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2011 DIGILAW 393 (GAU)

Sephal Debnath v. Anita Biswas

2011-05-02

C.R.SARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT Utpalendu Bikas Saha, J. 1. The Petitioner-Appellant and the non Petitioner Respondent are husband and wife, on account of having performed marriage, on 10.12.2001, in accordance with the Hindu religious rites and customs and consequent thereto, the said marriage was registered under Section 8 of the Hindu Marriage Act 1955, on 14.12.2001. After completion of the marriage, both Appellant and the Respondent had been living together, as husband and wife. Both Petitioner-Appellant and the Respondent are the teachers by profession, and after their marriage they were residing in a rented house belonging to one Smt. Shipra Pal at Melarmath, Agartala, who was in profession, Nurse and was working in G.B Hospital. 2. According to the Petitioner-Appellant the Respondent-wife is quarrel some in nature and she used to talk in filthy languages without any cogent ground and not only that, she also refused to share the bed with the Petitioner-Appellant since the very begining of their marriage and did not allow the Petitioner-Appellant to cohabit with her. In a subsequent stage, the Petitioner-Appellant had come to know that the Respondent wife was elder in age than to him and she had some suspicion regarding him. He also pleaded in his petition that the Respondent-wife had deserted him all on a sudden, without giving any information to any one and on getting the said news, the Petitioner-Appellant tried his level best to get back the Respondent wife in his residence but she refused to come back and ultimately, the Petitioner-Appellant being aggrieved by the behavior of the Respondent-wife has filed a petition under Section 13(1), (1-a) (1-b) of the Hindu Marriage Act, 1955 before the learned Judge, Family Court, Agartala, West Tripura against the Respondent-wife, which was registered as T.S (Divorce) F.C. 140 of 2004. 3. The Respondent-wife on receipt of the process of the Court has appeared and also filed her written statement denying the allegation made by the Petitioner-Appellant in his petition. In the written statement, the Respondent-wife has contended that the whole story, as narrated in the petition with the allegation of cruelty and desertion, is false and concocted one and that has so made only to get an order of divorce. In the written statement, the Respondent-wife has contended that the whole story, as narrated in the petition with the allegation of cruelty and desertion, is false and concocted one and that has so made only to get an order of divorce. In her written statement, though she admitted the marriage but also made some allegation against the Petitioner-Appellant stating inter alia that he was a man of loose character and he had developed an illicit relation with one Smt. Laxmi Das, who is the wife of a Group-D employee of his school. Respondent-wife has stated that apart from protesting the said illicit relation, she also tried to minimize the dispute between them by way of pursuing the Petitioner-Appellant not to develop such illicit relation with the wife of another person, which could not succeed. Her further contention in the written statement is that her husband i.e. the Appellant-Petitioner had left the rented house on 7th July, 2002, without leaving any message for her and as the Petitioner Appellant did not return to the rented house almost for period of 15-20days, then she went to her parental house and started staying there. 4. Her further case is that the Petitioner-Appellant had demanded Rs. 1,00,000/- from her parents for construction of building on his land and as her parents could not satisfy him by way of providing the demanded amount, he had started torturing her both mentally and physically. She also stated in her written statement that one of her lady colleague had lodged a complaint against the Petitioner-Appellant alleging that he had outraged her modesty and accordingly, Police had arrested the Petitioner Appellant. She also confirmed that the fact relating to outraging the modesty was published in 'Dainik Syandan Patrika' on 3rd February, 2004. The Respondent wife in her written statement has denied the allegation of mental cruelty and desertion and tried to make out a case of desertion against the Petitioner-Appellant. 5. Taking note of the pleaded case of the parties, the learned Judge of Family Court, West Tripura, Agartala has framed the following issues: (A) Whether the Petitioner was the legally married wife of the Petitioner and if so, whether the Respondent had refused to share bed with the Petitioner and subsequently she had deserted him without any cogent ground? (B) Whether the Petitioner is entitled to have divorce on the ground of cruelty and desertion? (B) Whether the Petitioner is entitled to have divorce on the ground of cruelty and desertion? (C) Whether the Petitioner is entitled to have any relief and if so, up to what extent? To prove the allegation, Petitioner-Appellant has produced 4 witnesses and the Respondent-wife produced 3 witnesses in support of their respective cases. The Petitioner-Appellant has also produced some photocopies of the documents by way of Firisti, which were exhibited as public documents. 6. Upon hearing the learned Counsel for both the parities and taking note of the evidence, as adduced, the learned Judge of Family Court, on 04.04.2005, has dismissed the suit for dissolution of marriage regarding the plea of cruelty and desertion on the part Respondent-wife. Hence the instant appeal. 7. Mr. Das, learned Senior Counsel in his usual fairness submits that though this Court made an attempt for reconciliation between the parties but the said attempt had failed. He also submits that the Respondent-wife had lodged a complaint with Agartala Womens' Police Station, on 15.08.2004, which was registered as Womens' P. S. Case No. 43/2004 under Section 498-A of I.P.C and subsequently, the Appellant-Petitioner was convicted by the learned Chief Judicial Magistrate, West Tripura, Agartala by his judgment, dated 04.01.2010 against which, he preferred an appeal before the learned Sessions Judge and the appeal being Crl. Appeal No. 05(1) of 2010 was subsequently, transferred to the Court of learned Additional Sessions Judge (Court No. 3). The leaned Additional Sessions Judge has upheld the said order of conviction and sentence. 8. Mr. Das, learned Sr. Counsel appearing for the Petitioner Appellant has further tried to convince this Court submitting inter alia that when a party like that of present Respondent, who approached the Court with a complaint under Section 498-A and subsequent thereto, when the Petitioner-Appellant was convicted, it would be very difficult on the part of Petitioner-Appellant to live with the Respondent-wife. His further submission before this Court is that the learned Judge of Family Court, West Tripura, Agartala has failed to appreciate the evidence on record and also failed to take note of the fact that it is the Respondent-wife, who deserted the Petitioner Appellant i.e. the husband and for which the Petitioner-Appellant is entitled to an order of divorce. 9. Mr. Roy Barman, learned Counsel for the Respondent wife while resisting the submissions of Mr. 9. Mr. Roy Barman, learned Counsel for the Respondent wife while resisting the submissions of Mr. Das, learned Counsel for the Petitioner-Appellant would contend that 'desertion' means the intentional permanent forsaking and abandonment of relation by one of the spouse or by the other without the prior consent of other's. Mere leaving the house by either of the spouse of another cannot be treated as 'desertion'. In the instant case when the Appellant husband had left the rented house, leaving the Respondent-wife alone for a period of 15-20 days, even without any message, then the Respondent-wife had no other option except to leave the said rented house and went to her parent's house. He also contended that even when there was an attempt on the side of this Court for reconciliation, the Respondent-wife was ready to return back to her matrimonial home and to live with the present Petitioner-Appellant, but it is the Petitioner-Appellant, who has declined to accept the Respondent-wife. Therefore, it cannot be said that the Respondent-wife has deserted the Petitioner-Appellant. He further contended that from the evidence on record, it would be well established that it is the Petitioner-Appellant, who forced the Respondent-wife to leave the rental house and proceeded to her parental house. 10. We have heard the learned Counsel of both the parties and also have gone through the impugned judgment as well as the evidence on record. It appears from the evidence of Petitioner-Appellant, (PW.1), who, in his affidavit-in-Chief stated inter alia that the Respondent-wife had left his house in the month of March, 2002 without giving any intimation to him and he also tried his level best to bring her back to his residence. His further case was that the Respondent-wife had lodged a false case against him on 15.08.2004 under Section 498-A of I.P.C. In cross-examination, he did not admit that he had no sexual relation with his wife after their marriage and he also denied the allegation that his wife had not left the house without his knowledge and consent. PW.2, one Sri Nilu Das, who, in his affidavit-in-Chief has stated that his family had a very cute relation with the Petitioner Appellant, and Respondent-wife had brought a false and defamatory statement against his wife Smt. Laxmi Das. PW.2, one Sri Nilu Das, who, in his affidavit-in-Chief has stated that his family had a very cute relation with the Petitioner Appellant, and Respondent-wife had brought a false and defamatory statement against his wife Smt. Laxmi Das. PW.3 Sri Babaul Sarkar, in his affidavit-in-Chief has stated that the Petitioner-Appellant had no illicit relation with Smt. Laxmi Das but, at the same time, he admitted that she had not visited the house of the Petitioner-Appellant. Therefore, according to us, the evidence of PW.3 is of no help to the Petitioner-Appellant. PW.4, Sri Ajit Sarkar, in profession, a Driver in his cross has stated that he had no knowledge whether there was any dispute in between the Petitioner-Appellant and the Respondent. Accordingly, the evidence of the said witness is also of no aid of the Petitioner Appellant. 11. The Respondent-wife examined herself as DW.1 and in her evidence, she stated that her husband had developed an illicit relation with one Smt. Laxmi Das, who was the wife of Sri Nilu Das, PW.2, a Group-D employee of the Primary School in which her husband, Petitioner-Appellant is working. DW.2 Smt. Sipra Paul, who was the owner of the rented house where both the Petitioner-Appellant and the Respondent-wife were residing together stated in her affidavit-in-Chief that the Petitioner-Appellant had developed an illicit relation with one Smt. Laxmi Das, who was the wife of Sri Nilu Das, PW.2, a Group-D employee and not only that, she had confirmed that they had a sexual relation. In her statement she also confirmed the allegation of the Respondent wife stating inter alia that the Petitioner had demanded Rs. 1,00,000/- from her father for construction of his house. DW.3, Smt. Swapna Das, stated in her affidavit-in-chief that both the Petitioner-Appellant and the Respondent had resided in her house as tenants from the month of February, 2002 to July, 2002 and the Petitioner had developed an illicit relation with one Smt. Laxmi Das and also confirmed that after the departure of his wife for her duties, the said Smt. Laxmi Das used to visit the house of the Petitioner-Appellant. 12. 12. According to us, the learned Family court Judge in his judgment has considered all the evidences and rightly rejected the prayer for divorce as by this time, it is settled that the legal burden is upon the Petitioner's spouse to establish by convincing evidence beyond any reasonable doubt that the Respondent-wife abandoned him or her without reasonable cause. More so, the Petitioner Appellant is also required to prove that the Respondent-wife abandoned the relation as spouse permanently with an oblique motive and there was no prevention from the side of the Petitioner while the Respondent is willing for reunion in the matrimonial home. 13. In Lachman Uttamchand Kirpalani v. Meena alias Mota reported in AIR 1964 SC 40 , the Apex Court has considered the term willful neglect as follows:- The expression "willful neglect" included in the section does not introduce a new concept in Indian Law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could be derived from Section 9 of the Act in order to construe the scope of the expression "without reasonable cause" and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case. 14. The Apex Court in the aforesaid judgment taking note of its earlier decision in Bipin Chandra v. Prabhavati AIR 1957 SC 176 has also stated that there is an elaborate decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edition) Vol. 12 was cited with approval. In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. In the said judgment the Apex Court has further explained that:- If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factor of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.... Desertion is a matter of interference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserndi coincide in point of time. 15. In the aforesaid case the Apex Court held that proving allegation of desertion, spouse concerned has boundant duty to prove firstly, the factor of separation and also the intention to bring cohabitation permanently to an end. At the same time, the spouse against whom the allegation of desertion is made he or she is liable to prove the reasons for absence of consent and absence of conduct by way of giving reasonable cause to the spouse for leaving the matrimonial home. 16. At the same time, the spouse against whom the allegation of desertion is made he or she is liable to prove the reasons for absence of consent and absence of conduct by way of giving reasonable cause to the spouse for leaving the matrimonial home. 16. In the instant case, there is enough reason for leaving the rented house without the consent of the Appellant Petitioner/husband and not only that even, by way of producing a copy of newspaper, namely, Dainik Sandan Patrika the Respondent wife has established the allegation of her colleague, Smt. Dulali Bhattacharjee that her modesty was outraged by the Petitioner Appellant. Respondent-wife has further proved that she was forced to leave the rented house as the Petitioner-Appellant was intentionally left the rented house for 15-20 days keeping her alone there. We have also taken a note of earlier order, dated 11.04.2011, when there was an attempt for solving the dispute amicably by way of reconciliation between the parties. The said attempt for reconciliation had failed due to unwillingness of the Petitioner-Appellant to take back the Respondent-wife, though the Respondent-wife was willing to return back in her matrimonial home for living peacefully with the Petitioner-Appellant. It is also to be noted that the Respondent-wife is ready to live with the Petitioner-husband even after his conviction under Section 498(A) by a Court and later on, when the said order of conviction has been approved by the Appellate Court. Therefore, we are unable to accept the plea of desertion as alleged by the Appellant-Petitioner and according to us, the learned Judge of Family Court has rightly refused to accept the said plea of desertion. 17. In Sobha Rani v. Madhukar Reddi reported in (1998) 1 SCC 105 the Apex Court has discussed about the word "cruelty" and in the case of V. Bhagat vs. D. Bgagat (1994)1 SCC 337 as well as in the case of Subhash Chander Sharma vs. Anjali Sharma, AIR 2011 SC 151 (Del), the Delhi High Court taking note of the observation of the 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 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. 18. In view of the above, we are also of the considered opinion that the evidence as available on record does not make out any case of mental or physical cruelty on the part of Respondent-wife. In the result, we do not find any force in the appeal and the same is hereby dismissed. 19. Appellant shall bear the cost of litigation of the Respondent-wife to the tune of Rs. 3,000/- (Rupees three thousand only), if already certified. Appeal dismissed.