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2008 DIGILAW 493 (CAL)

Pranab Kumar Karmakar v. Arati Karmakar

2008-05-07

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first appeal is at the instance of a husband in a suit for divorce on the ground of cruelty and desertion and is directed against the judgment and decree dated May 8, 1991 passed by the learned District Judge, Midnapore, in matrimonial Suit No. 150 1988, thereby dismissing the said suit. (2). THE case made out by the appellant in the suit for divorce may be summed up thus: (a) The parties were married according to the Hindu rites and customs on 13th may, 1982 at Kalighat Temple Premises, Kalighat, and the same was registered under the Hindu Marriage Act on 15th May, 1982 being case no. 579 dated May 15, 1982. (b) After the marriage, the parties came to the house of the appellant at village barhans, P. O. Garia, P. S. Sonarpur, District- 24-Parganas (South) and they last resided together in the said address at Garia within the Sonarpur police Station. (c) On 5th July, 1982, at night, the respondent told that she was not willing to live in a joint mess with other members of the husbands family and she would be happy if the appellant managed to have his transfer from the present place of posting to the District of Midnapore and particularly, at jhargram or Durgachak and in that event, she would be near to her parents and brother. She further told him that she would keep her affectionate unemployed brother, namely, Purnendu Rana, always with her and she would not be able to live without him. (d) On 6th July, 1982, the husband went to the house of his father-in-law at agaiboni with the respondent and stayed there for three days separately as the parents of the respondent did not allow the parties to live together. Thereafter, the husband returned back to his house at Garia with the respondent. (e) On 11th July 1982, the respondent suddenly told the appellant that she did not like to have any child for at least the next six years and advised him to take preventive measure. Thereafter, the husband returned back to his house at Garia with the respondent. (e) On 11th July 1982, the respondent suddenly told the appellant that she did not like to have any child for at least the next six years and advised him to take preventive measure. On being asked by the husband about the reason, she told him that it would not be possible to maintain and educate the children properly in a joint mess with the parents of the husband and accordingly, she would have to watch and understand the atmosphere, mode and behaviour of the members of the family of the husband and thereafter, she would decide about the birth of any issue of her own. The aforesaid decision on the part of the wife constituted cruelty upon the husbands body and mind. (f) The respondent was creating mental pressure upon the husband and she pressed him to have a transfer to Jhargram or Durgachak or Haldia in the district of Midnapore where she would live with the husband separately from the joint mess. She also told that Jhargram was near to her native village where her parents were living and Durgachak was near to C. P. T. quarter of her brother, namely, Himangshu Sekhar Rana and as such, she would be always in touch with them. The husband did not agree to her proposal as he had been, at that point of time, just transferred from birbhum to Calcutta and it was not possible for him to get further transfer from Calcutta. He also told that he being the only earning member of the family, it would not possible for him to maintain a separate establishment by his meagre income. (g) On 15th September, 1982, prior to viswakarma Puja, the respondent left the matrimonial house while the appellant was away in his office and she took with her all belongings including her ornaments without the consent and permission of the husband or any of the members of his family. (h) On 26th September, 1982, the husband along with his father had gone to the house of the respondent but she refused to return to the joint mess. The aforesaid refusal on the part of the respondent amounted to not only desertion but also cruelty. (h) On 26th September, 1982, the husband along with his father had gone to the house of the respondent but she refused to return to the joint mess. The aforesaid refusal on the part of the respondent amounted to not only desertion but also cruelty. On the same day, the respondent and some other persons related to her rebuked the appellant using filthy language and her father threatened him with dire consequence. (i) The respondent subsequently filed the Miscellaneous Case No. 7 of 1983 before the learned Additional Chief Judicial Magistrate, Tamluk, under section 125 of the Code of Criminal Procedure claiming maintenance of rs. 400/-a month from the appellant but the same ended in compromise by which both the parties before the learned Magistrate agreed to compound the matter and the respondent agreed to come back to the husbands place. However, she avoided to come back to the husbands place on the pretext that she would first go to her fathers house and after a few days thereafter, she would come back to the husbands place. Subsequently, she refused to return although the appellant had by writing letter requested her to come. (j) The respondent, afterwards, filed another Miscellaneous Case being No. 18 of 1984 under Section 125 of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Tamluk, claiming maintenance at the rate of Rs. 400/-a month. The said case ended in an order dated 10th December, 1985 granting Rs. 300/-a month payable by the appellant to the respondent. The husband moved this Court in its criminal revisional jurisdiction against the said order and ultimately, the said revisional application was dismissed. The respondent, thus, had deserted the husband for more than two years. (k) On 15th November, 1986, the husband along with his maternal uncle gone to the house of the respondent and they tried to persuade the respondent to come back but she became furious and she not only turned down the proposal but also abused them in filthy language and drove them away from their house. (l) The appellants sister, namely, Tapati Rana @ Karmakar was married to the respondents brother, namely, Himangshu Sekhar Rana on 17th June, 1982 but the said Himangshu Sekhar Rana had driven out the sister of the appellant by snatching all her belongings and she had been staying in the house of the appellant. (l) The appellants sister, namely, Tapati Rana @ Karmakar was married to the respondents brother, namely, Himangshu Sekhar Rana on 17th June, 1982 but the said Himangshu Sekhar Rana had driven out the sister of the appellant by snatching all her belongings and she had been staying in the house of the appellant. The aforesaid behaviours on the part of the respondent amounted to cruelty. (3). THE respondent contested the suit by filing written statement thereby denying the material allegations made in the application for divorce and the defence taken by the respondent may be epitomised thus: (i) After the marriage of the respondent with the appellant, the appellants mother began to express her serious dissatisfaction for want of sufficient dowry in the marriage and at her instance and provocation, the appellant started ill-treating and oppressing the respondent in various ways and even neglected to provide her with sufficient food and other bare necessities of life. The husband would often physically torture and assault the respondent to compel her to bring dowry from her father to the satisfaction of the appellant and his parents and ultimately, turned the respondent out of their house immediately before the viswakarma Puja by snatching away all her ornaments and other belongings. The respondent had no other alternative but to take shelter in her fathers house. Several attempts were made to persuade the husband and his parents to take back the respondent. However, they persistently refused to take the respondent back unless sufficient dowry to their satisfaction was given. The respondents father had no financial capacity to meet the demand of the husband and his parents. (ii) At the time of marriage, there was no talk of dowry from either of the parties. The appellant married the respondent and the respondents brother married the appellants sister and neither of the parties gave any dowry but the appellants mother was not satisfied in the matter and immediately after the marriage, she started creating trouble over the issue of dowry and at her instigation, the appellant joined hands with her. The appellant married the respondent and the respondents brother married the appellants sister and neither of the parties gave any dowry but the appellants mother was not satisfied in the matter and immediately after the marriage, she started creating trouble over the issue of dowry and at her instigation, the appellant joined hands with her. (iii) The husband and her mother even started putting pressure on the respondents brother through the appellants sister for dowry and ultimately, to intensify the pressure, the appellants sister left the house of the respondents brother and refused to come back unless sufficient dowry to the satisfaction of the appellant and his mother was paid to the appellant. The respondent was always ready and willing to lead with the appellant a normal conjugal life and entreated the appellant and his mother not to take her to task for her fathers inability to satisfy the demand of the appellant and his mother for dowry. Unfortunately, the respondent failed to soften the appellant and his mother. (4). AT the time of hearing, the appellant and his mother gave evidence in support of the case for divorce while the respondent and her two brothers deposed in opposing the claim of the appellant. (5). THE learned District Judge, by the judgment and decree impugned herein, however, dismissed the suit with the finding that it was the appellant-husband, who deserted the respondent and at the same time, the appellant failed to establish cruelty on the part of the respondent. Being dissatisfied, the husband has come up with the present appeal. (6). AFTER hearing the learned counsel for the parties and after going through the evidence on record, we find that although the wife in her written statement alleged physical assault upon her, no convincing evidence has been given by the wife in support of the allegation of physical assault. Even when the appellants mother deposed as PW-2, only a vague suggestion was given to her that she along with the other members tortured the respondent; but in evidence, no particular date of the physical assault has been alleged. Even when the appellants mother deposed as PW-2, only a vague suggestion was given to her that she along with the other members tortured the respondent; but in evidence, no particular date of the physical assault has been alleged. It appears from record that in one of the letters written by the wife to her sister-in-law, who happens to be the wife of her elder brother, on the reverse side of the letter, she allegedly wrote a separate letter to her brother making the allegation of ill treatment and the demand of dowry. The learned Trial Judge, in our view, rightly concluded that the same was the outcome of fraudulent act on her part and was written subsequently. In our opinion, if such a letter was really in existence, it would have been definitely produced in the criminal proceedings between the parties which started much earlier. (7). WE, therefore, find that no convincing evidence of demand of dowry has been produced by the respondent. Moreover, in this case, it has been established that there were two different marriages in the two families, one between the appellant and the respondent and the other, between their respective sister and brother. In this type of a marriage, generally, no demand of dowry, in respect of one of such marriages, is made. It appears that the sister of the appellant has also been staying away from her husband and a matrimonial suit for restitution of conjugal life was pending. (8). WE, thus, find that the plea taken by the respondent that there was subsequent demand of dowry at the instance of the appellant has not been established. Even the father of the respondent was not examined to prove such allegation without giving any explanation. (9). IT is not in dispute that the wife left the appellant on 15th September, 1982 and thereafter, never returned. It is the specific case of the respondent that she was driven away by the husband and his family members and as a result, she went to her brothers house at Haldia and thereafter, the husband refused to accept her so long the demand of dowry was not satisfied. It is the specific case of the respondent that she was driven away by the husband and his family members and as a result, she went to her brothers house at Haldia and thereafter, the husband refused to accept her so long the demand of dowry was not satisfied. The specific case of the husband, on the other hand, is that without taking his permission or the permission of any of the members of his family, she went to Haldia and thereafter, both the husband and his father went to bring her back but she refused to come. Both the wife and the brother of the wife in their oral evidence denied that the appellant ever went to Halida; on the other hand, the registered letter written by the wife dated 12th October, 1982, a few days after the incident of 15th September, 1982, discloses that she herself had written that she was anxious as the health of the husband was not good when he last came to Haldia. The aforesaid letter falsifies the allegation that the husband never went to take her back from Haldia and on the other hand, the said statement lends support to the allegation of the husband that after 15th September, 1982, he along with his father went to take the respondent back but they were driven away. In our view, by writing the said registered letter, the wife tried to create evidence for the purpose of showing that she was always ready and willing to come back. In our opinion, if on 15th September, 1982 the respondent was really driven away by the husband and thereafter he never tried to take her back as pleaded by the wife, she would surely complain in the letter dated October 12, 1982, the first letter after such incident, about driving her away from the matrimonial home. On the other hand, the said letter supports the plea of the husband that on September 15, 1982, the wife of her own left the matrimonial home and thereafter, the husband went to the Haldia to take her back. (10). WE, therefore, find that the wife without any just cause had left the matrimonial home on 15th September, 1982 and she did not intend to come back. She had filed two cases for maintenance under Section 125 of the Code of criminal Procedure and got an order of maintenance. (10). WE, therefore, find that the wife without any just cause had left the matrimonial home on 15th September, 1982 and she did not intend to come back. She had filed two cases for maintenance under Section 125 of the Code of criminal Procedure and got an order of maintenance. It appears that the learned trial Judge was impressed by the fact that as this Court in the Criminal revisional Jurisdiction did not interfere with the finding of the learned Additional chief Judicial Magistrate fixing the amount of alimony, it should be presumed that she had just cause for not coming back to the husbands place. In our opinion, a finding in the proceedings under Section 125 of the Code of Criminal procedure cannot be binding upon a Matrimonial Court dealing with an application for divorce as res judicata. A Matrimonial Court is required to arrive at its independent finding based on the material placed before it on the question of desertion by specifically holding whether there was just ground for the deserting to live separately from the deserted one and whether the deserting spouse had the intention never to come back. (11). IN the case before us, we are convinced that there was no sufficient cause for not coming back to the matrimonial home and that the wife did not hesitate to bring false allegation of physical assault and demand of dowry and for that purpose, even interpolated a letter earlier written by her. We do not find any reason to disbelieve the allegation of the husband that the wife did not want to have a child so long the husband did not leave his parents and the unmarried sister although they did not misbehave with the wife in anyway. (12). THUS, it is a fit case for grant of divorce on the ground of cruelty as well as on the ground of desertion for more than two years. (13). WE, therefore, find that the learned District Judge did not at all consider these aspects of the matter and in spite of his specific finding that the wife interpolated the letter earlier written to her sister-in-law by subsequently adding the allegation of demand of dowry, curiously, came to the conclusion that it was the husband who deserted the wife. (13). WE, therefore, find that the learned District Judge did not at all consider these aspects of the matter and in spite of his specific finding that the wife interpolated the letter earlier written to her sister-in-law by subsequently adding the allegation of demand of dowry, curiously, came to the conclusion that it was the husband who deserted the wife. The learned Trial Judge even disbelieved the allegation of torture against the wife but in spite of such finding, held that there was just ground of refusal of the wife to go back to the husband only because of the fact that this Court in Criminal Revisional Jurisdiction affirmed the order of maintenance. If the only defence of the wife that she was tortured for non-payment of dowry fails, there is no conceivable reason for not going back to the husband and the only conclusion that can be arrived at is that the wife was not willing to stay in the joint family of the husband and wanted to stay near her father and brother which was not possible in this case in view of the fact that the husband was in the transferrable service of the State of West Bengal. We, are however, unable to accept the finding of the learned Trial Judge that the wife had right to stay separately from the family of the husband even if the allegation of torture against her has been proved to be false and that in the facts of the present case, the parents and the other sister of the husband were wholly dependent upon him. (14). WE, therefore, set aside the judgement and decree passed by the learned trial Judge and hold that the husband has proved both cruelty of the wife and the desertion of the wife for more than two years before presentation of the petition for divorce. (15). THE husband is going to retire from the service of the Government of West bengal in the next month. It appears that at present, the wife, on the basis of the husbands present salary of Rs. 18,000/- a month, is enjoying a maintenance of rs. 3,000/-a month and as the husband will retire from the next month and after taking into consideration the fact that the wife is guilty of cruelty and desertion without just cause, we fix the permanent alimony at Rs. 2,00,000/-being a onetime payment. 18,000/- a month, is enjoying a maintenance of rs. 3,000/-a month and as the husband will retire from the next month and after taking into consideration the fact that the wife is guilty of cruelty and desertion without just cause, we fix the permanent alimony at Rs. 2,00,000/-being a onetime payment. Such amount should be paid within two months from today in full satisfaction of her claim of present and future maintenance. If the said amount is paid, the husband will not be required to further comply with the order of the Criminal Court passed on the application under Section 125 of the code of Criminal Procedure. (16). WE, therefore, set aside the judgment and decree passed by the learned trial Judge and grant a decree for divorce on the grounds of cruelty and desertion with a further decree for permanent alimony by directing the husband to pay a onetime payment of Rs. 2,00,000/ -. (17). THE appeal, thus, is allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.