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2008 DIGILAW 366 (CAL)

Tathagata Chatterjee v. Papiya Chatterjee

2008-04-03

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT 1. THIS first appeal is at the instance of a husband, in a suit for restitution of conjugal life filed under Section 22 of the Special Marriage Act 1954, and is directed against the judgment and decree dated 18th February, 2005 passed by the Additional District Judge, Hooghly in Matrimonial Suit No. 309 of 2000, thereby dismissed the said suit. 2. BEING dissatisfied, the husband has preferred the present first appeal. The case made out by the appellant in the application under Section 22 of the Special Marriage Act may be summed up thus: (a) The appellant married the respondent on 25th January, 2000 according to the Special Marriage Act, 1954 and thereafter, they lived as husband and wife at the residence of the appellant as mentioned in the cause-title. (b) Immediately after the said marriage, the respondent repeatedly asked the appellant to leave his residence and abandon his aged widowed mother who was seriously ill and to go to his father-in-law's house to become a domesticated son-in-law as the parents of the respondent have no son. The appellant protested against such proposal, and such protest fuelled the fire and being frustrated, the respondent started quarrelling with her husband and mother-in-law on flimsy grounds. It was noticed that the respondent was looked tired even after doing a little domestic work and preferred to take rest instead of helping her aged mother-in-law. (c) The appellant thought that the illness of the wife was temporary and would be cured in due course of time after taking rest and on treatment. However, during investigation and treatment of the respondent, it revealed that she was a patient of high blood sugar and anorexia, chronic in nature. The appellant treated the respondent by eminent physicians and also informed his father-in-law. At first, the father-in-law, tried to deny that illness but after consultation with the doctor, confessed that he had suppressed the material fact about the illness of the respondent before marriage and asked the appellant to bring back the respondent at her father's house for better treatment and rest. (d) On 1st June, 2000, the appellant went to the respondent's house and it was decided that the respondent would return back with the appellant at his house on the day of Jamai Sasthi as better treatment of the respondent could be made at Bandel where eminent physicians and doctors were available. (d) On 1st June, 2000, the appellant went to the respondent's house and it was decided that the respondent would return back with the appellant at his house on the day of Jamai Sasthi as better treatment of the respondent could be made at Bandel where eminent physicians and doctors were available. Thereafter, in spite of repeated demand, the respondent refused to come back to the residence of the appellant. (e) The appellant on 2nd July, 2000 went to the house of the respondent to bring her back but the respondent refused to come back in presence of her parents without any reasonable excuse. Hence the suit. The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the application for restitution of conjugal life and the defence taken by the respondent may be summed us thus: (i) After the very date of marriage, the mother-in-law of the respondent prevented the respondent from staying in the room of the appellant at night and she also used filthy languages to the respondent and told that she would not consider the respondent as her daughter-in-law unless and until, a further amount of Rs. 25,000/- was brought by the respondent from her father's house in spite of the fact that at the time of marriage, a total sum of Rs. 75,000/- was paid to the appellant. (ii) The mother of the appellant further told her that so long such demand was not satisfied the respondent would have to live in her house as a maidservant and gradually, started inflicting torture upon her. (iii) The appellant and his mother used to beat the respondent and did not give her food in spite of doing all the household works. Due to such torture, the respondent became ill but no arrangement was made for her treatment. The appellant sometime gave her tablets without any prescription for which the respondent became a patient of diabetes. Even the appellant and his mother threatened the respondent to kill her by pouring kerosene oil over her body. (iv) On 9th July, 2000, the parents of the respondent, together with other near relatives, went to the house of the appellant for making an amicable settlement of the dispute but the appellant and his mother drove them out of the house. (iv) On 9th July, 2000, the parents of the respondent, together with other near relatives, went to the house of the appellant for making an amicable settlement of the dispute but the appellant and his mother drove them out of the house. The respondent again on 23rd August, 2000 sent her father to the appellant for requesting him to allow her to remain in the matrimonial house but the appellant and his mother again drove them away by using filthy languages. Ultimately, the respondent lodged a complaint at the Kalna Police Station on 24th August, 2000 under Section 498a of the Indian Penal Code against the appellant and his mother and the said case is still pending. At the time of hearing of the suit, the appellant and his mother gave evidence in support of his case while the respondent herself and her mother deposed in opposing the claim. The learned Trial Judge by the judgment and decree dated 18th February, 2005 was pleased to dismiss the said application under Section 22 of the Special marriage Act, 1954. 3. BEING dissatisfied, the husband has come up with the present first appeal. After hearing the learned counsel for the parties and after going through the materials on records, we find that sole defence of the respondent is that as the husband and his mother started torture upon her it was not possible for her to return to the house of the husband unless separate residence is arranged where the mother-in-law would not be staying. Her further case in the written statement is that the mother of the husband demanded a further sum of rs. 25,000/- in addition to Rs. 75,000/- paid at the time of her marriage and as the father of the wife was unable to pay the said amount, the husband left her at the house of her father. It is her further case that there was a talk of amicable settlement at the instance of her father and other local people but neither the father of the respondent nor any such person who participated in the talk of settlement gave evidence in support of her defence. It appears that the mother of the husband and the father of the wife are retired teacher of a secondary school. The mother of the husband has given evidence and denied the allegation of any torture. It appears that the mother of the husband and the father of the wife are retired teacher of a secondary school. The mother of the husband has given evidence and denied the allegation of any torture. We further find that after the service of summons of these proceedings for restitution of conjugal right, the wife has started proceedings under Section 498a of the Indian Penal Code against the husband and his mother. Prior to filing of the proceedings for restitution of conjugal right, no allegation was made against the husband in writing even by writing any letter. Even the wife did not write any letter to her father complaining torture or demand of money. She stated in her evidence that Dipali Santra, Ananda Santra, Kalicharan Saha and Sahadev Dutta were informed regarding torture upon her and those persons would be her witnesses in these proceedings but none of them appeared to give any evidence in support of her defence. Even no suggestion was given to the husband or his mother that at the time of marriage they took Rs. 75,000/- although suggestion of demanding Rs. 25,000/- was given to them in cross-examination. No explanation has been given for the absence of the father in the witness box. The said gentleman was the most competent person to throw light on the allegation of demand of money at the time of marriage or thereafter as it was he who paid that amount at the time of marriage and at the same time demand was made to him for further money, if the allegation is true. He was afraid of facing the Court on the allegation of the husband that he intended to make him a domesticated son-in-law and the husband was also deprived of his right of cross-examining him on the question whether he really wanted a domesticated son-in-law in the absence of his son or whether any demand for money was made by the husband. 4. ON consideration of the entire materials on record, we find that the wife has failed to show any just cause for not going back to the matrimonial home. She has miserably failed to prove any sort of torture in these proceedings and at the same time, she failed to prove the demand of any money from her father. 4. ON consideration of the entire materials on record, we find that the wife has failed to show any just cause for not going back to the matrimonial home. She has miserably failed to prove any sort of torture in these proceedings and at the same time, she failed to prove the demand of any money from her father. The learned Trial Judge, as it appears from the order impugned, did not consider the aforesaid aspect of the matter. The learned Trial Judge, without considering the abovementioned vital features, has arrived at the finding that the husband had not been able to prove that the wife voluntarily withdrew from his company and after recording such finding dismissed the suit for restitution of conjugal right. The real question in these proceedings, as to whether she had just cause for not going back to the husband, had not been answered. 5. WE, therefore, set aside the judgement and the decree passed by the learned Trial Judge and hold that the husband has successfully proved that there was no just cause for the wife to go back to her father and thus, it is a fit case where the husband is entitled to get a decree for restitution of conjugal right. We accordingly pass such decree with immediate effect. In the facts and circumstances, there will be, however, no order as to costs.