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2009 DIGILAW 602 (CAL)

Swapan Kumar Karmakar v. Sutapa Mondal

2009-08-07

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1.) This first appeal is directed against the judgment and decree dated 8th December, 2006 passed by the learned Additional District Judge, First Court, Purulia in Matrimonial Suit No.70 of 2006 whereby the learned Additional District Judge dismissed the suit on contest with exemplary costs and maintenance of the daughter. (2.) The short fact is that the husband/appellant filed the suit for dissolution of marriage by a decree of divorce on the ground that the respondent treated the appellant with cruelty and that she deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition. The marriage between the parties was solemnized on the first day of March, 1993, according to Hindu customary rites at the house of the father of the respondent and thereafter, the marriage was consummated and one child was born to them in the wedlock. Since after the marriage, the appellant noticed that the respondent was not interested to lead a happy and free conjugal life and she often addressed the appellant as clerk. It is pertinent to mention that the appellant is a clerk in the office of the Assistant Labour Commissioner, Raghunathpur, District - Purulia. The respondent picked up quarrel with the appellant on flimsy grounds and she left the house of the appellant by breaking her Sankha and Noya. The respondent suspected the appellant and whenever the appellant returned home from office, the respondent searched his pockets and office bag and on protest by the appellant, the respondent used vulgar words towards him. During their marital life, the appellant purchased a homestead land in the town of Purulia and a house was constructed thereon at the expenses of both the parties. But immediately after completion of the house, the respondent compelled the appellant to leave the house and she began to reside therein with the daughter. She did not allow the appellant to stay there for more than two hours. The appellant tried to lead a conjugal life in vain. The respondent became arrogant day after day and started abusing the appellant in filthy words. For that reason, in order to maintain peace, the appellant took a rented house at Purulia and he began to attend his office at Raghunathpur there from. But the respondent did not change her attitude towards the appellant. The respondent became arrogant day after day and started abusing the appellant in filthy words. For that reason, in order to maintain peace, the appellant took a rented house at Purulia and he began to attend his office at Raghunathpur there from. But the respondent did not change her attitude towards the appellant. In such circumstances, the appellant got her daughter admitted to a residential school at Ushagram under the Sub-Division Asansol. The respondent also lodged a criminal case against the appellant and the appellant was arrested. However, the matter ended in compromise. For the last three years, there is no connection between the two and the marriage had been broken irretrievably. So the appellant prayed for a decree for dissolution of marriage. The respondent contested the suit by filing a written statement denying the material allegations. She also contended that she had purchased the land in question out of her own income and the financial help of her father and thereafter, she had constructed a house thereon after obtaining loan from the State Bank of India, Purulia Branch. She was compelled to file a case under Section 498A of I.P.C. against the appellant because she was ill-treated and tortured by the appellant physically and mentally in 2002. However, the matter ended in compromise and thereafter, they began to reside together in the residence at Purulia. At that time, the appellant used to quarrel with the respondent on trifling matters and subsequently, he left the residence at Purulia and began to attend his office from his residential house at Bankura. However, the appellant visited her residential house at Purulia and they spent nights together in different lodges at Purulia and Asansol and thus, they lived together even in the month of June, 2006. In October, 2006, they took their daughter to Asansol. So the application for dissolution of marriage should be dismissed with costs. (3.) Upon taking into consideration of the evidence on record, the learned Trial Judge dismissed the suit awarding heavy costs and direction for maintenance for the daughter of the parties. Being aggrieved, the appellant has preferred this appeal. Mr. A. Chatterjee, learned counsel for the appellant, contended that the learned Trial Judge committed wrong in dismissing the suit and he did not appreciate the evidence on record. Being aggrieved, the appellant has preferred this appeal. Mr. A. Chatterjee, learned counsel for the appellant, contended that the learned Trial Judge committed wrong in dismissing the suit and he did not appreciate the evidence on record. In fact, the appellant examined himself in support of his claim but the respondent did not adduce any evidence on her behalf. The findings of the learned Trial Judge are not based on evidence on record or the pleadings of the parties. According to him, the appellant has proved cruelty and desertion and the learned Trial Judge should have granted the decree for dissolution of marriage. So the judgment should be set aside. (4.) On the other hand, Mr. J.R. Chatterjee, learned senior Advocate for the respondent, submitted that there is no corroboration of the statement of the appellant and, in fact, the appellant has failed to prove that the respondent treated him with cruelty or that she had deserted the appellant for more than two years before filing of the suit. So the learned Trial judge has rightly dismissed the suit. As the appellant did not pay any maintenance for his daughter, the learned Trial Court was justified in awarding the costs and maintenance for the child. Upon hearing the submission of the learned Advocate on behalf of both the parties and on perusal of the materials on record, the only point to be decided is whether the learned Trial Judge was justified in dismissing the suit as well as awarding costs, maintenance, etc. In other words, whether the learned Trial Judge should have granted the decree for dissolution of marriage on the ground that the respondent treated the appellant with cruelty or that she deserted the appellant in terms of Section 13(I) (ib) of the Hindu Marriage Act, 1955. (5.) Admittedly, the parties were married on 1st March,1993 according to Hindu customary rites and that they lived together after marriage. They were blessed with one daughter. Admittedly, the appellant is a clerk in the office of the Assistant Labour Commissioner, Raghunathpur, District Purulia. Admittedly, the respondent is a teacher of physics in a renowned girls school in Purulia. Admittedly, her father was also the Headmaster of a local school. They were blessed with one daughter. Admittedly, the appellant is a clerk in the office of the Assistant Labour Commissioner, Raghunathpur, District Purulia. Admittedly, the respondent is a teacher of physics in a renowned girls school in Purulia. Admittedly, her father was also the Headmaster of a local school. (6.) The appellant examined himself as P.W.1 and he deposed to the effect that he purchased a piece of land in the town of Purulia to construct a house thereon in the name of the respondent and that after purchase of such land in the name of his wife, both of them spent money and thus, they constructed a residential house thereon. Such evidence has been adduced by the appellant on oath and we find that the respondent did not adduce any evidence on rebuttal. In fact, though she was present in Court at the time of recording evidence, she did not like to face the cross-examination to bring the truth before the Court. The respondent did not adduce any evidence in support of her defence that she purchased the piece of land out of her own money and with the financial help from her father nor did she produce any paper in support of her defence that she obtained loan from the State Bank of India, Purulia Branch, to construct the house. So, we are of the view that her defence in this regard could not be established. So, in absence of any evidence on behalf of the respondent, it can well be decided that it is the appellant who purchased the land for homestead with his own money in the name of the respondent and then both of them spent money for construction of a house thereon. The appellant contended that immediately after construction of the house the respondent began to quarrel with him on flimsy grounds and addressed him as a clerk. Admittedly, at the time, the appellant drew salary of Rs.8,000/-and odd p.m. while the respondent drew salary of Rs.12,000/-and odd p.m., that is more than that of the appellant. The appellant deposed in this regard on oath. He further stated that after quarrel, the respondent broke her Sankha and Noya signifying disconnection of relationship with the appellant. Such contention has not also been denied by the respondent on oath. So, we do not find any reason to disbelieve in such statement of the appellant. The appellant deposed in this regard on oath. He further stated that after quarrel, the respondent broke her Sankha and Noya signifying disconnection of relationship with the appellant. Such contention has not also been denied by the respondent on oath. So, we do not find any reason to disbelieve in such statement of the appellant. Therefore, we hold that such fact amounted to mental cruelty to the appellant. (See N.G.Dastane vs. S. Dastane reported in (1975) 2 SCC 326 where tearing of Mangal-sutra was held to be cruelty). The appellant contended that the respondent threatened him frequently that she would lodge criminal cases against him and, in fact, the respondent filed a criminal case under Section 498A of the I.P.C. against her husband. However, that case ended in compromise. She admitted such fact; but she did not state particulars of the offence so as to assess if such alleged incident took place at all. There is no evidence on her behalf in this regard. So, it can well be presumed that the allegation of harassment and cruelty to her is baseless. As pointed out by the Supreme Court in the case of G.V.N Kameswara Rao vs.G.Jabilli reported in (2002)2 SCC 296 it was held that false criminal prosecution against a spouse resulting in loss of reputation amounts to cruelty. So the fact of treating the appellant with cruelty by the respondent has been proved. As a dutiful father, we find that the appellant got her daughter admitted to a girls school at Ushagram under the Sub-Division of Asansol so that the daughter might read there peacefully without any disturbance. So we find that the appellant had done his duties towards his daughter. (7.) The appellant contended that as the respondent quarreled with him frequently on flimsy ground and addressed him as a clerk he had to take a rented house and he had to attend his office at Raghunathpur from that rented premises to keep peace with the respondent. This fact also is not denied by the respondent at all by giving evidence. The appellant has also proved by evidence that sometimes he left the premised at Purulia to keep peace and went to his native place in Bankura and therefrom he attended the office at Raghunathpur. This fact is not also denied by the respondent on oath. This fact also is not denied by the respondent at all by giving evidence. The appellant has also proved by evidence that sometimes he left the premised at Purulia to keep peace and went to his native place in Bankura and therefrom he attended the office at Raghunathpur. This fact is not also denied by the respondent on oath. The respondent contended in her written statement that she did not call the appellant by clerk and, in fact, such question did not arise because both the parties knew each other since before their marriage and there was a love affair between the two and such love affair culminated into marriage. Such fact has not been stated by the appellant in his plaint case. On the other hand, though the respondent mentioned such matter, she was not eager to prove her contention in this regard. So such defence could not be established. (8.) We are, therefore, of the view that such acts of the respondent amounted to cruelty against the appellant and that the learned Trial Judge should have granted a decree of divorce against the respondent. (9.) It is also pertinent to mention that the appellant has also stated in the plaint that there is no connection between the two since June, 2003 and thus they had been residing separately for a period of more than two years before the presentation of the petition for divorce and, in fact, the respondent deserted him last three years before filing of the suit. There is no visiting term for last three years and in this period neither party felt necessity of the other. This is totally denied in the written statement by the respondent stating, inter alia, that during this period they lived together and, in fact, they visited Asansol on many occasions and they stayed in a room in the hotel at Asansol and thus, the question of desertion did not arise. The appellant has adduced evidence is support of his contention that he tried his best to persuade the respondent to lead a conjugal life with him but all were in vain. Thus, the respondent compelled him to believe that there is no room for himself in the life of the respondent. In spite of knowledge of such allegation of the appellant, the respondent, though she was present in the Court, did not give any rebuttal evidence. Thus, the respondent compelled him to believe that there is no room for himself in the life of the respondent. In spite of knowledge of such allegation of the appellant, the respondent, though she was present in the Court, did not give any rebuttal evidence. So without any evidence on behalf of the respondent either oral or documentary, her contention that they spent nights in different lodges at Purulia and Asansol even up to October, 2006, cannot be believed.In deciding matrimonial cases, various facts and circumstances and also the probability of the fact should also be taken into consideration. As the respondent knowing fully well the deposition of the appellant before the learned Trial Court, did not adduce any evidence, the allegations of the husband stand proved. (10.) From the above facts, it appears that the appellant took several steps for conciliation but the conduct of the opposite party was such that it was not possible for the appellant to live together with the respondent. So, when the matter is judged by taking into consideration of the facts and circumstances and also the probability of the matter as to what actually happened as claimed by the appellant and not specifically denied by the respondent, we are of the view that the conduct of the respondent has become intolerable for the appellant for living together. Therefore, we are of the view that the respondent deserted the appellant for a continuous period of not less than two years immediately preceding the presentation of the petition. So, the appellant is also entitled to a decree of divorce under Section 13(I) (ib) of the Hindu Marriage Act, 1955. The learned Trial Judge dismissed the suit stating, inter alia, that the appellant did not pay alimony to the respondent. Such allegation did not arise because of the fact that the respondent earned more money as a teacher than the salary of the appellant and the husband provided food, lodging and education for their daughter by keeping the child at Ushagram. The respondent did not raise such stand in her written statement at all. So the observation of the learned Trial Judge that the appellant did not take care of the child cannot be accepted at all and in fact it has no basis at all. Similarly, the suit having been dismissed there was no justification of awarding maintenance in favour of the daughter. So the observation of the learned Trial Judge that the appellant did not take care of the child cannot be accepted at all and in fact it has no basis at all. Similarly, the suit having been dismissed there was no justification of awarding maintenance in favour of the daughter. (11.) We hold that this cannot be supported at all. The appellant being the father is the natural guardian of the child. He has every right to take proper care and education of the child and that is why he kept the child out of the place of residence of the parties to the suit. (12.) Therefore, in consideration of the totality of the facts and circumstances and the probability, we are of the view that the appellant had been able to prove not only cruelty but also desertion on the part of the respondent towards him and for that reason, the appellant was entitled to get a decree for divorce. The judgment and decree passed by the learned Additional District Judge cannot be supported and are accordingly, set aside. However, at present the daughter is residing with the mother and the father is paying maintenance. The appellant is entitled to see the daughter on every Saturday between 4 p.m. to 6 p.m. and the respondent is directed to provide for such facilities with showing proper dignity and decorum towards the appellant. The judgment and decree dated 8th December, 2006 passed by the learned Trial Judge are hereby set aside with the observations as indicated above. The suit stands decreed. The marriage tie between the parties is dissolved by a decree of divorce with effect from this day. Considering the circumstances, there will be no order as to costs. (13.) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.