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2006 DIGILAW 635 (GAU)

Nikunja Das v. Ranju Pathak

2006-07-18

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J 1. The appellant/petitioner before us, Shri Nikunja Das instituted Divorce suit being DTS No. 3/96 before the District Judge, Barpeta seeking a decree for divorce on the grounds of cruelty and desertion as provided under Section 13(1) of the Hindu Marriage Act, 1955 (for short the Act). The suit was contested by the respondent wife and thereafter vide impugned judgment dated 19-3-99 the learned District Judge dismissed the suit and hence the present appeal under Section 28 of the Act. 2. The case of the appellant, in brief, is that he was married to the opposite party Ranju Pathak on 16-10-90 as per Hindu rites and thereafter they lived together as husband and wife. It was a joint family and it is alleged that soon after the marriage the opposite party showed her reluctance to reside in a joint family and insisted upon the husband to live separately. The appellant was not willing to do so as a result on which the wife started torturing the appellant mentally to put pressure on him. She also deserted him and went to her parent's place. 3. The suit was contested by the opposite party who filed the written statement denying the allegations of ill-treatment, cruelty and desertion, etc. It was also stated that on several occasions she tried to return back and live with her husband but her husband as well as his family members refused to allow her to enter into the house and misbehaved with her. 4. Upon the pleading of the parties, the following issues were framed: 1. Whether there is any cause of action for the petition? 2. Whether the petition for divorce is maintainable under the facts and circumstances stated in the petition? 3. Whether the petitioner and parents and relatives were treated with cruelty by the opposite party? 4. Whether there was any cruelty on the opposite party and her parents? 5. Whether the petitioner is entitled to a decree of divorce? 6. To what relief, the parties are entitled to? 5. During trial, the appellant examined five witnesses and the opposite party examined two witnesses. 6. 4. Whether there was any cruelty on the opposite party and her parents? 5. Whether the petitioner is entitled to a decree of divorce? 6. To what relief, the parties are entitled to? 5. During trial, the appellant examined five witnesses and the opposite party examined two witnesses. 6. The learned Counsel for the appellant has submitted that the dissolution of the marriage was sought on the ground that the appellant has been treated with cruelty by the wife, which is a ground for divorce under Sub-clause (ia) of Section 13(1) of the Act and the learned Counsel has detailed the following instances of mental cruelty: (1) Within one month of the marriage the opposite party discloses her mind that she is not willing to live in a joint family. (2) On 10-12-91 during the visit of appellant's brother the opposite party insulted him and misbehaved with him. (3) On 27-2-95 the opposite party had invited some of the friends of the appellant for partition of the family property. (4) On 13-4-95 the opposite party after having altercations with the appellant forcibly left her husband's shelter in spite of objections by the appellant. 7. The wife returned back in the month of September 1995 and thereafter the couple lived together happily for few months but ultimately the opposite party left the house of the appellant on 11-6-96. 8. The appellant is serving as an account assistant in NF Railway, Maligaon and in his deposition before the Court, he had deposed about the above incidents to show that he has been treated cruelly by the wife. On the other hand, the opposite party wife has categorically deposed that she had treated her husband all along with respect and she never desired to separate herself from the joint family. It may be mentioned at this stage that the appellant belongs to a well-to do family whereas the opposite party belongs to a poor family. This was not a case of arranged or negotiated marriage. The appellant had love affair with the opposite party for a long time and in spite of the objections from the family members of the appellant, the marriage was solemnized. The opposite party thus knew that the appellant resides in a Joint family which consisted of his mother and younger brother who had married subsequently. The appellant had love affair with the opposite party for a long time and in spite of the objections from the family members of the appellant, the marriage was solemnized. The opposite party thus knew that the appellant resides in a Joint family which consisted of his mother and younger brother who had married subsequently. The elder brothers of the appellant were already living separately at Guwahati, whereas the other sisters were given in marriage and they were living with their husbands. 9. The learned trial Court on consideration of the evidence on record held that the opposite party was never interested or willing to leave the Joint family or asked for a separate living. The appellant being a Railway employee was provided with a Railway quarter at Maligaon, Guwahati where he used to reside alone and used to visit his parental home at Barpeta on weekend or holidays, whereas the wife was residing with the family. We find force in the submissions of the learned Counsel for the opposite party that in these circumstances, even if the wife carries a desire to live alone with her husband it cannot amount to an act of cruelty 10. As regards the incident of 10-12-91 the appellant's allegation is that the opposite party/wife misbehaved with his brother Jyotish Das and refused to associate herself in arranging food for him. However, we find the evidence of PW 1 on this account is not at all supported by Jyotish Das, PW 5 his own brother, who was allegedly misbehaved with. PW 5 has deposed that he never had bad relation with Ranju Pathak and about the incident of 10-12-91, the version of PW 5 is that on his arrival at the parental house at Barpeta, he saw a quarrel going on between the appellant and the opposite party and when he tried to intervene the opposite party asked him not to meddle in their private affairs and this has hurt him. At no stretch of imagination, the above incident can be termed as misbehaving with the elder brother or causing mental cruelty to the husband. 11. At no stretch of imagination, the above incident can be termed as misbehaving with the elder brother or causing mental cruelty to the husband. 11. As regards the third incident, PW 1 has deposed that on 27-2-95 when he returned from Guwahati, he found some of his friends sitting in his house and on enquiry he was told by them that they have come at the instance of the opposite party for the purpose of partition/family settlement whereupon he told them that this is not possible in absence of his elders whereupon his friends went away. Dipak Bayan PW 3 is another friend of the appellant who is serving as Assistant Engineer of Flood Control Department. He, however, has stated that on that day he went to the house of the appellant on being invited by the brother of the opposite party and not by the opposite party. Pulin Kumar Pathak PW 4 on the other hand claimed that he was invited by the opposite party. Moreover, PW 3 and PW 4 has deposed that after the arrival of PW 1 there was an altercation between the appellant and the opposite party and the appellant was misbehaved with and called a coward etc. by the opposite party. However, we find PW 1 is altogether silent about that and he has not spoken a single word about any altercation or calling of names by the opposite party. 12. We may further mention here that even if the allegations of the appellant is accepted as correct that the opposite party has called his friends for family settlement there cannot be anything wrong in the above because we find that the appellant himself admits that he had also convened a village 'mel' to settle the dispute. 13. In view of the above, much reliance cannot be placed on the statements of PW 3 and PW4. They being friends of the appellant they tried to make out a case although no such thing surfaces. 14. As regards the incident of 13-4-95, PW 1 deposited that on his return from Guwahati, he found the opposite party sleeping in the room and she refused to prepare a cup of tea for him whereupon an altercation took place between them and she left the home with the child. 14. As regards the incident of 13-4-95, PW 1 deposited that on his return from Guwahati, he found the opposite party sleeping in the room and she refused to prepare a cup of tea for him whereupon an altercation took place between them and she left the home with the child. The opposite party voluntarily came back to her husband's house in the month of September 1995 and thereafter the couple lived together happily and as a matter of fact they went to Darjeeling for vacation. However, the comity was short-lived and there was some altercation before Dol festival in 1996 and the opposite party left him on 11-3-96. As the suit was filed in the year 1996 itself the plea of desertion was not pressed and the dissolution of marriage was sought on the ground of mental cruelty only. 15. At this stage we may recapitulate the following observations of the Apex Court as regards 'cruelty' as a ground for divorce under Section 13(1)(ia) of the Act. In the case of Savitri Pandey v. Prem Chandra Pandey [2002] 1 SCR 50 the Apex Court held: 6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of the family life. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of the family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial Court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the Courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life. 16. Coming to the facts of the present case, we find that the appellant had married the opposite party after a prolonged affair with her knowing fully well that she does not belong to similar class or status (as deposed by appellant's brother PW 5). The couple was blessed with a child. The husband used to work at Guwahati and his wife used to reside in a joint family which also did not have many members. There was only the mother-in-law and the younger brother-in-law. However, it seems that the family members did not accept the marriage and as a result slowly and gradually the appellant started to have dislike or may be that the husband had become more sensitive and found fault with each and every act of the wife. 17. The appellant even alleged before the Court that the wife had tried to abort the pregnancy but admittedly there is no supporting evidence and as a matter of fact the wife did give birth to a child. 18. 17. The appellant even alleged before the Court that the wife had tried to abort the pregnancy but admittedly there is no supporting evidence and as a matter of fact the wife did give birth to a child. 18. In the case of G.V.N. Kameswara Rao v. G. Jabilli [2002] 1 SCR 153 the Apex Court had the occasion to consider its earlier decisions and it was observed that the allegations of the petitioner is to be assessed having regard to the status of the parties and social life their customs, traditions, moreover having regard to the sanctity and the importance of marriages in a community life and the Court should consider whether the conduct of the opposite party is such that it has become intolerable for the petitioner to bear any longer and to live together is impossible. The matter is required to be considered not from a solitary incident but from an overall consideration of all relevant circumstances. 19. In V. Bhagat v. D. Bhagat AIR 1994 SC 710 it was stated that what is cruelty in one case may not amount to cruelty in another case. 20. On an overall consideration of the evidence and materials on record we have no hesitation whatsoever to hold that no case for alleged mental cruelty by the opposite party is made out and it is a case of wear and tear of married life and over-sensitiveness of the appellant-husband. The suit was rightly dismissed. 21. The appeal is devoid of merit and accordingly it stands dismissed with costs. Appeal dismissed.