Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 42 (CAL)

PRABHAT KUMAR CHAKRABORTY v. PAPIYA CHAKRABORTY

2003-02-04

ASOK KUMAR GANGULY, DEBIPRASAD SENGUPTA

body2003
DEBIPRASAD SENGUPTA. J. ( 1 ) THIS appeal is directed against the judgment and decree dated 31. 7. 2000 in Matrimonial Suit No. 256 of 1995 whereby the learned Additional District Judge, 2nd Court, Howrah decreed the suit for dissolution of marriage in favour of the wife. ( 2 ) TITLE Suit No. 114/92 was Wed by the present respondent/wife praying for dissolution of her marriage with the present appellant Prabhat kr. Chakraborty on the ground of cruelty and desertion. ( 3 ) THE Suit No. 194/92 was filed by the present appellant/husband against the respondent/wife praying for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. ( 4 ) BOTH the suits were tried analogously. The suit for restitution of conjugal rights filed by the husband was decreed and the suit for dissolution of marriage filed by the wife was dismissed. Both the suits were thus disposed of by delivering one judgment on 28. 1. 94. ( 5 ) AFTER expiry of more than one year from the date of the decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, the wife/respondent filed a suit for divorce on the grounds contained in Section 13 (1a) (ii) of the Hindu Marriage Act alleging that there has been no restitution of conjugal rights between the parties for period of more than one year after the passing of the decree under Section 9 of the Hindu Marriage Act on 28. 1. 94 and therefore the wife/respondent was entitled to a decree of divorce. It was further case of the wife/ respondent that after the decree for restitution of conjugal rights the husband/appellant never made any attempt to take back the wife. The wife suffered a fracture in her right leg and was admitted in the S. S. K. M. Hospital. Calcutta and she was under treatment from February, 1994 to December, 1994. Although this fact of fracture was known to the husband/appellant, he did not care to visit her or to take any information about her illness. According to the wife/respondent the husband/ appellant had no honest intention to resume the matrimonial relation after the passing of the decree for restitution of conjugal rights. On the contrary the appellant's mother and sister instituted a money suit being no. 5/93 in the court of learned Assistant District Judge, 2nd Court. According to the wife/respondent the husband/ appellant had no honest intention to resume the matrimonial relation after the passing of the decree for restitution of conjugal rights. On the contrary the appellant's mother and sister instituted a money suit being no. 5/93 in the court of learned Assistant District Judge, 2nd Court. Howrah against the wife/respondent for malicious prosecution. The husband/appellant also filed a criminal case against the brother of the wife/respondent. All these subsequent events after the passing of the decree for restitution of conjugal rights as also the subsequent conduct of he husband/appellant, clearly suggest that the husband/appellant had never any intention to take back his wife. ( 6 ) IT is the contention of the present appellant husband that he had always honest intention to resume the matrimonial relationship and for that he filed the suit for restitution of conjugal rights which was decreed in his favour. After the suit was decreed he made all possible attempts to take his wife back. But the wife/respondent deliberately thwarted all attempts on the part of the husband to resume conjugal life by refusing to come back to her matrimonial home. This, according to the husband/ appellant, was not only a mere non-compliance but also a deliberate act on the part of the wife to frustrate the decree for restitution of conjugal rights. According to the husband/appellant such non-compliance of the decree by the wife/respondent was only for the purpose of making out a case of non-restitution to her advantage to make out a case under section 13 (1a) (ii) for dissolution of marriage. This, according to the appellant, is a "wrong" committed by the wife/respondent within the meaning of Section 23 (l){a) of the Hindu Marriage Act and the wife should not be allowed to take advantage of her own "wrong". ( 7 ) IN support of his contention the petitioner relies on a judgment of the Supreme Court reported in (1998)3 SCC 112 (T. Srinivasan vs. T. Varalkshmi ). In the said case the husband obtained a decree for restitution of conjugal rights and the wife thereafter wanted to join him. But the husband refused to allow her to enter the house and drove her away. It was held that these acts of the husband were positive "wrong" amounting to "misconduct" uncondonable for the purpose of Section 23 (l) (a) of the Hindu Marriage Act. But the husband refused to allow her to enter the house and drove her away. It was held that these acts of the husband were positive "wrong" amounting to "misconduct" uncondonable for the purpose of Section 23 (l) (a) of the Hindu Marriage Act. The husband was rightly denied relief under Section 13 (1-A) of the said Act. ( 8 ) WE have gone through the judgment referred to above. In our view the said judgment does not have any manner of application as the facts and circumstances of the present case are quite different from the case referred to above. ( 9 ) THE next judgment relied upon by the appellant is reported in AIR 1995 Orissa 180 (Balabhadra Prodhan vs. Sundasimoni Devi ). In the said judgment it was held by the learned Single Judge of Orissa High Court' that the provisions of Section 23 (1) (a) of the Hindu Marriage Act apply to a petition for divorce under Section 13 (1-A) of the Act. If the wrong is committed by a spouse subsequent to the passing of the decree for restitution of conjugal rights and that wrong is serious enough, the same ground disentitle him/her to obtain a decree for divorce. It was further held that if the 'wrong' existing prior to the passing of the decree for restitution of conjugal rights continues, the same may in suitable cases be considered as a ground for refusing the relief of decree for divorce. In the facts and circumstances of the said case it was held that even if the wife's allegation that the husband committed 'wrong' in not providing her residential accommodation or in not taking her to his place of service at Durgapuja is taken to be true, the same cannot be said so serious as to disentitle the husband to his relief for dissolution of marriage by a case of divorce. ( 10 ) NEXT judgment referred to by the appellant is reported in AIR 1983 andhra Pradesh 111 (Geeta Lakshmi vs. C. V. R. K. Sarveswara Rao ). In said case the wife obtained a decree for restitution of conjugal rights. After the decree the husband did not comply with the decree, but did positive acts of ill treating her and finally drove her away from the house. In said case the wife obtained a decree for restitution of conjugal rights. After the decree the husband did not comply with the decree, but did positive acts of ill treating her and finally drove her away from the house. After 2 years husband filed a petition for divorce alleging that there was no resumption of cohabitation for 2 years. The wife opposed the said petition contending that the husband was taking advantage of his own wrong. It was held that it was not the case of mere non-compliance of a decree, but fresh positive acts of cruelty. It was held that the husband was not entitled to a decree for divorce in view of the commission of wrong as contemplated under Section 230) (a) of the Hindu Marriage Act. ( 11 ) IN the judgment reported in AIR. 1996 Bombay 85 (Sunita Rajendra. Nikaljee vs. Rajendra Eknath Nikaljee), relied upon by the appellant, it was held that mere disinclination or reluctance to accept the other spouse is not sufficient. There should be attempt of making it impossible for a spouse to resume cohabitation after the decree for restitution of conjugal rights is passed. The discretion is conferred to strike a balance, All this is necessary to be viewed against the backdrop of facts and circumstances of each case. ( 12 ) NEXT judgment relied upon by the appellant is reported in AIR 1998 allahabad 140 (Guru Bachan Kaur vs. Pretam Singh ). From a reading of the said judgment it appears that the husband initiated proceedings seven years after alleged desertion, it was the constant plea of the wife/appellant that she was ready to live at Allahabad and she was still ready to resume cohabitation. It was the husband who hesitated to perform his marital duties. In such Circumstances it was held by the Division Bench of allahabad High Court that the husband, should not be allowed to take advantage of his own wrong. Appeal preferred bv the wife was allowed and the judgment and decree of divorce was set aside. ( 13 ) THE appellant relying upon the aforesaid judgments, argued that alter the decree for restitution of conjugal, rights was passed by a competent court, he took all possible steps to take back his wife. But all the time she refused to come back to her matrimonial home. ( 13 ) THE appellant relying upon the aforesaid judgments, argued that alter the decree for restitution of conjugal, rights was passed by a competent court, he took all possible steps to take back his wife. But all the time she refused to come back to her matrimonial home. Immediately after the expiry of one year from the date of decree for restitution of conjugal rights, she filed a petition for dissolution of marriage This was a deliberate act on the part of the wife to frustrate the decree for restitution of conjugal rights and this was. done by, the wife/respondent only to make out a case of non-restitution so that she could file a petition for dissolution of marriage. Accordingly to the appellant/husband this was a "wrong" committed by the wife within the meaning of Section 23 (1) (a) of the Hindu Marriage Act and she should not be allowed to take advantage of her own wrong. ( 14 ) THE next argument advanced by the appellant is that when the earlier suit for divorce filed by the wife was dismissed the second suit was not at all maintainable on the self-same cause of action and the same is barred by the principle of res judicata. Referring to some portions in the earlier judgment dismissing the suit for divorce filed by the wife, it is submitted by the appellant that the allegation of cruelty, torture and ill-treatment could not be substantiated by the wife by adducing evidence for which the earlier suit for divorce filed by the wife was dismissed. On the other hand suit for restitution of conjugal fights filed by the appellant/husband was decreed in his favour. But the respondent/wife deliberately did not comply with the said decree inspite of honest efforts made by the appellant/husband and after the expiry of one year after the passing of such decree she filed her petition for divorce on the self same cause of action under Section 13 (1a) (ii)of the Hindu Marriage Act. ( 15 ) IT is the contention of the appellant that the second suit is barred by the rule of the res judicata. In support of his contention the appellant relies on a judgment of the Apex Court reported in AIR 1961 SC 1457 (Daryao vs. State of U. P. ). ( 15 ) IT is the contention of the appellant that the second suit is barred by the rule of the res judicata. In support of his contention the appellant relies on a judgment of the Apex Court reported in AIR 1961 SC 1457 (Daryao vs. State of U. P. ). in the said judgment It was held by the Supreme court that the rule of res judlcata is not merely a technical rule but is based on public policy and the same can be invoked against a petition under Article 32 of the Constitution of India. It mas held that if a judgment is pronounced by a court of competent jurisdiction, it is binding upon the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. It was further held that it is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction and ft is also in the public interest that the individuals should not be vexed twice over the same kind of litigation. ( 16 ) IN the next Judgment reported in AIR 1991 Ker 362 (C. Sarala vs. K. Nalinaksham)it was held by the Division Bench of Kerala High court that the rule of res judicata bars the trial of an issue which arose directly and substantially in a previous proceeding and has been adjudicated upon in such proceeding. ( 17 ) IN AIR 1971 SC 2355 (Mathura Prasad vs. Dossibai) relied upon by the appellant, it was held by the Supreme Court as follows: "it is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment, lite matter in issue, if it is one purely of fact, decided in Che earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not for the same reason, be questioned in a subsequent proceeding between the same parties. " ( 18 ) IN the judgment reported in 33 Calwn 876 (Abdul Gani vs. Nabendra kishore Roy and Ors. ). A mixed question of law and fact determined in the earlier proceeding between the same parties may not for the same reason, be questioned in a subsequent proceeding between the same parties. " ( 18 ) IN the judgment reported in 33 Calwn 876 (Abdul Gani vs. Nabendra kishore Roy and Ors. ). relied upon by the appellant, it was held by the division Bench of this Court that the words litigation under the same title" in Section 11 of the CPC. mean that the demand should have been of the same quality in the second suit as in the first one. It is the submission of the appellant that if the data sought to be litigated has been previously adjudicated upon, the rule of res Judicata would apply. ( 19 ) IT is the contention of the appellant that he filed an application before the trial court challenging the maintainability of the second suit. Issue was also framed on the point of maintainability of the suit. But the said point of maintainability was not decided by the learned Trial judge. But we are unable to accept such contention of the appellant. From a reading of the judgment of the Trial Court it appears that no argument was advanced by the learned Advocate of the husband/ respondent on file point of maintainability and as such it was held by the learned Judge that the suit was maintainable. ( 20 ) MR. Bidyut Banerjee, learned Advocate appearing on behalf of the respondent/wife submits that after the decree for restitution of conjugal rights was passed, the appellant husband did not make any effort to take back the wife. The appellant/husband had no intention to resume the matrimonial relationship. On the contrary his mother and sister instituted a money suit (Suit No. 5/93) in the court of learned Assistant district Judge, 2nd Court, Howrah against the respondent/wife and her parents and brothers claiming damages of Rs. 5. 00. 075/- for malicious prosecution. The husband also filed a Criminal Case being No. 186/94 against the brother of the respondent/wife. Mr. Banerjee further points out that respondent/wife suffered a fracture in her right leg in February, 1994. She was admitted to the S. S. K. M. Hospital and was under treatment during period from February, 1994 to November/december, 1994. 00. 075/- for malicious prosecution. The husband also filed a Criminal Case being No. 186/94 against the brother of the respondent/wife. Mr. Banerjee further points out that respondent/wife suffered a fracture in her right leg in February, 1994. She was admitted to the S. S. K. M. Hospital and was under treatment during period from February, 1994 to November/december, 1994. Such fact of fracture was very much known to die husband/appellant as wife/ respondent took time in Mat Execution Case No. 5/94. The husband never cared to visit his wife nor be incurred any expense for her treatment all these, according to Mr. Banerjee are sufficient to indicate that after obtaining the decree for restitution of conjugal rights the husband never made any attempt to take back his wife. ( 21 ) IT is the contention of Mr. Banerjee that mere disinclination to agree to an offer of reunion cannot be regarded as a "wrong" within the meaning of Section 23 (1) (a)of the Hindu Marriage Act. In support of his contention mr. Banerjee relies upon a judgment reported in AIR 1977 SC 2218 (Dharmendra Kumar vs. Usha Kumar), In the said case about two years after passing of the decree for restitution of conjugal rights in her favour, the wife applied for dissolution of marriage under Section 13 (la) (ii) of the Hindu Marriage Act The husband alleged that the wife refused to receive or reply to the letters written by the husband and did not respond to his other attempts to make her agree to live with him. It was held that such allegation, even if true, did not amount to misconduct grave enough to disentitle the wife to the relief she asked for. It was held by the Hon'ble Supreme Court as follows: "therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a 'wrong' within the meaning of Section 23 (1) Cal, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. In order to be a 'wrong' within the meaning of Section 23 (1) Cal, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. " ( 22 ) RELYING upon the aforesaid judgment of the Supreme Court it was held by the Division Bench of this Court in the case of Mita Gupta vs. Prabir Kumar Gupta (AIR 1989 Calcutta 248) that mere non-compliance with the decree for restitution of conjugal rights would not, by itself, amount to any 'wrong' to disentitle the spouse, against whom the decree is passed, to obtain a divorce under Section 13 (1a) (ii) of the Hindu marriage Act. ( 23 ) MR. Banerjee relies upon a judgment reported in (2000) 1 Gal. L. T. 385 (H. C) (Anulzul Kumar Ghosh vs. Chhanda Ghosh ). In the said judgment it was held by the Division Bench of this court that the plain meaning which has to be given to clause (ii) of Section 13 (1a) is that once the decree for restitution of conjugal rights has been passed and after the passing of such decree there has not been any restitution of conjugal rights; between the parties for a period of one year or upwards, either parly to the marriage may present a petition- for obtaining divorce on that ground. ( 24 ) RELYING upon the aforesaid judgments it is submitted by Mr. Banerjee that even assuming, though not admitting, that the wife/ respondent was not inclined to the offer of reunion, such disinclination cannot disentitle her to a decree for divorce under Section 13 (1a) (ii) of the Act. Such disinclination cannot be regarded as a misconduct or a "wrong" within the meaning of Section 23 (1) (a) of the Act. ( 25 ) AS regards the application of the role of res judicata in the present case it is submitted by Mr. Banerjee that the rule of res judicata does hot have any manner of application in the present case as the rule of procedure cannot supersede the law of the land. ( 25 ) AS regards the application of the role of res judicata in the present case it is submitted by Mr. Banerjee that the rule of res judicata does hot have any manner of application in the present case as the rule of procedure cannot supersede the law of the land. The provision laid down in Section 13 (1a) (ii)of the Act gives a right to the wife respondent to make a prayer for dissolution of marriage when there is no restitution of conjugal rights between the parties to the marriage for a period of one year or upwards after the passing of the decree. Apart from this, the subsequent conduct of the husband/appellant was sufficient to indicate that the husband had no honest intention to take back his wife. On the contrary he initiated different proceedings, both civil and criminal, against his wife and other in-laws. Such subsequent conduct should also be regarded as new cause of action to file a suit for divorce under Section 13 (1a) (ii) of the Hindu Marriage Act. These, according to Mr. Banerjee, amount to fresh positive acts of cruelty. ( 26 ) WE have heard the appellant as also the learned Advocate for the respondent. We have also gone through the judgments referred to above. It may also be mentioned here that before taking up the matter for hearing we tiled our best for settlement of the dispute, but failed. ( 27 ) IN view of the submissions of the respective parties, the point which arises for our consideration is whether the respondent/wife took advantage of her own "wrong" or, in other words, whether the bar of section 23 (1) (a) is attracted in the present case. In our considered view mere non-compliance with the decree for restitution of conjugal rights cannot be taken as a "wrong" within the meaning of Section 23 (1) (a) of the Act as to deny the right of the wife to seek a divorce under Section 13 (1a) (ii) of the Act. But the situation may be different where the party consciously and by force prevents the decree of restitution of conjugal rights to be complied with and in such cases the party should not be allowed to take advantage of his/her own wrong The facts and circumstances of the cases referred to by the appellant are quite different from that in the present case. ( 28 ) FROM the evidence on record we find that there was no sincere attempt by the appellant/husband to take back his wife. In his cross-examination the husband stated that he never wrote any letter to his wife after the disposal of the earlier suit for restitution of conjugal rights expressing his intention to take back his wife. He also stated that he did not write any letter to his father-in-law or mother-in-law to send his wife. On the contrary, he initiated different proceeding, both civil and criminal, against his wife, her parents and her brother all these things clearly suggest that there was no attempt by the husband to take back his wife. ( 29 ) IN view of the discussion made above we are unable to accept the contention of the appellant husband that the conduct of the wife in not responding to his invitations to live with him meant that she was trying to take advantage of her own "wrong" for the purpose of getting relief under Section 13 (1a) (11) of the Hindu Marriage Act Even assuming that the wife was disinclined to Join her husband, the same cannot be said to be a "wrong: within the meaning of Section 23 (1) (a) and it cannot disentitle her to get a decree for divorce under Section 13 (1a) (ii) of the act. In this context we rely upon the judgment of the Hon'ble Apex Court reported in AIR 1977 SC 2218 (Dharmendra Kumar vs. Usha Kumar), which was subsequently followed by the Division Bench of this court in the case of Mita Gupta (supra ). ( 30 ) AS regards the application of the rule of res judicata in the present case we find sufficient merit in the submission made by Mr. Banerjee. learned Advocate of the respondent/wife. Clause (ii) of sub-Section (1a)of Section 13 of the Hindu Marriage Act provides that either party to a marriage may present a petition for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties. So, Section 13 (1a) (ii)makes it clear that non-restitution of conjugal rights for a period of one year or upwards after the passing of the decree for. restitution of conjugal rights, can itself be a fresh ground, for seeking divorce under the said section. The judgments of the Hon'ble Apex Court as also of other High court referred to by the appellant/husband, are all settled principles of law. But in our view those judgments do not have any application in the present case. ( 31 ) IN view of the discussions made above we dismiss the appeal and affirm the decree for dissolution of marriage passed by the learned Trial judge. We, however, make no order as to costs. ( 32 ) ON an application under Section 24 of the Hindu Marriage Act claiming maintenance for herself, the Division Bench of this court by an order dated 4. 9. 2001 directed the husband/appellant to pay Rs. 3000/- per month to the respondent/wife by money order and to go on paying such amount of maintenance every month within 15th of each succeeding month. By the said order this court also directed the husband to pay Rs. 3000/- as litigation cost within two months from the date of the said order. ( 33 ) THE appellant/husband without complying with the said order filed an application for review of the earlier order dated 4. 9. 2001. The Division bench of this court by its order dated 18. 10. 2001 directed attachment of salary of the appellant/husband and directed the Public Accounts department, Reserve Bank of India to send the said amount of maintenance to the respondent/wife by money order. ( 34 ) FROM the aforesaid two orders we find that those orders were passed by this court after taking into consideration the income of the husband, who is an employee of Reserve Bank of India, Calcutta, and also other facts and circumstances. We are also of the view that the amount of rs. 3000/- (Three thousand) would be a reasonable amount for the maintenance of the respondent/wife. Accordingly we direct, the appellant/ husband to pay an amount of Rs. 3000/- per month as maintenance to the respondent/wife. ( 35 ) IF an urgent xerox certified copy of the judgment is applied for, the same is to be given to the appellant at an early date. Appeal dismissed.