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2004 DIGILAW 454 (CAL)

PRABIR CHATTERJEE v. SHILA @ RITU CHATTERJEE

2004-07-09

JYOTESH BANERJEE, MAHEMMAD HABEEB SHAMS ANSARI

body2004
BANERJEE, J. ( 1 ) THE present appeals are directed against the judgement dated 31. 3. 97 passed in Mat. Suit No. 1/93 (Misc. 4/95) by the additional District Judge, 24-Parganas (S), through which the learned Judge dismissed the suit filed by the husband, for divorce, but allowed the suit filed by the wife, for restitution of conjugal rights. ( 2 ) THE husband as the petitioner filed the suit for dissolution of marriage alleging, inter alia, that marriage between the parties was solemnized on 7. 2. 85 at Railway Quarters, Narkeldanga according to religious rites and customs of the parties. The petitioner at the relevant time was a commercial clerk in the railway and was living at his official quarters at Narkeldanga since before marriage with his parents and two dependant unemployed brothers, After the marriage, the petitioner brought,the respondent/wife to his quarters at Narkeldanga and the parties lived there as husband and wife. Within a short time, it was discovered that the respondent was a selfish, quarrelsome and fault finding and she failed to adjust with the family members of the petitioner. The petitioner was compelled to shift his residence, to a rented house at Barrackpore leaving the parents and the brothers in his quarters to maintain family peace. But due to financial constraint he had to shift back with the respondent to the quarters at narkeldanga, but he had to arrange separate cooking for the parents and the brothers at the instance of the respondent. A son was born to the respondent on 21. 5. 89. Even the birth of the son did not change in the nature and behaviour of the respondent. She would not allow the widowed mother of the petitioner to care and hug the baby. Her ill behaviour and misconduct towards the petitioner, his mother and brothers continued unabated. Family peace was completely shattered by her. Finally the mother and two brothers decided to live elsewhere and the petitioner had no way out but to maintain a separate establishment for them. It was alleged that the respondent was a suspicious woman and in the habit of abusing the petitioner openly in presence of others. Due to such suspicious nature of the wife, the mental peace of the petitioner was shattered. It was also alleged that the respondent/wife practically had withdrawn from the society of her husband through living under the same roof. Due to such suspicious nature of the wife, the mental peace of the petitioner was shattered. It was also alleged that the respondent/wife practically had withdrawn from the society of her husband through living under the same roof. There was no cohabitation between the two for the last 3 years. In the aforesaid facts and circumstances, the petitioner came up before the Court for a decree of divorce on the ground that the respondent/wife treated him with cruelty. ( 3 ) THE respondent/wrfe contested the suit on a written statement admitting the marriage between the parties according to Hindu rites and the birth of a son, Pratik Chatterjee. But alleged that sometime in the middle part of 1991, the petitioner became indifferent towards the respondent/wife and off and on started abusing her with most filthy language. It was also alleged that the petitioner husband used to go to his office at 9. 30 a. m. without taking meals and after office hours he was not coming home at night. It was also alleged that the respondent got a photograph of a lady from the money bag of the petitioner and became suspicious. It was the specific allegation of the wife/respondent that on enquiry respondent came to know that the petitioner/ husband was taking meals from outside and he ha'd an illicit connection with a lady by the name of Miss. Kalyani Sen Gupta who was his office colleague. The said Miss. Kalyani Sen Gupta resided at Barrackpore with her mother and a sister and the petitioner/husband without coming home often used to stay at Barrackpore in the night. The respondent/wife through the written statement also denied alf other material allegations raised in the petition. ( 4 ) THE learned Judge of the Court below raised number of issues including the Issue No. 2 and Issue No. 5 touching the questions whether the respondent/wife treated the petitioner with cruelty and whether the petitioner was entitled to get a decree of divorce as prayed for. On consideration of the evidence and other relevant facts and circumstances of the case, the learned judge came to the conclusion that the petitioner/husband was not entitled to get a decree of divorce. The question before us is whether the learned Judge passed the judgment of dismissal on proper consideration of evidence and relevant circumstances of the case ? On consideration of the evidence and other relevant facts and circumstances of the case, the learned judge came to the conclusion that the petitioner/husband was not entitled to get a decree of divorce. The question before us is whether the learned Judge passed the judgment of dismissal on proper consideration of evidence and relevant circumstances of the case ? ( 5 ) THE aforesaid two appeals arise out of the judgement referred to above. In the said suit, the husband/petitioner prayed for a decree for divorce on the ground of cruelty. The wife/respondent filed her counter claim under section 23 (A) of the Hindu Marriage Act, 1955 praying for restitution of conjugal rites. The petition filed by the husband for dissolution of marriage was dismissed by the learned trial Judge and the wife's prayer for a decree for restitution of conjugal rites was allowed. In this background, the two appeals have been filed and these have been heard analogously. We have heard the arguments advanced by the learned Counsel for the parties. The learned Counsel for the respondent/wife has referred to the impugned judgment passed by the learned Additional District Judge, Alipore and submitted that the learned Court below rightly held that the photograph of miss. Kalyani Sen Gupta, which the wife obtained from the custody of the plaintiff/husband was a genuine photograph and the allegation of the husband that it was manufactured or superimposed should not be believed. The learned counsel has supported the conclusion drawn by the learned Judge from the discovery of photograph by the wife/respondent, the presence of the said photo in the money bag of the husband and keeping the same from the wife was sufficient to entertain doubts about the character of the husband and since the aforesaid suspicion was not totally baseless or unfounded, that cannot be said to be such a cruelty which can give the husband a right to get a decree for divorce. The learned Counsel has further pointed out that after discussing the evidence adduced in the case, the learned Judge came to the conclusion that the petitioner/husband has failed to prove that the wife/ respondent was selfish, coquettish and unadjustable as alleged. Further, the allegation relating to the cruel treatment against the aged father or mother or brothers were not believed. The learned Counsel has further pointed out that after discussing the evidence adduced in the case, the learned Judge came to the conclusion that the petitioner/husband has failed to prove that the wife/ respondent was selfish, coquettish and unadjustable as alleged. Further, the allegation relating to the cruel treatment against the aged father or mother or brothers were not believed. The widowed mother and the brothers shifted themselves from the railway quarters not at the instance of the wife and the petitioner himself was responsible for such shifting. In this way, it has been pointed out that the allegation of the wife that the husband himself wanted all his relations to quit the quarters finds support from the fact that even after the departure of the wife with her son, the mother and brothers did not come back in the said quarters, but preferred to remain outside and the petitioner admittedly did not know their present address. It is pointed out that mother has not been examined to prove the ill-treatment of the wife, nor any neighbour has come forward to prove the same. So the allegation of cruelty against the wife has not been proved by any independent witness. On the other hand, the suspicion of the wife with regard to the allegation of "illicit connection" of the husband with the office colleague is not unfounded. In order to establish the same the learned Counsel besides the discovery of the photo of the said office colleague in the money bag of the husband has further pointed out that the husband deposed that he did not know the person in the photo whereas kalyani Sen Gupta, in her deposition admitted the said photo as her own. The husband/petitioner tried to deny the fact that the said Kalyani Sen Gupta was allotted a railway quarters near his quarters while Kalyani Sen Gupta herself admitted such allotment. In this background, it is the argument of the learned counsel for the respondent/wife that the allegation raised by the wife regarding illicit relationship of the husband with the said Kalyani Sen Gupta could not be said to be an act of cruelty, entitling the petitioner to claim a decree for divorce on that ground. In this background, it is the argument of the learned counsel for the respondent/wife that the allegation raised by the wife regarding illicit relationship of the husband with the said Kalyani Sen Gupta could not be said to be an act of cruelty, entitling the petitioner to claim a decree for divorce on that ground. ( 6 ) LIKE the wife/respondent, husband/appellant also filed written notes of argument and in such notes, the appellant has challenged the finding of the learned Court below regarding failure on the part of the husband to establish through the evidence that after the marriage he was treated by the respondent/wife with cruelty, but at the time of his submission, the learned counsel for the appellant has wanted to establish cruelty on the part of the wife only on the basis of unfounded allegations of illicit relationship between the appellant and his colleague the said Kalyani Sen Gupta. So the short point involved in this appeal is whether the allegation of illicit relationship between the appellant and the said Smt. Kalyani Sen Gupta, raised by the respondent/wife in her written statement, is unfounded ? ( 7 ) THE allegation which is the subject matter of controversy here, contains in sub-Paras D and E of Paragraph-5 of the written statement wherein, the respondent wife has alleged that she got a photograph of a lady from the money bag of the petitioner and became suspicious and on enquiry came to know that her husband had an illicit connection with a lady namely, Miss. Kalyani Sen Gupta who was his office colleague and who resided at barrackpore with her mother and her sister and the petitioner/husband without coming home after office stayed at Barrackpore at night. In Para-10 of the written statement at Page 18 of P. B. , the respondent/wife further alleged that as the petitioner fell in love with Miss. Kalyani Sen Gupta, petitioner always moved in a plan manner so that his mother, brothers, the respondent and her son might go 'out of the quarters and the petitioner merrily live with Miss. Kalyani Sen Gupta. The petitioner was successful in his plan. The respondent was ultimately driven out with her son and had to take shelter in her father's place. The mother and two younger brothers were also forced to go outside and the respondent on due enquiry came to know that the said Miss. Kalyani Sen Gupta. The petitioner was successful in his plan. The respondent was ultimately driven out with her son and had to take shelter in her father's place. The mother and two younger brothers were also forced to go outside and the respondent on due enquiry came to know that the said Miss. Kalyani Sen Gupta took quarters just beside the quarters of the petitioner. The further allegation of the respondent/wife in that paragraph of the written statement was that both the petitioner and said Miss. Kalyani sen Gupta started residing at the quarters allotted to the petitioner leaving the quarters allotted to Miss. Kalyani Sen Gupta to her mother and sister. The question is whether through the evidence, the respondent tried to establish the aforesaid allegation or not ? In her evidence as O. P. W-1, the respondent/ wife stated that the petitioner/husband was now living with Miss. Kalyani Sen gupta at Narkeldanga quarters and she saw Kalyani Sen Gupta and her husband at Narkeldanga quarters while passing along it. She further disclosed that the distance between her fathers quarters and that of her husband was about 3/4 minutes walk. Whenever they required to go to purchase anything, they passed that road. In the cross-examination, the witness admitted that the said Miss. Kalyani Sen Gupta was not known to her. She even did not contact Kalyani Sen Gupta during her visit to the office of her. In this connection, she did not make any complain to the higher authorities of her husband. The witness expressed her ignorance whether her husband Prabir organized picnic of the Eastern Railway and whether both men and women participated in those picnics. She also admitted that she did not report to any other occupant of the railway flats about the illicit relation-ship of her husband with the said Kalyani Sen Gupta. O. P. W. 2 Chitta Ranjan das is the father of the respondent and he did not state anything about the illicit relationship between his son-in-law and the said Smt. Kalyani Sen Gupta. O. P. W. 3 Mathura Mohan Dutta is a photographer having his studio at 1/15, beliaghata Main Road, Calcutta and he was examined for the purpose of proving one photograph. O. P. W. 3 Mathura Mohan Dutta is a photographer having his studio at 1/15, beliaghata Main Road, Calcutta and he was examined for the purpose of proving one photograph. So from the evidence adduced from the side of the respondent, it is evident that the respondent herself is the sole witness so far the alleged relationship between her husband and the said Kalyani Sen Gupta is concerned. She has only stated there that her husband is now living with kalyani Sen Gupta at Narkeldanga quarters and she has seen it while passing by the side of such quarters. In this way, it transpires that there is no evidence to show that actually the said Kalyani Sen Gupta has her quarters by the side of the quarters of the petitioner/husband. There is also no evidence to show that Miss. Kalyani Sen Gupta left the quarters allotted to her to be occupied by her mother and sister and she herself started living with the petitioner/husband in his quarters. In this connection, the evidence of Miss. Kalyani Sen Gupta (P. W. 4) will be relevant. Her evidence indicates that there are so many buildings at Narkeldanga railway complex and she occupies one of the quarters in a building. She claims that she does not know the quarters of the petitioner. She has denied that her quarters is near the quarters of the petitioner or that she resides in the quarters of the petitioner. In the cross-examination, the witness emphatically denied that she ever passed night with the petitioner Prabir or any illicit connection between her and Prabir developed or any love affair had been going on between them. It has been specifically suggested to the witness that she used to go to the quarters of the petitioner Prabir and used to reside at times. The witness has stoutely denied such suggestion. In this way, we find that the specific allegation made by the respondent/wife that the quarters of the witness P. W. 4 is by the side of the quarters of the petitioner/husband or that the witness actually resides in the quarters of the petitioner/husband leaving the quarters allotted to her, to her mother and sister, not only did not find support in the evidence of the witness (P. W. 4), no suggestion to that effect was given to the witness. In this connection, we should also mention the evidence of P. W. 3 Ajit Kr. Dey who has stated in his evidence that he knows the parties and he resides in the same building with the petitioner/husband. According to him he resides in the ground floor and petitioner/husband occupies the top floor of the same building, We find that the specific stance taken by the witness has not been challenged in the cross-examination. So it remains unchallenged that the witness occupies the ground floor flat and the petitioner/husband occupies the top floor flat of the same building. In that background, it is really difficult to accept the evidence of the respondent/wife that she saw the petitioner/ husband living with Miss. Kalyani Sen Gupta at his Narkeldanga quarters while passing along those quarters, If the railway quarters at Narkeldanga consist of many buildings as stated by P. W. 4 Kalyani Sen Gupta, which is not even challenged in the cross-examination then how was it is possible for the respondent/wife to see while passing along by railway quarters that her husband was living with the said Kalyani Sen Gupta, specially when the husband as per the unchallenged evidence occupies a top floor flat. From all these facts and circumstances, it is clear that the allegation of illicit relationship between the petitioner/husband and the said Sent. Kalyani Sen Gupta has got no foundation. ( 8 ) IN the case of Santana Banerjee v. Sachindra Nath Banerjee, reported in AIR 1990 Cal 367 , a Division Bench of this Court found that the wife in her written statement raised an allegation that her husband had immoral sexual connection with an office colleague named Alo and such immoral relationship was continued with the consent and knowledge of the sister of the husband. It was argued on behalf of the aggrieved party that if any imputation against the character of a spouse made without any foundation, such imputation would amount to mental cruelty warranting a decree for divorce, In making such submission reliance was placed on a decision of this court (Nemai Ghosh v. Sm. Mita Ghosh reported in 1986 Cal 150) wherein the wife made baseless allegations against the husband suspecting illicit connection with the elder brother's wife, although the husband held the elder brother's wife in a high esteem. Mita Ghosh reported in 1986 Cal 150) wherein the wife made baseless allegations against the husband suspecting illicit connection with the elder brother's wife, although the husband held the elder brother's wife in a high esteem. In the said case, it was held by this Court that such allegation amounted t'o great mental pain to the husband and amounted to cruelty. In the case of Santana Banerjee v. Sachindra Nath Banerjee (supra), this Court held that the allegations of illicit sexual relation with the husband of the colleague which could not be established by any reliable evidence amounted to cruelty. In the case of V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710 ), the Apex Court held that the allegations made by the respondent/wife in her written statement and also the questions put by her counsel to husband that husband and all members of his family were lunatics and streak of insanity ran through his entire family, constituted mental cruelty. Apart from these two cases, the learned Counsel for the appellant also referred the following cases in support of his contention :- (1) Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, AIR 1965 SC 364 (touching the question of annulment of marriage under section 12 (1) (d ). (2) AIR 1982 Bom 498 (3) AIR 1967 SC 581 . (4) AIR 1995 SC 851 (where the Apex Court considering the facts and circumstances of the case dissolved marriage of the parties in exercise of power under Article 142 of the Constitution ). (5) AIR 1975 SC 1534 . (6) AIR 1988 SC 121 (where the Apex Court held that the demand for dowry being prohibited under the law, would amount to cruelty entitling the wife to get a decree for dissolution of marriage. There are not relevant for the purpose of deciding the question at issue as noted above.) That being so we refrain ourselves from discussing in detail the law which has been laid down in those decisions. " ( 9 ) LEARNED Counsel for the respondent has referred a recent decision of a Division Bench of our Court, in the case of Smt. Kakali Das (Ghosh ). . . Appellant v. Dr. Asish Kr. Das. . . Respondent reported in AIR 2003 cal 287 . " ( 9 ) LEARNED Counsel for the respondent has referred a recent decision of a Division Bench of our Court, in the case of Smt. Kakali Das (Ghosh ). . . Appellant v. Dr. Asish Kr. Das. . . Respondent reported in AIR 2003 cal 287 . Our attention has been drawn to Para-53 of the said judgement wherein the learned Division Bench has held "that the actual impact of accusations and allegations on the mind of offended spouse is to be carefully examined and assessed. The Court should assess whether the complaining spouse has really felt hurt as claimed or is merely feigning to be so in order to get rid of offending spouse. " After carefully going through the reported decision, we find that the respondent/wife cannot get any help from the observation made by the learned Division Bench of this Court in that decision. In that case, it was alleged by the husband that from June, 1996, the wife was propagating allegations against her husband's moral character among his relations and friends and even after commencement of litigation between the parties the wife continued with her allegations against his character. In that background, the learned Division Bench made following observation :-"in the present case, according to the husband himself, same kind of allegations against his moral character were made earlier by the wife before his friends and relations, but still the husband did not feel it impossible to live with the wife. He not only brought her back in december, 1996 but filed an application for restitution of conjugal rights on April 11, 1997 even after the wife's departure in February, 1997. " (Para-51 ). That is not the case here. In the instant case after discovering a photograph of her husband with a lady colleague in his money bag, the wife became extremely suspicious. But she did not think it necessary to ascertain the truth to find whether there was any extra marital relationship between her husband and the said lady colleague. She, on the other hand, levelled allegations through the written statement that her husband sometime used to spend nights in the residence of Miss. Kalyani Sen Gupta at Barrackpore. She levelled further allegation that the petitioner/husband compelled his mother and two brothers to leave his quarters at Narkeldanga. The said colleague of her husband Miss. She, on the other hand, levelled allegations through the written statement that her husband sometime used to spend nights in the residence of Miss. Kalyani Sen Gupta at Barrackpore. She levelled further allegation that the petitioner/husband compelled his mother and two brothers to leave his quarters at Narkeldanga. The said colleague of her husband Miss. Kalyani Sen Gupta was allotted a nearby quarters and her husband started to live with the said Kalyani Sen Gupta in his quarters, leaving her quarters in the possession of her mother and sister. We have already seen that no attempt has been made from the side of the wife to substantiate such allegation. It is well settled now that unfounded allegations like this amounts to cruelty and thus it is evident that in the instant case, the husband/appellant is entitled to get dissolution of marriage on the ground of cruelty. ( 10 ) IN the result, we hold that the learned Judge of the Court below has erroneously dismissed the matrimonial suit without considering the question whether the allegations levelled against the husband by the wife had any foundation in the facts and circumstances of the case. Sudden discovery of a photograph of the husband with his lady colleague in his money bag, is not sufficient to raise inference that the two was having an illicit affair, farless to raise further allegations regarding spending nights at Barackpore home of the lady in question, or the allegation that the said lady, Kalyani Sen Gupta was living together with the appellant in the quarters allotted to him by the railway department. ( 11 ) IN the result, the judgement and decree passed by the Court below should be set aside and the appeal should be allowed. Thus the appeal is allowed. The judgement and decree of dismissal passed by the Court below is hereby set aside. Order of restitution of conjugal rights passed in favour of wife/respondent is also set aside. The marriage between the parties stand dissolved by a decree of divorce with immediate effect. Thus the two appeals are disposed of. Having regard to the facts and circumstances we make no order as to cost.