Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 774 (GAU)

Monideepa Kar @ Monideepa Dey v. Sanjib Dey

2012-06-22

AMITAVA ROY, P.K.MUSAHARY

body2012
JUDGMENT Amitava Roy, J. 1. Being aggrieved by the judgment and order dated 24.05.2011, passed by the learned Principal Judge, Family Court, Cachar, Silchar in FC (Civil) Case ho. 167/2006, dissolving the marriage between the parties, the wife is in appeal. By order dated 27.07.2011, rendered in MC No. 2146/2011, the operation of this decision had been stayed. We have heard Ms. P. Chakraborty, learned counsel for the appellant/wife and Mr. HRA Choudhury, Senior Advocate assisted by Ms. R. Choudhury, for the respondent/husband. 2. The pleaded case of the respondent/husband before the learned Court below in his application filed under Section 13 of the Hindu Marriage Act, 1955 (hereafter for short referred to as the Act), is that following his marriage with the appellant/wife on 25.02.2011 as per Hindu religious rites and rituals, he brought his newly married wife to his ancestral home at Lala in the district of Hailakandi. He alleged that from the very beginning, the appellant/wife expressed her displeasure and disgust qua his standard of living and openly humiliated him and his family members and relatives. She maintained this disposition, according to him also during the post marriage customary celebrations. The respondent/husband averred that at the time of marriage, he was serving as Inspecting Auditor under District Elementary Education Officer at Karimganj and the appellant/husband as Teacher in Govt. High School at Borkhola of Cachar District and, as such, for her convenience he brought her to Karimganj so as to facilitate the process of her adjustment with the new life. According to the respondent/husband, however, the appellant/wife maintained the same conduct and behaviour and used to create unpleasant situations and often misbehaved with his colleagues. According to him, she refused to prepare tea for his friends and guests, though invited with her consent which made to feel him very small before all concerned. The respondent/husband also averred that the appellant/wife got her first child aborted against his consent and during his absence due to election duty during the State Assembly Elections in the year 2001. She not only refused to accompany him to Mumbai at the time of the treatment of his father, who was suffering from cancer stating that she was not supposed to perform the duty of nurse, but also misbehaved with his parents when they visited his ancestral home Hailakandi on the occasion of their first marriage anniversary. She not only refused to accompany him to Mumbai at the time of the treatment of his father, who was suffering from cancer stating that she was not supposed to perform the duty of nurse, but also misbehaved with his parents when they visited his ancestral home Hailakandi on the occasion of their first marriage anniversary. The respondent also alleged that the appellant/wife did not attend the rituals arranged by his parents for the welfare of the child while she was in the family way for the second time and instead left his ancestral house on 27.02.2002 with her mother inspite of the disapproval of his parents, not to return thereafter. According to the respondent/husband, he was also not informed about the birth of their female child and when, much later, on receiving the news, he went to the house of the appellant/wife's father to see the baby, he was refused the sight of the child and was instead threatened by her family members of physical assault. Situated thus, the respondent sought for dissolution of marriage on the ground of cruelty and desertion. 3. The appellant/wife in her written statement denied the allegations levelled against her and instead pleaded that as demanded by the respondent, in two phases, installments of Rs.20,000/-, were paid to him, this being an addition to the articles given in the marriage. According to the appellant, the respondent/husband also asked her to deposit her salary in the name of his mother and also instructed her for change of her nominee in the LIC and GPF accounts. She alleged ill treatment and misbehaviour as well as mental and physical torture against the respondent/husband. According to her, the respondent/husband neglected to take her to the Doctor for medical checkup at the time of her pregnancy and also did not extend any co-operation in her frail state of health. Instead, the appellant alleged that the respondent used to visit her rented house at Borkhola and demand money from her. She stated that it was due to the mental pressure created by the respondent by demanding money and her workload to be performed single handedly, she suffered bleeding and on medical advice was compelled to undergo abortion of the foetus. Instead, the appellant alleged that the respondent used to visit her rented house at Borkhola and demand money from her. She stated that it was due to the mental pressure created by the respondent by demanding money and her workload to be performed single handedly, she suffered bleeding and on medical advice was compelled to undergo abortion of the foetus. She alleged that it was the respondent/husband, who mounted pressure on her to cause abortion of the second pregnancy and, in fact, misbehaved with her and compelled her to leave the matrimonial home on 27.02.2002. She alleged that though on the delivery of the female child on 19.04.2002, due information was given to the respondent/husband, he exhibited indifference as the baby was a girl. The appellant in her written statement expressed her willingness to live with the respondent/husband for the sake of the child. On the pleadings of the parties, the learned trial Court framed the following issues:-- 1. Whether the suit is maintainable in its present form and manner? 2. Whether the respondent treated the petitioner with cruelty? 3. Whether the respondent deserted the petitioner since 27.02.2002 for a continuous period not less than 2 years immediately preceding the presentation of the petition by the petitioner? 4. Whether the petitioner is entitled to get a decree for dissolution of marriage? 5. What other relief/reliefs the parties are entitled to? 4. Whereas, the respondent/husband examined himself and four witnesses, the appellant/wife deposed herself and cited three witnesses to support her case. While deciding the issue Nos. 2 & 3, the learned Court below, on an analysis of the evidence of the parties and their witnesses, concluded that the allegations of cruelty and desertion had been proved against the appellant/wife and, thus, by the judgment and order impugned herein, granted the decree of divorce as sought for. Having regard to the fact that the appellant was a Government employee, earning handsome salary, it directed the respondent/husband to pay a sum of Rs.3,000 to the minor child as her monthly maintenance. 5. The learned counsel for the appellant has insistently argued that the learned trial Court had grossly erred in appreciating the pleadings and evidence on record and, thus, the findings arrived at on the aspect of cruelty and desertion being obviously unsustainable, the impugned judgment and order is liable to be set aside. According to Ms. 5. The learned counsel for the appellant has insistently argued that the learned trial Court had grossly erred in appreciating the pleadings and evidence on record and, thus, the findings arrived at on the aspect of cruelty and desertion being obviously unsustainable, the impugned judgment and order is liable to be set aside. According to Ms. Chakraborty, on a conjoint reading of the petition and the evidence adduced by the respondent/husband, neither cruelty nor desertion had been proved and, thus, the conclusions to the contrary are wholly absurd and smacks of partisan approach. The learned counsel has maintained that the impugned decision had been rendered by totally disregarding the written statement of the appellant as well as the evidence adduced by her and it being untenable on the face of it, is liable to be set aside in the interest of justice. When queried by this Court as to the amount of permanent alimony for the child expected by the appellant/wife in case of such an eventuality arising in the process of present adjudication, she quoted, on instructions, that the same ought not to be less than Rs.30 lacs in lump sum. 6. Mr. Choudhury, per contra, has urged that the findings recorded in the impugned judgment and order are based on an appropriate analysis of the pleadings and the evidence on record and that the criticism thereof to the contrary is wholly misplaced. According to the learned Senior Counsel, not only the respondent and his witnesses fully proved the averments made in the petition, in absence of any effective cross-examination on behalf of the appellant, their testimony regarding cruelty and desertion remained unshaken. On the other hand, the evidence of the appellant/wife and her witnesses was deficient in all material particulars besides being deviant from her written statement and, thus, the findings recorded by the learned trial Court can, in no view, be faulted with. Responding to the appellant/wife's claim of Rs.30 lacs as permanent alimony for the child, the learned Senior Counsel for the respondent on instructions, has submitted that having regard to the prerequisites mandated by Section 25 of the Act, the amount cited is astronomical, imaginary and unreal besides being beyond his (respondent) means. Responding to the appellant/wife's claim of Rs.30 lacs as permanent alimony for the child, the learned Senior Counsel for the respondent on instructions, has submitted that having regard to the prerequisites mandated by Section 25 of the Act, the amount cited is astronomical, imaginary and unreal besides being beyond his (respondent) means. The learned Senior Counsel pleaded that the carry home monthly salary of the couple is almost the same i.e. in the vicinity of Rs.25,000/- and that as the respondent/husband is obliged presently to maintain his old and dependent mother along with his brother and his family, it is impossible for him to meet the expectation of the appellant, which, by all standards, is grossly unreasonable. In reply to our query, Mr. Choudhury has submitted, on instructions, that the respondent/husband, at the present at most, may pay an amount to Rs.3 lacs in lump sum and that he is ever ready and willing to meet all necessary expenditure to be incurred for her (daughter) upbringing and studies. 7. The pleadings on record and the evidence adduced by the parties have been duly scrutinized. The rival arguments have been assessed as well. The pleadings when read in juxtaposition, noticeably demonstrate that the parties have exchanged allegations against each other bearing on their conduct, behaviour and activities during the short period of their stay of about a year after their marriage. Though, the appellant/wife in her written statement had expressed her readiness to resume her marital life with the respondent/husband, the materials on record, do not evince any over step on her part to soothe and restore the already fragmented alliance. The testimony of the respondent/husband as the records would reveal is, in substance, wholly in alignment with and endorsement of his averments in the petition. His witness, PW 2, Anjan Nath Mazumder, deposed in support of the respondent/husband's imputation that the appellant/wife had, on the occasion of his (witness) visit to the rented house of the couple refused to prepare a cup of tea to him remarking that she was not the maidservant. The evidence of the petitioner and this witness has remained almost unscathed in absence of any cross-examination worth the name, they having been confronted only with some suggestions on behalf of the appellant/wife, which, they categorically denied. The evidence of the petitioner and this witness has remained almost unscathed in absence of any cross-examination worth the name, they having been confronted only with some suggestions on behalf of the appellant/wife, which, they categorically denied. The other three witnesses of the respondent, namely, PW 3, Sri Nilarun Dhar Choudhury, PW 4, Sri Nani Gopal Nath Laskar and PW 5, Sri Basudeb Nath stated about quarrels between the couple on trivial issues and also the refusal of the appellant/wife to offer the witness (PW 4) a cup of tea, though asked by the respondent's father. These witnesses, though, were cross-examined on behalf of the appellant/wife, their versions could not be dismantled. 8. The testimony of the appellant is seemingly at variance with her pleadings. She not only did omit to mention about the payment of Rs.20,000/- in installments to the respondent/husband after the marriage, she admitted that he (respondent) had accompanied her while shifting to the rented house at Borkhola. Noticeably, though she had pleaded that the abortion of her first pregnancy had been done as per medical advice and not of her own volition as alleged by the respondent/husband, except a reiteration of the said fact in her testimony, no document was produced in support thereof. She, also did not testify on her pleaded allegation of physical and mental torture by the respondent/husband and his family members. DW 2, Smti Monirupa Kar her younger sister, though deposed that she had heard from the appellant/wife that the respondent used to misbehaved with and torture her by demanding money, there is no indication in the deposition of the appellant that she ever had disclosed this to the witness. 9. DW 3, Sri Ashim Kumar Roy, though in his examination in chief, stated that the abortion had been during her stay in her matrimonial home and deposed about torture both physically and mentally by the respondent and his family members, in cross-examination, he admitted of not having witnessed any such situation. He also conceded of not having visited the house of the respondent/husband to enquire about, the veracity of this imputation of torture. 10. DW4, Smti. Luna Kar stated that the appellant/wife had disclosed to her about torture by the respondent/husband and his family members, for which she had to leave the matrimonial home. 11. He also conceded of not having visited the house of the respondent/husband to enquire about, the veracity of this imputation of torture. 10. DW4, Smti. Luna Kar stated that the appellant/wife had disclosed to her about torture by the respondent/husband and his family members, for which she had to leave the matrimonial home. 11. On a cumulative consideration of the pleadings and the evidence on record and having regard to the standard of proof legally predicated for the proceedings in hand, we are of the unhesitant opinion that the findings recorded by the learned trial Court are plausible deductions and cannot be discarded or repudiated to be absurd or in defiance of logic. The materials on record, in our comprehension, do definitely tilt In support of the averments made by the respondent/husband in his petition bearing on the ground of cruelty and desertion and on a comparative evaluation of the cases of the parties and the evidence in support thereof, we are of the view that the respondent had been able to prove the aforementioned two grounds adequately and to the extent essential in law. We, therefore, find ourselves in agreement with the conclusions recorded by the learned trial Court in favour of the respondent/husband. To place on record, during the pendency of the instant appeal efforts were made for reconciliation between the parties through mediation, which failed. In course of the arguments as well, we have made unsuccessful attempts to unite them. 12. On the aspect of permanent alimony, to start with, it is an admitted fact that both parties are presently employed and draw salary, which is almost the same. Their female child, as on date, is aged just above 10 years with the whole life ahead of her. Having regard to the class of the family to which she belongs and the quality of life to which she is adapted to, she deserves proper education and other opportunities to groom up to an educated and accomplished person in near future. Though, the learned trial Court had fixed the monthly maintenance of Rs.3,000/- per month for her, we have been apprised by the learned counsel for the appellant that the respondent/husband has even stopped paying the same. Mr. Choudhury has clarified that this is in the face of the interim order of this Court staying the operation of the judgment and order impugned in the instant appeal. 13. Mr. Choudhury has clarified that this is in the face of the interim order of this Court staying the operation of the judgment and order impugned in the instant appeal. 13. Be that as it may, after hearing the learned counsel for the parties on the aspect of permanent alimony and all concomitant issues, we are of the view that it would adequately meet the required necessities of the female child, if the following directions are issued in this regard:- i) The respondent/husband would pay an amount of Rs.3 lacs by cash/cheque/demand draft in the name of the appellant/wife latest by 21.07.2012, and on such payment being made, the appellant/wife would keep this amount in the name of the child in a proper interest earning scheme/account with any Nationalized Schedule Bank or in the Indian Post Office by way of fixed deposit. ii) The respondent would pay, in addition, monthly maintenance of Rs.5,000/- for the child till her marriage positively by the 1st week of every month. iii) The first payment of this installment would be made in the 1st week of August, 2012 and, thereafter, every month as ordered. iv) The respondent/husband may make this payment in the existing bank account of the appellant/wife, who in order to facilitate such payment, would furnish to the respondent/husband the particulars of the bank account of her choice. The appeal is disposed of in the above terms. The marriage between the parties stands dissolved as decreed by the learned trial Court. It is, however, made clear that the respondent/husband would scrupulously adhere to the directions vis-a-vis the permanent alimony as ordered hereinabove and any breach or default in this regard would be viewed as contempt of this Court. No costs. Disposed off.