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2011 DIGILAW 395 (GAU)

Pradip Nath v. Reena Nath

2011-05-03

A.C.UPADHYAY, MADAN B.LOKUR

body2011
JUDGMENT Arun Chandra Upadhyay, J. 1. Heard Mr. M.U. Mahmud, learned Counsel appearing on behalf of the Appellant husband. None appears for the Respondent wife despite service of notice. 2. This matrimonial appeal is filed by the Appellant husband against dismissal of his petition for divorce under Section 13(1) of the Hindu Marriage Act, 1955. 3. Facts, leading to filing of this appeal are as follows:- The Appellant/husband and the Respondent/wife solemnized their marriage on 01.05.2000 at Guwahati, as per Hindu rites and customs. After getting married they lived together as husband and wife till 28.02.2004, thereafter the Respondent left the house of the Appellant. 4. The Appellant stated that the Respondent used to torture and neglect him by her conduct and thereby made his life miserable. When the Appellant had no official quarter to keep Respondent with him, he left her at his father's house after their marriage, but after about 10 (ten) days or so, the Respondent wife had gone to her mother's house without the knowledge of the Appellant. The Appellant stated that he tried to bring back his wife to his father's house, but she refused to do so and declined to stay with his parents, for which, he had to arrange a rented accommodation. 5. Later on, Appellant occupied his official residence together with Respondent. In the meantime, the Respondent gave birth to a female child. The Appellant also stated that after the birth of their child, Respondent started neglecting him. Appellant further alleged that one Sri Tilak Das, Driver Constable of 1st A.P.T.F came to stay in the quarter adjacent to his house. The Appellant stated to have come to know from his neighbours that the Respondent wife indulged in some undue activities with the said Sri Tilak Das, in his absence. When the Appellant confronted his wife about such alleged activities with Tilak Das, she left his house and started living after sister's place. According to the Appellant-husband, subsequently, sister of the Respondent had also tried to make her understand about the consequences of such activities. However, on 28.02.2004, Respondent wife came to her sister's house along with the child together with all her belongings and did not go back to join the company of the Appellant. 6. The Appellant subsequently also lodged an FIR with Baisistha Police Station under Section 366IPC, alleging abduction of Respondent wife by the said Tilak Das. However, on 28.02.2004, Respondent wife came to her sister's house along with the child together with all her belongings and did not go back to join the company of the Appellant. 6. The Appellant subsequently also lodged an FIR with Baisistha Police Station under Section 366IPC, alleging abduction of Respondent wife by the said Tilak Das. However, according to the Appellant the Respondent wife gave a false statement in the Court against him and instituted a maintenance proceeding claiming monthly maintenance for herself and the minor child. Consequently, an order passed by the Court at Barpeta, for payment of monthly maintenance allowance for Respondent and the minor child. 7. The Appellant stated that the act of refusal of the Respondent to stay with him and conduct of the Respondent towards him coupled with her extra marital affairs with Tilak Das made his life miserable and unhappy, justifying a decree for dissolution of marriage between them. 8. By filing written statement, the Respondent wife admitted her marriage with the Petitioner and birth of the child, however, denied all the statements made by the Appellant accusing her of indulging in all such activities with any other person. The pleaded case of the Respondent is that after two months of their marriage, the Appellant demanded Rs. 1,00,000/- from her as dowry for construction of a residential building at Sarbhog. The Respondent informed her parents about the demand, however, her parents refused to pay the amount. The Appellant having failed to get the money demanded by him started physical and mental torture upon her. 9. The Respondent wife stated that even after birth of a girl child, physical and mental torture was continued, and finally she was driven out by the Appellant from the Government Quarter with the ailing child. Thus, having found no other alternative, she came to her brother's place to stay. Though she was taken to the house of the Appellant by her brother, Sri Pranjit Nath but the Appellant chased them out and did not allow her to stay in the house with him. 10. On the basis of the pleadings of the parties, the following issues were framed by the Family Court for just decision of the case. 1. Whether the Respondent has treated the Appellant/Petitioner with cruelty? 2. Whether the Respondent deserted the Petitioner and left the matrimonial home with a third person? 3. 10. On the basis of the pleadings of the parties, the following issues were framed by the Family Court for just decision of the case. 1. Whether the Respondent has treated the Appellant/Petitioner with cruelty? 2. Whether the Respondent deserted the Petitioner and left the matrimonial home with a third person? 3. Whether the Petitioner is entitled to get a decree of divorce dissolving his marriage with the Respondent? 4. To what relief/reliefs the parties are entitled? 11. The Appellant examined two witnesses to establish his case. Respondent also examined three witnesses in order to substantiate her stand. In so far as the issue No. 1 is concerned, the Appellant by examining himself as P.W. 2 has stated that the Respondent did not listen to him and was also in the habit of roaming around with her sister and spent night in her sister's place. According to P.W. 2, Respondent was also seen moving around with Tilak Das by some people in the town. 12. As per the evidence of the Appellant, he came to the house of the sister of the Respondent to settle the family dispute, but the Respondent refused to go back with him. The Respondent, on the other hand, examining herself as D.W. 1 stated in her evidence that she stayed with the Appellant for two months and thereafter, came to Guwahati and stayed with the Petitioner in his official quarter at Basistha. The evidence of Respondent (D.W. 1) reveals that the Appellant used to torture her physically at night after getting drunk. Respondent further stated in her deposition that even after the birth of a female child, the Appellant neither enquired about the child nor ever bothered to pay any amount of money towards maintenance of the child. Respondent alleged assault upon her by the Appellant frequently during their stay together. 13. Respondent in her deposition alleged that on 26.02.2004, the Appellant after assaulting her by locking in the house drove her away from the matrimonial home. Later on, she was taken to the hospital for treatment, for the injuries sustained by her and after taking treatment in the hospital her brother took her to the house of the Appellant. As deposed by the Respondent, she along with her brother were chased out by the Appellant with a 'Dao' in hand, by hurling abusive and filthy language. Later on, she was taken to the hospital for treatment, for the injuries sustained by her and after taking treatment in the hospital her brother took her to the house of the Appellant. As deposed by the Respondent, she along with her brother were chased out by the Appellant with a 'Dao' in hand, by hurling abusive and filthy language. Seeing the atmosphere, her brother took her back along with the child to Barpeta and since then she was staying there with her child. 14. D.W. No. 3, Pranjit Kr. Nath, brother of the Respondent deposed that the relation between the Appellant and the Respondent was not good from the very beginning of their marital life due to frequent quarrels. As a consequence of which, his sister had to stay in his house, for some time. D.W. 3 also confirmed to have visited the house of the Appellant with the Respondent to keep her with the Appellant, but he was threatened and chased out with his sister by the Appellant from the house. 15. Evidence of the Appellant about mental cruelty has been shaky and infirm and it has been disbelieved by the learned Court below. The Appellant, although, brought allegations against his wife of having illicit relationship with one Tilak Das, but ultimately, miserably failed to prove any such facts in the trial Court. The witnesses examined on behalf of the Appellant as well as the Respondent spoke about their efforts for reconciliation, however, did not say anything regarding unchastity of the Respondent wife. Further, the Appellant also did not bring forward any substantial evidence on record to establish alleged extramarital affairs of the Respondent wife with Tilak Das. 16. The Appellant though lodged an FIR alleging commission of offence under Section 366 IPC by one Tilak Das, however, such facts could not be established by the Appellant. Apparently, the allegation of unchastity made by the Appellant appeared to be false and incorrect. 17. As a matter of fact, in order to establish cruelty, the conduct of the Respondent wife shall have to be grave and weighty, whereupon it can be concluded that the Appellants spouse cannot be reasonably expected to live with other spouse. The conduct and behavior of the spouse will have to be something more serious than normal 'wear and tear' of ordinary family life. 18. The conduct and behavior of the spouse will have to be something more serious than normal 'wear and tear' of ordinary family life. 18. On careful consideration of the materials on record, we find that the Respondent wife has not treated the Appellant with cruelty rather she tolerated the cruelty meted out on her. On the other hand, the false allegation of unchastity was brought against the Respondent. The fact of chasing away of the Respondent wife and her brother from the house of the Appellant wife reasonably concludes that the Appellant did not have any desire to keep the Petitioner and the female child, with him with love and affection. 19. Learned Counsel for the Appellant strenuously submitted that the marriage ties between the parties have irretrievably broken down and there is no possibility of reconciliation between the husband and the wife, and all attempts for reconciliation have also failed. However, it is worth mentioning that irretrievable breakdown of marriage is not a ground by itself for divorce. Certainly, it is not a wonderful magic formula to be adopted in every such case where the Petitioner fails to prove the grounds for divorce. 20. As discussed above evidence adduced on behalf of Appellant as regards cruelty as a result of desertion and alleged unchastity of the Respondent-wife being unsteady, shaky and poor, cannot be relied on to grant the dissolution of marriage. 21. The prayer for divorce was rejected by the learned Court below, against which this appeal has been preferred by the Appellant. In fact, tendency of the appeal and resultant delay in disposal has occurred, which ultimately kept the parties away from each other. Thus, most of the time, during which they lived separately, the divorce petition was pending. Certainly, there is evidence of some tension and quarrel between the husband and wife coupled with allegations and counter-allegations. The Appellant blamed his wife for being unchaste, but could no prove it. A responsible husband would not blame his wife for being unchaste without proof; what's more, apparently, only for the sake of obtaining a decree of divorce. Consequently, the Appellant could not substantiate the grounds for divorce as alleged by him. Therefore, the Appellant cannot be allowed to take advantage of his own wrong, moreover his failure to prove any of the grounds for divorce cannot be rewarded. 22. Consequently, the Appellant could not substantiate the grounds for divorce as alleged by him. Therefore, the Appellant cannot be allowed to take advantage of his own wrong, moreover his failure to prove any of the grounds for divorce cannot be rewarded. 22. On careful consideration of the evidence of the witness as discussed above it appears that there is no ground for disagreeing with the decision of the learned Court below. Accordingly, the judgment and decree of the learned Court below is affirmed as it is and the appeal is dismissed with costs. 23. Trial Court record be sent back. Appeal dismissed.