Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 332 (GAU)

Swapan Chandra Ghosh v. Sebika Ghosh (Debnath)

2011-04-12

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT Utpalendu Bikas Saha, J. 1. The instant Matrimonial Appeal is filed by the wife-Appellant, who was Respondent in T.S. (Divorce)/FC/63 of 2004 challenging the Order, dated 04.02.2006 passed by the learned Judge, Family Court, Agartala, West Tripura in aforesaid Title Suit wherein the learned Family Judge allowed the prayer for divorce made by the Respondent-husband, who was the Petitioner in the aforesaid suit. 2. We have heard Mr. S. Bhattacharjee, learned Counsel appearing for the Appellant as well as Mr. P.K. Biswas, learned Counsel appearing for the Respondent. 3. The fact needed to be discussed for disposal of the instant appeal is as follows:- The Appellant is the legally married wife of the Respondent and their marriage was solemnized in the month of August, 1992 according to the Hindu rites and customs in presence of their near relatives in the parental house of Appellant. After completion of the marriage, both Appellant and Respondent live together as husband and wife happily for near about 10 years and out of their wedlock, a male child was born namely, Diptanu. In the year, 2004, the Respondent-husband of the Appellant, a Government employee working in Police Department as Home guard filed the above Title Suit (Divorce) under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. The said suit was contested by the present Appellant-wife, who was Respondent in the Title Suit. The said suit was contested by the present Appellant-wife, who was Respondent in the Title Suit. The allegation of the Respondents in his petition inter alia is that the present wife-Appellant, Respondent in the suit started ill behave with the Respondent-husband and other inmates and did not take proper care towards the Respondent and his mother and not only that, she also left the house of the Respondent without any consent and permission and used to go to her parental house at any time and move frequently and when she was asked by the Respondents, why she was leaving her matrimonial house off and on, she replied that she is not interested to stay at Badharghat and stayed in the matrimonial house at Badharghat and if the Respondent will not agreed to stay at Lalsingmura, Appellant would leave the house of the Petitioner at any time and ultimately on 16.01.2000, all in a sudden the Appellant left the house of the Petitioner along with her son without any permission and consent showing that she was going for ever and the consequence would be faced by the Respondent and his family members. Appellant though contested the case, but could not appear on date fixed for her cross-examination i.e. 04.02.2006 and on that date, the learned Family Judge take up the petition for divorce for ex parte hearing in her absence and ultimately, passed the order allowing the prayer for divorce. Hence, the same is under challenge to this Court by way of the instant appeal. 4. Mr. Bhattacharjee, learned Counsel appearing for the Appellant-wife while urging for setting aside the impugned order would contend that the impugned order is passed by the learned Family Judge without providing any opportunity to the Appellant for cross-examination. In fact at the first instance, the learned Family Court taken up the matter for ex parte hearing even he did not try to know what was the reason for non-appearance of the Appellant, Respondent in the suit and not only that learned Family Judge also did not state the reasons for passing the impugned order, he again contended. By such a non reasoned order, a matrimonial dispute should not be allowed to be decided. By such a non reasoned order, a matrimonial dispute should not be allowed to be decided. He further contended that the Apex Court in various decision including the decision in the case of Shobha Rani vs. Madhukar Reddi, (1988)1 SCC 105 : AIR 1994 SC 710 discussed about cruelty and not only that in the case of In the case of V. Bhagat vs. D. Bhagat (1994)1 SCC 337 and in the case of Subhash Chander Sharma vs. Anjali Sharma AIR 2011 SC 151 (DEL), the Delhi High Court also taking note of the observation of Apex Court stated that "it is not the ordinary wear and tear of the married life which would cause any sort of mental pain or cruelty to the Petitioner. The conduct complained of must be proved to be grave and weighty due to which the Petitioner cannot be reasonably expected to live with his spouse. The Apex court has also held that it is difficult to lay down any precise definition or to give exhaustive description of the circumstance which would constitute cruelty. Therefore, in the facts of each case the conscience of the court should be satisfied that the relationship between the parties had reached to such an extent that it has become impossible or unbearable for them to stay together. Under the Rules of Hindu Marriage Act, framed by this Court, the Petitioner approaching the court is required to plead specific acts of cruelty and the occasions when and where such acts were committed by the other spouse". But, in the instant case, the Respondent-husband, who was the Petitioner in the Title Suit did not place any specific evidence, which would constitute cruelty and the learned Family Judge also in his order did not discuss the evidence adduced by the parties and on that ground alone also the order impugned is required to be set aside and the matter is to be remitted for providing opportunity to the Appellant herein to appear before the Court for cross-examination. 5. Mr. Biswas, learned Counsel appearing for the Respondent-husband in his usual fairness submits that the learned Family Judge did not discuss the detailed reasons for passing the impugned order. 5. Mr. Biswas, learned Counsel appearing for the Respondent-husband in his usual fairness submits that the learned Family Judge did not discuss the detailed reasons for passing the impugned order. But the action of the learned Family Judge cannot be criticized for taking up the matter for ex parte hearing when on the date fixed for cross-examination, the Appellant did not appear as there was no option to the learned Family Judge except to deciding the matter ex parte. 6. We have gone through the impugned Order, dated 04.02.2006 in the aforesaid Title Suit. According to us, the impugned order is liable to be set aside only for the reasons that the learned Family Judge failed to discuss the evidence on record and also failed to consider the parameters laid down by the Apex Court in various decisions for granting divorce on the ground of cruelty, more so the order impugned is a cryptic one. A Division Bench of this Court in F.A. 16 of 2005 (Sri Gourab Datta v. Smt. Arundhuti Majumder (Datta) wherein both of us were the party taking note of the facts of that case hold that the specific allegation regarding cruelty has to be pleaded and proved. Mare pleading of cruelty is not enough to pass an order of divorce, the pleading has to be proved by way of evidence. In the instant case, there is nothing in the impugned order that the Court below consider the evidence as well as the Section 13 of the Hindu Marriage Act and not only that the learned Family Judge also nowhere stated how the Respondent proved the allegation of cruelty and why he came to the conclusion that the Appellant herein, who was the Respondent in the suit deserted the Respondent-husband, which constitute cruelty what is the basis for such conclusion and not only that the learned Family Judge also did not provide any alimony or compensation to the Respondent and for non-awarding such compensation or alimony, he also did not give any reasons as stated supra. Therefore, according to us, the impugned order is required to be interfered with. Accordingly, we interfered. 7. Therefore, according to us, the impugned order is required to be interfered with. Accordingly, we interfered. 7. The impugned order is set aside and the case is remitted to the learned Family Judge for deciding the matter again after providing an opportunity to the Appellant for cross-examining herself and her witnesses, if any and pass necessary order in accordance with law. 8. Party shall appear before the Family Court on 27th of April, 2011. Upon appearance of the parties, the learned Family Judge shall proceed with the matter in accordance with the law. 9. L.C.R. be transmitted to the learned Family Judge forthwith. 10. Appellant is at liberty to approach the learned Family Judge for interim maintenance, if so advised.