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2009 DIGILAW 716 (CAL)

Malay Kr. Pakhira v. Papia Pakhira (Nee Mondal)

2009-09-08

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1.) This first appeal is directed against the judgment and decree dated March 31, 2006, passed by the learned Additional District Judge, Third Court, Howrah, in Matrimonial Suit No.430 of 2001 thereby allowing the application under section 10 of the Hindu Marriage Act and thereby passing a decree for judicial separation on and from the day of passing the judgment and decree. (2.) The short fact is that the wife/respondent filed the petition under section 10 of the Hindu Marriage Act. According to her application, her marriage with the husband/appellant was solemnized on July 29, 1995, as per Hindu rites and customs and the said marriage was also registered under the provisions of the said Act. Thereafter, they lived together and two daughters were born in the wedlock. But the appellant was very much suspicious about the character of the respondent. The appellant and other members of the family subjected her to mental and physical cruelty for realising valuable articles such as, T,V., freeze, furniture, etc. from her father and ultimately she was deserted by the appellant on November 4, 2000. The respondent was compelled to live in the house of her father along with her two minor daughters. On the other hand, the appellant is a computer engineer having masters degree and is now attached to Kalyani Engineering College. He earns Rs. 20,000/- a month but never cared for the maintenance of the respondent and her two minor daughters. In spite of her best efforts to lead a happy conjugal life, the respondent was treated with cruelty by the appellant and for that reason it was not possible for the respondent to live with the appellant in her matrimonial home. So she filed the petition under section 10 of the Act. (3.) The appellant contested the matrimonial suit by filing a written statement contending, inter alia, that the respondent is a quarrelsome lady and she failed to discharge domestic duties. The appellant tried his best to adjust with the respondent in vain. Ultimately, the respondent left her matrimonial house along with her two daughters and belongings including the gold ornaments. The appellant went to bring her back to his own on January 23, 2001; but she refused to come. So the suit should be dismissed. The appellant tried his best to adjust with the respondent in vain. Ultimately, the respondent left her matrimonial house along with her two daughters and belongings including the gold ornaments. The appellant went to bring her back to his own on January 23, 2001; but she refused to come. So the suit should be dismissed. (4.) Upon consideration of the evidence on record, the learned Trial Judge observed that the appellant treated the respondent with such mental and physical cruelty as to cause reasonable apprehension in the mind of the respondent that it would be harmful or injurious for her to live with the appellant and so he allowed the petition under section 10 of the Hindu Marriage Act grating the decree for judicial separation. Being aggrieved, the appellant has preferred this appeal. (5.) Mr. Bose, learned Advocate for the appellant, contended that the marriage between the two parties was not disputed. The birth of the two daughters in the wedlock is not also disputed; but the marriage between the parties has been broken irretrievably and the parties have been living separately for a long time. So if the decree of divorce, as prayed for by the appellant in his application, under section 23A of the Hindu Marriage Act read with Order 8 Rule 8 of the Code of Civil Procedure is granted, the marriage can be dissolved between the parties. But unfortunately, that application of the appellant was dismissed by the learned Trial Court and so he renewed the same prayer before this Appellate Court for granting a decree of divorce after lapse of so many years. He also contended that the respondent being the only child of a Deputy Superintendent of Police of a district in West Bengal, her father exercised his power in making complaint, lodging G.D. entries, etc. against the appellant and for that reason the relation between the parties aggravated. So the Honble Court should consider whether a decree for dissolution of marriage can be passed at this stage. (6.) On the other hand, Mr. Chakraborty, learned Advocate for the respondent, submitted that the evidence on record would show how the appellant treated the respondent with cruelty mentally and physically both. He drew our attention to the evidence on the auspicious occasions such as Annaprasan of their daughter and the marriage day of the brother of the appellant. (6.) On the other hand, Mr. Chakraborty, learned Advocate for the respondent, submitted that the evidence on record would show how the appellant treated the respondent with cruelty mentally and physically both. He drew our attention to the evidence on the auspicious occasions such as Annaprasan of their daughter and the marriage day of the brother of the appellant. The respondent was treated with cruelty not only by the appellant but also by the members of his family such as, mother, sister and brother. The respondent tried her best for adjustment in vain. Even she was not treated during her illness on the ground that the respondent was not suffering from any disease and for that reason no treatment was required. Even she was misbehaved in presence of the parents and the maternal uncle of the respondent in Arunachal Pradesh while the appellant was posted in that place. She was also ill-treated at Chinsurah and at the quarter of the appellant at Kalyani while he was working as lecturer of the Kalyani Engineering College. For that reasons, the respondent lodged a diary at Kalyani Police Station and also filed a criminal case under section 498A of the IPC against the appellant and other members of his family. That case is still pending. So there is no scope of reconciliation. He supported the judgment and decree impugned. (7.) Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that the only question to be decided in this appeal is whether the appellant treated the respondent with mental and physical cruelty. (8.) The evidence of the P.W.1, Papia Pakhira (respondent), is very much important to arrive at the conclusion in this appeal. Admittedly, the parties lived together as husband-wife at Amta, Arunachal Pradesh, Chinsurah and lastly at Kalyani, District Nadia. Admittedly, 2 daughters were born in the wedlock. Admittedly, the respondent has been residing at her fathers house along with her two minor daughters since 04.11.2000 when her father brought them from the quarter of the appellant at Kalyani. She stated on oath that the appellant addressed her as a liar and he questioned her character and even he expressed his suspicion about her association with her male friends at her fathers house. Even she was threatened with murder by the respondent. She stated on oath that the appellant addressed her as a liar and he questioned her character and even he expressed his suspicion about her association with her male friends at her fathers house. Even she was threatened with murder by the respondent. She also stated on oath that she was the victim of mental and physical cruelty by her husband including the mother-in-law, the sister-in-law and the brother-in-law. Even she was not given proper food at her matrimonial home. She narrated the incident of torture on her on the Annaprasan ceremony of her eldest daughter. She also stated that while the appellant was posted in Arunachal Pradesh, she was taken in that place of posting but she was assaulted every now and then with slaps, kicks, and fists. Even she was compelled to stay at night in the varandah of the quarter in Arunachal Pradesh. She was not allowed in the bed inside the room. Even the appellant and other members of his family did not provide for treatment during her illness. The reason was that her father did not give adequate dowries. The appellant demanded freeze, T.V., Computer, Furniture, etc., more. Her statement in this regard, we find, is corroborated by her father, P.W. 3 and the mother, P.M. 4. Both the P.W. Nos.3 and 4 stated that on getting news about the illness of their daughter they went to Arunachal Pradesh and at that place they found that their daughter was suffering for illness. Even on request, the appellant did not provide for her treatment on the pretext that it was a common disease and the respondent was not required for medical examination. Both the P.W. Nos. 3 and 4 stated that the appellant slapped the respondent in their presence because of delay in supplying tea to him. Even while they were observing T.V. programmes, the appellant came and closed the T.V. They stated on oath also that in that night the appellant pushed out the respondent from his room and closed the door from inside and the daughter had to stay outside the room of the appellant. They also stated that the appellant behaved in such a way only to get more dowries such as, T.V., freeze, etc. They have corroborated the statement of the P.W.1 on humiliation, torture, assault, slaps, etc. They also stated that the appellant behaved in such a way only to get more dowries such as, T.V., freeze, etc. They have corroborated the statement of the P.W.1 on humiliation, torture, assault, slaps, etc. on her at her father-in-laws house during their presence even on the auspicious day, such as Annaprasan of the daughter of the respondent. They also stated the repetition of such cruel treatment on the occasion of the marriage ceremony of the younger brother of the appellant. They are the best persons to depose on such facts. On scrutiny of the evidence of the P.W. Nos. 3 and 4, we do not find any reason to discard their evidence. (9.) The P.W.2, Avijit alias Sovan Ghosh, is a friend of the appellant and he negotiated the marriage between the two. The appellant admitted in his deposition that Sovan was his classmate. The P.W. 2 also stated that he had been to the house of the appellant at Ballavbati, District - Howrah, accompanied by the P.W. 3. At that time, the mother and sister of the appellant told him that there was a talk for giving freeze, wrist watch etc. as dowries and those were not given to the appellant. The mother and sister of the appellant told him that an undertaking must be given to deliver those articles and at that time, the P.W.3 undertook to deliver the same. He also stated on oath that on the occasion of Rice ceremony of the eldest daughter of the parties, he noticed that the sister of the appellant was bringing the respondent by pushing her from back and the appellant was slapping the respondent. The brother of the appellant was also pushing the respondent from the back side. He also narrated the entire incident of torture at the time of marriage ceremony of the brother of the appellant. He noticed that the appellant abused the respondent in filthy language and that the sister of the appellant caught hold of her by hair and then the appellant gave slaps on her face. During cross-examination, it revealed that this P.W.2 had a friendship with the appellant since the life of their school. He is a neighbour to both the families of the parties. During cross-examination, nothing has been obtained to show that this witness had any enmity with the appellant for which he could depose falsely against him. During cross-examination, it revealed that this P.W.2 had a friendship with the appellant since the life of their school. He is a neighbour to both the families of the parties. During cross-examination, nothing has been obtained to show that this witness had any enmity with the appellant for which he could depose falsely against him. Question of time relating to performance of the ceremony of "Akata" at the time of marriage ceremony of brother of the appellant, we hold, is not of much importance at all. Therefore, we hold that the P. W. 2 is trustworthy. He supported the version of cruelty of the appellant on her and humiliation in presence of witnesses. Such evidence of the respondent is also corroborated by her parents. The evidence of the P.W.1 is also corroborated by the documentary evidence. A letter dated January 22, 1997, written by the appellant to the respondent indicates that the appellant treated the respondent with cruelty (vide exhibit 1/G appearing at page 30 part - II of the P.B.). This letter contains one sentence addressing the respondent as prostitute. Such statement against the character of the respondent proves mental cruelty. Even the letter of the appellant dated May 7, 2001 (exhibit 1/A appearing at page 5 part -II of the P.B.) addressed to the respondent contains mental cruelty towards the respondent. (10.) The P.W.5, Joydev Das, is the maternal uncle of the respondent. He corroborated the statement of the P.W.1 that he (P.W.5) and his wife had been to the quarter of the appellant in Arunachal Pradesh and at that time she was subjected to torture and her maternal uncle and aunt were humiliated by keeping them standing outside the quarter. The P.W.5 also stated that he had seen such cruelty of the appellant with his own eyes during his short stay in Arunachal Pradesh. During cross-examination, no suggestion was given to him that they did not visit the quarter of the appellant in Arunachal Pradesh or that he did not make any expenditure for them at all. So, though the P.W.5 is a relation of the P.W.1, we do not find any justified ground to discard his evidence. So his evidence is also acceptable. Thus, we find that the evidence of the respondent on cruelty is corroborated not only by her parents and maternal uncle but also by a friend cum neighbour of the appellant. So, though the P.W.5 is a relation of the P.W.1, we do not find any justified ground to discard his evidence. So his evidence is also acceptable. Thus, we find that the evidence of the respondent on cruelty is corroborated not only by her parents and maternal uncle but also by a friend cum neighbour of the appellant. So the evidence of the P.W.1 is acceptable. (11.) Several instances of inflicting mental and physical cruelty and humiliation upon the respondent had been levelled against the appellant and other members of his family. The appellant examined himself as D.W.1; but he did not clarify any of the situations or fact against him. He simply denied the allegations levelled against them in his deposition. On careful scrutiny of his evidence, it appears that he did not speak, the truth before the Court. Even he denied the letters written by him and his mother by stating that he was not sure whether the letter was written by him and that he does not know the handwriting and signature of his mother. During cross-examination, he admitted that his mother used to write letters to him. Such letters had been marked exhibits in the learned Trial Court and were tendered to him for his explanation and on perusal of such letters, it appears that though the D.W.1 denied demand of any dowry, the letters written by his mother corroborated the fact of demand of dowries. Such letters were written long before the institution of the suit. This being the position. We are of the view that the D.W.1 is not trustworthy at all. He denied the letters written by his mother only to avoid the contents thereof. During cross-examination, he stated that he never sent either any maintenance or any essential articles for the use of his daughters. He did not keep any information about his daughters. (12.) Another colleague of the appellant was examined as D.W.2. But he stated over the defence that the appellant arranged for treatment of his wife at Kalyani and he was not able to say anything about the other affairs as alleged against the appellant by the respondent. Therefore, the evidence, of the D.W.2 is not of much help in the defence of the appellant. But he stated over the defence that the appellant arranged for treatment of his wife at Kalyani and he was not able to say anything about the other affairs as alleged against the appellant by the respondent. Therefore, the evidence, of the D.W.2 is not of much help in the defence of the appellant. (13.) From the evidence on behalf of the respondent as well as from the admission of the appellant in his cross-examination, we find that the respondent filed one criminal case under section 498A/406 of the IPC against the appellant, his mother, brother and sister and that case is still pending for disposal. The respondent wrote the letter dated January 22, 1997, to the effect that it was not possible for them to live together any more and that he wanted to break down the relationship between the two. (14.) The respondent stated on oath that she did not condone the acts/misbehaviour of the appellant. It is not also the case of the appellant that the respondent had condoned his acts/misbehaviour. The respondent in his deposition simply denied the allegations levelled against him in his Examination-in-Chief. Therefore, question of condonation of acts/misbehaviour does not arise. (15.) On consideration of the totality of the evidence and the preponderance of probability, we are of the view that the appellant and other members of the family had caused physical assault and torture upon the respondent. The appellant had also caused injury to the reputation of the respondent by describing her as prostitute and other objectionable words as stated earlier. It is not expected that the husband would describe her wife as prostitute and still, there would be good relationship between the two. The injury to reputation is certainly an act of cruelty on the part of the appellant. On the other hand, the appellant did not produce any convincing evidence that the respondent is guilty of cruelty towards her by adducing convincing evidence. No members of the family of the appellant has come forward to depose against the respondent. The respondent cannot be said to be taking advantage of her own wrong because there is no assertive evidence on the part of the appellant against the respondent. In support of our above observations, we have considered the decision of Dr. N. G. Dastane vs. S. Dastane, reported in AIR 1975 SC 1534 . The relevant paragraph Nos. The respondent cannot be said to be taking advantage of her own wrong because there is no assertive evidence on the part of the appellant against the respondent. In support of our above observations, we have considered the decision of Dr. N. G. Dastane vs. S. Dastane, reported in AIR 1975 SC 1534 . The relevant paragraph Nos. 30, 31 and 32 of the said decision are quoted below: "30. An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, section 10(1)(b) of the Act. What constitutes cruelty must depend upon the terms of this statute which provides: "10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party- (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party." The enquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or heath or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to life with the other. 31. Clearly, danger to life, limb or heath or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to life with the other. 31. The risk of relying on English decisions in this field may be shown by the learned Judges reference to a passage from Tolstoy (p.630 in which the learned Author, citing Horton vs. Horton, 1940 P. 187 says: "Spouses take each other for better or worse, and it is not enough to show that they find life together impossible, even if there results injury to health." If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under section 10(1) (b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. 32. One other matter which needs to be clarified is that though under section 10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a Court inquiring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours to finish the days work and some one may want to get up early for a morning round of golf. The Court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. Some one may want to keep late hours to finish the days work and some one may want to get up early for a morning round of golf. The Court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. "The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances." American Jurisprudence, 2nd Edn., Vol. 24, p. 206. The Court has to deal not with an ideal husband, and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial Court for, even if they may not be able to drown their difference, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins vs. Gollins, 1963(2) All ER 966: "In matrimonial cases are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption "that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people." (16.) In the decision of Naveen Kohli vs. Neelu Kohli, reported in AIR 2006 SC 1675 , it has been observed that every matrimonial conduct which may cause annoyance to the other may not amount to cruelty under ordinary wear and tear of marital life; but the conduct which amounts to grave and weighty should be considered. For reference, paragraph 66 and 67 of the said decision are quoted below: "66. For reference, paragraph 66 and 67 of the said decision are quoted below: "66. 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 extent due to the conduct of the other spouse that it would be impossible for them to live together without metal 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. 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. 67. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the phychological changes in a spouses conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent." (17.) In view of the above observations and the decisions cited above, we are of the view that the conduct of the appellant should be treated as grave and weighty in nature and such conduct falls within the category of cruelty of the appellant towards the respondent. (18.) The submission of the learned Advocate for the appellant to the effect that as the parties have been residing separately and there is no chance of reconciliation between the parties the prayer of the appellant under section 23A of the Hindu Marriage Act should be considered again is without any substance. In this respect, as per above observations and decisions cited above, we are of the view that the appellant cannot be allowed to take advantage of his own wrong. We are of the view that no decree for divorce can be passed at the instance of the appellant. (19.) We are, therefore, of the view that the learned Trial Judge has rightly allowed the application under section 10 of the Hindu Marriage Act on the ground of cruelty. This appeal is meritless and there is nothing to interfere with the judgment and decree passed by the learned Trial Judge. Accordingly, this first appeal is dismissed. (20.) Considering the circumstances, there will be no order as to costs. (21.) Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings. Appeal dismissed.