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2009 DIGILAW 789 (GAU)

Kalyan Neog v. Rashmi Rekha Hazarika Neog

2009-11-12

AMITAVA ROY, C.R.SARMA

body2009
JUDGMENT Amitava Roy, J. 1. The subject-matter of challenge in the instant appeal is the Judgment dated 30.6.2008 and the Decree dated 4.7.2008 passed by the learned District Judge, Jorhat in (Marriage) Title Suit No. 18/2005 rejecting the appellant's prayer for dissolution of marriage with the Respondent herein. 2. I have heard Mr. J. Roy, learned Counsel for the appellant-husband and Mr. J. Singh, learned Counsel for the Respondent-wife. 3. In brief, the pleaded versions of the parties would be necessary to be outlined. The appellant-husband herein had filed an application under Section 13(1) of the Hindu Marriage Act, 1955 ('the Act') before the trial court seeking a decree for dissolution of marriage with the respondent-wife on the ground of desertion and cruelty. The appellant-husband while stating about solemnization of the marriage between the parties on 23.11.1999 as per the Hindu religious rites mentioned that soon thereafter he was posted to Agra. He being in the defence services, was thereafter transferred to Leh. Though, they led a happy and a pleasant conjugal life till 2001, the respondent-wife thereafter displayed signs of intolerance and amongst others started ill-treating his parents. She insisted on him to take her to his places of postings, which according to the appellant-husband was not possible in as much as, his father is a cancer patient and his mother is also of poor health. Though, there was none-else in the house to look after the ailing parents of his, the respondent-wife, according to him pressurised him to leave them and reside elsewhere. Being adamant to such demands, she allegedly also refused to cohabit with him and deserted the matrimonial home in 2005 without any justification whatsoever. As a result, no issue was born out of their wedlock. As the conduct of the respondent-wife bore extreme cruelty to him, he being exasperated, instituted (Marriage) Title Suit No. 23/2006 on the ground of desertion. This proceeding was, however, dismissed as pre-matured. Though, thereafter, for a brief period, the respondent-wife returned, she continued with her cruel conduct and eventually left the nuptial home on 30.3.2005 not to return thereafter. Stating all these, the appellant-husband instituted the present suit. 4. This proceeding was, however, dismissed as pre-matured. Though, thereafter, for a brief period, the respondent-wife returned, she continued with her cruel conduct and eventually left the nuptial home on 30.3.2005 not to return thereafter. Stating all these, the appellant-husband instituted the present suit. 4. The respondent-wife, in her written statement, in addition to pleading res judicata alleged that the appellant-husband, had in fact, deserted her and thereby had inflicted cruelty on her, as well as her family members which impelled her to leave the matrimonial home. She alleged ill treatment by her husband and her in-laws for being without a child. She also alleged that her position in the family was no more than a caretaker and that in spite of repeated requests, she was not taken by her appellant-husband to his place of posting, even for a single day. 5. On the pleadings of the parties, the learned trial Court framed the following issues: - Issue No. 1 - Whether the suit is hit by the principle of res judicata? Issue No. 2 - Whether the respondent has exerted cruelty upon the petitioner? Issue No. 3 - Whether petitioner and his family members had perpetuated cruelty upon the respondent by demanding dowry? Issue No. 4 - Whether the petitioner is entitled to get a decree as prayed for? 6. While the appellant-husband examined himself and 2(two) other witnesses being his brother and brother-in-law respectively, the respondent-wife only examined herself to support her version. The learned trial court while rejecting the plea of res judicata raised by the respondent-wife, however, concluded on an appreciation of the pleadings of the parties and the evidence on record that the ground of cruelty as contemplated in Section 13 of the Act had remained unproved and, therefore, dismissed the suit. The parties, however, were left at liberty, if so advised, to file a joint petition for divorce on mutual consent as per the procedure prescribed by law. Being the first court of appeal, it would be appropriate to have a brief survey of the evidence on record before dealing with the competing arguments advanced. 7. PW-1 (appellant-husband) while reiterating in details his assertions made in the plaint expressed his inability, in view of the critical ailing condition of his father and the fragile health of his mother, to live separately from them as desired by the respondent-wife. 7. PW-1 (appellant-husband) while reiterating in details his assertions made in the plaint expressed his inability, in view of the critical ailing condition of his father and the fragile health of his mother, to live separately from them as desired by the respondent-wife. According to him, his places of posting as a defence personnel did not provide him with adequate family accommodation to take her thereto. On the other hand, the respondent-wife exhibited obvious insolence towards his parents and also ill-treated them. She also refused to perform her marital obligations as a wife, for which they remained issueless. He also stated that the respondent-wife eventually deserted him, as well as the matrimonial home on 30.3.2005 and instituted a case against them with the false allegation of demand of dowry, etc. 8. PW-2 Sri Gautam Neog, the brother-in-law of the respondent-husband, in his evidence referred to frequent quarrels between the parties and also underlined the respondent-wife's disinclination to stay with his parents. PW-3 Sri Subrata Barua, the brother-in-law of the appellant-husband also endorsed the testimony of the appellant-husband in all material particulars. He also disclosed the respondent-wife's growing desire to estrange herself from the family and that she often resorted to animated quarrels with the appellant-husband for not being able to do so. 9. The respondent-wife, in her evidence reiterated her stand in the written statement. She amongst others stated that the appellant-husband compelled her to stay with the members of his family as a caretaker and was subjected to undue harassment for not being able to give a child to the family. She alleged torture on her and also admitted of lodging a FIR at Pulibar Police Station with the imputation that her husband and his family members had been demanding dowry from her poor parents. 10. The learned trial court, as the impugned judgment and order reveals, refused to grant divorce limiting its consideration only to the appellant-husband's complaint of the insistence of the respondent-wife to take her to his place of posting. The other imputations brought on record and reinforced by the evidence of his witnesses were neither taken note of, nor analyzed or discussed. Confining the scrutiny of the case of the appellant-husband only to the abovementioned perspective, the learned trial court entered a finding that thereby no mental cruelty was caused on him entitling him to a decree for divorce. The other imputations brought on record and reinforced by the evidence of his witnesses were neither taken note of, nor analyzed or discussed. Confining the scrutiny of the case of the appellant-husband only to the abovementioned perspective, the learned trial court entered a finding that thereby no mental cruelty was caused on him entitling him to a decree for divorce. As stated above, there was no endeavour at all, on the part of the learned trial Court to examine the other aspects of the appellant-husband's grievance, vis-a-vis his wife's conduct which according to him was cruel, so much so that continuance of the matrimonial alliance with her was considered impossible. 11. On marshaling the pleadings of the parties and the other aspects of the conduct of the respondent-wife, namely, in compatibility of outlook, disrespectful demeanour towards the parents of the appellant-husband, refusal to perform her matrimonial obligations, obsessive inclination to stay separately from the old ailing parents of the appellant-husband in spite of their ill health, considering herself only a caretaker of the family, unreasonable insistences on her part to compel him to separate from the family, lodging of false complaint alleging demand for dowry etc. as well as the evidence on record in support thereof, we are of the view that the appellant-husband has been able to prove all these on the touch stone of preponderance of probability. Considering the status of a wife in the Indian society and the recognition which otherwise a lady in the household commands, makes it her solemn obligation to be dutiful not only to her husband, but also to the other family members, more particularly his parents and assuredly, if they are old and ailing seeking the refuge of their son in their advanced years of life. The persistent insistence on the part of the respondent-wife in the facts and circumstances of the present case to live separately coupled with the other imputations brought against her if considered cumulatively, we are of the view that the ground of cruelty as contemplated in Section 13 of the Act stands proved. 12. The persistent insistence on the part of the respondent-wife in the facts and circumstances of the present case to live separately coupled with the other imputations brought against her if considered cumulatively, we are of the view that the ground of cruelty as contemplated in Section 13 of the Act stands proved. 12. On a scrutiny of the pleadings of the parties and the evidence on record, we are thus of the unhesitant opinion that the learned trial court had not only failed to appreciate the materials on record in the right perspective, it in fact had left out of consideration vital pieces of pleadings and the evidence to arrive at a conclusion which in view of the above determination is construed as untenable in law and on facts. In the above view of the matter, the appeal is allowed. The impugned Judgment and Decree referred to hereinabove are hereby set aside. The marriage between the parties is hereby dissolved. 13. We have heard the learned Counsel for the parties at this juncture on the issue of permanent alimony and maintenance. Whereas Mr. Singh without prejudice to the rights and contentions of the respondent-wife otherwise has on instructions prayed for an amount of Rs. 5 (five) lakhs, Mr. Roy, has responded with the offer of Rs. 3.5 lakhs. After hearing the learned Counsel for the parties and on a consideration of all relevant aspects, we are of the view, that on a reasonable estimate the amount of permanent alimony and maintenance, as a whole should be fixed at Rs. 4 lakhs. 14. As Mr. Roy has submitted that the appellant-husband is not financially strong and is being required to meet the expenditure for treatment of his father suffering from cancer, we have considered it appropriate to phase out the payment of the aforementioned amount in the following terms - (a) The amount of Rs. 4 lakhs would be paid by the appellant-husband by monthly installments of Rs. 4 lakhs would be paid by the appellant-husband by monthly installments of Rs. 1 lakh with break of one month after the payment of first two installments, (b) The whole amount as above in other words would be liquidated by the appellant-husband within a period of 5(five) months herefrom, (c) The appellant-husband would deposit the installments as above, in the learned trial court and (d) The monthly maintenance allowance now being realized from the appellant-husband would be so done, only till the amount of permanent alimony fixed is fully liquidated by him. 15. As the amount of permanent alimony and maintenance has been arrived at after hearing the learned Counsel for the parties to which they have agreed, they would act strictly in terms of the above so much so that there is no occasion for this Court to again deal with this issue in future. The appeal stands allowed in the above terms. In the facts and circumstances of the case, there would be no order so to the costs. Appeal allowed