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2013 DIGILAW 412 (GAU)

Ratul Gogoi v. Ranjita Borgohain

2013-06-14

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against fee judgment and decree, dated 03.12.2009, passed, in Title Suit (Matrimonial) No. 13/2008, by the learned Additional District Judge (FTC), Sivasagar, whereby the learned Judge has dismissed the suit instituted under Section 13 of the Hindu Marriage Act, 1955, seeking dissolution of marriage with the respondent herein on the ground that the respondent had deserted the petitioner-appellant. Aggrieved by the dismissal of his suit, the petitioner has preferred this appeal. 2. We have heard Mr. S. Murarka, learned counsel for the appellant, and Mr. S.R. Gogoi, learned counsel for the respondent. 3. While considering the present appeal, it needs to be pointed out, at the very outset, as to what the case of the appellant, while seeking dissolution of his marriage with the respondent, was? For this purpose, the case of the petitioner-appellant, as presented in the learned Court below, may, in brief, be described thus:- (i) A marriage had been solemnized, on 28.11.2005, between the petitioner and the respondent. A few days after their marriage, some misunderstandings developed in the conjugal life of the parties concerned and, in consequence thereof, the respondent left, in the first week of January, 2006, her matrimonial home for her parental house. Though the petitioner tried to bring the respondent back to his conjugal life, he failed Failing to get over the misunderstandings, the petitioner and the respondent mutually decided to rescind their marital-tie and, accordingly, an agreement was reached, on 21.04.2007, whereunder the respondent returned to the petitioner all those articles/materials, including gold ornaments, which had been given to her by the petitioner at the time of their marriage and she took back all those articles/materials, including gold ornaments, which she had brought by her to her matrimonial home from her parental house at the time of her marriage. Though the petitioner requested the respondent to file an appropriate petition mutually seeking divorce, the respondent refused to do so and the petitioner, therefore, filed the suit seeking dissolution of his marriage with the respondent on the ground that the respondent had deserted him since the first week of January, 2006. 4. The respondent resisted the suit by filing written statement, wherein her case was, briefly stated, thus:- (i) The marriage between the parties concerned was solemnized on 28.11.2005. 4. The respondent resisted the suit by filing written statement, wherein her case was, briefly stated, thus:- (i) The marriage between the parties concerned was solemnized on 28.11.2005. Thereafter, the parties to the marriage started living together in the house of the petitioner. Since the time of the marriage, the behaviour of the petitioner towards the respondent was rude and cruel. The petitioner used to pick up quarrel over petty matters and ill-treated the respondent on the ground that she had not brought adequate dowry. The respondent was very keen to live with the petitioner, but it became impossible to live with him inasmuch as the petitioner doubted the character of the respondent. Compelled by such circumstances, the respondent left her matrimonial home after about 14 (fourteen) months of her marriage with the petitioner. As the petitioner's attitude towards the respondent did not change, the respondent was compelled to sign, on 21.04.2007, an agreement, whereunder both the parties concerned mutually decided to tack back all their articles/materials and the respondent accordingly brought back to her parental house all those articles/materials, including gold ornaments, etc., which had been given to her at the time of her marriage and, since then, the parties concerned have been living separately in terms of the mutual agreement reached by them on 21.4.2007. After instituting the instant suit seeking a decree of dissolution of marriage, the petitioner solemnized second marriage and it was in this background that the respondent lodged an Ejahar, at Sonari Police Station, against the petitioner and, treating the said Ejahar as First Information Report, Sonari Police Station Case No. 116708, under Section 498A IPC, was registered against the petitioner. The respondent has no interest in breaking down her marital tie with the petitioner; but, because of the intolerable behavior and attitude of the petitioner towards the respondent, the respondent was compelled to leave her matrimonial home and has been living with her parents since then. 5. Based on the pleadings of the parties, the following issues were framed for determination by the learned Court below:- (i) Whether there is cause of action for the suit? (ii) Whether the respondent deserted the petitioner? (iii) Whether the respondent is entitled to alimony under Section 24 of the Hindu Marriage Act? (iv) Whether the petitioner is entitled to a decree of divorce of his marriage with the respondent? 6. (ii) Whether the respondent deserted the petitioner? (iii) Whether the respondent is entitled to alimony under Section 24 of the Hindu Marriage Act? (iv) Whether the petitioner is entitled to a decree of divorce of his marriage with the respondent? 6. Both sides adduced evidence in support of their respective cases and the learned Court below, having taken the view that the respondent had not deserted the petitioner, answered the issue No. 2 in the negative and dismissed, therefore, the suit. The impugned decree has accordingly followed. 7. Though the petitioner insisted upon his allegation that the respondent had left the matrimonial home in the first week of January, 2006, i.e., before completion of two months of her marriage with the appellant (i.e., the petitioner in the suit), the evidence on record speaks otherwise. The marriage between the parties was solemnized on 28.11.2005. There is no credible evidence to show that the respondent had left her matrimonial home in the first week of January, 2006, inasmuch as the respondent claims that she lived, in the house of her parents, for about 14 (fourteen) months after the marriage had been solemnized and this part of her evidence remained unshaken. 8. Be that as it may, even assuming that the respondent had left her matrimonial home in the first week of January, 2006, the fact remains that the respondent has adduced evidence to show that the appellant doubted her character and used to object even to her manner of dressing and, because of the manner in which the appellant behaved with her, the respondent was constrained to leave her matrimonial house. Thus, when the respondent had categorically denied that she had left her matrimonial home without any lawful excuse and without the consent of the appellant, the appellant was required, under the law, to prove that the respondent had left her matrimonial home without any lawful excuse and against the will and/or without the consent of the appellant. Far from this, the appellant has claimed, in his application seeking dissolution of marriage with the respondent, that the respondent had left her matrimonial house due to some misunderstandings, which had developed between them. The appellant has not, however, clarified, either in his application, seeking dissolution of marriage, or in his evidence, as to what the misunderstandings between the parties were. The appellant has not, however, clarified, either in his application, seeking dissolution of marriage, or in his evidence, as to what the misunderstandings between the parties were. The appellant has not, thus, come to the Court with clean hands and has not disclosed to the Court the circumstances, whereunder the respondent had left her matrimonial house. 9. A big capital is sought to be made, on behalf of the appellant, from the agreement, dated 21.04.2007, which the parties had entered into at the time, when the respondent took away all her belongings from her matrimonial house. The relevant part of the said agreement is reproduced below: By this, I Smt. Ranjita Borgohain, wife of Shri Ratul Gogoi, resident of Sonari, Shantipur, Sonari Nagar - 3, P.O. & P.S. Sonari, District Sivasagar, Assam, inform that myself and my husband mutually and in full conscience and good health due to individual problem have decided to put an end to the husband and wife relationship that exists between us. For that reason today, i.e., 21.04.2007, Saturday, in the presence of me and my family members along with my husband and his family members and the witnesses, have decided to take back all the things that I had brought with me on my marriage. Therefore, I, in the presence of below mentioned witnesses in my full conscience and good health, have accepted all the things that I had brought with me at the time of my marriage and at the same time returning back all the gold ornaments, cloths and other goods that were given to me by them at the time of my marriage, to my husband and his family members. Therefore, due to the separation as agreed to mutually both of us in our full conscience, we hereby promise not to cause any trouble or raise any objections regarding anything before each other and as such putting my signature in my full conscience. 10. Apart from the fact that the respondent has contended that the agreement, dated 21.04.2007, aforementioned was forced on her, what is imperative to note is that the respondent has also adduced evidence of two witnesses. The appellant has, however, not cross-examined any of these witnesses and, hence, their evidence, given in the examination-in-chief, has remained intact. 11. 10. Apart from the fact that the respondent has contended that the agreement, dated 21.04.2007, aforementioned was forced on her, what is imperative to note is that the respondent has also adduced evidence of two witnesses. The appellant has, however, not cross-examined any of these witnesses and, hence, their evidence, given in the examination-in-chief, has remained intact. 11. Coupled with the above, even without taking into consideration the evidence of the witnesses of the respondent, what cannot be ignored and is imperative to note is that even a bare reading of the agreement, dated 21.04.2007, clearly shows that the respondent had left her matrimonial home with the consent of the appellant. This apart, even in the petition, made under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'), we notice, that the appellant (i.e., the petitioner) has, nowhere, contended that the respondent had left her matrimonial home without the consent of the appellant or without any lawful excuse. No wonder, therefore, that the appellant has admitted that he never instituted suit for restitution of conjugal rights. 12. While dealing with the above aspect of the case, one needs to take note of Clause (ib) of sub-Section (1) of Section 13 of the Act, and the second Explanation appended thereto. For the purpose of a clear understanding of the issue at hand, we reproduce herein-below Clause (ib) of sub-Section (1) of Section 13 of the Act and the Explanation appended thereto: 13. Divorce – (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- *** *** *** *** (ib) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. *** *** *** *** Explanation – In this sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. *** *** *** *** 13. *** *** *** *** 13. From a careful reading of the above Explanation, it becomes clear that the legislature has clarified as to what constitute desertion. If the wife leaves the matrimonial house with lawful excuse or with the consent of the husband, her act of leaving her matrimonial house cannot be treated as desertion. This apart, until desertion continues for a period of two years, such a desertion would not give rise to a ground for divorce under Section 13 of the Act. This is clarified by Clause (ib) of sub-Section (1) of Section 13, which reads:- Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 14. In the case at hand, if we may reiterate, the appellant has not even pleaded that the respondent had left her matrimonial home without any lawful excuse or against his wish. On the other hand, the unshaken evidence of the respondent is that her husband used to doubt her character and even objected to her manner of dressing. If a husband doubts the character of his wife, the wife has every justification in not living with her husband and if the respondent, in such circumstances, chose not to live with her husband and/or live separately from her husband, the husband, as a wrong-doer, cannot take advantage of his wrong-doing and claim that his wife has deserted him. 15. The leaving of her matrimonial home, by the wife, in the circumstances mentioned above, cannot be said to be without any reasonable cause. 16. In the case in hand, the evidence on record clearly shows that the respondent had left her matrimonial house, because of the behavior, conduct and the attitude of the appellant and also with the consent of the appellant. No wonder, therefore, that the appellant does not say that he had objected to his wife leaving her matrimonial home or that he had resisted his wife's move to leave her matrimonial home or that he had tried to persuade the respondent not to leave her matrimonial home. 17. No wonder, therefore, that the appellant does not say that he had objected to his wife leaving her matrimonial home or that he had resisted his wife's move to leave her matrimonial home or that he had tried to persuade the respondent not to leave her matrimonial home. 17. Even if, for a moment, we assume that the respondent had left her matrimonial home without the consent of her husband, the fact remains that she is alleged to have left her matrimonial home in the first week of January, 2006, and the agreement, in question, was executed on 21.04.2007, meaning thereby that the agreement, in question, came to be executed barely a year and three months after the so-called desertion by the respondent Since after 21.04.2007, the respondent has been, admittedly, living at her parental house, with the consent of the appellant, the desertion, if any, which took place in the first week of January, 2006, became, in such circumstances, non-existent on and from 21.04.2007. The alleged desertion of the appellant by the respondent cannot, therefore, be construed to have been for the requisite period of two years. 18. In the circumstances, as indicated above, the appellant was not entitled to seek dissolution of his marriage with the respondent on the ground of desertion, particularly, when he himself gave consent to his wife to live separately from him at her parental house. 19. Because of what have been discussed and pointed out above, we do not find that the learned Court below committed any error, factual or legal, in arriving at the conclusion that the appellant had filed to prove that the respondent had deserted him in a manner, which can legally be said to have given rise to a claim for a decree of divorce. We see, therefore, no merit in this appeal and no reason to interfere with the impugned decree. 20. In the result and for the reasons discussed above, this appeal fails and the same shall stand accordingly dismissed with cost. Send back the LCR. Appeal dismissed.