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2009 DIGILAW 601 (CAL)

Swarup Talapatra v. Gargi Talapatra

2009-08-07

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1.) This first appeal is directed against the judgment and decree dated February 18, 2006, passed by the learned Additional District Judge, Third Court, District North 24 Parganas at Barasat thereby dismissing the Matrimonial Suit No.7 of 1999. (2.) The appellant instituted the suit for divorce on the ground of cruelty against the respondent. According to the plaint case, the marriage between the parties was solemnized on March 2, 1991, as per Hindu rites and customs at Deshobandhu Sarani, Village Nischindhia under P.S. - Bally, District Howrah. The appellant is an employee of the Forest Department, Government of West Bengal, and is now posted at Salt Lake and the respondent is an employee of the State Legislative Assembly, Kolkata. After marriage, the parties started living together at Narayantala West, Baguihati. One son was born to them in the wedlock. The respondent misbehaved with the appellant and other members of his family even on flimsy matters. She demanded separate residence with her husband avoiding the parents of the appellant. Even she neglected to cook food on the pretext that she was to attend her office. She left the house of the appellant for her parents house at Nischindhia, Bally, after office hours without any permission from the appellant and spent there with her parents for days together. The respondent created a nuisance in the house of the appellant at Narayantala and insulted the appellant and his other relations on the day of Annaprasan of their son on August 3, 1992. In order to avoid troubles, the appellant took a rented accommodation at Baguihati leaving the parents and other members of his family at Narayantala. The respondent left the matrimonial home on several dates including February 23 and 24, 1993, causing great mental agony and torture upon the appellant. Thereafter, the respondent was examined by Dr. J. P. Haldar on February 27, 1993, March 5, 1993 and March 30, 1993, and the said treatment related to the termination of her pregnancy without the knowledge and consent of the appellant. During her stay at her mothers house, the respondent wrote a letter to the appellant disclosing her intention to settle at Bally, Howrah. Even she visited the office of the appellant to see the name of nomination relating to G.P.F., death gratuity, family pension, etc. with regard to the service of the appellant. During her stay at her mothers house, the respondent wrote a letter to the appellant disclosing her intention to settle at Bally, Howrah. Even she visited the office of the appellant to see the name of nomination relating to G.P.F., death gratuity, family pension, etc. with regard to the service of the appellant. She retained all ornaments and valuables presented to them during their marriage and also during the Annaprasan ceremony of their son. Even she poured kerosene oil on her body to commit suicide but due to the intervention of the members of the family, she escaped the fatal accident. The brother and the mother of the respondent also insulted the appellant on several occasions. Thereafter on May 14, 1996, she went to her mothers house and since then she has been residing there. On May 18, 1996, the appellant went to her mothers house to bring her back in vain. The appellant went to bring her back again on December 20, 1997, but she refused to come. In the meantime, the respondent issued a letter dated December 19, 1997, through her Advocate intimating that the appellant should not disturb her peaceful living and if he did so, legal action would be taken against him. (3.) The respondent denied all the material allegations contained in the plaint. She contended that she was not a maid servant or menial at her matrimonial house so that any permission from the appellant was obligatory. She visited her mother with full consent of the appellant and his parents on rare occasions. The appellant drove her with her minor son and so she had been compelled to seek asylum at her mothers house. She was still willing to lead a peaceful and happy life with the appellant and the minor child if the appellant gave up ill treatment to her. The members of the family of the appellant compelled her to hand over all her pay for maintenance of the family. When she requested the appellant to pay equally, the appellant and her parents drove her away from their house with the child. The appellant never went to bring her back at all. Upon consideration of the evidence on record, the learned Trial Judge dismissed the matrimonial suit. Being aggrieved, the husband/appellant has preferred this appeal. (4.) Mr. When she requested the appellant to pay equally, the appellant and her parents drove her away from their house with the child. The appellant never went to bring her back at all. Upon consideration of the evidence on record, the learned Trial Judge dismissed the matrimonial suit. Being aggrieved, the husband/appellant has preferred this appeal. (4.) Mr. Mukherjee, learned Advocate for the appellant, referred to various instances from the evidence on record to show that the respondent exhibited cruelty to the appellant. By referring to the evidence on record, he contended that the respondent misbehaved and insulted the appellant on several occasions. Though there was a cook for the family of the appellant, the respondent did not cook and serve food at all and she left the house of the appellant for her mothers house without seeking any permission from the appellant. In order to maintain peace in the family, the appellant took a rented accommodation at Baguihati nearby their accommodation at Narayantala but the respondent did not behave well with the appellant and even she did not take care of the newborn son of the parties and left him in the custody of the husband and for that reason, the appellant had to seek leave from his office. He also contended that even the respondent created nuisance and insulted her husband and other members of the family in presence of the relatives. He also referred to the fact that though as per evidence on record, the appellant expended his income for the family, delivery of the child and also for maintenance of the child, yet the respondent contended that the appellant did not make any deposit in the joint account of the post office in the State Assembly House. He also contended that though the appellant and other members did not take any money from the respondent, the latter described the parents of the appellant as mercenary parents like the son. She expressed in writing that the appellant should reside with the respondent at Bally, that is, nearby the house of her mother and that the appellant made several attempts to bring her back to his house; but the respondent refused to live with the appellant. Even she issued an Advocates letter dated December 19, 1997, stating, inter alia, not to disturb her peace and if he disturbed her, legal action would be taken against him. Even she issued an Advocates letter dated December 19, 1997, stating, inter alia, not to disturb her peace and if he disturbed her, legal action would be taken against him. All such acts amounted cruelty. On the other hand, Mr. Bhattacharyya,the learned Advocate for the respondent, submitted that the appellant failed to prove the ground of cruelty. There is no evidence that abortion was done by the respondent. The relatives and neighbours did not support the contention of the appellant. Even the appellant failed to examine their maid servant. So the story of cruelty should not be believed. Therefore, the learned Trial Judge rightly dismissed the suit. (5.) Upon due consideration of the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that admittedly marriage between the parties was held according to Hindu customs and rites and the parties lived together at Narayantala under District North 24 Parganas. Admittedly, the parents and the younger brother of the appellant resided thereat since before the marriage of the appellant. Admittedly, the appellant is a service holder under the Forest Department, Government of West Bengal at Salt Lake and the respondent is an employee of the West Bengal Legislative Assembly, Kolkata. Admittedly, the fathers house of the respondent is at Nischindhia, Bally,in the of Howrah. Admittedly, a child was born to them in the wedlock. Admittedly, the appellant and the respondent opened a joint account at the post office in the Assembly House, Kolkata. Admittedly, since May 14, 1996, the respondent has been residing at her mothers house at Nischindhia and that she issued two letters amongst others, one by her herself expressing her desire to construct a house at Bally and reside thereat, and another letter through her Advocate asking her husband not to disturb her and if he disturbed, she would take legal action against him. Now the question to be decided in the appeal is whether the appellant has been able to prove that the respondent treated him with cruelty and if the appellant is entitled to get a decree for dissolution of marriage between the two. (6.) Upon consideration of the evidence on record, we find that the appellant stated several facts relating to the behaviour of the respondent and his statement is corroborated by his brother. (6.) Upon consideration of the evidence on record, we find that the appellant stated several facts relating to the behaviour of the respondent and his statement is corroborated by his brother. The appellant stated that the respondent did not cook at his house and serve food to him and his parents on the pretext that she would go to office. The appellant stated on oath that the respondent misbehaved and insulted him. She also quarreled with him. For that reason, in order to maintain peace in the family he took a rented accommodation at Baguihati nearby the house where his parents and other members reside. The evidence of the appellant in this regard is corroborated by the brother of the appellant, P.W.2, and the rent receipts (exhibit 2 series) filed by the appellant. The respondent could not give any plausible explanation why the appellant took a separate rented accommodation for residing at Baguihati. So the only inference that could be drawn is that such accommodation was taken to maintain peace in the family. The appellant stated that even the respondent did not take care of the newborn child and she stayed at her mothers house at Nishchindia for days together without permission and for that reason he had to take leave from his office for proper maintenance of the child. The reply of the respondent in this regard is not satisfactory. Her first contention in this regard that permission from the appellant and his parents is not obligatory, we hold, cannot be supported. Of course, during deposition, on realizing the situation, she stated that on taking permission she visited her mothers house. (7.) The appellant stated on oath an episode of the day of Annaprasan ceremony of their child on August 3, 1992. The respondent and her relatives created nuisance in presence of other members of his family and relatives in their residence at Narayantala. Though the relatives did not come to support such contention, the brother of the appellant supported such fact on oath. Though he is a full brother of the appellant, we do not find any justified ground to reject his evidence particularly when the evidence of the appellant is corroborated by documentary evidence also. Though the relatives did not come to support such contention, the brother of the appellant supported such fact on oath. Though he is a full brother of the appellant, we do not find any justified ground to reject his evidence particularly when the evidence of the appellant is corroborated by documentary evidence also. Though the appellant did not disclose the episode in details before the learned Trial Court, yet he narrated the incident by describing that the respondent and her relatives created nuisance in presence of the relatives. After such episode, the appellant took the rented accommodation at Baguihati with effect from November 1, 1992 leaving his parents and other members at Narayantala. The appellant stated on oath that the respondent left their house without taking any permission from him causing great inconvenience to him because he is also a service holder. His evidence is corroborated by the P.W.2. His evidence in this regard is also supported by the G.D. entry lodged by him with the Rajarhat P.S. (exhibit No.3). He stated specifically that on February 23 and 24, 1993, the respondent left his house. The reason for leaving the house on those two dates as described by the appellant was that the respondent did termination of pregnancy at that time and so Dr. J. P. Haldar examined her on February 27, 1993, March 3, 1993 and March 30, 1993. The appellant produced those prescriptions of the said doctor and it is the specific contention of the appellant that the prescriptions related to abortion at that time. These prescriptions have not been marked exhibits in the Trial Court. So, it cannot be ascertained that these prescriptions related to abortion. However, it is within the special knowledge of the respondent why she was examined by Dr. J. P. Haldar on those dates immediately after leaving the residence of the appellant on February 23 and 24, 1993. The respondent did not deny such contention specifically. So we find that the respondent failed to explain why she was examined by the said doctor though it was her special knowledge with regard to such prescriptions. Though the respondent deposed before the Court she was completely silent in this regard. So adverse presumption should be drawn against the respondent as contented by the appellant. Such act on the part of the respondent, we hold, amounts to mental cruelty. Though the respondent deposed before the Court she was completely silent in this regard. So adverse presumption should be drawn against the respondent as contented by the appellant. Such act on the part of the respondent, we hold, amounts to mental cruelty. (8.) The appellant stated on oath in his deposition that on January 1, 1994, the respondent attempted to commit suicide by pouring kerosene oil on her body and when it was detected they took the necessary steps. For that reason, no fatal accident took place. Such evidence is corroborated by the brother of the appellant and he has stated that as it was a family matter they did not lodge any G.D. entry with the local P.S. The respondent simply denied such fact in a general way. The members of the family of the appellant are the best persons to depose in this regard and the brother of the appellant corroborated him. We do not find any justified ground to discard this piece of evidence. It has been contended on behalf of the respondent that neither the maidservant, namely, Suprava, nor any neighbour of the appellant has been examined on behalf of the appellant. In support of their respective contentions in this regard, we find that the parties have confined evidence within the members of their family. The appellant raised contention against the behaviour of the mother and brother, Subrata, of the respondent but the respondent also did not examine them in support of her defence. So we are to consider the evidence as adduced by the parties and then to come to an appropriate conclusion after proper analysis. In a matrimonial suit where the incident took place within the four walls of the house, the members of the respective families are the best persons to depose over the fact and for that reason though the other witnesses may appear to be interested witness, yet, unless specific ground is established, we are of the view that the evidence of the close relation cannot be disbelieved. So, no examination of Suprava, maidservant of the appellant and neighbours, we hold, is not fatal. (9.) Therefore, we are of the view that such an attempt to commit suicide is nothing but an act of cruelty on the part of the respondent towards the appellant. So, no examination of Suprava, maidservant of the appellant and neighbours, we hold, is not fatal. (9.) Therefore, we are of the view that such an attempt to commit suicide is nothing but an act of cruelty on the part of the respondent towards the appellant. The respondent contended that the appellant and his parents were taking money from her and for that reason she described the parents of the appellant as they were mercenary parents like the appellant. Thus, we find from the deposition of the respondent that she used harsh words even against the parents of the appellant. But upon due consideration of the evidence on record, we find that such statement cannot be supported. First of all, we find that immediately before the birth of the child, the appellant took loan (exhibit 1) from his office. The respondent admitted that their child was born in a nursing home at Bally and that the appellant had been to that nursing home. She admitted that she did not pay the charges of the nursing home and she could not say who paid the charges of the nursing home. There is no evidence that the mother of the respondent paid the charges for the nursing home. On the other hand, the oral and the documentary evidence on behalf of the appellant have clearly proved that it is the appellant who paid the charges of the nursing home. In spite of such fact, the respondent described the appellant as like minded mercenary parents. Above all, there is a joint account between the two at the post office in the Assembly House. But the respondent admitted in her deposition that the appellant did not withdraw any money from the joint account in the post office. There is no evidence on the part of the respondent that she paid the rents of the premises they resided after separation. Obviously, her husband paid the rents as the landlord. So the contention of the respondent that the appellant demanded money cannot be believed. On the other hand, she used objectionable words not only against the appellant but also his parents by describing them by the words like minded mercenary parents. So such behaviour of the respondent, we hold, amounts to cruelty. So the contention of the respondent that the appellant demanded money cannot be believed. On the other hand, she used objectionable words not only against the appellant but also his parents by describing them by the words like minded mercenary parents. So such behaviour of the respondent, we hold, amounts to cruelty. Admittedly, since May 14, 1996, the respondent left the matrimonial home and since then she has been residing at her mothers house at Nischindhia, Bally. Therefrom she wrote a letter to the appellant expressing her desire to construct a house at Bally, that is, nearby her mothers house. Naturally, the appellant rejected such proposal of the respondent on the ground that other members of their family resided at or near Baguihati. On scrutiny of the evidence on record, we do not find any reason to disbelieve the statement of the appellant to the effect that he had been to the respondent at Bally to bring her back and the latter refused. What is surprising is that when the appellant was taking steps for conciliation to bring her back to their house, the respondent wrote a letter dated December 19, 1997 through her advocate asking her husband not to disturb him and if he disturbed her, she would take legal action against him (exhibit 5). The respondent did not stop there. She further communicated the copy of such letter to the office of the appellant and also to the O.C., Bally P.S., District Howrah. So, we are of the view that writing of such letter by the respondent to the appellant, to his office and the local P.S. Bally amounts to mental cruelty to the appellant. Such assertion of cruelty of the appellant is also obvious from the letter dated 20.08.1996 (exhibit 6) written by the respondent to the appellant. (10.) The respondent withheld the letters issued by the appellant to her; but she produced the letters issued by the appellant in the name of his son (exhibit A series). All such letters relate to post-filing of the suit except the letter dated 08.05.1994. From the letter dated 20.08.1996, it can well be inferred that the respondent withheld that letter issued to her. So adverse presumption can well be drawn against the respondent that had those letters been produced those would have supported the contention of the appellant. All such letters relate to post-filing of the suit except the letter dated 08.05.1994. From the letter dated 20.08.1996, it can well be inferred that the respondent withheld that letter issued to her. So adverse presumption can well be drawn against the respondent that had those letters been produced those would have supported the contention of the appellant. (11.) The respondent contended that she was assaulted by the appellant on several occasions and that her income had been taken away by the appellant. Upon consideration of the probability, facts and circumstances as discussed earlier, we are of the view that such contention of the respondent cannot be accepted. Cruelty is required to be proved on the basis of preponderance of probabilities and not beyond reasonable doubt. In support of our observation, we have considered the decision of Rajini Vs. Subrahmanyan reported in (1988) 1 HLR 169 S.C. The Honble Apex Court has clearly described the facts which constitute cruelty in A. Jayachandra Vs. Aneel Kaur reported in 2005 (3) ICC 291 in the paragraph 12 which is quoted below:-To constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. (12.) In order to consider cruelty the Honble Apex Court has also laid down the directions to the effect that all the relevant facts and circumstances should be considered in the case of G.V.N. Kameswara Rao Vs. G. Jabilli reported in (2002) 2 SCC 296 . In the present case, the appellant cannot be denied any relief invoking Section 23(1) (a) of the Hindu Marriage Act. On the other hand, various facts and circumstances as discussed above clearly indicate that the relationship between the two parties had been broken down and that because of non-cooperation and hostile attitude of the respondent, the appellant was subjected to various traumatic experience which can be described as cruelty under the provisions of Section 13(1) (ia) of the Hindu Marriage Act. Therefore, we are of the view that the appellant is entitled to a decree for dissolution of marriage under Section 13(1) (ia) of the Hindu Marriage Act. But the learned Trial Judge failed to address the issue in this regard properly. (13.) Therefore, the appeal succeeds. The judgment and order passed by the learned Additional District Judge, Third Court at Barasat are hereby set aside. The appellant is entitled to get a decree for dissolution of marriage against the respondent. The marriage tie between the parties is hereby dissolved with effect from this day. (14.) Considering the circumstances, there will be no order as to costs. (15.) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.