Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 559 (GAU)

Sanjay Todi v. Sunita Todi

2011-06-29

A.K.GOSWAMI, MADAN B.LOKUR

body2011
JUDGMENT A.K. Goswami, J. 1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short the Act) has been preferred by the husband against the judgment dated 30.4.2008 passed by the learned Additional District Judge, Dibrugarh in TS (D) No. 13/2004 dismissing the suit filed by him under Section13(1)(ia)(ib) of the Act; 2. We have heard Mr. G N. Sahewalla, learned senior counsel appearing for the appellant husband and Mr. R. K. Agarwal, learned counsel appearing for the respondent wife. 3. Pursuant to an order dated 15.6.2011, directing the parties to be present in Court on 20.6.2011, the parties have appeared and are present in Court on 20.6.2011. In response to queries from the Court, the appellant husband, in categorical terms, stated that he was not willing to take back his wife now. On the contrary, the respondent wife informed the Court that she was prepared to live with her husband and that she would not like to go for divorce. 4. The case set out by the appellant before the Trial Court was that the marriage between appellant and the respondent was solemnized on 24.2.2000 at Dibrugarh according to the social customs and Hindu rites, and they started living together as husband and wife in the residence of the appellant at Mohanbari. Mohanbari being a remote area, the respondent, after two-three months of the marriage, insisted the appellant to get-separated from his family and to live with her in a separate house at Dibrugarh, and with passage of time, the respondent started behaving belligerently, threatening the appellant and other family members also to implicate them in false cases. She had also conceived in the meantime and taking advantage of her pregnancy, she persuaded the appellant to take her to her parents' house at Dibrugarh to deliver the child at a nursing home there. Accordingly, the respondent went to Dibrugarh taking all valuables given to her during marriage and on 29.1.2001, she delivered a male child at the J.J. Memorial Hospital and Research Centre, Dibrugarh. The appellant had pleaded that he was harbouring a belief that the respondent would come back with the child but even when she did not come back after a reasonable period of time, he had gone to his in-laws' place to bring her back but he was humiliated, insulted and rebuked by the family members of his wife. The appellant had pleaded that he was harbouring a belief that the respondent would come back with the child but even when she did not come back after a reasonable period of time, he had gone to his in-laws' place to bring her back but he was humiliated, insulted and rebuked by the family members of his wife. It was also pleaded that respondent had left the society of the appellant and deserted him on and from 28.12.2001 without any valid justification and despite his several attempts to bring her back, she refused to come back to her matrimonial house. 5. The respondent, by filing written statement, while denying the allegations made against her, had stated that she was denied the basic amenities of life at her matrimonial house and was ill-treated and tortured. She admitted that she had gone to her parents' house for delivery of the child with the consent of the appellant. The appellant did not bear any expenses for the delivery of the child and did not even come to see the child. Though the appellant had neglected and deserted the respondent and their minor child, it was averred that she was ready to stay with the appellant provided he mended his ways and gave an undertaking in writing in Court to the effect that he would not torture her physically and mentally. 6. The learned Trial Court had framed the following issues : 1) Whether the petition filed by the petitioner is maintainable in law as well as in facts ? 2) Whether the grounds stated in the petition are sufficient to dissolve the marriage between the parties by decree of divorce ? 3) What relief, the parties are entitled to get under law & equity? 7. During trial, the appellant husband adduced the evidence of two witnesses, including himself, while the respondent wife examined three witnesses, including herself as DW 1. 8. The learned Trial Court, on consideration of the materials and evidence on record, came to a finding that the appellant had failed to prove desertion by the respondent and accordingly, had dismissed the suit. 9. During the course of hearing, Mr. 8. The learned Trial Court, on consideration of the materials and evidence on record, came to a finding that the appellant had failed to prove desertion by the respondent and accordingly, had dismissed the suit. 9. During the course of hearing, Mr. G N. Sahewalla, learned senior counsel for the appellant submitted that the parties have been living separately for more than 10 years and the marriage has broken down irretrievably and, therefore, the appeal may be allowed by setting aside the order of the learned Trial Court. According to him, the conjugal relation between the appellant and respondent came to a dead end and, therefore, it is only appropriate that a decree of divorce be granted. Learned senior counsel also contended that the finding of learned Trial Court that the appellant had failed to prove desertion is also not correct. 10. Mr. R. K. Agarwal, learned counsel for the respondent, however, submits that irretrievable breaking down of marriage is not a ground on which a decree of divorce can be granted under the provisions of the Act Unless and until a case is brought out within the four corners of Section 13 of the Act, grant of decree of divorce is not permissible under the law. Learned counsel submitted that learned Trial Court, on examination of the materials on record, came to a finding that desertion by the respondent wife was not proved. Learned counsel submits that in the written statement also, the respondent had stated that she was willing to come to her matrimonial house. Even in this Court, the respondent wife had, in unequivocal terms, stated that she was ready and willing to come to her husband's house, if not for anything else, for the sake of their ten-year-old child. He further submits that it is the appellant who is not willing to take his wife back and, therefore, the plea of desertion by the respondent wife is wholly not tenable. 11. We have considered the submissions of learned counsel for the parties and also perused the materials on record. 12. The Supreme Court in Naveen Kohli Vs. Neelu Kohli, AIR 2006 SCW 1550 , has held that irretrievable breaking down of marriage is not a ground on which a decree can be granted under the provisions of the Act. 11. We have considered the submissions of learned counsel for the parties and also perused the materials on record. 12. The Supreme Court in Naveen Kohli Vs. Neelu Kohli, AIR 2006 SCW 1550 , has held that irretrievable breaking down of marriage is not a ground on which a decree can be granted under the provisions of the Act. In paragraph 71 of the judgment, the Apex Court said thus : Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. Therefore, the first ground of learned senior counsel for the appellant that decree for divorce may be granted on that count, in view of the present law as it stands today, fails. 13. So far as the ground of desertion is concerned, we have found that the learned Trial Court, on overall consideration of materials on record, recorded a finding that the appellant had not been able to prove desertion on the part of the respondent. 14. In the petition before the trial Court, the appellant had not pleaded that after delivery of the child, the mother and the child came back to the matrimonial house, and on the contrary, had painted a picture that they never came back. Yet, he stated that the respondent had left the matrimonial house on or about 28.12.2001. In his cross-examination, he stated that he had brought the respondent and the child to his house in April, 2001 and that the respondent left his house in February, 2002. There are inherent inconsistencies in the stand of the appellant. The learned senior counsel for the appellant has not pointed out during the course of argument any perversity regarding finding of the learned Trial Court at issue No. 2. 15. In view of the discussions above, we have no reason to upset the finding of the learned Trial Court at issue No. 2. 16. The learned senior counsel for the appellant has not pointed out during the course of argument any perversity regarding finding of the learned Trial Court at issue No. 2. 15. In view of the discussions above, we have no reason to upset the finding of the learned Trial Court at issue No. 2. 16. Consequently, the appeal fails and the same is dismissed. 17. No costs.