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2003 DIGILAW 542 (CAL)

ANURADHA CHAKRABORTY v. PRADIP KUMAR CHAKRABORTY

2003-11-07

S.P.TALUKDAR, SAMARESH BANERJEE

body2003
TALUKDAR, J. ( 1 ) THE present appeal is directed against the judgment and decree dated 20th January, 1995 passed by Learned Additional District Judge, 11th Court at Alipore, 24-Parganas (S), in Matrimonial Suit No. 21 of 1992. ( 2 ) THE present respondent, as petitioner, filed a suit for a decree of divorce upon dissolution of marriage on the ground of cruelty and desertion under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act as against his wife, Smt. Anuradha Chakraborty, the present appellant. Grievances of the petitioner in the said matrimonial suit may briefly be stated as follows his marriage with Anuradha took place on 18. 11. 1986 and it was duly solemnized according to Hindu Rights and Customs. The said marriage was duly consummated. After marriage the couple started living together as husband and wife. Prior to this marriage, anuradha was married to one S. N. Roy Chowdhury and her said first marriage was dissolved by a decree of divorce on 25. 03. 1981. ( 3 ) THOUGH the parties having been living together as husband and wife at 58/3, Ballygunge Circular Road which was the residence of the petitioner/respondent with other members of his family, no issue was born. Anuradha having failed to live with other members of her matrimonial home, petitioner-Pradip, took a rented accommodation at Salt Lake City in March, 1987. While living together, Anuradha started behaving in a cruel manner with her husband/pradip. She left the said place on 22. 04. 1987 without any just or reasonable cause and with the intention of not returning again. Anuradha used to pick up quarrel with the petitioner and was hostile in her attitude towards her husband. Petitioner/pradip, as well as his friend tirthankar and family members made several attempts to bring Anuradha back but to no avail. Petitioner was thus left with no choice but to file a suit for divorce. ( 4 ) THE said case was contested by the present appellant, as defendant, in the suit. All the material allegations made by the petitioner were denied in the written statement filed by her. She claimed to have behaved normally with her husband as well as members of his family. She stated that she was never cruel in her behavior. She alleged that she was driven out by the petitioner who used to return home at night in a drunken condition. She claimed to have behaved normally with her husband as well as members of his family. She stated that she was never cruel in her behavior. She alleged that she was driven out by the petitioner who used to return home at night in a drunken condition. Dismissal of the suit with cost was so prayed for. ( 5 ) LEARNED Trial Court framed as many as five issues upon the pleadings and after due consideration of relevant facts and materials, decreed the suit on the ground of desertion. ( 6 ) BEING aggrieved by and dissatisfied with the said judgment and decree, the defendant, as appellant, has preferred the instant appeal. ( 7 ) ANURADHA, as appellant, has alleged in the instant appeal that the learned Trial Court was not at all justified in passing a decree of divorce on the ground of desertion and that there was no evidence in order to establish that the present appellant left her husband without any just or reasonable cause. Appellant has further alleged that Learned Trial Court failed to appreciate the evidence on record in the proper perspective. ( 8 ) BEFORE proceeding further it is perhaps necessary to look into the evidence on record. The respondent, as P. W.-1, in his evidence-in-chief stated about his marriage with the present appellant on 18. 11. 1986. He also stated about Anuradha's previous marriage. According to him, Anuradha is 7/8 years older than him. He deposed that at the time of such marriage he was staying with his parents and sister at 58/3, Ballygunge Circular road and after marriage he started living with his wife in the said address. He deposed that Anuradha used to frequently go out of the house without the knowledge and consent of others in the family. According to him, in response to the desire of Anuradha, he made arrangement for his separate accommodation with her at Salt Lake. There too, Anuradha used to leave the house frequently in the morning and her husband had to pick her up in the night. He stated that Anuradha never used to do any household work. She left on 22. 04. 1987. P. W.-1 further stated that his mother and his friend, tirthankar Dasgupta tried to bring her back but to no avail. Such evidence of P. W.-1 was sought to be strengthened by the evidence of his friend, p. W.-2. He stated that Anuradha never used to do any household work. She left on 22. 04. 1987. P. W.-1 further stated that his mother and his friend, tirthankar Dasgupta tried to bring her back but to no avail. Such evidence of P. W.-1 was sought to be strengthened by the evidence of his friend, p. W.-2. P. W.-2 stated that being requested by his friend, Pradip and his mother, he went to bring Anuradha back to her matrimonial home. He went there once in the end of April, 1987 and the second attempt was made in the last week of May, 1987. P. W.-2 stated that Anuradha refused to return on the plea that she was not pulling well with Pradip. ( 9 ) THIS is all about the evidence-in-chief on behalf of the petitioner/ respondent. It is interesting to find that P. W.-1 admitted in his evidence-in-chief that he did not try to bring his wife back after 22. 4. 87. As pointed out earlier, P. W.-2 claimed to have made his second attempt to bring Anuradha back in the last week of May, 1987. In his cross-examination P. W.-1 stated that his wife used to teach children in the evening. ( 10 ) ON the other hand, the present appellant, as D. W.-1, in her evidence-in-chief denied that she used to frequently leave her matrimonial home without knowledge and consent of her husband and his parents. She further denied that she left her matrimonial home on 22. 4. 87 on her own sweet will without the knowledge of her husband and parents-in-law. She further denied that P. W.-2 came to her to take her back on two occasions. She categorically stated that she wanted to live with her husband at her matrimonial home. She, of course, stated that her husband used to assault her after getting drunk. Her brother, as D. W.-2, attempted to strengthen her evidence in the case. ( 11 ) LEARNED Trial Court did not find any material so as to establish the ground of cruelty and quite rightly so. There is no evidence on record worth mentioning which can establish, even remotely, that the present appellant, as wife, was cruel in her behavior towards her husband or members of his family. It transpires from the evidence on record that there was an intimate relationship between the parties even prior to their marriage on 18. There is no evidence on record worth mentioning which can establish, even remotely, that the present appellant, as wife, was cruel in her behavior towards her husband or members of his family. It transpires from the evidence on record that there was an intimate relationship between the parties even prior to their marriage on 18. 11. 86. The fact that the present appellant was married earlier and had a divorce and that she was 7/8 years older than the present respondent were never kept undisclosed. In fact, those cannot be any factor to stand in the way of a romantic relationship and it is no wonder that such relationship ultimately resulted in the marriage between the parties on 18. 11. 1986. Ext. 'a' is the letter from Pradip to Anuradha and it clearly reflects the extent of love the parties had for each other. ( 12 ) IT appears that the parties shifted to an acommodation at Salt lake and there is nothing in the evidence on record to show that they had any grudge over this. The reason for such shifting after they were initially settling down at Pradip's father's place at Ballygunge Circular Road need not be explored in the facts and circumstances of the present case. Having regard to the evidence on record there is no reason to think that engagement of Anuradha in private tuition was ever objected. This assumes significant importance in the backdrop of the fact that after shifting to Salt Lake, Pradip required the financial support of his father. ( 13 ) BE that as it may, we are inclined to hold that learned Trial Court quite rightly did not find any material so as to constitute the ground of cruelty. ( 14 ) IT now requires to be seen as to how far the evidence on record could establish desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. It is the settled position of law that for the act of desertion to exist there must be both the factum of physical separation and the animus deserendi or intention to desert and both the necessary ingredients must continue throughout the statutory period. Desertion is essentially a mental act. Mere physical separation is not desertion. Mere intention to separate is not desertion. It is a total repudiation of the obligation of marriage. Desertion is essentially a mental act. Mere physical separation is not desertion. Mere intention to separate is not desertion. It is a total repudiation of the obligation of marriage. To constitute desertion there must be a cessation of co-habitation and an intention to desert which is made manifest by absence of intention to revert to the matrimonial home (animus revertendi ). To constitute desertion there must be (i) withdrawal of the society of a spouse from other; (ii) without the consent, wish of spouse so aggrieved; (iii) without an intimation to such spouse and (iv) with the intention of not returning. ( 15 ) AT the time of argument certain decisions of various Courts were referred to. In the case of Romesh Chander v. Savitri, reported in 1995 (2)scc 7 , it was held that when marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty. The Apex Court in the said case, in exercise of power under Article 142 of the Constitution of India, dissolved the marriage. It is necessary to mention that, that was an order passed by the Apex Court in exercise of the power under Article 142 of the Constitution and no other Court is vested with the said power. ( 16 ) IN the case of Ashok Hurra v. Rupa Bipin Zaveri reported in 1997 (4) SCC 226 , the Apex Court granted decree of divorce in exercise of the said power under Article 142 of the Constitution. ( 17 ) IN the case of Smt. Raj v. Dalhir Singh, reported in II (1997) DMC 511, the Single Bench of Punjab and Haryana High Court granted a decree of divorce on the ground of desertion though held that the general plea that wife was constantly misbehaving is rather vague and not sufficient to hold that the husband was treated with cruelty. ( 18 ) OUR attention was drawn to the decision in the case of Smt. S. Vijayalakshmi v. S. Bheem Reddy, reported in II (1998) DMC 407 (DB) in support of the contention that where the relationship between the parties is irretrievably broken down, the Court has no option but to grant a decree of divorce dissolving the marriage between the parties. ( 19 ) IN the case of Ranjit Singh v. Balwant Kaur, reported in II (1998)dmc 670, it was held that in order to establish desertion, it is not enough to prove only physical separation but also animus deserendi. ( 20 ) THE decision in the case of Savitri v. Prem Chandra pandey,reported in JT 2002 (1) SC 25, was also referred to in support of the contention that ordinary wear and tear of family or sensitivity with respect to conduct of spouse cannot amount to cruelty. ( 21 ) IN the present case there is not an iota of evidence on record in order to constitute cruelty and this aspect has already been dealt with. ( 22 ) ACCORDING to the present appellant, she was driven out of her matrimonial home of 22. 04. 87. The evidence of the respondent/husband that she left her matrimonial home on the said day without anybody's permission and consent has been sought to be negatived by the aforesaid evidence of D. W.-1, the appellant. Thus, evidence in this regard is rather oath vs. oath. ( 23 ) MOREOVER, there is no evidence so as to inspire confidence of the court in order to establish that the present appellant/wife left her matrimonial home on 22. 04. 87 voluntarily with intention of not returning again. The claim that P. W.-1 and his friend, P. W.-2 and his mother made attempts to bring her back does not find convincing support in the evidence on record. After careful consideration of the evidence on record, I do not find any sufficient reason so as to conclude that the present appellant/wife withdrew from society of her husband without any reasonable and just cause and that she never intended to return. Present appellant, as D. W.-1, categorically stated in her evidence that she wanted to return to her matrimonial home. Her evidence that she used to be physically assaulted by her husband cannot also be just brushed aside under the carpel. ( 24 ) IT is quite astonishing to find that the learned Trial Court found that the ground of desertion was well established. The evidence on record was not properly referred to while coming to such a conclusion. It is difficult, if not impossible, to share such finding of the learned Trial Court. ( 24 ) IT is quite astonishing to find that the learned Trial Court found that the ground of desertion was well established. The evidence on record was not properly referred to while coming to such a conclusion. It is difficult, if not impossible, to share such finding of the learned Trial Court. ( 25 ) CONSIDERING the facts and circumstances of the case and having regard to the aforesaid discussion, I am of the opinion that learned Trial court was not at all justified in granting a decree of divorce on the ground of desertion and, as such, the said judgment and decree are liable to be set aside. ( 26 ) ACCORDINGLY, the present appeal succeeds. ( 27 ) THE judgment and decree dated 20th January, 1995 passed by learned Additional District Judge, 11th Court at Alipore, 24-Parganas (S), in Matrimonial Suit No. 21 of 1992 be set aside. ( 28 ) HOWEVER, in the facts and circumstances of the case, there is no order as to costs. Xerox certified copy, if applied for; be given to the parties on priority basis after due compliance with the formalities. Banerjea, J. : I agree. Later: Learned Counsel appearing for the respond ant prays for stay of operation of the order which is considered and refused. Urgent xerox certified copy of the order, if applied for, be given to the parties expeditiously.