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2014 DIGILAW 812 (CAL)

Jayanta Kumar Mondal v. Pratima Mondal

2014-08-22

INDIRA BANERJEE, SUBRATA TALUKDAR

body2014
JUDGMENT Subrata Talukdar, J This appeal from original decree arises from judgment and order dated 22nd July 2005 passed by the Learned First Additional District Court at Purulia in MAT Suit No. 52 of 2004 whereby the application of the husband, the appellant herein for a decree of dissolution of marriage under section 13 of the Hindu Marriage Act, 1955 (for short the 1955 Act) was dismissed on contest. 2. The case of the appellant husband in the said MAT Suit no. 52 of 2004 is briefly as follows. 3. That the appellant husband married the respondent wife on 2nd March 2001. The marriage was a negotiated one and was solemnized under the 1955 Act. 4. After solemnization of the marriage the respondent wife stayed at her matrimonial home and the parties resided in joint mess comprising the grandfather of the appellant husband, his parents as well as his brother and sister. In the course of such wedlock the couple was blessed with a child born on 4th of January 2003. 5. The case of the husband rests on a solitary incident of cruelty alleged by him to have taken place on 3rd May, 2003. On the fateful day, the mother of the appellant husband, Smt. Gita Rani Mondal was preparing the mid day meal for the family members where the respondent wife was also present with her baby. It is further alleged that the respondent wife picked up a quarrel with her mother-in-law and, as an outcome of the quarrel, the mother-in-law was allegedly assaulted by the respondent wife with a wooden instrument (commonly called as `Kather Pinra'). As a result of the alleged assault the mother-in-law sustained grievous bleeding injuries on her head for which she was shifted to Sadar Hospital, Purulia where she succumbed to her injuries on the same date, viz., 3rd May, 2003. 6. The elder brother of the husband thereafter lodged a written complaint on 5th May, 2003 in connection with the alleged assault and death of his mother naming the respondent wife as the accused. The said complaint led to commencement of Hura P.S. case no. 19 of 2003 dated 6th May, 2003 under section 304 of the Indian Penal Code against the respondent wife - subsequently converted to G.R. case no. 238 of 2003. 7. The said complaint led to commencement of Hura P.S. case no. 19 of 2003 dated 6th May, 2003 under section 304 of the Indian Penal Code against the respondent wife - subsequently converted to G.R. case no. 238 of 2003. 7. The investigation culminated in filing of a charge sheet no.32 of 2003 dated 5th July, 2003 against the respondent wife under section 304 of the Indian Penal Code on the charge of the murder of the said Gita Rani Mondal, the mother of the appellant husband. 8. The appellant husband before the Learned Trial Court has unequivocally contended that the cruelty committed by the wife arising out of the solitary incident is bad enough. He has further unequivocally alleged that the said incident of the murder of his mother has caused such mental pain and suffering to him which makes it impossible for him to live in further matrimony with the respondent wife. 9. The husband accordingly prayed for a decree of dissolution of marriage on the ground of cruelty under section 13 of the 1955 Act. 10. The respondent wife contested the suit by filing a written statement in which she denied the allegations of the husband. With particular reference on the incident of 3rd May, 2003, she pleaded at paragraph 14 of the written statement that the allegation of the husband at Para 9 of his petition to the effect that at about noon time his mother, the late Gita Rani Mondal was making preparation of the mid day meal for the family members when the respondent wife was also present in the said room with her baby is an utter distortion of truth. She has further pleaded that the allegation of picking up a quarrel with the mother of the appellant husband is mischievously false and baseless as also the allegation of the respondent wife assaulting her mother-in-law with the `Kather Pinra'. 11. At paragraph 15 of her written statement the respondent wife admits to the knowledge that her mother-in-law was shifted to Sadar Hospital, Purulia on that very date. She further denies any responsibility for the injury sustained as a result of which her mother-in-law subsequently succumbed. She pleads that the burden of proof heavily lies on the appellant husband to prove the said allegations. 12. She further denies any responsibility for the injury sustained as a result of which her mother-in-law subsequently succumbed. She pleads that the burden of proof heavily lies on the appellant husband to prove the said allegations. 12. The respondent wife further pleads that the police case against her was lodged on the basis of a false information and she has been falsely implicated. She states that the criminal case was pending before the Learned S.D.J.M's Court for commitment and "so the case under reference is still under judicial consideration and it cannot be said at this stage that she is solely responsible for causing the death of her mother-in-law." 13. She has further pleaded ill treatment at the hands of her in-laws and neglect of herself and her child by them. She has alleged that in spite of her earnest requests the child was denied appropriate medical treatment resulting in utter neglect of herself and her child. She accordingly prayed that the prayer for dissolution of marriage be dismissed. 14 Sri Shaktinath Mukherjee, Learned Senior Counsel appearing for the appellant husband ably assisted by Sri Probal Mukherjee, Learned Senior Counsel has argued that the written statement filed by the wife only comprises a plain denial of the solitary incident of cruelty which occurred on 3rd May, 2013. He has further argued that nowhere in the written statement his wife furnished her version of events. 15. Sri Mukherjee has taken this Court to the Learned Trial Court' judgment, particularly at page 70 of Part I of the Paper Book, wherein while dismissing the suit of the husband the Learned Trial Court has held that even if there is a pending criminal trial against the respondent wife but the same had not been committed and there is a chance for the respondent wife to defend the case. The Learned Trial Court further went on to observe as follows :- "If in future the case would be found proved against her in that case the situation shall be changed and at that time the matter may be considered. But, there are other chapters also. It is a civil case. So, in all respect the petitioner have to prove that the respondent committed murder of his mother." 16. But, there are other chapters also. It is a civil case. So, in all respect the petitioner have to prove that the respondent committed murder of his mother." 16. The Learned Trial Court in its judgment dated 22nd July, 2005 has further went on to observe as follows :- "But, on the contrary, it is proved beyond reasonable doubt that when the petitioner tried to get rid of his wife, entire family getting a chance of unnatural death of their mother placed this innocent wife as accused and if they would be able to prove that in that case they shall have to get a decree for divorce which is their expected result." 17. Sri Mukherjee has further argued that subsequent to the impugned judgment of the Learned Trial Court dated 22nd July, 2005, the criminal case against her being GR Case No. 238 of 2003 was committed to trial by the Learned Judicial Magistrate, Second Court at Purulia and was converted into Sessions Case no. 238 of 2005 (Sessions Trial 3 of 2005) before the Learned 3rd Additional Sessions Court at Purulia. 18. At para-4 of the application of the appellant husband filed before us being CAN no. 4950 of 2008 in connection with the present appeal, being an application for taking into consideration subsequent events and for production of additional evidence, it has been specifically pleaded by the appellant husband that the Learned 3rd Additional Sessions Court at Purulia has delivered its judgment against the respondent-wife under section 304 of the Indian Penal Code on 25th January, 2008. 19. The Learned Additional Sessions Court upon consideration of the oral evidence and materials on record has come to the conclusion that the respondent-wife being the accused was guilty of hitting her mother-in-law with a small wooden stool or `piri' on her head on 3rd May, 2003 at about 12 noon which ultimately cost her life. The Learned Sessions Court further observed that there is nothing to disbelieve the criminal charge against the wife. The Learned Sessions Court has also observed that the case of the defence is not altogether the denial of death of the said Gita Rani Mondal by the act of hitting by the accused with such stool, but it is based on the criterion of unsoundness of mind of the accused wife at the relevant time. 20. The Learned Sessions Court has also observed that the case of the defence is not altogether the denial of death of the said Gita Rani Mondal by the act of hitting by the accused with such stool, but it is based on the criterion of unsoundness of mind of the accused wife at the relevant time. 20. The Learned Sessions Court found that it is clearly a case of an incident which occurred all of a sudden having no motive altogether behind it. Her nature, antecedent and conduct before and after the incident shows that she was not knowing the nature of the act and that the act is wrong or contrary to law. The Learned Sessions Court also found that she did not leave the place of occurrence and stayed there even after hitting her mother-in-law and injuring her grievously. 21. The Learned Sessions Court therefore came to the finding that she suffered from legal insanity at the time the offence was committed. Accordingly, the Learned Court held that the accused actually hit her mother-in-law on the head by the use of the wooden stool or `piri' for which she succumbed to her injuries. But the accused wife is found to fall under the category of persons of unsound mind as categorized under section 84 of the Indian Penal Code and so such an act by reason of her unsoundness of mind is not an offence. 22. Accordingly, the respondent wife was held not guilty under section 304 of the Indian Penal Code, acquitted under section 235 of the Code of Criminal Procedure and released from bail bond. 23. Sri Mukherjee accordingly submitted that in view of the subsequent events which have culminated in the judgment of the Learned Sessions Court the same be allowed to be produced by way of additional evidence and such subsequent evidence if not taken note of by this court, the appellant husband shall suffer grave prejudice. 24. Sri Mukherjee has drawn the attention of this Court to the impugned judgment of the Learned Trial Court dated 22nd July, 2005 whereby the Learned Trial Court had been pleased to specifically observe that the matter of grant of divorce to the appellant-husband may be considered in the changed situation if in future the criminal case against the wife is found to be proved against her. Such observations of the Learned Trial Court have been already quoted above in this judgment. 25. Sri Mukherjee has emphatically argued that the additional evidence sought to be produced before this Court is of such a nature and germane to the consideration of the facts in issue that such additional evidence must be allowed to be produced and considered at the appellate stage. In support of his argument he submits that the judgment of the Learned Trial Court is replete with reference to the criminal trial and the conclusion of the criminal case against the wife although acquitted on the plea of insanity, is conclusive of the fact that such incident did occur and the respondent wife did assault her mother-in-law without knowing the consequences of her action. Sri Mukherjee states that such additional evidence is absolutely necessary for the Learned Appellate Court to pronounce its judgment on the facts in issue. 26. In this connection, he has relied upon several authorities:- (a) (1951) AIR S.C. 193 Para 7 (b) (1953) Indian Appeals Pg. 84 at Page 88; Md. Khaleel Shirazi & Sons and Lestnneries Lyonnaises; (c) (1973) AIR Calcutta 496 (49, 51); Kripasindhu Biswas v. Sadhu Sindhu Biswas and Ors. (d) (1968) AIR SCC 1165 (29); Nayar (Service Society Limited) v. C. Alexander and Ors. 27. Sri Mukherjee, on the aspect of cruelty as applicable under the provisions of section 13 (1)(i-a) of the 1955 Act has relied on the following decisions to stress the fact with the grounds made out by the appellant husband in the facts of the present case with regard to the conduct of the wife and her mental condition amounts to cruelty. The decisions are: (1). (2007) 3 SCC 136 (8 TO 10); Maya Devi (Smt.) v. Jagdish Prasad; (2). (2011) 12 SCC (25, 37); Pankaj Mahajan v. Dimple alias Kajal; (3). (2009) 1 SCC 422 (30 to 37); Suman Kapoor v. Sudhir Kapoor; (4). (2006) 13 SCC 272 (6, 7, 10); Sujata Uday Patil v. Uday Madhukar Patil. 28. By relying on all the aforesaid decisions Sri Mukherjee has emphasised that the conduct of the wife in the present case and the single incident dated 3rd May, 2003 constitute cruelty within the meaning of section 13 (1)(i-a) of the 1955 Act. (2006) 13 SCC 272 (6, 7, 10); Sujata Uday Patil v. Uday Madhukar Patil. 28. By relying on all the aforesaid decisions Sri Mukherjee has emphasised that the conduct of the wife in the present case and the single incident dated 3rd May, 2003 constitute cruelty within the meaning of section 13 (1)(i-a) of the 1955 Act. He has drawn the attention of this Court to the observation of the Learned Trial Court in its impugned judgment dated 22nd July, 2005 wherein Halsbury's Laws of England has been noticed with approval to the following effect :- "On overall evaluation of the evidences on record and the materials including the above evidences already scanned I went to say a very vital part of the solitary act of cruelty as found in Halsbury's law of England. "It is laid down in some cases one act so grievous as by itself to constitute cruelty although this is seldom that case but sometimes single instance may be treated as cruelty and which may give right to any spouse to get a divorce." 29. Sri Mukherjee on the basis of evidence on record and the clear unimpeachable evidence of the husband in cross-examination to the effect "I am not willing to reside with my wife after my mother's death", submits that a case has been made out on the basis of a single and solitary act of cruelty as would make it impossible for his client to lead a further conjugal relationship with his wife. 30. Relying on (2011) 12 SCC1 (supra) Sri Mukherjee has further drawn our attention to para 37 of the said judgment which quotes a judgment of the Hon'ble Apex Court in the matter of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 , wherein the following lines appearing at paras 18 & 19 are of particular significance:- "18. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted." "19. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. In such cases, the cruelty will be established if the conduct itself is proved or admitted." "19. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment." 31. Sri Mukherjee has persuasively brought to the notice of this Court that nowhere in the written statement the respondent wife has furnished her version of the grave events which occurred on the fateful date, viz. 3rd May, 2003. He has taken this Court through the evidence of Chinmoy, PW 2 who was present at the place of occurrence on 3rd May, 2003 and from such evidence it clearly transpires that the grave and solitary incident involved the respondent wife and her mother-in-law. He points out that the plea of insanity has been taken by the respondent wife in the criminal trial to escape prosecution and take benefit of section 84 of the Indian Penal Code although the Learned Sessions Court has arrived at the clear finding that the respondent wife is guilty of hitting her mother-in-law on the head by the use of the wood stool or `piri' for which she succumbed to her injuries. 32. Sri Mukherjee points out that with such additional evidence that has already been noticed by the Learned Trial Court read with the unimpeachable evidence of the appellant husband, by no stretch of imagination can the spouses be considered to live a blissful life of conjugal happiness. 33. Sri Mukherjee accordingly submits that the judgment impugned of the Learned Trial Court dated 22nd July, 2005 be set aside and divorce on the ground of cruelty be granted to the appellant husband. 34. Sri Biswajit Basu, Learned Counsel appearing for the respondent wife has, with equal ability, argued as follows:- (i) That the MAT Suit is a suit under section 13 (1)(i-a) on the ground of cruelty. It is not a suit under section 13(1)(ib) on the ground of insanity. If the wife was insane she would be represented in the suit which is not the case here. It is not a suit under section 13(1)(ib) on the ground of insanity. If the wife was insane she would be represented in the suit which is not the case here. (ii) To what extent the Appeal Court can travel while considering the aspects of cruelty by taking into account the judgment of the Learned Criminal Court. (iii) Whether all conditions necessary to satisfy the tests of cruelty by one's spouse against the other have been satisfied in the facts of the present case. (iv) Section 23(b) of the Hindu Marriage Act must be looked into by the Court before coming to any conclusion of cruelty alleged under section 13 (1)(i-a) of the 1955 Act. In this context Sri Basu has, while taking us through the provisions of section 23(b) of the 1955 Act urged us to notice whether the appellant husband has in any manner condoned the act of cruelty by the respondent wife. (v) With regard to the facts he has drawn our attention to the point that there has been a delay of more than one year in filing the MAT Suit. Although the mother of the respondent husband died on 3rd May, 2003, the suit was filed only in June 2004. (vi) He has very emphatically urged this Court to notice whether the respondent wife was a victim of circumstances and reacted to a particular situation in as much it appears from several paragraphs of the written statement that the respondent wife herself suffered indifferent treatment from her in-laws who did not take proper medical help to treat the tumor discovered in the female child. Furthermore, the appellant husband used to, for the larger part of time, reside far away on work and in spite of the wife's repeated entreaties did not take her to reside with him and instead left her in a state of neglect in the matrimonial home. Also there is no whisper from the records that apart from the single incident dated 3rd May, 2003 the behaviour of the respondent wife was in any manner cruel towards her husband or her in-laws. On the other hand, the evidence on record shows that the respondent wife was a educated lady of cool temperament and she looked after her husband when he was not well. 35. On the other hand, the evidence on record shows that the respondent wife was a educated lady of cool temperament and she looked after her husband when he was not well. 35. Having regard to the aforesaid facts Sri Basu emphasises that the allegation of solitary incident of cruelty must not be taken in isolation. Rather, the surrounding facts and circumstances should be assessed to arrive at a finding whether cruelty has at all been committed by the wife against the respondent husband. 36. Sri Basu has also strongly argued on the legal point whether the judgment of the Learned Sessions Court is a relevant fact which can be considered by any Civil Court to convert the dismissal of a suit for divorce into a finding of cruelty and thereby granting divorce on the basis of such subsequent judgment. In this connection he has relied on the following authorities:- (i). (1955) AIR SCC 566 (Para 15); Woodroffe and Ameer Ali at Pg. 266 & at Pg. 2078 19th edition on the Law of evidence; (ii). (1971) AIR SCC 1244, in the matter of M/s. Karamchand Ganga Pershad and another v. Union of India and others; (Para - 4) :- "4. A Division Bench of the Delhi High Court after elaborately hearing the arguments advanced in the case on the various issues arising for decision in the case rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In our opinion the High Court seriously erred in coming to this conclusion. If the appellants are able to establish their case that the ban on export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. The High Court after entertaining the writ petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings had been taken on the basis that the exports in question were illegal. For the decision of the controversy between the parties to the writ petitions neither the presence of the State of West Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them, as mentioned earlier, would depend upon the validity or otherwise of the export in question." (iii). (2009) 11 SCC 545 in the matter of Seth Ramdayal Jat v. Laxmi Prasad; (Para 13):- "13. A similar issue is dealt in some details in Lalmuni Devi v. Jagdish Tiwary wherein it was held: (AIR p.55, para 14) "14. Relying on the judgment of the Supreme Court in Anil Behari Ghosh v. Latika Bala Dassi, a Division Bench of this Court in its judgment in Mundrika Kuer v. Bihar State Board of Religious Trusts, has laid down to the same effect. Para 7 of the judgment is set out hereinbelow for the facility of quick reference: `7. It is true that, if the Board acted capriciously and arbitrarily without any material whatsoever and attempts to administer private property, saying that it is public religious trust, this Court may have to interfere in appropriate cases; but it cannot be said here that there were no prima facie materials to show that the trust is a public religious trust. The acquittal of the petitioner in the criminal case (Annexure A) was very much relied upon; but it is well settled that acquittal or conviction in a criminal case has no evidentiary value in a subsequent civil litigation except for the limited purpose of showing that there was a trial resulting in acquittal or conviction, as the case may be. The findings of the criminal court are inadmissible.'" A judgment in a criminal case, thus, is admissible for a limited purpose. The findings of the criminal court are inadmissible.'" A judgment in a criminal case, thus, is admissible for a limited purpose. Relying only on or on the basis thereof, a civil proceeding cannot be determined, but that would not mean that it is not admissible for any purpose whatsoever." (iv). (2002) 8 SCC 87 in the matter of K.G. Premshanker v. Inspector of Police and Anr. Sections 41 to 44 of the Indian Evidence Act, (Paras 16, 22 & 30): "16. In our view, the submission of learned Additional Solicitor-General requires to be accepted. Sections 40 to 43 of the Evidence Act provide which judgments of courts of justice are relevant and to what extent. Section 40 provides for previous judgment, order or a decree which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 40 is as under: "40. Previous judgments relevant to bar a second suit or trial - The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial." "22. In the facts of the present case, Section 42 would have some bearing and the judgment and decree passed in a civil court would be relevant if it relates to a matter of public nature relevant to the enquiry but such judgment and decree is not a conclusive proof of that which it states." "30. In the facts of the present case, Section 42 would have some bearing and the judgment and decree passed in a civil court would be relevant if it relates to a matter of public nature relevant to the enquiry but such judgment and decree is not a conclusive proof of that which it states." "30. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41 provides which judgment would be conclusive proof of what is stated therein." (v). (2010) 8 SCC 423 in the matter of Shalimar Chemical Works Limited v. Surendra Oil And Dal Mills (Refineries) and Others; (Para 16): "16. The learned Single Judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41 Rule 27. But then Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence." 37. He has also placed on record an affidavit-in-opposition filed on behalf of the respondent-wife to the application of the appellant husband for taking into consideration subsequent events and production of additional evidence wherein and whereunder the respondent wife has denied the contents of the application for taking into consideration subsequent events and for production of additional evidence. 38. On the specific point of the judgment of the Learned Sessions Court he has stated that the said Court upon examination of the evidence and after perusing the records exonerated the respondent wife of the criminal charges. 38. On the specific point of the judgment of the Learned Sessions Court he has stated that the said Court upon examination of the evidence and after perusing the records exonerated the respondent wife of the criminal charges. Sri Basu has, on the strength of the aforesaid authorities and the nature of the marital relationship prior to the incident of 3rd May, 2003, has tried to impress upon this Court that cruelty of the nature as necessary under the 1955 Act is not established. He has argued that the judgment of the Learned Sessions Court is only relevant to establish the fact that there has been a judgment but cannot be taken into consideration by a Civil Court in a separate proceeding. Therefore, the judgment of the Learned Sessions Court is not conclusive and binding on this Court to upset the judgment impugned of the Learned Fast Track Court, Purulia, converting a decision dismissing matrimonial proceedings into a finding of cruelty. By way of reply, Sri Probal Mukherjee, Learned Senior Counsel assisting Sri Shaktinath Mukherjee has distinguished the judgments relied upon by Sri Basu in the following manner :- (a) (2002) 8 SCC 87 (supra) is only relevant to show that the document relied upon in both the civil and the criminal proceedings arise out of the same set of facts. He has in this connection relied upon Para 31 of the said judgment wherein the Hon'ble Apex Court has held that a judgment, order or decree passed in a previous proceeding to be binding or conclusive with regard to the matters decided therein. He has taken this Court through the illuminating illustration mentioned in the said paragraph 31 where in a case of alleged trespass by A on B's property, B filed a suit for declaration of his title and to recover possession from A and the suit was decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceeding would be relevant and the Court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. 39. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceeding would be relevant and the Court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. 39. On careful consideration of the rival submissions and the materials on record this Court is of the view that independent of the judgment of the Learned Criminal Court, the Learned Trial Court failed to appreciate the solitary and grave nature of cruelty inflicted on the mind of the appellant-husband following the incident of 3rd May, 2003. The Learned Trial Court ought to have noticed that the incident did take place in the presence of the two ladies and as a result of such incident, corroborated by the evidence of Chinmoy, PW 2 the mother of the appellant-husband died. It led to the legitimate conclusion on the part of the appellant husband that his mother died as a result of such incident, whether intentional or non-intentional, committed by his wife. 40. After losing his mother the appellant husband has adduced unimpeachable evidence that since the incident led to the death of his mother and squarely involved his wife, the loss of his mother has caused such a grave adverse impact on his mind that it is not possible for him to stay together with his wife, who, from the evidence of PW2, Chinmoy, appeared to be directly involved in the same. 41. The Learned Trial Court, inspite of noticing the passage from Halsbury's Laws of England on a solitary incident of cruelty which was so grievous in nature, as in the facts of the present case, could not have therefore come to the conclusion that even after the loss of his mother the plaintiff - appellant husband could be expected to live with the lady who had a direct role in the same. 42. The Learned Trial Court ought to have noticed that in the backdrop of the legal tests on cruelty laid down in several decisions that the single incident was admittedly of such a grave nature where the husband would be perpetually living with the anguish that he is compelled to spend a conjugal life with a lady who had a direct involvement in an incident which led to the death of his beloved mother. In the considered opinion of this Court, the Learned Trial Court, on the basis of the evidence of PW2, Chinmoy and the unimpeachable evidence of the husband as well as the facts of the incident dated 3rd May, 2003 which have not been denied by the respondent wife, could not have come to a conclusion which compels the appellant husband to spend the rest of his years with the respondent wife. 43. Second, this Court also cannot help but notice that the Learned Trial Court, possibly on sympathetic considerations and instead of looking at the law straight at its face, decided to rest the final outcome of the matrimonial proceedings between the parties on the judgment of the Learned Criminal Court. This Court finds that having regard to the grave nature of the allegation on record, the respondent-wife failed to give any separate version of events. The Learned Trial Court could not persuade itself enough to come to the conclusion that the law as it stands on cruelty under the 1955 Act, the said incident is adequate to establish such cruelty making it impossible for the appellant husband to continue further matrimonial relations with the respondent wife. 44. Third, the dilemma of the Learned Trial Court with regard to the absolute involvement of the respondent wife in the incident having stood resolved with the finding of the Learned Sessions Court and the issues in the two proceedings arising out of the same set of facts, this Court is inclined to accept the submission of Sri Mukherjee that this is a fit case where the additional evidence by way of the judgment and other documents of the Learned Sessions Court be brought on record. The provisions of Order 41, Rule 27 of the Code of Civil Procedure do not pre-empt the Appellate Court from pronouncing judgment even on the basis of such additional evidence for finally concluding the lis. In this connection this Court is not unmindful of the post-mortem report at page 127 of the Paper Book, being part of the documents before the Learned Sessions Court, where the cause of death has been established to be "due to the effects of head-injury, ante-mortem or homicidal in nature ( blunt weapon used)." 45. In this connection this Court is not unmindful of the post-mortem report at page 127 of the Paper Book, being part of the documents before the Learned Sessions Court, where the cause of death has been established to be "due to the effects of head-injury, ante-mortem or homicidal in nature ( blunt weapon used)." 45. Furthermore, this Court is not unmindful of the contention raised by Sri Basu that the judgment of the Learned Criminal Court cannot be straightaway taken into consideration by the Civil Court to upset a finding arrived at independently. However, having regard to the provisions of Order 41 Rule 27 of the Code of Civil Procedure when the lis arises from the same set of facts, the same constitutes a germane additional evidence and cannot be ignored by the Appellate Court particularly when such additional evidence is decisive, conclusive in character and free from suspicion. 46. Fourth, this Court notices the fact that although the respondent wife did file an affidavit choosing to rebut the application for allowing additional evidence, such rebuttal, as already pointed out above in this judgment, is bald to the extent that the respondent wife merely states that the Learned Sessions Court has exonerated her of all criminal charges. This Court feels, with sufficient anguish, that such statements on oath do not correctly reflect the true effect and content of the judgment of the Learned Sessions Court appearing at pages 98 to 116 of the Paper Book. This Court is also of the opinion that such rebuttal by the respondent-wife in the face of the compelling documents produced by the appellant-husband is not enough to persuade against acceptance of the application for additional evidence being CAN 4950 of 2008. 47. Fifth, this Court is of the view that in the face of the evidence before the Learned Trial Court and the further additional evidence appearing from the subsequent judgment of the Learned Sessions Court in relation to the same facts, if the contention of Sri Basu is to be accepted then the cause of substantial justice will be subverted. To adopt the course of action urged by Sri Basu by disowning the judgment of the Learned Criminal Court while pronouncing the present judgment this Court shall be responsible for prolonging an already painful litigation between the parties. To adopt the course of action urged by Sri Basu by disowning the judgment of the Learned Criminal Court while pronouncing the present judgment this Court shall be responsible for prolonging an already painful litigation between the parties. While admitting additional evidence and, such evidence in the facts of the present case having satisfied the tests under Order 41 Rule27 of the Code of Civil Procedure, it is necessary for the Appellate Court to decide the real issue in controversy and to subserve the interests of justice to shorten litigation in a circumstance where the original relief has become more inappropriate by subsequent events. 48. Sixth and finally this Court notices that the provisions of section 23(b) of the 1955 Act to which the attention of this Court was drawn by Sri Basu is not applicable to the facts of the case in as much as the facts and circumstances of the case show that the act of cruelty complained of against the wife has not been condoned by the appellant-husband. On the contrary, the appellant-husband has been consistent in his evidence before the Learned Trial Court that the solitary nature of cruelty arising out of the incident of 3rd May, 2003 has not been condoned by him and it is not possible for him to stay with his wife further. 49. This Court is required to take judicial notice of the fact that the incident complained of by the husband dated 3rd May, 2003 is of a nature so grave as to constitute cruelty within the meaning of Section 13(1)(i-a) of the 1955 Act. This Court finds that even the defence of the respondent-wife before the Learned Trial Court and in the arguments presented by Learned Counsel, there is no denial of the grave solitary incident. Therefore this Court is sufficiently persuaded that such solitary incident is of such a grave nature as to constitute cruelty entitling the husband to the relief claimed by him before the Learned Trial Court. This Court also must notice that the Learned Trial Court failed to appreciate the evidence on record in its true perspective. 50. In addition this Court finds that there are substantial grounds for allowing the additional evidence to be produced and considered at the appellate stage itself to confirm the finding that the Learned Trial Court committed an error by dismissing MAT Suit no.52 of 2004. 51. 50. In addition this Court finds that there are substantial grounds for allowing the additional evidence to be produced and considered at the appellate stage itself to confirm the finding that the Learned Trial Court committed an error by dismissing MAT Suit no.52 of 2004. 51. The appeal being FA 305 of 2008 is accordingly allowed. The judgment impugned of the Learned Trial Court dated 2nd July, 2005 is set aside. The appellant husband is accordingly entitled to the relief of dissolution of marriage by a decree of divorce. The respondent-wife is granted the liberty to approach the competent Court for grant of alimony, if so advised. 52. The appeal is allowed on contest. There will be no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. Indira Banerjee J. - I agree.