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2011 DIGILAW 270 (GAU)

Jolly Biswas Sharma v. Arun Sharma

2011-03-25

A.K.GOSWAMI, AMITAVA ROY

body2011
A.K. Goswami, J. - This is an appeal preferred against the judgment and decree dated 31.5.2004 and 18.6.2004, respectively, passed by the learned District Judge, Bongaigaon in TS(D) No 55/1998, granting decree of divorce to the respondent husband, on the grounds of cruelty and desertion. 2. The respondent husband filed a petition, under sections 13(1)(i-a) and/or 13(1)(i-b), read with section 21 -B of the Hindu Marriage Act, 1955, (for short the "Act"). The respondent husband's case, in brief, is that the marriage between him and the appellant, was solemnized on 19.11.92 as per Hindu rites and customs. The respondent husband is an employee of the Bongaigaon Refinery and Petro-Chemicals Limited and the appellant is an employee of the Government of Meghalaya, working as a Junior Divisional Accountant, posted at Tura. From the very beginning of their marriage, the appellant treated respondent husband with extreme cruelty and she was trying to fish out grounds with the intention of deserting respondent husband on one pretext or the other. The appellant was also not interested to lead a conjugal life or to cohabit with him. It is also stated that the appellant wife refused to cohabit with him after about two months of their marriage severing their relationship. She made occasional visits to the matrimonial house, only to pick up quarrels with all the members of the family. The appellant also filed false police cases against him. She took serious exception to the close relatives of the respondent husband, residing with him. The appellant had approached the members of various organizations and authorities and fed them with false allegations of physical and mental torture and demand of dowry. She filed a case under section 498(A)/323 IPC, alleging physical and mental torture and demand of dowry, against the respondent husband and the said case was filed as a ploy to leave the matrimonial house. She also filed a complaint before the National Commission for Women, New Delhi, without any just or cogent cause. The National Commission for Women, New Delhi, vide letter dated 1.1.96, advised the appellant to institute a divorce proceeding and/or to file a case for maintenance against the respondent husband. She also filed a complaint before the National Commission for Women, New Delhi, without any just or cogent cause. The National Commission for Women, New Delhi, vide letter dated 1.1.96, advised the appellant to institute a divorce proceeding and/or to file a case for maintenance against the respondent husband. Suppressing the aforesaid letter dated 1.1.96, the appellant again filed a complaint before the National Commission for Women on 8.9.97, which was subsequently sent to the District Women Cell, Bongaigaon, for appropriate action and the District Women Cell, Bongaigaon, drew up a proceeding against him. Aggrieved by the proceeding against him, the respondent husband had approached this Court by filing Civil Rule No 1552/98 and this Court had stayed the said proceeding vide order dated 6.4.98. Efforts were also made by this Court to reconcile the parties by facilitating conciliation between them through intervention of a learned advocate of this Court and despite efforts made, conciliation failed. This Court, finally vide order dated 13.11.98, after perusal of the report prepared in connection with the conciliation proceeding, disposed of the writ petition, observing that either of the parties may file appropriate divorce suit. 3. On these broad allegations of desertion and cruelty, the aforesaid divorce suit was filed by the respondent husband. The appellant wife was served notice of the proceeding. However, as the impugned order dated 31.5.2004 would reveal, the suit proceeded ex parte against the appellant wife for her failure to file written statement. The respondent husband adduced his evidence on affidavit on 27.5.2004 and the learned trial Court heard the submissions of the learned counsel for the respondent husband on that date and, thereafter, vide judgment dated 31.5.2004, which is challenged in this proceeding, being satisfied that the appellant wife had treated the respondent husband with cruelty and had deserted her husband without any just cause, granted the decree of divorce to the respondent husband. 4. We have heard Mr SP Roy, learned counsel for the appellant wife and Mr BK Bhattacharjee, learned counsel for the respondent husband. 5. Mr Roy has submitted that the learned trial Court did not afford opportunity to the appellant to file her written statement. 4. We have heard Mr SP Roy, learned counsel for the appellant wife and Mr BK Bhattacharjee, learned counsel for the respondent husband. 5. Mr Roy has submitted that the learned trial Court did not afford opportunity to the appellant to file her written statement. He has submitted that the appellant had filed Petition No 932/98 dated 19.12.98 informing the Court that she had been furnished a copy of the petition without containing page- 10 thereof and, therefore, it would not be possible for her to file written statement. Similar prayer was made by her by filing another petition signed on 18.1.99 which was registered as Petition No 261/99. According to the learned counsel, page-10 was never served and that is why the appellant was not able to file written statement. He also submits that the learned trial Court without fixing any date for argument, passed the impugned judgment and decree in undue haste and, therefore, the impugned judgment and decree is not sustainable in law. According to the learned counsel, the appellant had approached this Court by filing Civil Revision Petition No 60/99, for transfer of the suit proceeding to the Court of the Deputy Commissioner, West Garo Hills, and this Court had suspended the proceedings in the aforesaid Title Suit (D). However, the said Civil Revision Petition was dismissed for default and, thereafter, the appellant was unaware of the proceeding that was continued in the Court of the District Judge, Bongaigaon. He also submits that the evidence on record do not at all establish that the respondent husband was treated with cruelty and that the appellant had deserted him without sufficient or just cause. It is also pointed out by him that in the petition for divorce it has not been specifically averred when the appellant deserted the respondent husband and that being the position, the finding of the learned trial Court that the appellant deserted the respondent husband is wholly misconceived. Making a reference to section 23 of the Act, the learned counsel submits that it was mandatory on the part of the learned trial Court to have attempted reconciliation before proceeding with the matter and the same having not been done, the impugned judgment and decree of divorce is a nullity. Making a reference to section 23 of the Act, the learned counsel submits that it was mandatory on the part of the learned trial Court to have attempted reconciliation before proceeding with the matter and the same having not been done, the impugned judgment and decree of divorce is a nullity. To support his contentions, the learned counsel has referred to the decisions rendered in Jyotishwar Sen Vs Anjana Sen, reported in 2070 (3) GLT 104, Neelam Kumar Vs Dayarani, reported in 2010 AIR SCW6606 and Maya Devi Vs Jagadish Prasad, reported in AIR 2007 SC1426. 6. Resisting the submissions of Mr Roy, Mr BK Bhattacharjee, learned counsel for the respondent husband, has submitted that the appellant is not at all serious in prosecuting her case. According to him, the Civil Revision Petition filed before this Court came to be dismissed for non-prosecution. The restoration petition filed thereof was also dismissed for non-prosecution. The appellant had also taken frivolous pleas for not contesting the proceeding before the learned trial Court. The plea that the appellant was not having a complete copy of the petition is a mere ruse. The contention advanced that she was unaware of the proceeding after the dismissal of the Civil Revision Petition before this Court is also belied by the materials on record. According to him, on three occasions reconciliation attempts have been made while the Civil Revision Petition was pending before this Court and it had not fructified into any positive result and, therefore, there is no illegality in proceeding with the matter by the learned trial judge, more so, when the appellant had chosen not to appear and contest the proceeding. He has submitted that the respondent husband has been able to prove cruelty and desertion and, therefore, no interference is called for with the impugned judgment and decree passed by the learned trial Court. 7. We have given our anxious consideration to the submissions of the learned counsel for the parties. We have also perused the materials on record. 8. We find from the order sheet of the learned trial Court that summon was issued on 27.11.98 fixing 25.1.99 for service report. 7. We have given our anxious consideration to the submissions of the learned counsel for the parties. We have also perused the materials on record. 8. We find from the order sheet of the learned trial Court that summon was issued on 27.11.98 fixing 25.1.99 for service report. On 25.1.99, i.e, on the date fixed, the counsel for the appellant filed Petition No 90/99 stating that he was appointed as the counsel for appellant on the very date and, therefore, it would be very difficult on his part to file the written statement. The learned trial Court granted time for filing written statement fixing 25.2.99. On 25.2.99 also the learned counsel for the appellant filed a petition being No 2637 99 praying for time to file written statement in view of the fact that the appellant had sent a telegram informing him that she was not in a position to come and, therefore, he could not complete the preparation of the written statement. In none of the petitions filed by the learned counsel for the appellant, there were any indication that the written statement could not be filed because of not receiving the complete petition for divorce. 9. When the learned counsel had entered appearance and had filed petitions for granting of time, in our considered view, non-recording of filing of petitions filed by a party in the orders passed by the learned Trial Court is of not much consequence. We cannot also lose sight of the fact that the appellant had approached this Court by filing Civil Revision Petition No 60/99 and the case was pending in this Court for about 5 years. It is difficult to accept that the appellant did not have the copy of the divorce petition although she had taken recourse to file a revision petition before this Court. Mr Bhattacharjee had also drawn our attention to paragraph- 22 of the memo of appeal. In the said paragraph, the appellant had stated that by order dated 15.3.2004, i.e, after records have been sent back to the trial Court after dismissal of Civil Revision Petition, an order was passed by the learned trial Court to inform the appellant but no such information, as directed, was sent to her and, as a result, she was totally in the dark about the proceeding before the learned trial Court. According to him, her plea of being in the dark will not be borne by the records of the case. We have perused the order sheet of the learned trial Court and a perusal thereof would reveal that on 26.4.2004, the counsel for the appellant by Petition No 197/2004 had prayed for time for filing written statement and such prayer was allowed fixing 10.5.2004 for filing written statement. On 10.5.2004, the appellant was absent without any step. Therefore, it cannot be said that the appellant was not aware of the proceeding in the trial Court. As we have noted earlier, attempts were made for conciliation between the parties when the Civil Revision Petition was pending before this Court. It is not that no attempt for conciliation was ever made. In such circumstances, we are of the opinion that the judgment and decree cannot be faulted with on the ground that there was no attempt made by the learned trial judge for conciliation between the parties. 10. The respondent husband had set out allegations of cruelty and desertion against the appellant wife in the petition for divorce. We have noticed that the allegations are somewhat general in nature- there being no reference to particular instances. The appellant, however, did not file any written statement denying the allegations. We have also perused the evidence of the respondent husband under Order 18 Rule 4, CPC. In the evidence, the respondent husband had, more or less, reiterated what had been set out in the petition. 11. Argument of the learned counsel for the appellant that the respondent husband had not examined any independent witness to prove his case, in the facts and circumstances of the case, is not tenable. The allegation of the respondent husband went unrebutted and besides that, the respondent husband had brought evidence on record to lay the foundation for getting a decree of divorce on the grounds of desertion and cruelty. 12. In Maya Devi (supra), the Apex Court had pointed out that cruelty, which is a ground for dissolution of marriage, in absence of any definition, may be defined as an unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. In Maya Devi (supra), the Apex Court had pointed out that cruelty, which is a ground for dissolution of marriage, in absence of any definition, may be defined as an unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. It has been further pointed out that the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. In matrimonial matters, which is a very delicate human relationship, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omission of the other. 13. In Neelam Kumar (supra), the Apex Court, on the facts and circumstances of that case opined that cruelty had not been supported by evidence and, therefore, refusal to grant a decree of divorce was proper. Similar view was taken by the Apex Court in Jyotishwar Sen (supra). 14. There is no dispute with regard to the proposition that unless there is evidence on record constituting ground on which a decree of divorce can be granted, it will be impermissible to grant a decree of divorce. Considering the evidence on record, we are not persuaded to take a view other than the one that has been taken by the learned trial judge. Consequently, the appeal fails and the same is dismissed. The impugned judgment and decree is upheld. 15. No order as to costs.