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2012 DIGILAW 1301 (GAU)

Malati Mahato v. Manoj Mahato

2012-11-30

ANIMA HAZARIKA, I.A.ANSARI

body2012
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal, under Section 28 of the Hindu Marriage Act, 1955, against the judgment and decree, dated 05.03.2011, passed by the learned District Judge, Dhubri, in Title Suit (Divorce) No. 5 of 2008, allowing the application made by the respondent herein under Section 3(1)(i)(b)(iii) of the Hindu Marriage Act, 1955, and decreeing thereby the respondent's suit dissolving his marriage with the appellant. We have heard Mr. S. Murarka, learned counsel appearing on behalf of the appellant, and Mr. G. Soren, learned counsel for the respondent. 2. The respondent, as petitioner, made an application, under Section 3(1)(i)(b)(iii) of the Hindu Marriage Act, 1955, seeking a decree of dissolution of his marriage with the appellant, the case of the present appellant, as petitioner, being, in brief, thus: The petitioner, Manoj Mahato, married the opposite party, Malati Mahato, as per Hindu rites, on 01.05.2001, at Dhubri, at the parental house of opposite party. On the following day of their marriage, the petitioner discovered that his wife had been suffering from mental disorder and that this fact had been suppressed by her parents at the time of her marriage with the petitioner and they, thus, played fraud. Describing as to how the fact of opposite party having been suffering from mental disorder came to surface, the petitioner alleged that while he had been entertaining his guests and invitees, at his house at Kokrajhar, following his marriage with the opposite party, the opposite party misbehaved with the guests and invitees started moving among them in abnormal manner and when the petitioner tried to pacify the opposite party, she created a scene by throwing cups and plates on the petitioner. The opposite party also openly declared that the petitioner was not her choice and she would not lead conjugal life with the petitioner. When the fact as to how the opposite party behaved was disclosed to her parents, they assured the petitioner that the opposite party would be cured if she was provided with proper medical treatment. The petitioner, therefore, got the opposite party treated by medical specialist at Cooch Behar and Guwahati, but she was not cured and the doctors opined that she was a patient of chronic schizophrenia. The petitioner, therefore, got the opposite party treated by medical specialist at Cooch Behar and Guwahati, but she was not cured and the doctors opined that she was a patient of chronic schizophrenia. Till the month of February, 2005, the opposite party lived with the petitioner at his house with frequent intervals inasmuch as she used to visit, at small intervals, her parents and stayed with them. During the long period of his living with the opposite party, the opposite party was never cooperative, she did not cohabit with the petitioner and insisted that the petitioner shifts to her father's house and lives there as Gharjamai (i.e., son-in-law, who lives with his parents-in-law at the house of his parents-in-law). Since the petitioner did not agree to live at the house of his parents-in-law, the opposite party refused to live with the petitioner, misbehaved with him and used abusive language on all occasions. The petitioner is a teacher in a local private school. In the absence of the petitioner, the opposite party had, in collusion with her parents, left her matrimonial house and went away to her parental house at Dhubri and carried with her, from the house of the petitioner, all her belongings and since then, she has been living at her parental house. With the case, so pleaded, the petitioner sought for a decree of dissolution of his marriage with the opposite party. 3. The opposite party No. 1 contested the suit by filing a written statement, wherein she contended, inter alia, that there was no cause of action, the suit was not maintainable, material facts had been suppressed and averments, with ulterior motive, had been made, the facts narrated in the petition, seeking dissolution of marriage, were false, imaginary and concocted. The opposite party denied that she had been suffering from mental disorder or had ever behaved abnormally. The opposite party accused the petitioner of having the intention of throwing her out of her conjugal life and with this object in view, he conspired to fabricate some documents to show that the opposite party was abnormal. The opposite party also accused the petitioner of having developed intimacy with another lady and wanted to marry her and he, therefore, made the allegations, which were false, unfounded and baseless inasmuch as the opposite party has never suffered from any mental illness and, hence, the suit deserves to be dismissed. 4. The opposite party also accused the petitioner of having developed intimacy with another lady and wanted to marry her and he, therefore, made the allegations, which were false, unfounded and baseless inasmuch as the opposite party has never suffered from any mental illness and, hence, the suit deserves to be dismissed. 4. Based on the above pleadings, following four issues were framed: (1) Whether there is any cause of action for the suit? (2) Whether the suit is maintainable? (3) Whether the opposite party has been incurably of unsound mind or has been suffering from continuously or intermittently, from mental disorder or such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent? (4) Whether petitioner will get decree as prayed for? 5. The petitioner adduced evidence by examining two witnesses including himself. While the opposite party cross-examined the petitioner and his witness, she did not adduce any evidence. 6. Having come to the conclusion that the petitioner had not succeeded in proving that the opposite party had been suffering from mental disorder, the learned trial Court has held that the petitioner has been proved to have been treated with cruelty by the opposite party and the petitioner has, therefore, made out a case for granting him a decree of divorce. The learned Court below, thus, partly decided the issue No. 3 in favour of the petitioner and as far as Issue No. 4 was concerned, the same was decided in favour of the petitioner. The judgment having been pronounced, a decree for dissolution of marriage of the petitioner with the opposite party accordingly followed. 7. Aggrieved by the decree dissolving her marriage with the petitioner, the opposite party is, now, before us with this appeal. 8. While considering the present appeal, it needs to be noted, as already indicated above, that the petitioner has examined two witnesses including himself. In his evidence, the petitioner has deposed, inter alia, that his marriage with the opposite party was solemnized according to Hindu rites and though the opposite party had been suffering from mental disorder since before her marriage, this fact had been suppressed by her father at the time of her marriage with the petitioner and practised thereby fraud. In his evidence, the petitioner has deposed, inter alia, that his marriage with the opposite party was solemnized according to Hindu rites and though the opposite party had been suffering from mental disorder since before her marriage, this fact had been suppressed by her father at the time of her marriage with the petitioner and practised thereby fraud. The petitioner has also deposed, in his evidence, that the fact of the opposite party have been suffering from mental disorder came to light on the following day of the marriage, when the petitioner had been entertaining his guests and invitees at his house at Kokrajhar and the opposite party misbehaved with the guests and the invitees and abused them and started moving among them in abnormal manner and when the petitioner tried to pacify her, she started throwing cups and plates on the petitioner and the opposite party also openly declared that the petitioner was not her choice and she would not carry on her conjugal life with the petitioner, whereupon the petitioner informed his father-in-law, who assured the petitioner that the opposite party would be cured if she was treated by a specialist. The petitioner has also deposed that he got the opposite party treated by medical specialists at Cooch Behar and Guwahati, but the opposite party was not cured and the doctors opined that the opposite party was a patient of chronic schizophrenia. 9. It is in the evidence of the petitioner that the opposite party lived with him in his house till the month of February, 2005, with frequent intervals when she visited her father's house and during the period, the opposite party lived with the petitioner, the opposite party was non-cooperative, she did not cohabit with the petitioner and insisted that the petitioner shifts to her father's house and live there as Gharjamai (i.e., son-in-law, who lives with his parents-in-law at his parents-in-law's house) and, as the petitioner declined to live at the house of his parents-in-law, the opposite party refused to live with him. 10. It is also in the evidence of the petitioner that during the period, opposite party stayed at her matrimonial house, she continued to show her temper, used rude language, occasional outburst of anger and abnormal behavior endangering the petitioner's life, limb and health. 10. It is also in the evidence of the petitioner that during the period, opposite party stayed at her matrimonial house, she continued to show her temper, used rude language, occasional outburst of anger and abnormal behavior endangering the petitioner's life, limb and health. Frequent verbal abuse and use of filthy language led to contentious, causing disturbance of mental peace was the normal habit of the opposite party and, on some occasions, opposite party even assaulted the petitioner physically. Left with no alternative, the petitioner informed, in writing, the Secretary, All India Democratic Women Association, at Kokrajhar, on 14.10.2005, seeking their help, but the effort failed and one day, in the month of February, 2005, while the petitioner was in his school, where he serves as a teacher, opposite party left the petitioner's house and went away to Dhubri carrying with her all her ornaments, given by the petitioner, and also her own belongings and since then, she never came back, though the petitioner, along with some of his friends and relatives, visited the parental house of the opposite party to bring her back, but on every occasions, opposite party rebuked using slang words and openly declared that she would not go back to the petitioner's house and, as a last resort, he served a pleader's notice on her, but the same also did not yield any favourable result. The petitioner has deposed that no issue is born out of their married life. In support of his case, the petitioner proved certain documents. 11. Broadly in tune with the evidence of the petitioner was the evidence of his witness. 12. Though the petitioner cross-examined the petitioner, nothing could be elicited from his cross-examination to show that what he had deposed was untrue or false. There was virtually no cross-examination of the petitioner. The opposite party did not even deny the petitioner's evidence that she had told the petitioner that she had given in marriage to the petitioner without her consent and that she would not like to stay with him. What was denied by the opposite party was that she was mentally unsound. The cross-examination of petitioner's witness was no better. 13. Thus, the material aspects of the evidence of the petitioner and his witness remained wholly unshaken and, in fact, largely untouched and unchallenged. 14. What was denied by the opposite party was that she was mentally unsound. The cross-examination of petitioner's witness was no better. 13. Thus, the material aspects of the evidence of the petitioner and his witness remained wholly unshaken and, in fact, largely untouched and unchallenged. 14. In the circumstances, as mentioned above, the learned trial Court, while holding that the opposite party could not be proved to have been suffering from mental disorder, it has been proved that the opposite party has been living at her parental house for the last four years, she is not cooperating with the petitioner, she did not cohabit with the petitioner, she used abusive language to the petitioner and showed abnormal behavior and that she also insulted the petitioner. In such circumstances, according to the learned trial Court, the petitioner cannot be made to live with the opposite party. With the reasons, so assigned, the learned trial Court decreed the suit. 15. At the hearing of this appeal, nothing could be pointed out, on behalf of the respondent, to show that the evidence, which the petitioner or his witness had given, could be shaken in their cross-examination. In fact, as we have already indicated above, the material aspects of the evidence of the petitioner and his witness remained unshaken. There can, therefore, be no escape form the conclusion that though the petitioner had not been proved to be incurably of unsound mind, her behavior was such, which cannot reasonably be accepted to be conducive to the safe living of the petitioner with opposite party and that their marriage-tie needed to be dissolve on the ground that the opposite party had been treating the petitioner with cruelty. The finding, therefore, reached by the learned trial Court, does not, in our considered view, suffer from any infirmity, legal or factual. 16. We, therefore, see no reason to interfere with the impugned judgment and decree. The appeal fails and the same shall accordingly stand dismissed. 17. With the above observations and directions, this appeal stands disposed of. Send back the LCR with a copy of this order. Disposed off.