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2009 DIGILAW 122 (CAL)

Snehasish Roy Chowdhury v. Keya Roy Chowdhury

2009-02-18

BHASKAR BHATTACHARYA, TAPAN KUMAR DUTT

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This First Appeal is at the instance of a husband in a suit for divorce under Section 13 of the Hindu Marriage Act, 1955 and is directed against the judgment and decree dated 19th March, 2005 passed by the learned Additional District Judge, Fifth Court, Alipore, in a Matrimonial Suit No.9 of 2001, thereby dismissing the said suit for divorce. (2) Being dissatisfied, the husband has come up with the present appeal. The appellant before us filed in the Court of the learned District Judge, South 24 Parganas at Alipore, a suit, being Matrimonial Suit No.1486 of 1997, under Section 13 of the Hindu Marriage Act for divorce against the respondent. The said suit was subsequently transferred to the Fifth Court of Additional District Judge, Alipore, and was renumbered as Matrimonial Suit No.9 of 2001. (3) The case made out by the appellant may be summed up thus: (a) The parties to the proceeding came in contact with the each other during the period of 1986-1990 and subsequently, the respondent had conceived though not legally married. Consequently, the members of the families of the parties took decision that they should be immediately married and accordingly, on 18th January, 1991 the relatives of the parties put vermilion on the respondent in her house. Subsequently, the parties had also gone to the Marriage Registrar, namely, one Sri Ajit Kumar Bose, at 6, Fern Road, Calcutta 700 019 and an application for registration of marriage as per Hindu Marriage Act was submitted. It was subsequently found that Sri Bose had no power of registration of marriage at the material point of time. (b) Be that as it may, the parties to the suit had been living as husband and wife within the jurisdiction of District South 24-Parganas and the marriage was consummated after the parties had gone through their marriage ceremony in the presence of the relatives on 15th April, 1991. Subsequently, the respondent had a miscarriage and she again conceived and finally gave birth to a daughter on 24th July, 1993 at Ramkrishna Mission Seva Pratisthan, 99, Sarat Bose Road, Calcutta. (c) After marriage, it was detected that the respondent had totally changed in her words, action, behaviour, etc. towards the appellant for the reason not known to the appellant. Subsequently, the respondent had a miscarriage and she again conceived and finally gave birth to a daughter on 24th July, 1993 at Ramkrishna Mission Seva Pratisthan, 99, Sarat Bose Road, Calcutta. (c) After marriage, it was detected that the respondent had totally changed in her words, action, behaviour, etc. towards the appellant for the reason not known to the appellant. It further appeared that she was insolent and did not spare even the parents-in-law and other relations. (d) Some of the instances of the cruel/inhuman treatment of the respondent towards the appellant were described as follows: (i) The respondent in each and every month used to snatch away the entire salary from the appellant and any kind of resistance or protest at the instance of appellant made the respondent furious and the appellant had to beg from the respondent for his pocket expenses. The respondent even was reluctant to pay to the parentsin-law the amount of monthly family expenses and any kind of request to pay the family expenses would make her fuming and she threatened to commit suicide so that not only the appellant but also his parents would be put into prison and humiliation. The respondent also threatened to call the local people and create scene to humiliate the members of the family of the appellant. (ii) On 8th March, 1994, the respondent assaulted or attempted to assault the appellant and also abused the appellant with filthy language on several occasions and blamed the appellant that he had illicit connection with other women. (iii) Such suspicious behaviour gradually increased and it became impossible for the appellant to live in the matrimonial home as husband and wife with dignity and prestige. (iv) On 13th December, 1995, there were occasions when the respondent drove out the appellant with kicks and blows at dead of night and the appellant was compelled to sleep under the staircase. (v) In the event, the appellant protested against such inhuman behaviour of the respondent, she would become violent and attempt to draw sympathy from neighbours by shouting and the appellant, for saving family prestige used to remain silent. (vi) The respondent even did not allow the appellant to go to the friends and relatives house but used to compel him to remain in the house. (vi) The respondent even did not allow the appellant to go to the friends and relatives house but used to compel him to remain in the house. (vii) The respondent was very much suspicious about the character of the appellant and if the appellant had talked to any woman who was known to the appellant, the respondent suspected the appellant and warned the appellant not to talk with such woman. (viii) The respondent made the life of the appellant miserable by her attitude, behaviour and words and the appellant lost his pleasure and personal liberty of the life. The appellant further lodged a complaint with the local police station and prayed for interference of the National Human Rights Commission, New Delhi but the authority informed the appellant by a letter dated 14th September, 1996 that as a complaint had been lodged with the local police station, they had nothing to do. (ix) Due to the aforesaid cruel behaviours of the respondent, the appellant had reasonable apprehension in his mind that it would not be safe to live with the respondent in the matrimonial house for which the appellant was compelled to live separately from the respondent and in fact, the appellant had been living separately from 9th July, 1997 and, thus, it can be said that the respondent had deserted the appellant. Hence the suit. (4) The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summed up thus: (1) It was denied that the respondent used to snatch the salary from the appellant. On the contrary, it was the appellant who expressed that he was open-handed and he was incapable of managing his income in a measured manner and in order to get rid of financial stringency in the later part of the month, the appellant used to ask the respondent to keep a portion of his salary to meet up the expenses in the last part of the month. The fact remained that in spite of such insistence, the respondent never kept any money in her custody from the appellant and she had no such intention of snatching his income every month. The fact remained that in spite of such insistence, the respondent never kept any money in her custody from the appellant and she had no such intention of snatching his income every month. It was further denied that the respondent became reluctant to pay the monthly family expenses to her parents-in-law as it was not only known to the appellant but also to the parents-in-law of the respondent that the respondent was never entrusted with the money of the appellant. (2) It was denied that the respondent ever became furious or threatened to commit suicide which caused the appellant as also his parents to be afraid of any false allegation or putting them in prison or humiliation. It was also denied that the respondent ever threatened to call local people or created scene to humiliate the members of the family. (3) It was absolutely false that on 8th March, 1994 the respondent assaulted or attempted to assault the appellant and also abused the appellant in filthy language or blamed the appellant alleging his illicit connection with other women; on the contrary, the appellant who used to recount his experiences to the respondent in close door that the appellant had many occasions to mix up with several women with whom he had intimacy. The respondent initially thought that it was the modus operandi of the appellant to make the respondent jealous or to humiliate the respondent but in reality, the respondent never disbelieved the appellant about his day-to-day activities or for his absence from home. (4) The appellant never bothered about the respondent and his minor child or their expectation, requirement and day-to-day need far from making any attempt to make the respondent and the minor child happy. In fact, the appellant was all along busy and concerned with his personal affairs of various nature for which the appellant during his stay at his home used to leave the home in the early part of the day and used to return home between 10p.m. and 11 p.m. (5) It was denied that on 13th December, 1995 or on any occasion, the respondent ever drove out the appellant with kicks and blows at the dead of night. It was also denied that the appellant ever was compelled to sleep under the staircase as falsely alleged. It was also denied that the appellant ever was compelled to sleep under the staircase as falsely alleged. It was the appellant who made the lives of his family members heel and ultimately, left his house for no justified reason. (6) It was denied that the respondent ever became violent at any point of time and ever attempted to draw sympathy from the neighbours by shouting in the midnight. It was also denied that the respondent ever compelled the appellant to remain in the house; on the other hand, the appellant all along led a free and reckless life and frequently met his friends and relations without any restriction on the part of the respondent. It was denied that the respondent ever suspected or warned the appellant not to talk with any other woman. The respondent has not lost her faith and even at the time of filing written statement, the respondent had been waiting along with the child with expectation that the appellant would comeback to their lives and lead a happy conjugal life. (7) The alleged complaints before the police station or Human Rights Commission were based on imagination and motivation of the appellant without any reason or necessity. It was shocking on the part of the respondent to say that she experienced during her conjugal life that the appellant had the habit of perversion. (5) At the time of hearing, the appellant and his father gave evidence in support of the plaint case while the respondent herself and her mother-in-law deposed in opposing the claim of the divorce. (6) As indicated earlier, the learned Trial Judge by the judgment and decree impugned in this appeal has dismissed the suit with a clear finding that the appellant had failed to prove the allegations made in the application for divorce. (7) Being dissatisfied, the husband has come up with the present appeal. After hearing Mr. Ghoshal, the learned advocate appearing on behalf of the appellant, and after going through the materials on record, we find that apart from the appellant himself no other local people has come forward to depose in support of the appellants allegation that the wife used to create scene by calling local people at the midnight. After hearing Mr. Ghoshal, the learned advocate appearing on behalf of the appellant, and after going through the materials on record, we find that apart from the appellant himself no other local people has come forward to depose in support of the appellants allegation that the wife used to create scene by calling local people at the midnight. Even the appellants father, while appearing as a witness for the appellant, merely stated that he heard that altercation was going on between the parties and situation regarding discontentment had reached to its extremity and being compelled, he took both the parties to a psychiatrist. According to the father of the appellant, after returning from the chamber of the psychiatrist, they were living peacefully for 15 days but thereafter, the dispute again arose between them and ultimately, his son left the house. The said witness has admitted that prior to his marriage the appellant never made any contribution in the family. In the absence of any evidence given by him that the wife was responsible for the quarrel we find no reason to interfere with the finding of the learned Trial Judge that the allegations against the wife were not established. In this case, the mother-in-law deposed in favour of the daughter-inlaw and she found no fault on the part of the daughter-in-law and asserted that respondent never misbehaved with her husband. It appears that the wife is all along maintaining her daughter and at the same time is also looking after her parents-in-law. The husband, as it appears from record, without any sufficient reason left the wife and the children and is residing elsewhere. In such circumstances, we find no reason to differ from the conclusion arrived at by the learned Trial Judge that the husband has failed to prove the allegations made against his wife. The findings arrived at by the learned Trial Judge are quite reasonable having regard to the evidence on record. (8) The appeal is, thus, devoid of any substance and is dismissed. In the facts and circumstances, there will be, however, no order as to costs.