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2008 DIGILAW 419 (CAL)

Dipa Das v. Dipak Das

2008-04-18

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT 1. THIS first appeal is at the instance of a wife in a suit for divorce decreed on the ground of desertion and cruelty and is directed against the judgment and decree dated 2nd February, 2004 passed by the learned Additional District Judge, fast Track Court-II, Barasat, District- 24-Parganas (North), in Matrimonial Suit no. 54 of 2003. 2. THE case made out the husband in the application for divorce may be summed up thus: (a) The parties were governed by the Hindu rites, customs and law and were married on 16th February, 1997 within the jurisdiction of the District Court of 24-Parganas (North). (b) After the marriage, the parties lived together as husband and wife at the residence of the husband and the marriage was consummated. (c) The wife without any rhyme and reason and without prior consent of the husband or his parents used to stay at her parental house for several days and when the husband went to bring her back, she often refused to come back to his house. (d) The wife is a cruel and quarrelsome woman and soon after the solemnisation of the marriage, she had expressed her unwillingness to continue the conjugal life with the husband by making indifferent behaviour and exhibiting her conduct and movement without adjusting with either the husband or his parents. When protested, the wife misbehaved and insulted the husband and his parents. (e) After the solemnisation of the marriage, the wife very often visited her music tutor and returned home mostly about 11 p. m. in spite of protest of the husband and his mother. Although, she was asked to discontinue her visit with the music tutor, the wife became furious, and abused the husband and his parents uttering filthy language. She assaulted the husband by fist and blows. The wife openly gave out that she was not interested to stay with the husband's family. (f) On June 30, 1998, the wife deserted the husband by going back to her father's house and thereafter, she never returned. (g) Although, the husband and his family members went to the paternal house of the wife to bring her back, she refused. The wife openly gave out that she was not interested to stay with the husband's family. (f) On June 30, 1998, the wife deserted the husband by going back to her father's house and thereafter, she never returned. (g) Although, the husband and his family members went to the paternal house of the wife to bring her back, she refused. The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and the specific case made out by the wife may be summarised thus: (i) After few days of marriage, the wife noticed that her husband was a cruel man and always demanded cash money and valuable articles from the wife and as the wife could not satisfy the unlawful demand of her husband, she was subjected to cruelty both physically and mentally and on several occasions, the husband assaulted the wife without any earthly reason. Finding no other alternative, the wife was compelled to report the matter to her parents, relations and well-wishers. (ii) The husband did not allow the wife to talk with the neighbours and she was not provided with proper food and clothing and on 30th June, 1998 being instigated by his parents, the husband drove out the wife from the matrimonial home and since then the wife had been living at her father's place. (iii) The wife had also filed a case under Section 125 of the Code of Criminal procedure before the learned Chief Judicial Magistrate at Barasat. (iv) The wife also, out of unbearable torture both physically and mentally inflicted by the husband, filed a petition of complaint before the learned chief Judicial Magistrate at Barasat on 20th January, 2001 under Section 498a/384 of the Indian Penal Code and pursuant to the said complaint, an F.I.R. was registered on 23rd August, 2001. To save his skin, the husband filed a matrimonial suit before the learned District Judge at Barasat under section 9 of the Hindu Marriage Act but subsequently, he did not proceed with the said suit. (v) The wife and her relations tried heart and soul to reconcile the relation and to change the mentality and attitude of the husband by applying various sources and efforts but the husband did not care to comply with their request. (v) The wife and her relations tried heart and soul to reconcile the relation and to change the mentality and attitude of the husband by applying various sources and efforts but the husband did not care to comply with their request. The wife always tried to adjust with the husband's family but they tried to throw her out without considering her as daughter-in-law. At the time of hearing of the suit, the husband alone gave evidence in support of the claim for divorce while the wife also was the sole witness to give evidence controverting the allegations made by the husband. The learned Trial Judge by the judgment and decree impugned herein was pleased to decree the suit both on the ground of desertion and cruelty. The learned Trial Judge concluded that there was no just ground for filing the complaint under Section 498a of the Indian Penal Code. The learned Trial Judge further found that the wife had no intention of coming back to the husband's house and thus, the allegation of desertion was also proved. 3. BEING dissatisfied, the wife has come up with the present first appeal. Mr. Mukherjee, the learned advocate appearing on behalf of the appellant, at the first place, contended that the learned Trial Judge erred in law in holding that the proceeding under Section 498a of the Indian Penal Code was initiated without just cause by overlooking the fact that the said criminal case is still pending. According to Mr. Mukherjee, it was too early to comment on the allegations made in the said criminal case. Mr. Mukherjee further contends that in this case his client has proved that there was sufficient ground for not coming back to the husband's house. He further points out that it was the husband, who appointed the music tutor and the mere fact that there was delay in returning home after taking such music lesson cannot be a ground for divorce. He, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge. 4. MR Roy, the learned advocate appearing on behalf of the respondent, has, on the other hand, supported the findings recorded by the learned Trial Judge and has contended that there was no just ground of the wife for not coming back to the husband's family after 30th June, 1998. 4. MR Roy, the learned advocate appearing on behalf of the respondent, has, on the other hand, supported the findings recorded by the learned Trial Judge and has contended that there was no just ground of the wife for not coming back to the husband's family after 30th June, 1998. Mr Roy submits that the criminal proceeding was initiated long after the departure of the wife, even more than three years after 30th June, 1998, the date she finally came back to her father's place. According to Mr Roy, the learned Trial Judge on the basis of evidence on record rightly concluded that it was a fit case for grant of divorce. Therefore, the question that arises for determination in this appeal is whether in the facts and circumstances of the present case the learned Trial judge was justified in granting a decree for divorce. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that the wife went back to her father's place on 30th June, 1998 and thereafter, never came back. It is the specific case of the husband that he tried to bring her back, but she did not return without any just cause. The defence taken by the wife, on the other hand, is that in view of cruelty inflicted upon her, she did not go to her husband's place. She has also stated in her evidence that her parents and other relatives tried to make conciliation but the same failed. Curiously enough, nobody has come forward from the side of the wife to support her case that there was any torture on her or that there was any demand of money. It further appears that, after going back, she initiated a proceeding under Section 125 of the Code of criminal Procedure claiming maintenance but such application was dismissed; even thereafter, she came up with an application under Section 498a of the Indian Penal Code. Although, she made allegation that with the help of police she recovered all the articles given at the time of marriage from her husband's house, it appears from Exbt.-A that those articles were returned on 14th November, 1999 in the presence of different persons and therefore, her allegation that the police recovered those articles has not been substantiated. 5. Although, she made allegation that with the help of police she recovered all the articles given at the time of marriage from her husband's house, it appears from Exbt.-A that those articles were returned on 14th November, 1999 in the presence of different persons and therefore, her allegation that the police recovered those articles has not been substantiated. 5. ONCE it is established that the wife had finally gone back to her father's house on 30th June, 1998 and the suit was filed more than two years thereafter, the onus lies upon the wife to show that she had just cause for not returning. In this case, although she pleaded cruelty on the part of her husband, no person has come forward to support her case; even no letter was produced on her behalf showing that she ever complained to her father alleging cruelty. Even her parents did not come forward to make any allegation against the son-in-law. 6. IN such circumstances, in our view, the suit should be decreed at least on the ground of desertion as we are convinced that there was no just ground for not coming back to the husband's house and that her decision to put an end to the matrimonial relationship was final. Since the proceeding under Section 498a of the Indian Penal Code is pending, we do not propose to make any observation on such allegations or about the delay in filing such proceeding, but in our view, the suit should succeed simply on the ground of desertion. Even before this Court, we adjourned the matter for the purpose of ascertaining whether the wife was willing to come back to the husband. We are told that the wife was not willing to come back. The learned Trial Judge also recorded that that the attempt of reconciliation failed. 7. ON consideration of the entire materials on record we, thus, find that the learned Trial Judge rightly passed a decree for divorce at least on the ground of desertion. 8. AS the husband is an employee of the Railway, and the wife claimed to be a musician, we direct the husband to pay a sum of Rs. 1,00,000/- at a time as permanent alimony instead of Rs. 50,000/- awarded by the learned Trial Judge. Such amount be paid within two months from today. The appeal, thus, is allowed only to the extent indicated above. 1,00,000/- at a time as permanent alimony instead of Rs. 50,000/- awarded by the learned Trial Judge. Such amount be paid within two months from today. The appeal, thus, is allowed only to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.