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2006 DIGILAW 521 (GAU)

Mihir Sarkar v. Soma Roy

2006-06-01

A.B.PAL, RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. This appeal under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 23.7.2001 passed by the learned Additional District Judge, West Tripura, Agartala in Title Suit (Divorce) No. 19 of 2000. The decree for divorce as prayed for by the appellant-husband having been refused by the learned trial court the present appeal has been filed. 2. The case of the appellant-petitioner before the learned trial court, as evident from the application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") filed before the said court, inter alia, is that the appellant and the respondent were married as per Hindu customary rites on 26.11.1996. Thereafter, according to the appellant he had lived and cohabitated with the respondent peacefully for about 6/7 months from the date of the marriage. However, according to the appellant, thereafter the respondent started ill-treating him and had compelled him to separate from the common mess where he was living with his brothers. In the application seeking divorce the appellant-husband has specifically stated that on several occasions the respondent had left his house without any prior intimation and that she had also misbehaved the old and ailing mother of the appellant and other members in the family. According to the appellant, in the month of September 1997 the respondent finally left the matrimonial home without his consent and started living in her parental home which was also situated in Agartala. According to the appellant, since then the respondent had deserted him and in spite of several attempts for reconciliation the respondent had not come back to the matrimonial home. In the application filed before the learned trial court, the appellant has further stated that though the respondent was not pregnant at the time when she had left the matrimonial home it had subsequently came to the knowledge of the appellant that she had delivered a baby after a few months of leaving the matrimonial home. In these circumstances, the appellant has categorically stated that the respondent is a woman of bad character and in this regard he has narrated that before her marriage she had freely mixed with her boy friends. In these circumstances, the appellant has categorically stated that the respondent is a woman of bad character and in this regard he has narrated that before her marriage she had freely mixed with her boy friends. It was also specifically stated by the appellant that as the respondent had kept away company of the appellant for more than two years there was no chance of restoration of conjugal life and consequently the decree of divorce as prayed for should be granted. 3. The respondent contested the suit by filing a written statement denying all the allegations made in the application filed by the appellant. According to the respondent, after solemnization of her marriage with the appellant they had lived together in the matrimonial home. However, soon the respondent could notice that the appellant used to return home in late hours of the night and when asked the reasons for such late arrival he used to inform her that he had a girl student whom he was required to teach. According to the respondent, she had not deserted the appellant at any point of time; rather, it is the appellant who had thrown her out of the matrimonial home. In the written statement filed, the respondent has further stated that she conceived in the month of February 1997 and had asked the appellant to take her to the doctor. However, the appellant refused to take the respondent to any doctor and consequently the respondent had to take care of her pregnancy without the help of the appellant. The respondent, in the written statement filed, has further stated that she had left the matrimonial home and had gone to reside in her parental house at an advanced stage of the pregnancy and this was done with the knowledge and consent of the mother and uncle of the appellant. According to the respondent, while she was in her parental house on several occasions the appellant was informed over telephone to accompany the respondent to the Nursing Homo and to stay with her at the time of delivery but the appellant did not do so. The respondent has further averred, in the written statement filed, that on 15.11.1997 she had given birth to a female child in the Lifeline Nursing Home. Even after delivery of the child the appellant did not come to meet her or see the baby. The respondent has further averred, in the written statement filed, that on 15.11.1997 she had given birth to a female child in the Lifeline Nursing Home. Even after delivery of the child the appellant did not come to meet her or see the baby. In these circumstances, after about six months of delivery of the child the respondent along with her child and paternal aunt had gone to the house of the appellant to resume conjugal life. However, the appellant threatened the respondent with dire consequences and refused to give her shelter. In these circumstances, she had no option but to continue to live in her parental house though she was ever ready and willing to live in her matrimonial home. 4. On the basis of the pleadings of the parties the learned trial Court framed four issues for trial in the suit. The issues as framed by the learned trial Court may be usefully extracted hereinbelow. (1) Whether the respondent-wife exercised cruelty on the petitioner in the matrimonial life ? (2) Whether the respondent deserting the petitioner from the month of September 1997? (3) Whether the plaintiff is entitled to get a decree of divorce ? (4) Any other relief the parties are entitled? 5. In the course of the trial the appellant had examined himself as PW 1. He had also examined three other witnesses in support of his case which included Bulan Sarkar (PW 2), elder brother of the appellant; Smti. Minati Das (PW 3), maid servant of the appellant and one Sekhar Bhattacharjee (PW 4), a friend of the appellant. The respondent had examined herself as DW 4. She had also examined one Dr. Partha Pratim Saha (DW 1), a Gynecologist at whose hands the respondent had delivered the baby on 15.11.1997; Dr. Sanjoy Nath (DW 2), a pathologist and Dr. Ajit Majumdar (DW 3), in-charge of Lifeline Nursing Home. The paternal aunt of the respondent who had accompanied her along with the baby to the matrimonial home was examined by the respondent as DW 5. The father of the respondent was also examined as DW 6. The respondent also adduced certain documentary evidence which primarily included the prescriptions issued by DW 1 and the pathological reports issued by DW 2 as well as the certificates issued by DW 3 as the in-charge of the Nursing Home. The father of the respondent was also examined as DW 6. The respondent also adduced certain documentary evidence which primarily included the prescriptions issued by DW 1 and the pathological reports issued by DW 2 as well as the certificates issued by DW 3 as the in-charge of the Nursing Home. At the conclusion of the trial the learned trial court found that the evidence and materials on record did not establish a case of cruelty as pleaded by the appellant. The learned trial court also held that the case of desertion by the respondent was not proved. Accordingly the suit was dismissed and the prayer for a decree of divorce was refused. Aggrieved, the present appeal has been filed. 6. Having noticed the pleaded case of the parties before proceeding to consider the arguments advanced by the learned Counsels for the respective parties it will be necessary for this Court to notice, though very briefly, the evidence adduced by the parties in support of their respective cases. 7. PW 1, the appellant in his deposition has stated that soon after the marriage was over the appellant and his relatives could notice the peculiar behaviour of the respondent. According to PW 1, the respondent had always talked to him in an undignified manner and was quick to pick up quarrels with the other members of the family. PW 1 has also deposed that he along with his brothers and their wives were living in the same house; the respondent had polluted the family atmosphere compelling him to have a separate mess for himself, the respondent and his mother. PW 1 has also deposed that the respondent used to leave the house to visit her parental home and at times she did not return. On occasions she also did not return home after finishing her work in the school where she was working. According to PW 1, the respondent had frequently visited the office of the newspaper, Dainik Sambad, for reasons not disclosed and she would misbehave with him when she was asked about the reasons for visiting the said office. PW 1 has further deposed that the respondent used to pass remarks to the effect that PW 1 could not satisfy the sexual desires of the respondent. PW 1 has further deposed that the respondent used to pass remarks to the effect that PW 1 could not satisfy the sexual desires of the respondent. According to PW 1 in the month of September 1997 she left the matrimonial home without informing anybody and on one occasion when PW 1 along with his elder brother had gone to the house of the father of the respondent to convince her to come back she had refused and instead misbehaved with them. PW 1 has further deposed that though it was not known that the respondent was pregnant at the time when she left the matrimonial home in September 1997 she had delivered a child which fact was, however, not informed to him. PW 2 is the elder brother of the appellant-PW 1. In his deposition PW 2 has stated that after the marriage between PW 1 and the respondent they could observe that she had a quarrelsome habit and that she was abusing PW 1 with filthy words and on flimsy grounds. He also corroborated PW 1 with regard to the separation of the mess and the evidence tendered by PW 1 to the effect that the respondent at times did not return home at night. PW 2 has further deposed that after the respondent had left the matrimonial home in September 1997 they had tried to bring her back on several occasions but she had refused to come back. PW 3, Smti. Minati Das, has corroborated PWs 1 and 2 with regard to the behaviour of the respondent and the quarrels that used to take place between PW 1 and the respondent. PW 4, Sekhar Bhattacharjee, in his deposition has stated that on different occasions PW 1 used to complain to him that the respondent was in the habit of leaving the matrimonial home at times and often did not return thereby making the life of the appellant miserable. 8. DW 1, Dr. Partha Pratim Saha, examined by the respondent, in the course of his deposition has stated that on 27.4.1997 he had examined the respondent and found her to be pregnant. Thereafter the respondent was under treatment of DW 1 and on 15.11.1997 she delivered a female child at the Lifeline Nursing Home. 8. DW 1, Dr. Partha Pratim Saha, examined by the respondent, in the course of his deposition has stated that on 27.4.1997 he had examined the respondent and found her to be pregnant. Thereafter the respondent was under treatment of DW 1 and on 15.11.1997 she delivered a female child at the Lifeline Nursing Home. DW 1 has stated in his evidence that on no occasion he had seen the husband of the respondent accompanying her when the respondent had gone to his chamber for consultation. DW 1 has proved the prescriptions issued by him as Ext-1 series. DW 2, Dr. Sanjay Nath has proved the report of the pathological examination of urine sample of the respondent dated 28.4.1997 as Ext-2 which is to the effect that the pregnancy test carried out was positive. DW 3, Dr. Ajit Majumdar, in his deposition has stated that on 15.11.1997 the respondent was admitted into his Nursing Home for delivery and on the same date a female child was delivered by the respondent at the hands of DW 1, Dr. Partha Pratim Saha. This witness has further deposed that the respondent was discharged from the Nursing Home on 20.11.1997. He has also proved the discharge certificate as Ext-3. The respondent had examined herself as DW 4 in the proceedings before the learned trial court. In her deposition the respondent has stated that at the time of her marriage she was working in the office of the Dainik Sambad newspaper. She has deposed that her conjugal life was initially peaceful until she was informed by her mother-in-law that they should live in a separate mess. Thereafter, according to the respondent, troubles started. She has further deposed that in the month of March 1997 she felt that she was pregnant and accordingly she approached her husband to take her to a doctor. This witness has testified that the appellant refused to take her to a doctor and consequently she had to go to the doctor alone and get all the tests done by herself. During this time, according to the DW 4, her husband was reluctant to talk to her and avoided her. DW 4 has further deposed that her husband used to go to private tuitions early in the morning and by the time he returned from private tuitions DW 4 would be in her school. During this time, according to the DW 4, her husband was reluctant to talk to her and avoided her. DW 4 has further deposed that her husband used to go to private tuitions early in the morning and by the time he returned from private tuitions DW 4 would be in her school. Thereafter, her husband used to return home at about 11/12 P.M. and on such occasions when she enquired about his late coming he used to abuse her. DW 4 has further deposed that in the first week of November 1997 she left the matrimonial home to deliver her child in her paternal house. According to DW 4, she delivered a female child on 15.11.1997. However, the appellant had not bothered to visit her or the child. According to DW 4, after about 5/6 months of the child's birth she along with the baby and PW 5 (her paternal aunt) had gone to her matrimonial home. However, her husband refused to let her stay in the house and, in fact, was about to assault her. Since then she has been living in her paternal house though she had always wanted to live with her husband. DW 5, Smti. Minati Deb, is the paternal aunt of the respondent who has corroborated DW 4 with regard to the visit of the respondent to the house of the appellant along with the baby after about 5/6 months of the delivery of the child and the ill-treatment received at the hands of the husband. DW 6, Krishnadas Roy is the father of the respondent. This witness has deposed that as the appellant-husband was not taking care of the respondent during her pregnancy the respondent had come to live in her paternal house and after delivery of the baby the appellant-husband or any other member of his family had not visited the respondent. 9. The learned trial court on an elaborate consideration of the provisions of the Hindu Marriage Act, 1955 and the definition of cruelty as appearing in Section 13(ia) of the Act took the view that the cruelty contemplated by the Act to be a sufficient basis for grant of a decree of divorce must be such conduct of either of the spouses that makes it reasonably impossible for the other to live with him/her. Thereafter, the learned trial court on an elaborate consideration of the evidence on record took the view that what was established by the evidence of the appellant-husband may be one or two instances of wrong behaviour by the respondent which is not unusual in conjugal life. The learned trial court also held that the materials on record did not establish a case of cruelty to warrant a decree of dissolution of the marriage. Insofar as the plea of desertion is concerned, the learned trial court considered the evidence on record which is to the effect that the parties had lived together from the date of marriage, i.e., November 1996 till September 1997. The learned trial court also took into account the fact that if the respondent had delivered the baby on 15.11.1997 she must have been at an advanced stage of pregnancy when she left the matrimonial home in September 1997. Consequently, the learned trial court held that the version put forward by the appellant-husband that he and his family members were not aware of the pregnancy at the time when the respondent had left the matrimonial home is not correct. The learned trial court also took into account the evidence of the doctors examined by the respondent to the effect that they did not see the husband of the respondent accompanying her either to the doctor's chamber or during the delivery. That apart, the learned trial court taking into account the fact that the respondent had always expressed her willingness to go to the matrimonial home came to the conclusion that the case of desertion as put forward by the appellant-husband has not been established. On the basis of the aforesaid conclusions the learned trial court though it proper to hold that the present case did not warrant a decree of dissolution of marriage. 10. We have given our anxious consideration to the evidence adduced by the parties, the core of which has also been extracted by us, in the present order. Even if we are to disagree with the view recorded by the learned trial court that the witnesses examined by the appellant-husband were interested and partisan in view of their relationship with the appellant-husband, at best, what can be accepted on the evidence of the appellant is that the appellant-husband and the respondent-wife after an initial happy conjugal life had developed some differences. Differences between the spouses in conjugal life do occur, but to bring the said differences within the meaning of the expression 'cruelty' as appearing in Section 13(ia) of the Act, the court must be satisfied that such differences emanating from the conduct of either party to the marriage makes it impossible for the other spouse to continue to live with him/her. In the present case the instances of ill-behaviour alleged by the appellant-husband against his wife; such ill-behaviour towards other members of 'the family as well as the instances where the respondent-wife is alleged not to have returned to the matrimonial home from the parental home, at best, would go to show that the marital relationship, after the initial period of bliss, was not smooth. However, on the basis of the aforesaid circumstances alone it cannot be held that cruelty within the meaning of Section 13 of the Act had been committed by the respondent-wife so as to entitle the appellant-husband to a decree of divorce. The evidence tendered by the appellant-husband that the respondent-wife was freely mixing, around with other males and used to frequently visit the office of the Dainik Sambad for the purpose of meeting another person must be understood by the court to be another attempt on the part of the appellant-husband to prove the cruel behaviour of the respondent-wife. Once again, the court cannot view the aforesaid actions of the wife to amount to acts of cruelty. The respondent-wife is an educated lady working as a school teacher in a Govt. School and earlier she had worked in the office of the Dainik Sambad. In the context of the above facts, even if the allegations made by the appellant-husband is to be accepted such allegations cannot be held to amount to cruelty within the meaning of the Act. This Court has noticed that the appellant-husband and the respondent-wife had lived together from the time of their marriage in November 1996 to September 1997 when the wife is stated to have left her matrimonial home. She delivered a baby in the month of November 1997. The aforesaid facts proved and established by the evidence on record would throw considerable doubt on the case of the appellant that at the time when the respondent-wife left the matrimonial home in September 1997 he was unaware that she was pregnant. She delivered a baby in the month of November 1997. The aforesaid facts proved and established by the evidence on record would throw considerable doubt on the case of the appellant that at the time when the respondent-wife left the matrimonial home in September 1997 he was unaware that she was pregnant. As against the aforesaid evidence tendered on behalf of the appellant-husband, the respondent-wife, by examining three doctors (DWs 1, 2 and 3), had proved that she had visited the doctors during her pregnancy on her own unaccompanied by her husband and that her husband was not present in the Nursing Home at the time of delivery. It is the aforesaid act on the part of the husband which is more capable of being viewed by the court as cruel acts towards the wife. The said fact would also give assurance to the court to accept the evidence tendered by the wife as DW 4 and her maternal aunt as DW 5 to the effect that after delivery of the child when they went to the house of the appellant-husband they were ill-treated there and that the appellant-husband had refused to allow the respondent-wife to live in his house. The appellant-wife, at all stages, i.e., in the written statement filed as well as at the time of tendering evidence in court and even before this Court in the course of hearing of the appeal, had expressed her constant willingness to go back to the appellant-husband. In the above circumstances, this Court cannot but hold that the case of commission of cruelty and desertion by the respondent-wife has not been, in any manner, established by the appellant-husband to the satisfaction of the court. 11. Sri S. Deb, learned senior counsel appearing for the appellant-husband, has sought to build up a case that both parties having lived separately from September 1997 till date i.e. for about a decade this Court must hold that the marriage between the parties has irretrievably broken down and, therefore, this Court ought to order for dissolution of the marriage between the parties by passing a decree of divorce on the said ground. To overcome the fact that irretrievable break down of marriage is not a ground for divorce under Section 13 of the Act, Sri Deb, learned Counsel for the appellant, has relied on the decisions of the Apex Court in the following cases. To overcome the fact that irretrievable break down of marriage is not a ground for divorce under Section 13 of the Act, Sri Deb, learned Counsel for the appellant, has relied on the decisions of the Apex Court in the following cases. (1) AIR 1994 SC 710 V. Bhagat v. D. Bhagat (Mrs.). (2) [2002] 1 SCR 153 G.N. V. Kameswara Rao v. G. Jabilli. (3) AIR 2005 SC 534 A. Jayachandra v. Aneel Kaur. (4) AIR 2006 SCW1550 Naveen Kohli v. Neelu Kohli. 12. We have read and considered the judicial precedent cited by Sri Deb, learned Counsel for the appellant, in support of the proposition noted above. In each of the cases referred to above by Sri Deb, learned Counsel for the appellant, the Apex Court took the view that the acts complained of by either of the spouses amounted to extreme mental cruelty, therefore, the marriage between the parties had irretrievably broken down. The decisions cited could be an authority for the proposition that to determine the question of cruelty, acts subsequent to the filing of the case can also be considered, if properly brought on record. The said decisions could also be an authority for the proposition that the circumstance that the marriage has irretrievably broken down may be kept in mind while determining a case of cruelty contemplated by Section 13(ia) of the Act. However, the said decisions do not lay down any law to the effect that irretrievable break down of a marriage on account of long separation between the spouses can be a ground for a decree of divorce. In fact, in A. Jayachandra (supra) the dissolution of the marriage between the parties on the ground that the marriage had irretrievably broken down was ordered by the Apex Court by invoking its power under Article 142 of the Constitution. The above view taken by us will find ample justification from the observations made in the penultimate paragraph of the decision in Naveen Kohli (supra) by which the Apex Court had recommended to the Union of India "to seriously consider bringing an amendment in the Hindu Marriage Act, 1955, to incorporate irretrievable break down of marriage as a ground for the grant of divorce." 13. For all the aforesaid reasons this appeal has to fail. It is accordingly dismissed, however, leaving the parties to bear their own costs. Appeal dismissed