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2015 DIGILAW 686 (CAL)

Rathindra Nath Acharya v. Mala Acharya

2015-08-13

RAJIV SHARMA, SHIVAKANT PRASAD

body2015
JUDGMENT : Shivakant Prasad, J. Instant appeal is directed against the judgment and decree dated 30.01.2009 passed by the learned Additional District Judge, 4th Court, Howrah in Matrimonial Suit No. 413 of 2002. The brief facts leading to the instant appeal is that the appellant/husband and the respondent/wife were married on 17.5.1994 according to Hindu Rites and Customs and their marriage registered subsequently. After marriage they began to live together. The moot allegation made in the petition is that though the husband had an honest effort to lead their conjugal life peacefully but his wife was not conscious of discharging her marital obligations even she had hatred feeling towards the mother and father of the husband/appellant and to oblige to desire of the wife appellant was compelled to live in a rented house and he was also compelled to provide a luxurious flat at her disposal. That the wife was always hostile to him transgressing the boundary of decency and she was in the habit to enter into the room with gross vulgarity and her behaviour towards her husband was unusual in a grotesque manner and her behaviour was so indecent to accuse the girl students without any basis causing mental cruelty. She had divulged her clear intention not to resume conjugal relationship with him and she had deserted him. The wife/respondent did file a criminal case against him which was sponsored from her wretched vengeance. She left his house with all her ornaments and belongings in September, 2001 and lodged a false complaint with the P.S. on the allegation of torture meted out to her. The allegation made in the plaint was disputed and denied by filing written statement by the respondent/wife before the learned Trial Court contending that feeling disgusted completely at the disingenuous behaviour of her husband she filed complaint being No. 547C/02 under Sections 498A/120B/34 IPC against her husband and his family members before the learned CJM under the provision of Sections 156 (3) Cr.P.C. which was treated as an FIR and the husband was detained in jail and that she had prayed for bail for her husband on the ground of compromise. Having framed issues on the grounds of desertion and cruelty the learned Trial Court after allowing the parties to adduce evidence and on hearing learned Advocates for the parties was pleased to dismiss the petition for divorce and hoping against the hope and trust that the parties will give up the thorny path of ruinous litigation with a wishful thinking on the part of the learned Judge that in the long run the lost cordiality will be revamped and by the reunion the traditional values and morals of the society will reach highest Excellency, by the judgment impugned which is in appeal before us on the grounds, inter-alia, that the learned Judge erred in relying only on the version of the wife/respondent without considering any logical value of the Appellant’s case by holding that the ground of desertion and cruelty are based on surmise and conjecture. Mr. Saptangshu Basu learned counsel for the appellant contended that the fact of initiating a criminal case by the wife against the husband under section 498A of the Indian Penal Code resulting in the custody of the husband in jail and ultimately the case being decided as false by the learned Judicial Magistrate acquitting the appellant husband from the charge of Section 498A IPC does constitute mental cruelty on the husband inflicted by the respondent/wife and the issue relating to cruelty ought to have been considered by the learned Trial Judge. We find on perusal of the judgment impugned that the learned Judge observed that order of acquittal of the husband from the case instituted on the basis of complaint of the wife due to paucity of evidence may be the natural sequence of a verdict but mere acquittal cannot be ipso facto considered that it was a false and frivolous complaint with an ulterior object. It is pointed out by the learned Counsel for the appellant that the learned Judge should have come to the conclusion that strain relation between the parties appears to exist and as such the suit should have been decreed to the best interest of the parties to the suit. The learned Counsel further submitted that the respondent/wife tried to put her husband/appellant behind the bar by hook or crook and there is no chance of reconciliation between the parties and in the circumstances marriage has irretrievably broken down. The learned Counsel further submitted that the respondent/wife tried to put her husband/appellant behind the bar by hook or crook and there is no chance of reconciliation between the parties and in the circumstances marriage has irretrievably broken down. We are aware that irretrievably broken down marriage is not a ground for divorce. It is also a settled position of law that living separately for long may not constitute cruelty. Conduct of the respondent, frequency of the said conduct, endurance of the complainant and reasonable apprehension of such conduct have to be taken into consideration to find out the element of cruelty and the court should not only weigh the respondent's conduct but at the same time the same should also be weighed from the victim's point of view. It is true that cruelty should be the type which will satisfy the conscious of the court that the relationship between the parties had deteriorated to such an extent that it has become impossible for them to live together without mental agony, torture or distress. On appraising the evidence adduced by the parties to the suit, it would appear that the learned Judge was misdirected by the sentimental argument advanced on behalf of the respondent who failed to appreciate the evidence on record as to the conduct of the respondent wife in not coming to the conclusion that the ground of cruelty was proved and erred in relying on the evidence of O.P.W. 2 by dismissing the suit. On the contrary, the evidence of O.P.W. 2 and 3 ought to have been disbelieved as untrue and false evidence being tutored by the interested person. Reference has been made to a decision reported in 2015 (1) CHN (SC) 233 K. Srinivas Vs. K. Sunita, wherein it has been observed that the respondent/wife knowingly and intentionally filed a false complaint calculated to embrass and incarcerate the appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act observing that the respondent/wife had filed a false criminal complaint and even one such criminal complaint is sufficient to constitute matrimonial cruelty. The Counsel for the appellant has invited our attention to the fact that during pendency of the suit the respondent/wife wrote a letter dated 10.7.2003 addressed to Secretary, Chirantani Vidyapith Boy’s Section containing wild and frivolous allegations and such letter was written just after the appellant/husband had joined the Institution as Head Master. This was with object in mind of the respondent/wife to malign the appellant in the eye of his fellow and teacher colleague. This evidence on record appears to have been over looked by the learned Trial Judge. We are of the opinion in respectful consideration of the above cited decision that act on the part of the wife/respondent does tantamount to mental cruelty perpetrated on the appellant/husband. It is pointed out by the learned Counsel for the appellant that the respondent/wife has imputed the character of the husband as womaniser which amounts to mental cruelty. This fact is well understood from the amended written statement of the respondent/wife itself that she has alleged that her husband has illicit relationship with other ladies, one of them Rajashree Ghosh. This fact finds corroboration from a letter dated 10.7.2003 written by the respondent/wife to the Secretary Chirantani Vidyapith for Boys’ (Junior High). To support his contention, Mr. Basu has referred to a case of Smt. Kamini Gupta Vs. Mukesh Kumar Gupta (AIR 1985 Delhi, 221) wherein it has been observed that there are no categories of cruel conduct. Nor compartments. The doctrine of danger to life and limb is no longer in the ascendant. Mental cruelty is now well recognised as ground for divorce. It is settled that physical violence is not a necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. It appears from the pleading that the respondent/wife has alleged that her husband had illicit connection not only with the aforesaid Rajashree Ghosh but also some girls and women. We are of the view that such averment made in the pleading by the respondent/wife imputing the character of her husband tantamount to mental cruelty. Yet, in support of the contention on the issue of cruelty a decision of K. Srinivas Rao Vs. We are of the view that such averment made in the pleading by the respondent/wife imputing the character of her husband tantamount to mental cruelty. Yet, in support of the contention on the issue of cruelty a decision of K. Srinivas Rao Vs. D.A. Deepa (2013) 5 Supreme Court Cases 226 has been referred adverting to paragraph 16 wherein it has been observed that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. [See. Samar Ghosh V. Jaya Ghosh, (2007) 4 SCC 511 .] In this appeal the appellant/husband has prayed for setting aside the judgment and the decree impugned and to award a decree of divorce on the ground of cruelty and desertion. In the context of the above discussion and in respectful consideration of the above cited decisions, we hold that the judgment impugned is not tenable in law and in fact as the appellant has successfully substantiated the ground of cruelty for grant of a decree of divorce. We set aside the judgment and the decree impugned. In the result, the Matrimonial Suit No. 413 of 2002 is hereby decreed against the respondent/wife. The appellant/husband do get a decree of divorce dissolving the marital tie between them from the date of the decree subject to payment of litigation cost of Rs. 50,000/-to the respondent with further liberty to the respondent/wife to pray for permanent alimony before the learned Trial Court by a regular application under section 25 of Hindu Marriage Act, 1955. Accordingly, the appeal is disposed of. LCR be sent down to the learned Court below with a copy of this Judgment. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.