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2012 DIGILAW 594 (GAU)

Haridev Chandra Das v. Joymati Das

2012-05-16

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT B.P. Katakey, J. 1. This appeal by the appellant/husband is directed against the judgment dated 31st July, 2002 passed by the learned District Judge, Barpeta in D.T.S. No. 5/2001, dismissing the suit filed by the appellant for dissolution of the marriage between the appellant and the respondent/wife. The appellant filed the aforesaid suit praying for dissolution of the marriage with the respondent, solemnized on 21st April, 1991, according to Hindu customs and traditions, on the ground of desertion and cruelty contending that the respondent/wife on 3rd June. 1995 without the consent and knowledge of the husband and without any reasonable cause has left the matrimonial house and withdrawn herself from the society of the appellant, thereby deserted him. It has also been contended that though several attempts were made by the appellant to bring back his wife from her paternal house, she has refused to come back and consequently refused to resume the conjugal life resulting in cruelty towards the appellant/husband. 2. The respondent/wife on receipt of the summons entered appearance and filed the written statement admitting the marriage and denying the allegation of desertion and cruelty, contending inter alia that because of the mental and physical torture meted to her by the appellant/husband and his other family members, she was compelled to come out from the matrimonial house and took shelter in her parents house. It has further been contended that no attempt was ever made by the appellant/husband to bring her back and even the husband refused to maintain her for which she has to file the proceeding under Section 125 Cr.P.C. and accordingly the maintenance has been granted by the Court for refusal to maintain her by the husband. 3. On the basis of the pleadings of the parties, the following issues were framed for determination:- I. Is there any cause of action? II. Whether the opposite party deserted the petitioner? III. Whether the opposite party treated the petitioner with cruelty? IV. Whether the petitioner is entitled to get any relief? 4. The appellant/husband in support of his case examined 2(two) witnesses, namely the appellant himself as PW-1 and a neighbour as PW-2. The respondent/wife also examined herself as the lone DW in support of her case. No documentary evidence has, however, been adduced by any of the parties. IV. Whether the petitioner is entitled to get any relief? 4. The appellant/husband in support of his case examined 2(two) witnesses, namely the appellant himself as PW-1 and a neighbour as PW-2. The respondent/wife also examined herself as the lone DW in support of her case. No documentary evidence has, however, been adduced by any of the parties. The learned Trial Judge upon appreciation of the evidences on record and also the requirement of law to constitute the "desertion" and "cruelty" has dismissed the suit filed by the appellant by holding that the appellant/ husband could not proof that the respondent/ wife voluntarily went out of the house of the appellant/husband with the intention to stay permanently with her parents. It has further been held that the respondent/wife had to leave the matrimonial house because of the torture meted out to her by her husband and his other family members. Hence the present appeal. 5. I have heard Mr. G. Ahmed, learned counsel for the appellant/husband and Mr. N. Hoque, learned counsel appearing for the respondent/wife. 6. It has been contended by the learned counsel for the appellant/husband that since admittedly the respondent/wife is not staying with the appellant/husband from 3rd June, 1995, i.e. for about 17 (seventeen) years, as on date and more than 6(six) years on the date of institution of the suit, without any reasonable cause for leaving the matrimonial house, it amounts to desertion by the respondent/ wife and hence the Trial Court ought to have decreed the suit of the appellant/husband dissolving the marriage between him and the respondent/wife. It has also been submitted that the evidence adduced by the appellant proves that the respondent despite the attempt made refused to come back to the matrimonial house and thereby refused to resume the conjugal life with the appellant, which results in cruelty and as such, the learned Trial Judge ought not to have dismissed the suit of the appellant. 7. On the other hand, Mr. 7. On the other hand, Mr. Hoque, learned counsel appearing for the respondent supporting the judgment passed by the learned Trial Judge and referring to the depositions of the witnesses examined by both the parties has submitted that the respondent had to leave the matrimonial house because of the torture meted to her by the appellant and his other family members and as such leaving of the matrimonial house would not amount to desertion within the meaning of Section 13(1) of the Hindu Marriage Act, 1955 (in short, "the Act"), so as to get the dissolution of the marriage by the appellant/husband, as he cannot be allowed to take the advantage on his own wrong. It has also been submitted that it is also evident from the deposition of witnesses that even the appellant refused to maintain the respondent, for which the order of maintenance had to be passed by the learned Magistrate in a proceeding instituted by the respondent under Section 125 Cr.P.C. The learned counsel further submits that no attempt was made by the appellant to bring back the respondent to the matrimonial house and hence, there is no cruelty on the part of the respondent. 8. I have considered the submissions of the learned counsel for the appearing parties and also perused the judgment and order under challenge, apart from the pleadings of the parties in the D.T.S. and the evidences adduced by the parties. 9. The case as projected by the appellant before the learned Court below is that the respondent/wife on 3rd June, 1995 without any reasonable cause has left the matrimonial house and started leaving in her parental house and also refused to come back despite the attempt made, thereby refusing to resume the cohabitation, which amounts to desertion and cruelty within the meaning of Section 13(1) of the said Act. PW-1, i.e. the appellant/ husband, in his deposition has stated about the death of the 2(two) issues born out of the wedlock with the respondent/wife and leaving the matrimonial house in the month of June, 1995 without any reasonable cause. This witness has also stated that though he made several endeavour to bring her back, the wife refused to come back, she being a very arrogant lady. This witness has also stated that though he made several endeavour to bring her back, the wife refused to come back, she being a very arrogant lady. This witness has admitted passing of an order by the learned Magistrate in a proceeding instituted by the respondent/ wife under Section 125 Cr.P.C. for the failure on his part to pay maintenance to the respondent/wife. During cross examination this witness had denied the suggestion put to him that the respondent/wife left the matrimonial house because of the torture, both physical and mental, meted to her after the death of the issues. PW-2, who is the neighbour, in his deposition, has admitted that there was quarrel between the appellant and the respondent, reason of which, however, was not known to him. This witness during cross-examination has also stated that once the village headman even requested the appellant/ husband and pleaded with him to keep the respondent/wife, which the appellant/ husband did not do. This witness further stated that he does not know why the respondent/wife has left the house of the appellant/husband. The respondent/wife in her deposition has stated that she was compelled to leave the matrimonial house because of the torture meted to her by the husband as well as the other family members after the death of the child. She has further stated that even she was refused the day to day meal, for which she had to take shelter in her parental house. She has also stated relating to the proceeding instituted under Section 125 Cr.P.C. and also grant of maintenance allowance by the learned Magistrate. This part of the deposition of the respondent/wife has not been challenged by the appellant/husband except putting a suggestion which have been denied by the respondent/wife. The version of the respondent/wife gets support in the deposition of the PW-2, who has stated about the quarrel between the husband and the wife and also the request made by the village headman requesting the husband to keep the wife with him. The version of the respondent/wife is, therefore, more probable and hence rightly believed by the learned Trial Judge by applying the standard of proof of preponderance of probabilities. 10. The version of the respondent/wife is, therefore, more probable and hence rightly believed by the learned Trial Judge by applying the standard of proof of preponderance of probabilities. 10. Section 23 of the Act provides that no relief in any proceeding under the Act, whether defended or not, can be granted on any of the grounds, if the petitioner is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. As held above, the respondent/wife was compelled to leave the matrimonial house because of the torture meted to her by the appellant/husband, apart from other family members and hence, he cannot be allowed to take advantage of his own wrong. For this reason, the respondent had a reasonable cause for leaving the matrimonial house and staying away therefrom, which, therefore, would not constitute desertion within the meaning of Section 13(1) of the aforesaid Act The cruelty, as alleged, also could not be proved by the appellant by adducing any evidence. The appellant though in the deposition has stated that he made an attempt, he, however, could not say when he went to the in-laws house for bringing the respondent. 11. Having regard to the aforesaid discussion, I am of the view that the learned District Judge has rightly dismissed the suit instituted by the appellant/husband, which requires no interference in appeal. 12. The appeal is, therefore, dismissed. No costs. The Registry is directed to send down the records forthwith. Appeal dismissed.