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2006 DIGILAW 378 (CAL)

RATNA BANERJEE v. CHANDRA MADHAB BANERJEE

2006-06-30

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2006
BHASKAR BHATTACHARYA. J. ( 1 ) THISFIRST appeal is at the instance of a wife in a suit for divorce filed by the husband and is directed against the judgment and decree dated 8th December, 1994 passed by the additional District Judge, 11th Court, alipore in Matrimonial Suit No. 12 of 1993 thereby passing a decree for divorce on the ground of cruelty. ( 2 ) THE husband filed an application for divorce under Section 27 (i) (d) of the Special marriage Act thereby praying for divorce on the sole ground of cruelty and the case made out by the respondent may be precised thus: (a) The parties were married according to the Special Marriage Act and subsequently, a social marriage was solemnised on 21st february, 1985 at 8, Ram Mohan Roy Road, calcutta-700 009, the ancestral house of the husband. (b) The husband was initially an employee of the United Industrial Bank but the said bank having been merged with the allahabad Bank, at the time of institution of the proceedings the husband was an employee of the Allahabad Bank. The wife, prior to her marriage, was an instructress in a physical training Institute and the marriage was an outcome of love affairs between the parties . (c) The parties started their matrimonial life at 8, Ram Mohan Roy Road, Calcutta and from the very beginning, the wife demanded separate living from the parents of the husband and the members of his family. The husband tried to persuade the wife not to make unreasonable demand as he had some duty towards his parents and his brother and sister, he being the only earning member of the family . (d) The conduct of the wife and her attitude was unbecoming of a married Hindu middle-class wife and she very often expressed her bad taste. She was vulgar in her languages and rough and indecent in her behaviour. The wife humiliated and used to debase the husband, his parents, sisters, brothers and brother-in-law and even inflicted physical torture upon the husband. She was vulgar in her languages and rough and indecent in her behaviour. The wife humiliated and used to debase the husband, his parents, sisters, brothers and brother-in-law and even inflicted physical torture upon the husband. The following instances were referred to in the petition for divorce which according to the husband amounted to cruel torture :- (i) Since the night of Fulsajya, the wife expressed her desire of living separately with the husband from the parents and bother and sisters of the husband and insisted on leaving the ancestral house of the husband and any objection or persuasion from the side of the husband turned the wife violent and she abused the husband with filthy language. (ii) The husband purchased a plot of land in the village of South Garia from his relative in the year 1984 before marriage on the advice of his father after taking loan from his Bank and constructed a one storeyed building on the active supervision of his father which consisted of three rooms, kitchen, bath, privy and verandah during 1984-1986. The father and the brother of the husband gave hard labour during the construction of the house and as the husband was then posted at Haroa Branch and lived there in the manager's quarter he could not look after the construction of the building. The wife had very much greed for the money and whenever the father of the petitioner asked for the money for construction of the house kept by the husband with the wife, she used to pass very caustic and dirty remarks towards her father-in-law. (iii) The wife did not perform any household duties during her stay with the parents and she would flare up when the husband tried to persuade her to do household works. (iv) Whenever the husband used to meet his old friends and associates, the wife abused him in very dirty languages and washed off vermilion mark from her forehead and left the matrimonial house for her father's house and sometime to unknown destination and after 10/12 days she used to come back of her own. (iv) Whenever the husband used to meet his old friends and associates, the wife abused him in very dirty languages and washed off vermilion mark from her forehead and left the matrimonial house for her father's house and sometime to unknown destination and after 10/12 days she used to come back of her own. One day in the month of August, 1985, the husband after returning from office went to the local club to meet one of his old friends when his brother rushed to the club and asked him to go back home at once as the respondent started nuisance in the house and quarrelling with his father . ( 3 ) THE husband immediately came back and found that the wife was quarrelling with his father and was abusing him in very filthy language. When the husband intervened in the matter, he was subjected to inhuman physical and mental torture by the wife and thereafter, she left the matrimonial house. The husband had to join her to avoid conflict and to maintain harmony. Thereafter, they lived for some months in the house of the wife's mother's sister at belgharia as licensee on payment of licence fees up to March, 1986. In that house, the wife used to take entire salary of the husband from him and any objection on the side of the husband made the wife violent. The husband was required to beg money from the wife for his daily pocket-expenses. (v) Subsequently, the parties started living at the Manager's quarter at Haroa where the husband was then posted. During their stay at the said quarter at Haroa, the wife picked up quarrel with the neighbours which caused serious humiliation of the husband and as a result, he had to shift his residence from Haroa to Baguihati in May, 1987. During that time the construction of the house of the husband at South Garia was completed and the husband asked the wife to live at the said house but she did not agree on the plea that she was not habituated to live in village. The husband was then compelled to hire a two-room rented accommodation at Baguihati in May, 1987 at a monthly rental of Rs. The husband was then compelled to hire a two-room rented accommodation at Baguihati in May, 1987 at a monthly rental of Rs. 500/- and the wife brought her parents in the said house for living with them in spite of unwillingness of the husband and in that situation, the parties used to live along with a grown-up maid servant in one room and the other room was occupied by the parents of the wife. One day the eldest sister of the wife, who used to reside in a nearby place insulted the husband at the instigation of the wife for no fault on his part in the presence of the neighbours. In the said house the wife picked up quarrel with the landlord without any reason, as a result, the neighbours along with the landlord protested and the husband had to suffer humiliation because of such conduct of the appellant. (vi) The wife made the husband isolated and separated from his parents, brother, sisters, relations and friends and insulted the parents of the husband without any reason when they came to pass some days with them in their newly-built house at South garia and drove them out of the residence. (vii) The wife brought her father, mother and physically handicapped sister and the married brother along with the newly married wife in his South Garia-residence to live there and they lived in the same mess at the expenses of the husband and thus, drained out the entire income of the husband and for that the husband had to take loan from private sources to meet the family expenses. (vii) The wife grew intimacy with some local people of questionable character and in the year 1989 she went away with one mantu Aditya, a person of questionable character in spite of the protest of the husband. Subsequently, the said Mantu Aditya attempted to outrage the modesty of their maidservant. (ix) During the Durga Puja of 1991, the husband's newly-married younger sister and her husband went to the South Garia-residence to give them costly wearing apparels as Puja-gifts but the wife became angry for no reason and insulted them when they offered her the Puja-Gifts. Subsequently, the said Mantu Aditya attempted to outrage the modesty of their maidservant. (ix) During the Durga Puja of 1991, the husband's newly-married younger sister and her husband went to the South Garia-residence to give them costly wearing apparels as Puja-gifts but the wife became angry for no reason and insulted them when they offered her the Puja-Gifts. (x) The wife was very suspicious and any delay on the part of the respondent in returning home from the office would make her suspicious towards the husband and she would pass scathing remarks and use abusive languages alleging imaginary relation of the husband with unknown ladies. (xi) The respondent is a sterile lady. She had no capacity to give birth of any child and she brought some Tantriks in their bedroom with an object to have child with the aid of tantra and any objection from the side of the husband would turn her violent. On 3rd October, 1992 the wife brought an unknown so-called Tantrik in the South Garia-residence and started mixing with him in very indecent objectionable manner and the husband having raised objection, he was physically assaulted with kicks, blows and was abused in vulgar languages in presence of the said Tantrik and the aforesaid incident compelled the husband to leave his own house on 9th October, 1992 and since then the husband was living with his parents. (xii) The wife had been coming to the bank where the husband was then posted as a responsible officer very often and had been humiliating the husband in the office in presence of colleagues and customers and thus, lowered down his prestige. ( 4 ) THE said suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint. All the instances referred to in the petition for divorce were specifically denied and it was contended that she did not know any one named Mantu Aditya or any Tantrik and all those stories had been invented for the purpose of filing of the suit. ( 5 ) HER specific defence was that the husband had an illicit and immoral affair with one Juma Chatterjee and he was staying with her in different places. ( 5 ) HER specific defence was that the husband had an illicit and immoral affair with one Juma Chatterjee and he was staying with her in different places. According to the wife, the husband had been gone to santiniketan with the said Juma Chatterjee and lived there for a couple of days as husband and wife and when the wife came to know of the said affairs with Juma chatterjee she merely asked him about the affairs. The wife, thus, prays for dismissal of the suit. ( 6 ) AT the time of hearing, the husband himself, an employee of the Bank, one of his friends and his younger brother gave evidence in support of the case made out in the petition for divorce, while the wife herself, her sister's husband, and two local neighbours of South Garia residence gave evidence in support of the defence statement. ( 7 ) THE learned trial Judge by the judgment and decree impugned herein came to the conclusion that the marriage between the parties had totally broken down and there was no point of return. The learned trial Judge further held that the evidence was eloquent enough that the wife was persistently making disparaging, derogatory and ugly remarks against her husband and as such, she was guilty of cruelty and thus, decreed the suit. ( 8 ) BEING dissatisfied, the wife has come up with the present first appeal. ( 9 ) MR. Banerjee, the learned senior advocate appearing on behalf of the appellant vehemently contended before us that the learned trial Judge practically decreed the suit on the ground that the marriage between the parties had totally broken down and according to Mr. Banerjee, even if such is fact, his client is not responsible for that situation and consequently, that fact cannot enable the Court to pass a decree for divorce unless the cruelty alleged is proved. Mr. Banerjee contends that apart from the oral testimony of the husband, no other witness could prove the alleged cruelty and even the serious allegation of infidelity levelled against the wife remained unproved. Mr. Banerjee submits that the learned trial judge without considering the evidence of record, in one line has simply stated that the evidence was sufficient to prove cruelty and according to him, such finding is a perverse finding of fact. Mr. Mr. Banerjee submits that the learned trial judge without considering the evidence of record, in one line has simply stated that the evidence was sufficient to prove cruelty and according to him, such finding is a perverse finding of fact. Mr. Banerjee, thus, prays for setting aside the judgment and decree passed by the learned trial Judge. ( 10 ) MR. Mukherjee, the learned senior advocate appearing on behalf of the husband has supported the judgment and decree passed by the learned trial Judge and has contended that it has been well established from the evidence adduced on behalf of his client that the wife was guilty of cruelty. Mr. Mukherjee points out that an independent witness has come forward and proved the incident created by the wife at the office of the husband and that fact is sufficient for getting a decree for divorce. Mr. Mukherjee further contends that even in the written statement the wife had made wild allegation against the moral character of the husband as regards his alleged illicit relation with one juma Chatterjee but could not prove such fact and the Court is entitled to pass a decree for divorce on that ground alone. Regarding insufficient discussion of evidence by the learned trial Judge, Mr. Mukherjee submits that this Court being a first appellate Court can itself re-appreciate the evidence on record and can come to the conclusion that sufficient materials are there to justify the ultimate conclusion arrived at by the learned trial Judge. Mr. Mukherjee, thus, prays before this Court to re-appreciate the evidence and arrive at the independent finding on the question of cruelty. He, thus, prays for dismissal of the appeal. ( 11 ) AFTER hearing the learned counsel for the parties and after going through the mateials on record we agree with Mr. Banerjee, the learned counsel for the appellant that the learned trial Judge has by a cryptic judgment passed the decree for divorce and did not care to discuss the relevant materials on record. The learned trial Judge proceeded as if the wife has admitted in her evidence that she all along insisted on separate living of the parties away from the parents of the husband although the evidence of the wife is just the reverse. The learned trial Judge proceeded as if the wife has admitted in her evidence that she all along insisted on separate living of the parties away from the parents of the husband although the evidence of the wife is just the reverse. He has jumped at the conclusion of cruelty of the wife by simply saying that the evidence on record was "eloquent enough" to record such findings. He has further held that the marriage between the parties has totally broken down and that there is no point of return. In arriving at such conclusion he totally overlooked the present position of law that mere fact that the marriage has irretrievably broken down by itself cannot enable a court to pass a decree for divorce unless any of the various grounds mentioned in section 27 of the Special Marriage Act is established from the materials on record. ( 12 ) WE, however, also find substance in the contention of Mr. Mukherjee, the learned counsel appearing on behalf of the respondent that even if the reason assigned by the learned trial Judge is insufficient, this Court being the first appellate Court can itself look into the evidence and arrive at its own conclusion to verify whether the ultimate finding of the learned trial Court was justified in the facts of the present case. ( 13 ) WE, therefore, proceed to examine the materials on record to ascertain whether the learned trial Judge was justified in passing a decree for divorce on the ground of cruelty in the facts and circumstances of the present case. ( 14 ) THE first allegation made in the application for divorce is that the wife from the very beginning tried to estrange the husband from his parents brother and sister and insisted on staying separately. In this case it has been established from the evidence on record that the parents were dependant on the income of the husband and in the first few years of marriage the brother and the unmarried sister were also dependant on him. The brother of the husband appearing as P. W. 4 however, has admitted in his evidence that his brother all along used to pay money to their family and it was not his allegation that any point of time, the same was stopped. The brother of the husband appearing as P. W. 4 however, has admitted in his evidence that his brother all along used to pay money to their family and it was not his allegation that any point of time, the same was stopped. Therefore, no allegation can be made against the wife that at her instance the husband was compelled to stop sending money to his dependent parents. It is also proved from the evidence that the younger sister of the husband was married few years before the institution of the suit for divorce and the marriage was negotiated on the basis of reference brought by the appellant. There is no dispute that the husband was in transferable service and was posted at different places like Haroa, Ultadanga, baruipur, Park street etc. while in Haroa, he used to stay there at the manager's quarter and used to come to Calcutta during weekend. If a husband stays in a different place away from his paternal house, in our view the wife can reasonably demand that she would stay with her husband and not in the paternal house when official quarter is provided to the husband at the place of his service. In the case before us, the husband is quite well off and is an officer of a nationalised Bank. In such a situation, if the wife after her marriage wanted to stay in the Haroa with her husband, such fact cannot amount to cruelty. It further appears that the husband before his marriage purchased land in South Garia after taking loan from his office and within a few years after the marriage, a house was completed on the said land under the active supervision of the father of the husband although the construction commenced before the marriage of the parties. After the said house was constructed, the parties shifted to the said house in the year 1987. If a person before his marriage purchases a land with the loan from his office it can be reasonably inferred that he intended to construct a house of his own. Therefore, in this case, by shifting to the South Garia residence with her husband, the wife did not commit any cruelty against her husband. ( 15 ) THE next allegation is that the wife used to quarrel with the members of the in-law's family including the husband. Therefore, in this case, by shifting to the South Garia residence with her husband, the wife did not commit any cruelty against her husband. ( 15 ) THE next allegation is that the wife used to quarrel with the members of the in-law's family including the husband. The specific case of the husband is that she used to quarrel with his father. The father or the mother or the sister of the husband has not come forward to depose against the wife. Only the brother has given evidence and has alleged that the appellant used to quarrel with his father. Whenever we mention of a quarrel, there must be at least two parties to such Incident and a reason for the disagreement. In this case, the P. W. 4 has not disclosed the reason of altercation between his father and the appellant. Every wife has right to resist improper demand of the in-laws and in the process, if she protests against such unacceptable demand, she cannot be held to be guilty of showing disrespect to his in-laws. Therefore, unless evidence is adduced indicating the reason of altercation between the appellant and her father-in-law, we are unable to come to any conclusion as to whether the conduct of the wife was abominable. As regards the allegation of the P. W. 4 that the appellant misbehaved with him, we are not in a position to rely upon such statement unless the actual nature of misbehaviour is brought to the notice of the Court. By simply alleging misbehaviour without giving instance thereof, the charge of misbehaviour against the wife has not been proved at the instances of the P. W. 4. We, thus, find that the husband has failed to prove allegation of misbehaviour of the appellant with his parents, brother and sister. ( 16 ) THE next question is whether the wife created a scene in the office of the respondent and whether such act amounted to cruelty so as to pass a decree in favour of the respondent. ( 17 ) THE husband in his evidence has alleged that the wife came to his office on 20th October, 1992 and created uproar therein and such allegation is corroborated by the evidence of P. W. 2, an employee of the said Bank. The said P. W. 2 in his evidence alleged that he saw the appellant twice in the said Branch. The said P. W. 2 in his evidence alleged that he saw the appellant twice in the said Branch. On the first day, he could not understand the reason why she came but on the second day, he understood the purpose of her visit. According to him, on 20th October, 1992 she alleged in the Bank-premises that the respondent left the South garia-residence without notice and he did not give her money and then she tried to pull the respondent out of the Bank and was abusing him. In cross-examination he admitted that he came without any witness summons and that he was deposing from his memory. He also, could not give the earlier date of her visit. He, however, admitted that the Manager did not appear at the scene and he did not know whether the manager was aware of the incident. He also could not say whether the appellant said anything to the Manager. ( 18 ) THE wife in her evidence has admitted that she went to the bank on 20th October, 1992 and complained to the Manager as the husband left her and was not paying any maintenance. No suggestion has been given to the wife disputing her allegation that she was not getting maintenance. The fact that the husband left her in the month of october, 1992 is not in dispute. ( 19 ) THEREFORE, the question that arises for consideration before us is if a wife is deserted by the husband on 9th October and till 20th October, 1992 no amount of maintenance is paid to her and in such circumstances, if she goes before the employer and complains about non-payment of maintenance, whether such act amounts to cruelty. We do not hesitate for a moment to declare that if a wife without just cause goes to the Office of her husband and makes untrue allegation such fact definitely amounts to cruelty. But in a case, where a wife has been left alone in the residence and the husband decides not to communicate her for the next eleven days and even does not pay any amount of maintenance, in such a situation, if a wife goes to the Office for the purpose of demanding maintenance and also lodges complaint before the employer, in our view, such fact cannot amount to cruelty. If we accept the contention of Mr. If we accept the contention of Mr. Mukherjee, the learned advocate for the respondent that such act amounts to cruelty, then even if the wife on a just cause goes to court alleging non-payment of maintenance and gets an order of attachment of salary directing the employer to pay money direct to the wife, such fact should be described as an act of cruelty. We, therefore, do not agree with the learned Trial Judge that the visit of the wife in the Office on solitary occasion claiming maintenance in a situation like the present one amounted to cruelty. ; the position would have been different if without any just cause she went to the office for the purpose of quarrelling with the husband. ( 20 ) THE next question is whether the husband has proved the allegation of disloyalty of the wife for her alleged involvement with one Mantu Aditya or an unknown tantrik. ( 21 ) APART from the oral testimony of the husband, no other person has come forward alleging Involvement of the wife with either mantu Aditya or the Tantrik. The wife has stated that she does not know anybody named Mantu Aditya nor did she know about any Tantrik. Even the brother of the husband has not alleged the involvement of the appellant with any Tantrik or Mantu Aditya. No local person has come forward making of such allegation. If the husband was really assaulted by the wife and the Tantrik on 9th October, 1992, some evidence of the local people ought to have been brought on record. In the absence of any such evidence, we are unable to rely upon the sole oral testimony of the husband on that score and accordingly, we disbelieve the aforesaid allegation particularly when the wife has totally denied even the existence of any person named Mantu Aditya or the visit of any tantrik. We find that the husband has made baseless allegation against the wife as regards her involvement with Mantu Aditya or the Tantrik. ( 22 ) THE last question is whether the husband is entitled to get a decree for divorce on the ground of cruelty for the allegation of the wife in the written statement that the husband had extra marital affairs with one Juma Chatterjee and he went to santiniketan with Smt. Chatterjee. ( 22 ) THE last question is whether the husband is entitled to get a decree for divorce on the ground of cruelty for the allegation of the wife in the written statement that the husband had extra marital affairs with one Juma Chatterjee and he went to santiniketan with Smt. Chatterjee. ( 23 ) THE wife has made such allegation in her written statement but in spite of that the husband in his evidence did not utter a single word about Juma Chatterjee in examination-in-chief. It is not his case that there is no person named Juma Chatterjee. D. W.-3 and D. W.-4, two local persons of the locality have alleged that the husband had some intimacy with Juma Chatterjee, a lady of that locality. Even to those witnesses, no suggestion was given that there is no lady named Juma Chatterjee in the locality. ( 24 ) ON consideration of the aforesaid materials, we are of the view that it has been at least proved that there is a lady named juma Chatterjee with whom the husband had some acquaintance but it has not been proved whether he really had illicit relation with her. ( 25 ) IN our view, simply because of the fact that the wife could not prove her allegation of illegitimate relation with Juma chatterjee for want of sufficient evidence, the husband cannot get a decree for divorce on the ground of cruelty, unless sufficient material is proved showing that such allegation is totally false. The inability of the part of the party to prove a particular fact is one thing whereas a finding that a particular fact alleged by a party is false is quite a different thing. Therefore, even if, the wife could not prove that the husband had illicit relation with Juma Chatterjee, such fact cannot enable the husband to get a decree for divorce, so long it is not established from evidence that such allegation was a blatant lie. The husband has also made serious allegation of adultery against the wife but could not prove such fact. The husband has also made serious allegation of adultery against the wife but could not prove such fact. If a plaintiffs suit merely fails for want of proof of allegation made in the plaint, it is ridiculous to suggest that in case of such failure on the part of the defendant, she would suffer a decree for divorce though the Court is unable to come to the conclusion that her version is totally false. ( 26 ) WE, thus, find that in this case the husband failed to prove the allegations made in the plaint and at the same time, although, we are unable to come to any conclusion about the allegation of adultery with Juma chatterjee, some acquaintance of husband with Juma Chatterjee is proved and in such circumstances, we cannot describe the allegation of the wife as totally baseless so as to grant a decree for divorce for making such allegation. ( 27 ) WE are, therefore, unable to approve the decree of divorce granted by the learned trial Judge. In this case, it is the husband who without just cause abandoned his wife on 9th October, 1992 and he cannot take the advantage of his own wrong. ( 28 ) THE judgment and decree passed by the learned trial Judge are, thus, set aside. The appeal is allowed. The suit for divorce filed by the husband is dismissed. In the facts and circumstances, there will be, however, no order as to costs. Appeal allowed.