and, therefore, gave that
address. On behalf of the appellant we have been addressed on this. But
why? What hinges on it? The question of notice is not at issue at the
trial, presumably because, as rightly pointed out on behalf of the
appellant again, of Section 13, Sub-section (2), of the Special
Marriage Act, 1954, by virtue of which the certificate of marriage we
see before us, Ext, (F), shall be deemed to be conclusive evidence of
the fact that a marriage under this Act has been solemnized and that
all formalities respecting signatures of witnesses have been complied
with. So there the matter should rest, save that the following from
Purabi's evidence on cross-examination may be recalled:
"At that time (26-4-63) I had willingness of marriage."
30. In sum, agreeing with the learned trial Judge, we accept the
evidence of Basudeb and his witnesses, reject that of Purabi.
self-defeating as it appears to be, though it pains us to say so, and
find as a fact that Purabi did marry Basudeb on April 26, 1963, under
the Special Marriage Act, 1954, before Marriage Officer P. K. Basu in
his office at 38/2, Wellington Street, Calcutta.
31. A conclusion as this is strengthened so much the more by letters
written by Purabi to Basudeb after their marriage on April 26, 1963.
Here is a review of these letters in order of date.
32. I, May 16, 1963: Exhibit A(1). An inland letter written by Purabi
to Basudeb in his Shibppre address: No. 6 Ambika Ghosal Lane, it begins
thus:
Oh the uncultured one.
Oh poor fellow, what a suffering: Not seven, not five; no; only one
wife. Now I shall hear you beginning to sing:
'Oh my beloved, how long shall I be waiting.'
The Bengali word used is "Bau". Purabi says in her evidence, she
knows, as indeed she must, "Bau" means wife. Then, the writer of the
letter Purabi counsels patience, because of her inability to come
every day, suggests visiting the pictures on Sunday in order to see
the film 'Nirjan Saikatey' (Lonely Beach), and goes on:
"Well, auntie was asking me yesterday : Have you loved anybody? I
said, I will let you know when I do." Purabi writes of her getting
darker because of her moving about in the sun, asks Basudeb to wait
for her on Friday at 4 p. m, at the meeting place, and reports of
Nantu-da's desire that she should now go to Jorhat (where her
parents are), adding:
"Yes. I go this time. And that will enable me to talk things over.
Nantu-da said too that the next stage was registry. Alas. Poor
Nantu-da." Purabi is, therefore, anxious to broach the topic of her
marriage before her parents and makes a fuss of Nantu-da's ignorance
of their marriage having been registered already under the Special
Marriage Act, 1954, some three weeks ago. Purabi then explains: why
this letter--
"Not sure whether I can speak you on the telephone or not. Hence
this letter." Thereafter she enquires of Basudeb's health and
concludes:
"Write off the laws on the subject of falling into love. As for me,
I adopt myself, even though I suffer and suffer. Because you are
with me and in me, in my bed, in my dream, and in my waking hours
too. Using the handkerchief? Take off the grease by washing it in
water, else your face will burn. What more shall I write? From afar,
here goes of my own a flying wee thing. Taking it? Rubi: yours and
yours alone. 16-5-1963."
33. Does a letter as this bear the marks of fraud, coercion and deceit
in the recent past, of which we have heard so much? It does not On the
contrary, Purabi acknowledges herself to be the wife of Basudeb and
renews her love to him with redoubled warmth, in a language which is
all her own and shows her to be a talented young lady.
34. II. May 22, 1963: Ext. A(2).
Here is another inland letter written by Purabi to Basudeb to his
Sibpore address. The points worth noticing here are-
1. An appointment again with Basudeb between 2 and 2-15 p. m., so
that she may not return home late at night --which makes people at
home laugh at her expense.
2. Let not Basudeb's mother tell Nantu-da that she had been to
Basudeb at Sibpore all to herself.
3. An auntie was asking her: Why did she go to Sibpore. She
answered: for nothing particular. The rest of what happened she will
tell Basudeb when they meet.
Then the letter asks for Basudeb's Durga-pore address, enquires of his
health and runs:
"Yesterday night, while seated on the roof, I sang and sang, and
fourteen songs at that one after another. After a long, long time, I
sang so many songs. Growing jealous -- eh? ............ Beware. Do
not venge me by doing something in the extreme on Saturday. If you
do, you will have your deserts. Understand? ..." Then the letter
concludes with these two well known lines of Rabindra Nath that
rhyme with each other:
To give you something my mind yearns No matter whether you need it
or not.
34A. This letter also evidences neither fraud nor coercion. It
evidences instead a loving wife out to make her beloved happy in spite
of the great handicap of a clandestine marriage they have gone through,
without the girl's parents and relations knowing anything about it. And
what is apt to arrest one's attention is Purabi's reference to
Basudeb's possibility of doing something in the extreme, for which he
is warned in a lovely manner, only becoming of a wife, forced to keep
her wifehood in secret. Herein lies the answer to the appellant's
contention that the marriage has not been consummated. It has not been
consummated because of difficulties all around fostered by the secret
marriage. Not that it has not been consummated, because there has been
no marriage, as the contention is. And for such restraint, both Purabi
and Basudeb deserve unstinted praise.
35. III. May 29, 1963: Ext. A.
Basudeb has gone to Durgapore to join his post as Upper Division Clerk,
not a junior officer. The distance between Barrackpore Trunk Road and
Durgapore is greater than the distance between Barrackpore Trunk Road
and Sibpore. So Purabi addresses Basudeb as Sudurikeshu: one who is so
far off. The longer distance makes the letter longer too. Purabi has
seen Basudeb off at Howrah Station. So the letter begins:
"Well, the train steamed off. By-and-by your image become reduced to
a point."
Apparently, Basudeb, just as the train started, burst into some sort of
inelegance, going by the standard of the families he and Purabi belong
to. So, she comments:
"Well, say why you are so uncultured: Just at the time of leaving,
oh, the scene you created, even though mother was there. Even
Nantu-da said, it was not right for you to do so." Purabi enquires
about the new place (Durgapore) and comments:
"Today you are not by me, I am not ashamed to confess, right from
Sunday night I am in a slough of despond. I feel like addressing the
people of the universe thus: 'Mon ami, Bring him back to me'. Do you
know the meaning of Mon ami? A French word this, meaning: I love
you."
In that Purabi does not seem to be quite correct. The French words
do not mean just that. They mean: my friend. Be that as it may,
Purabi is pining for Basudeb. Somewhat of a lonely house on Monday
morning and the opportunity afforded thereby tempts her much too
much to call Basudeb on the telephone. Then off to Nantu-da again:
"Do you know Nantu-da doubted and doubted for a long enough time
whether our affair is true or not. To get rid of his doubt, he asked
me again." What is it that Purabi alludes to here? What can it be
save her marriage with Basudeb which she regrets not, but affirms,
in a veiled manner though? The love-lorn Purabi then gives a graphic
description of how she is passing her days:
"That day, that is, on Tuesday night, I dreamed: 'Reposing my head
on your breast, I have been lying. And you? You are fondling my
head."
Purabi then entreats her darling to live with care and nicely too,
free from worry and anxiety, not being extravagant in his expenses,
restraining his temper, and not to be so outspoken. She writes too
about her girl friends, Arati, Manisha and another, the jealousy
they have for her success, she alone being the victorious amongst
the four, and Manisha taunting her for her outburst: "My mind is
restless always. To me the world has become a desert." -- to which
Manisha replies: "Alas, the world is full of trees and plants. And
still you call it a desert". Dealing with other matters which are
not material for the purpose of this unfortunate litigation, this
letter of Purabi to Basudeb runs:
"(i) I am thinking, I inform Haridas about our affairs. How long
will that poor fellow live in hope for me?
(ii) Arati said: Your very look makes me feel that you have done
everything. Manisha retorted: Everything happens, if there is
everything.
(iii) Well, from you I have not kept back anything that can be
given." Purabi concludes the letter, subscribing herself as "Your
Purabi", but adds a post-script, stating amongst other things, how
nice it would be if Basudeb could come on Saturday and singing:
"Rubi who is yours and yours alone."
36. Here also, in a letter written on May 29, 1963, a little more than
a month after the marriage on. April 26, 1963, we find not even a
soupcon of a suggestion that Purabi signed the relevant marriage papers
without understanding that she was actually marrying Basudeb, or that
she was led into the marriage by fraud and coercion. On the other hand,
all that she writes is so consistent with her marriage, an accomplished
fact by then.
37. IV. June 10, 1963: Ext. A(3).
(Perhaps this letter -- a dateless one --was written a day earlier. The
date: June 10, is being spelt out from the postal stamp upon the
envelope.)
Purabi here goes a step further, as indeed a wife does, and addresses
Basudeb, now at Durgapore, as Pranpratimesu: one who is as dear as life
itself. She begins:
"It is no longer possible for me to address you by name. How shall I
address you then?"
Then she refers to Basudeb having left the other day, and continues:
"Well, you went away the other day, and I remained full both in body
and mind. A nightlong dream I had: I am lying with my head right on
your breast and you are caressing my head with your palm, but
without teasing me."
As many times as I think of it, my body shivers and my heart shakes".
Has Purabi a premonition of the bad days to come? Because she also
writes:
"Well, if you do not get me, then you will say -- will you not:
'Well, she is ............ I have got her first'. Know not what is
this and what will it be." Premonition over, Purabi continues:
"Only one thing rings in my ears. Let the whole world testify
against me. Still you are mine." So then concludes:
"You have been with me these few days. I am not alone: Accept
whatever you like.
Rubi who is yours and yours alone."
38. V. June 10, 1963: Ext. A(4). Basudeb has come and gone back to
Durgapore. Therefore, Purabi is anxious to know whether he has arrived
safe or not, by having availed himself of the early morning train in
the midst of an inclement weather. She is leaving for Jorhat that day.
That is why, she says, the sky and the air are weeping. Between this
newly married couple some exchange of ideas must have been there, as is
so natural, during Basudeb's last visit to Calcutta from Durgapore,
about their future plan of unfolding the marriage to Purabi's family.
Purabi is, therefore, apprehensive:
"For Heaven's sake, do not go back now. I shall then lose my face."
Going back upon what? Not upon any promise to marry, because
marriage is eome 45 days old by now, but upon the marriage itself,
lest perhaps Purabi's conservative parents at Jorhat, for which
place she is leaving today, when told all about it, revolt against
the very idea. Such apprehension on the part of a girl of 23, who
has taken the great risk of marrying Basudeb without her parents'
approval, is only to be expected. Then, Purabi complains of
dullness, cautions Basudeb to take care of his health, not to stir
out at night etc., conveys him "much love, good-wishes, and
something else", and concludes her letter. What that something else
is plain to be guessed.
39. VI. June 23, 1963: Ext. A(5).
Purabi is at Jorhat now, under the care of her parents far, far away
from Sibpore, Durgapore and Basudeb too. Still she writes to Basudeb at
his Durgapore address: "from under the curtain in darkness" and conveys
the joyous news:
"Parents have agreed. Indeed they had to." She apprehends trouble
too:
"Now the only fear is Mamu Sona (a maternal uncle called so in
endearing term). He is always after creating troubles."
Then she advises Basudeb how he will reply to her father's letter
which will greet him soon. She says too, Basudeb's mother do write
expeditiously as well, so that the ground which is now prepared may
yield result and the marriage over again under the Hindu rites --
that is the term on which her parents have come down -- may be
performed as soon as possible.
40. VII. July 28, 1963: Ext. A(6).
Purabi has come back to Calcutta. Her father has come back too and gone
to Basudeb's Sibpore residence. The asirbad ceremony is arranged for.
In this context, Purabi writes to Basudeb giving all sorts of advice:
1. The two teeth of Basudeb are to be extracted. Indeed, Basudeb
himself had said one day he would.
2. He must have a hair cut so that no hair reaches the neck.
3. He is not to invite his office friends, meaning, presumably,
those who were witnesses to her marriage on April 26, 1963.
4. Basudeb will have to remain silent so that none from her side
can, speak ill of him.
July 31 is Basudeb's birthday. So Purabi conveys him her love, good
wishes and also that which makes him so happy. But she makes one
importunity. She will come back on the day following the 15th, that is,
August 15, 1963: the date of a formal function at Basudeb's. The night
of the 15th will pass off somehow.
41. Here ends our review of Purabi's letters. Pulak's letters, and
letters from Basudeb. his mother and his brother Shyama Charan to Pulak
are there too. They do not call for an elaborate review as goes before.
Pulak's letter to Nantu dated June 17, 1963, Ext. A(17), is there too,
calling for detailed information about Basudeb and stating that after
the marriage registered under the Special Marriage Act, he has to go in
for a ceremony of marriage under the Hindu rites, if only to maintain
the show of a marriage for his prestige and the like. Suffice it to
note that the asirbad ceremony of Basudeb is over. He is presented with
a watch too on that occasion, as is the evidence of Pulak himself. The
date of the marriage under the Hindu rites is fixed too: August 13,
1963. But on return home after performing the asirbad ceremony of
Basudeb, Pulak does not find Purabi She has gone to Serampore at her
maternal uncle's place, Mamusona again. Pulak and his wife bring their
daughter back to Calcutta. Purabi has then changed. She says, there has
been no marriage. Pulak, therefore, cancels the marriage to be held on
August 13, 1963. The date he does so is August 3, 1963, as he says. He
is asked to reconsider it. But he confirms his previous decision by a
telegram sent on August 8, 1963, 'Ext C(1):
"Cancellation of Purabi's marriage made on third instant stands.
Regret inability to reconsider."
So much love ends up so abruptly. Why this crisis in marriage? Evidence
gives no clear answer. And we leave it at that with a heavy heart.
42. Nothing more need be said, though a lot more can be said yet.
Because, upon all that goes before, there can be one and only one
finding of fact: that neither fraud nor coercion vitiates the impugned
marriage. It is the natural culmination of mutual and spontaneous love
between Purabi and Basudeb, Purabi having consented to such marriage on
April 26, 1963, of her own free will, and in full understanding that
she was marrying Basudeb that day.
43. In the circumstances, non-examination of Asim alias Nantu or
Marriage Officer P. K. Basu, made a point of on behalf of the
respondent, appears to be neither here nor there. The more so, as it
appears, upon evidence, that Asim is now siding with Basudeb, That
apart, he Court may draw a presumption adverse to a party which does
not call material witnesses. Not that the Court must. Here, upon the
whole of the evidence, the Court will not. Equally barren is the
contention on behalf of the appellant that Purabi comes of a very
conservative family -- a background which, it is said, the trial Judge
has lost sight of. But, evidence is overwhelming that Purabi did marry
Basudeb of her free will on April 26, 1963, no matter the type of
family she comes of. Another criticism of the judgment under appeal is
that the learned Judge refers to Purabi as one having been habituated
to the company of men, studying as she did in a co-educational
institution: the Scottish Church College. The learned Judge might have
perhaps spared himself this sort of a remark, even though Purabi
herself refers in her letter dated May 29, 1963, Ext. A, to one Haridas
as her first love. But that cannot alter the main conclusion, the trial
Judge has come to, by a jot or a title.
44. The authorities referred to on behalf of the appellant cannot take
her far. In Mehta v. Mehta, (1945) 2 All ER 690, an English girl went
through a ceremony of marriage in Bombay with an Indian, the ceremony
having been conducted in Hindustani, a word of which the girl did not
understand and so naturally too. She took the ceremony as one for her
conversion to Hindu faith only, to which she had previously agreed.
Though a certain amount of naivety is seen on the part of the girl in
disclaiming such marriage for which indeed she had come to Bombay all
the way from England, can the ratio of this decision be assimilated
here ? Can the facts of this decision be predicated of Purabi, a
Bengali girl of 23, knowing English well enough, and going through a
ceremony of marriage, every part of which she understood, and at the
end of which she signed in English? Clearly, a negative answer is
indicated. In Kelly v. Kelly, (1933) 148 LT 143, the Jewish girl
regarded the ceremony as a form of betrothal only, and no more;
certainly not as the Jewish religious ceremony which would make her and
the respondent husband and wife. Say that or anything like that of
Purabi here? That is unsayable in the context of the wealth of facts
discussed in the foregoing lines. Again, the girl in (1933) 148 LT 143
went to her home in Scotland after the betrothal ceremony and she and
the respondent never co-habitated. Here also, upon evidence Purabi and
Basudeb never cohabitated. No doubt, Purabi's letter dated May 22,
1963, Ext. A(2), to Basudeb contains a racy reference to it, indirectly
though. But that appears to be of the least materiality. What is of the
utmost materiality is that the parties went through a lawful ceremony
of marriage on April 26, 1963. That is enough, cohabitation or no
cohabitation. In Sandip Kumar Sinha v. Joyoti Mitra, F. A. No. 651 of
1964 (Cal) -- a decision rendered by A. C. Sen and A. K. Das, JJ., on
July 28, 1965, and not yet come into the reports, on facts it was found
that Joyoti's consent to the marriage under the Special Marriage Act,
1954, was obtained by coercion and fraud, some love-letters
notwithstanding. Sure enough, a case cannot be an authority on a point
of fact: Neta Ram v. Jiwan Lal, . So, we leave it at
that. Quoting Tolstoy on the Law and Practice of Divorce, 6th Edition,
page 112, it is emphasized on behalf of the appellant, and very rightly
too, that the test to go by is real consent. But that is just what we
find, upon the whole of the evidence, as the learned trial Judge does.
45. In the result, the appeal fails and be dismissed. This is, however,
pre-eminently a fit case where each party should bear its costs. We
order so.
S.K. Datta, J.
46. I agree.
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