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2008 DIGILAW 849 (CAL)

Ashima Sil v. Subhas Chandra Sil

2008-08-22

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- BHASKAR BHATTACHARYA, J (1) THIS appeal is at the instance of a wife in a proceeding for divorce under section 13 of the Hindu Marriage Act and is directed against the judgment and decree dated 15th July, 1998 passed by the learned Judge, Family Court, calcutta, in Matrimonial Suit No.66 of 1995, thereby granting a decree for divorce on the ground of cruelty. (2) THE case made out by the respondent in the application for divorce may be summed up thus: (a) The parties were married according to Hindu Customs and usages on 2nd june, 1986 and in such wedlock, a male child was born on 20th April, 1989. (b) The relationship between the parties started to be strained since six month after the marriage due to arrogant, insolent and disrespectful behaviour of the appellant towards the father and elder brothers of the respondent. The appellant started creating pressure upon the respondent by not cooperating in the domestic work and cooking in the joint family consisting of his father and the members of the family of his elder brothers and she further created pressure to compel him to be separated from his elder brothers and old father. (c) The appellant not only refused to adjust herself but also started abusing the elder members of the family. The desperate conduct of the appellant became so wild, that to satisfy the whim of the appellant, the respondent along with the appellant separated from the joint family against his free will in April 1987 and this fact shocked the father of the respondent so much that he died on 9th May, 1987. The respondent did not approve the above conduct of the appellant, although, he thought that after above step for separation from the joint family, the appellant would calm down and give up her arrogant and cruel nature and conduct. There was, however, no change in the nature and conduct of the appellant even after such separation from the joint family. (d) Soon after the birth of the child, he became seriously ill and when the condition of the child further deteriorated, the respondent shifted him to the Institute of Child Health at 11, Biresh Guha Street, Park Circus and by god"s grace, he recovered. (d) Soon after the birth of the child, he became seriously ill and when the condition of the child further deteriorated, the respondent shifted him to the Institute of Child Health at 11, Biresh Guha Street, Park Circus and by god"s grace, he recovered. (e) After the child recovered from the illness, the appellant suddenly started saying that whatever immovable property the respondent had should immediately be transferred in the name of the son and she continued her pressure upon the respondent to take step and as the respondent did not agree, she started abusing him in most filthy language within the hearing of his elder brothers. (f) The appellant also threatened the respondent by saying that she would kill him by mixing poison with the food so that she and the son might become the owners of the share in the joint property and that she would get service of the respondent in his office on compassionate ground. (g) The appellant became so cruel and desperate that she started keeping the son always away from the respondent and he was not allowed the company of the son on the ground that unless the respondent agreed to her proposal of transfer of the property she would not allow the son to go with him. (h) The respondent thought that the conduct of the appellant would be changed after the birth of the child but there was no change of the conduct of the appellant and on the contrary, the respondent not having accepted her illegal demand, she became more and more desperate and cruel in her conduct and often refused to cook food for him, as a result, he had to take his food in the office canteen and hotel. (i) The appellant gradually changed her mode of torture upon the respondent and started falsely accusing him of maintaining illicit connection with the wife of his elder brother for creating pressure upon him to submit to her illegal demand. Whenever the respondent protested against the appellant"s act and conduct she used to throw utensils, as a result, he was injured but out of shame, he did not disclose such fact. The physical and mental torture gradually increased so much that he had become apprehensive of his life and limbs at the hands of the appellant. Whenever the respondent protested against the appellant"s act and conduct she used to throw utensils, as a result, he was injured but out of shame, he did not disclose such fact. The physical and mental torture gradually increased so much that he had become apprehensive of his life and limbs at the hands of the appellant. (j) The mother and the brothers of the appellant who were regular visitors supported her conduct and the brothers of the appellant used to threat the respondent that they would drive him away from his own house. (k) The ornaments of the joint family of the respondent were partitioned amongst the respondent and his elder brothers in April 1991. The respondent got his share of the ornaments mentioned in the separate list annexed to the application. On seeing the precious ornaments, the appellant applied physical force upon the respondent to grab those ornaments. The mother and the brothers of the appellant also created pressure to handover the ornaments to the appellant. Under threat of dire consequences from the appellant and her brothers, the respondent agreed to keep those ornaments in a locker in Bank and he hired a locker in 1991 in joint names of the respondent and the appellant in the Bank of India, bowbazar Branch, Calcutta, with the instruction of operating the same by "either or the survivor". The key was taken away by the appellant from the respondent and she opened the locker whenever she liked and took out ornaments. In the locker, separate lists of those ornaments of the respondent and those of the appellant received from her father"s house were kept. (l) The appellant with vindictive motive, even went to the respondent"s office at New Secretariat Buildings with her brother, Khokan, in March 1993 and in presence of his colleagues, she abused him and made wild and false allegation against the respondent and threatened by saying that she would file criminal case alleging torture against him involving his elder brothers and other members of the family. (m)The respondent became scared at the desperate attitude of the appellant and he reported the conduct of the appellant and her brothers and mother to his colleagues and superior officer and lodged a written complaint against the appellant at Hare Street Police Station on 23rd March, 1993. (m)The respondent became scared at the desperate attitude of the appellant and he reported the conduct of the appellant and her brothers and mother to his colleagues and superior officer and lodged a written complaint against the appellant at Hare Street Police Station on 23rd March, 1993. The respondent also lodged written complaint at local Muchipara Police station on 6th June, 1992 and 20th April, 1993. (n) The appellant adopted all possible means to create pressure upon the respondent to submit to her unlawful demand and on occasions, threatened the respondent by saying that she would pour kerosene oil on herself and would set fire and involve him and his brothers and others in criminal case and would spoil his career. The aforesaid acts on the part of the appellant amount to cruelty. (3) THE suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint and the defence of the appellant may be summarised thus: (1) Soon after the marriage, the appellant discovered that the respondent used to go out with the wife of his second brother during daytime when the second brother left for his office and they used to come back between 2 p. m. and 2. 30 p. m. Sometime, the youngest daughter of his brother"s wife, who was about 4 months in 1986, used to be left in the custody of the appellant and the appellant in good faith had looked after the said child during their absence. (2)About 8-10 months after the marriage, the respondent had fallen ill and on the way of recovery of illness, one day at about 3 p. m. , he asked the appellant to prepare a cup of tea for him. When she came back from the kitchen with the tea, she did not find him in the room. She thought that he might have gone to the toilet but when after about 5 minutes there was no sign of his presence, she out of curiosity went towards the room of his second brother of the respondent where she found that the room was locked from inside but the window of the room was open and through the window, the appellant noticed that the respondent and the wife of the second brother were committing sexual intercourse. (3)The respondent was living in adultery with his elder brother"s wife and that fact was also known to the second brother but he did not take any step. (4)The respondent and the wife of his second brother on many occasions disputed the paternity of the only child of the parties in the presence of the respondent but the respondent never protested against such false allegation. It was denied that she ever threatened to kill the respondent by mixing poison in the food so that she might become the owner of the property and get service. (5)It was denied that the appellant refused to cook food of the respondent or that the respondent had to spend night on many occasions without food; on the other hand, it was the respondent, who never arranged or supplied food, medicine and clothing for the appellant and her son. The appellant got financial help to the extent of Rs. 1,000/- a month from her mother by which she arranged the food for herself and her son. (6)The respondent had the habit of taking his meal most of the time right from the beginning of the matrimonial life in the room of the second brother and in course of last 8 years, only on few occasions he used to take meal with the appellant. He used to say that he could not consume the food prepared by the appellant because of its bad test and the food prepared by the wife of the second brother was much better than that prepared by the appellant. (7)The respondent sometime in the month of March 1991 got signature of the appellant on some plain white papers stating that those will be utilised for partition of the joint ornaments of the respondent and kept the same in the bank"s locker in which the appellant in good faith had signed. The key of the locker was never handed over to the appellant by the respondent but he retained the same and it was the respondent, who himself had removed the ornaments as it appears now from the locker. It was specifically denied that the appellant along with his brother ever went to the respondent"s office in the month of March 1993 or abused him or made false allegation in the presence of his colleagues. It was specifically denied that the appellant along with his brother ever went to the respondent"s office in the month of March 1993 or abused him or made false allegation in the presence of his colleagues. According to the appellant, whenever she had protested against the illicit connection between the respondent and the wife of his elder brother, the respondent at the instance of his elder brother had lodged written complaint against the appellant before the police authority. (8)It was only the father-in-law of the appellant who supported her and protected her life like in his own daughter and he was aware the illicit connection of his son with the wife of his second son but he had no say in the family as he had grown old and sick. (9)The respondent was also guilty of the following instances of cruelty: (i)Hatred for the family members of the appellant particularly the mother and the brothers; (ii) Accusing the appellant of bad character and unnecessarily becoming suspicious on the appellant; (iii) Disputing the paternity of the child by saying that the child was born not in the wedlock but by her elder brother; (iv) Neglect to the appellant and the son by not providing food, medicine and clothing and also not maintaining them; (v) Nagging the appellant quite often and made her life miserable. 3. At the time of hearing of the proceeding, the respondent and three other witnesses deposed in support of the prayer for divorce, while the appellant and her brother gave evidence in opposing the relief claimed by the respondent. As pointed out earlier, the learned Family Court by the judgment and decree impugned herein accepted the case of the respondent and granted the decree for divorce on the ground of cruelty. (4) BEING dissatisfied, the appellant has come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on records although we do not approve all the reasons assigned by the learned Family Court in support of its final conclusion that the husband was entitled to get a decree for divorce on the ground of cruelty, yet, in our view, the final conclusion arrived at by the Court below was correct. We, however, propose to record our independent reasons as indicated below. We, however, propose to record our independent reasons as indicated below. (5) IN this case, the husband has alleged both mental and physical cruelty on the part of the wife in the application for divorce. The parties initially lived in a joint family consisting of three brothers and their widower father who has since died; two of them are married while the eldest brother is a bachelor. The respondent is the youngest one. According to the respondent, the wife, from the very beginning, could not tolerate the other members of his family and insisted on separation from the joint family. The respondent alleged that to purchase peace he was compelled to separate himself from the joint family and immediately thereafter, his father, out of shock, died. After the birth of the only male child, the wife with the connivance of her mother and the brothers started creating pressure on the husband for transferring the share of the husband in the joint property in favour of the said son. The husband having refused to give in, the wife invented the idea of giving false allegation of adultery with the wife of the second elder brother of the respondent. She had the habit of picking up unnecessary quarrel with the other brothers and the wife of the second brother and even lodged complaint before the police against them. Once she went to the office of the husband with her brother and created a scene by starting quarrel with the husband in the office. She even demanded that the ornaments received by the husband on partition of the joint property of the family should be given to her and she actually removed those ornaments from the joint locker in the names of the parties. (6) THE wife, however, denied the allegation of demand of the transfer of the property or the ornaments or that she ever went to the office of the husband. She, nevertheless, maintained her defence that the husband had illicit relation with his elder brother"s wife and narrated an incident of witnessing the adultery on a day at 3 p. m. in the written statement. (7) AT the time of hearing, the husband, his eldest brother, one of his office colleagues, an employee of the bank where there was joint locker of the parties, gave evidence in support of the case of cruelty while the wife and her brother, viz. (7) AT the time of hearing, the husband, his eldest brother, one of his office colleagues, an employee of the bank where there was joint locker of the parties, gave evidence in support of the case of cruelty while the wife and her brother, viz. Khokan, deposed in support of her defence. (8) THE P. W.-2, an office colleague of the husband, has corroborated the case of the appellant that the wife with her brother, named Khokan, came to the office and created a scene by making wild allegations against the husband. Although the wife denied such fact, we do not find any reason to disbelieve the P. W.-2. The brother of the wife who allegedly accompanied the wife in the office, although, was examined by the wife, did not dispute such fact in his evidence; he merely made allegations of neglect against the elder brother"s wife of his sister"s husband complaining that she denied food to his sister and also alleged assault on him by the elder brother of the husband. In our view, the parties having separated from the joint family immediately after marriage, such allegation of neglect and denial of food to the appellant at the instance of the elder brother"s wife is not tenable. In such circumstances, we do not find any reason to disbelieve the case of the husband that the wife with his brother, the D. W.-2, went to the office of the husband to humiliate him with the wild allegations. Such act on the part of the wife definitely amounts to cruelty within the meaning of Section 13 of the Hindu marriage Act. (9) WE also agree with the learned Family Court that the allegation of the wife about the adultery of her husband with the elder brother"s wife was a deliberate false one. The story of witnessing the adultery at 3 p. m. in a joint-family-house through the open window as narrated in the written statement is also bereft of any credence. (9) WE also agree with the learned Family Court that the allegation of the wife about the adultery of her husband with the elder brother"s wife was a deliberate false one. The story of witnessing the adultery at 3 p. m. in a joint-family-house through the open window as narrated in the written statement is also bereft of any credence. No prudent man will believe her case that a husband who was then ill, after asking his wife to prepare a cup of tea, will immediately go to the room of his elder brother"s wife and close the door leaving the window open to witness the illicit relation between them knowing fully well that a cup of tea would be prepared within five minutes and the wife would search for him immediately. Therefore, the allegation of the husband that the wife used to make untrue allegation of infidelity involving his elder brother"s wife has been established from the evidence on record. (10) ALTHOUGH the husband has made specific statement of torture in connivance with the mother and brothers of the wife, none of them has come forward to deny such allegation. The D. W.-2, Khokan, in his evidence, did not dispute such fact. On the other hand, the eldest brother of the husband has appeared as a witness for the husband to prove the ill-treatment of the wife. We find no reason to disbelieve his statement. It appears that the wife has filed criminal cases against the other members of the family and a proceeding under (11) SECTION 144 of the Code of Criminal Procedure was initiated against the husband. A civil suit has been filed in the City Civil Court by the wife and the son against the husband over the possession of three rooms exclusively allotted to the husband in the joint property by way of partition. From the conduct of the wife, it is proved that the allegation of the husband that the wife insisted on transfer of the property in favour of the son is true. A wife cannot compel the husband to transfer all his property during his lifetime in favour of her son and it is apparent that with an object to attain that aim, the wife did not hesitate to ill behave and even to make false allegation against her husband. A wife cannot compel the husband to transfer all his property during his lifetime in favour of her son and it is apparent that with an object to attain that aim, the wife did not hesitate to ill behave and even to make false allegation against her husband. (12) THE allegation of the wife that the key of the joint locker was kept with the husband has also been falsified by Exbt.- 2 proved by P. W.-1, an employee of the bank. It appears from Exbt.- 2 that although earlier, on some occasions the husband, on some other, the wife and sometimes, they jointly operated the locker, yet, from July 19, 1993 onwards, it was the wife who all along operated the locker alone. (13) ON consideration of the entire materials on record, we, therefore, approve the finding of the learned Family Court that the appellant was guilty of inflicting cruelty on the husband as indicated above. (14) IT appears that the husband is a government employee and is going to retire from service within a few months. His present salary is about Rs. 15,000/ a month. At present, he is paying alimony pendente lite at the rate of Rs. 5,000/a month. Since he is going to retire, we are of the view that a onetime payment of permanent alimony should be ordered as otherwise, the wife would be in difficulty in collecting the alimony after the retirement. (15) IN the facts of the present case, we are of the view that a sum of rs. 4,00,000/- should be paid by the husband to the wife provided the wife hands over the vacant possession of the rooms over which she has already filed a suit in the City Civil Court to the husband within a month from today. Simultaneously, with the surrender of possession, the husband will pay a sum of Rs. 2,00,000/-by account payee cheque of any nationalised bank in the name of the wife to be handed over to the learned Advocate for the appellant and will pay the balance amount of Rs. 2,00,000/- by March 2009. If the first instalment of Rs. 2,00,000/-is paid, from that moment, the husband will pay the monthly alimony at the rate of Rs. 2,500/- instead of the existing alimony of Rs.5,000/ -. The moment the balance amount of Rs. 2,00,000/- by March 2009. If the first instalment of Rs. 2,00,000/-is paid, from that moment, the husband will pay the monthly alimony at the rate of Rs. 2,500/- instead of the existing alimony of Rs.5,000/ -. The moment the balance amount of Rs. 2,00,000/- will be paid, the husband will not be required to pay any further monthly sum as alimony. If the wife fails to deliver vacant possession of the rooms mentioned above within a month from today, this part of the order granting permanent alimony will stand recalled and the wife would be free to initiate fresh proceedings for fixation of permanent alimony on the basis of the then income of the husband after taking into consideration the conduct of the wife as provided in Section 25 of the Act. (16) THE decree for divorce is, thus, affirmed with the aforesaid additional direction as regards permanent alimony.