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2016 DIGILAW 1083 (CAL)

Subhransu Sarkar v. Indrani Sarkar (Das)

2016-12-23

MIR DARA SHEKO, RAKESH TIWARI

body2016
JUDGMENT : Mir Dara Sheko, J. 1. Being aggrieved by the judgment and decree of dismissal dated 14.12.2012 delivered by learned Additional District Judge, 7th Court at Alipore District 24th Parganas (South) in M.A.T. Suit No. 110 of 2010, the husband/plaintiff/appellant (who will be referred to hereafter as the appellant) preferred this first appeal. 2. Since this is a first appeal and it is heard only at the instance of Learned Advocate for the appellant for non-appearance of anybody on behalf of the wife/defendant/respondent, (who will be referred to hereafter as the respondent) the Bench requires to examine the case both in fact and law. Therefore the facts as contended by the parties in accordance with their pleadings are set out hereunder. 3. Case of the appellant in brief, is that out of pre-marriage friendship, he got married with the respondent on 2nd day of March, 1997, under the Special Marriage Act, 1954. The respondent used to come to the house of parents of appellant at Garia almost thrice a week since 1996, and ultimately social marriage was held at the instance of Parents of both sides as per Hindu Rites and Customs on 7th day of December, 2000 and their marriage was thereafter duly consummated by residing together as husband and wife. 4. The appellant noticed that while after one week of social marriage the respondent came to reside in her matrimonial home, she withheld herself from taking part in the household works and on flimsy pretexts started disobeying and insulting parents of the appellant with a view to persuade the appellant to live in the house of respondent’s parents either as their domesticated son-in-law, or, as monthly tenant in a portion of respondent’s father’s house, which was refused by the appellant. 5.The appellant further stated that the respondent took away all of her ornaments and kept the same in custody of her parents; that She would live in the appellant’s house hardly for 7/8 days in a month and the rest days of the month in her parents’ house. Even despite request by some of the neighbouring friends of the appellant, she failed to change such obstinate attitude of the respondent. 6. The appellant stated that once in November, 2001 the respondent had left her matrimonial home and though came back after a period of four months but her behaviour remained unchanged. Even despite request by some of the neighbouring friends of the appellant, she failed to change such obstinate attitude of the respondent. 6. The appellant stated that once in November, 2001 the respondent had left her matrimonial home and though came back after a period of four months but her behaviour remained unchanged. To overcome the situation, the appellant also consulted psychologist and psychiatrist apart from accompanying the respondent to different temples and sacred places, but in vain. 7. The appellant further asserted that during stay in this way the respondent though was conceived in November 2001, but as she did not want to be mother at that time the appellant had to give consent for abortion, and accordingly the respondent was aborted in 2002. 8. The appellant stated further that after some period of said abortion the respondent was taken on tour to PURI along with his colleague and his family, but the respondent assaulted the appellant there in their presence, and similar incident happened at Shilong, and in that occasion in presence of parents of the respondent. Though she was loved by the parents of the appellant, but the respondent also assaulted her mother-in-law. 9. The appellant further asserted that due to such misbehaviour though the marital relationship had become gradually strained the respondent in or about January, 2003 suddenly came to the appellant’s house at Garia with the proposal to resume marital life expressing desire of becoming a mother of child of their wedlock. The respondent accordingly was taken aback to resume conjugal life at Garia, where she was conceived in the month of February, 2003. But being provoked by her parents she left her marital home on the plea that the appellant’s parents would not be able to take proper care of her for which her baby “might be in danger”. 10. Further contended that the respondent ultimately gave birth to male child by way of caesar on 9.10.2003 at South Suburban Nursing Home, at an expense of Rs. 40,000/-, borne by the appellant. Though the respondent with the baby was persuaded to come back to the house of the appellant from nursing home but she went to her parents’ house. Thereafter date for “ANNAPRASAN” Ceremony of their baby was to be held on 11.04.2004, but the respondent without any reasonable cause left again with the baby on 27.02.2004. 11. Though the respondent with the baby was persuaded to come back to the house of the appellant from nursing home but she went to her parents’ house. Thereafter date for “ANNAPRASAN” Ceremony of their baby was to be held on 11.04.2004, but the respondent without any reasonable cause left again with the baby on 27.02.2004. 11. The appellant asserted that conceding to pressure of the respondent for separate stay, one flat near “Bijan Setu” though was selected but since it was rejected under advice of the appellant’s father due to some inconveniences in the enjoyment of flat, the respondent had insulted father of the appellant with very indignified, and shocking language. The appellant in that occasion though approached the respondent to seek apology to his father, but in turn, the respondent left the house of the appellant with the baby for her parents’ house and refused to come back even to hold the “ANNAPRASAN” Ceremony. On the contrary, in the middle of July 2004 the respondent over phone started threatening that she would lodge complaint under Section 498A I.P.C. if Rs. 6,000/- per month would not be sent regularly for maintenance. The respondent even refused to co-operate in attending “Family counselling” on 27.4.2004 as was arranged lodging one G.D. Entry in Jadavpur Police Station. 12. It is contended that the respondent with the child suddenly came back to the appellant’s house at Garia in October, 2004, but again without disclosing anything at home the respondent, by calling upon her parents left with them along with the child on 28.11.2004, and since thereafter despite attempt made by the appellant, the respondent did not come back, instead, she used to threaten of putting the appellant and his parents behind the bar, and causing loss to the appellant’s service career. The appellant in his turn, with a view to safeguard himself lodged G.D. Entry on 23.01.2005, 03.08.2005, 27.06.2006 mentioning the respective threatenings. Though the appellant is deprived of company of wife and child he had been sending Rs. 2,000/- per month for them. 13. In view of such state of conjugal life the parents of the respondent also advised to take mutual divorce. Though the appellant is deprived of company of wife and child he had been sending Rs. 2,000/- per month for them. 13. In view of such state of conjugal life the parents of the respondent also advised to take mutual divorce. The appellant thus having been treated with cruelty by the respondent causing apprehension in his mind that it would be harmful to live any more with the respondent, who also deserted him for a continuous period of more than two years and there having no collusion, a decree of divorce under Section 27(1)(b) and (d) of the Special Marriage Act, 1956 should be allowed. 14. The respondent wife submitted written statement denying inter alia, the material allegations of the plaint. She stated that the suit under Special Marriage Act, 1954 was not maintainable since their marriage was registered under Special Marriage Act on 2nd March, 1997. It was not consummated till before solemnisation of their marriage on 7th December, 2000 in accordance with Hindu Rites and Customs. 15. The respondent stated that the appellant being a police sergeant under Kolkata Police used to torture her in very many ways. He was in the habit of uttering filthy language under constant instigation of his mother; and that she had to abort her first conception by force at the instance of her husband and parents-in-law since her husband i.e. the appellant was not inclined to have early child. It was also stated therein that despite conceiving for the second time and giving birth to a male child on 09.10.2003 the child was not gleefully accepted, rather she noticed that the appellant had been continuing contact with his girl friends even by maintaining sexual relationship with them. He used to come back home at about 2/3 a.m. at dead night in drunken condition while she had to bear abusive and inaudible language from her husband and despite of complaining of such affairs to the parents of the appellant there was no redressal from them. Rather they used to tell her that she would have to remain there enduring those habit of their son. The respondent thus had to remain at her matrimonial home suffering torture and humiliation not only to her but also suffering disrespect and humiliation shown to her parents, under threat of divorce. 16. Rather they used to tell her that she would have to remain there enduring those habit of their son. The respondent thus had to remain at her matrimonial home suffering torture and humiliation not only to her but also suffering disrespect and humiliation shown to her parents, under threat of divorce. 16. The respondent lastly submitted that the appellant still had been maintaining extra marital relation with different girls, two of whom were Sukla Bhattacharjee and Suparna @ Jhuma Moitra, and the respondent being driven out from her matrimonial home was compelled to reside under care and custody of her parents along with the child since November, 2004. 17. Thus captioning the averments of the plaint as vexatious, frivolous and harassing in nature and claiming the suit barred by Section 23(1)(a) of the Hindu Marriage Act the respondent prayed for dismissal of the suit. 18. Learned Trial Court decided the suit on the issues which are set out below:- 1. Is the suit maintainable in its present form? 2. Has the petitioner any cause of action to file this suit? 3. Has the respondent/wife treated the petitioner/husband with cruelty? 4. Is the respondent guilty of deserting the petitioner? 5. Has the petitioner ever condoned the cruelty allegedly perpetrated by the respondent? 6. Is the petitioner entitled to get a decree for divorce as prayed for? 7. To what other relief/reliefs, if any, the petitioner is entitled to? 19. The appellant with a view to prove the grounds of cruelty and desertion examined himself as PW1 and his colleague as PW 2. The respondent in her turn examined only herself as DW 1. 20. Affidavit statement-in-Chief of PW 1 is virtually a replica of the averments of plaint and denial of the defence case in the form of “it is not a fact”. 21. Though the respondent/wife was represented by her learned Advocate in appeal but on the date of hearing the respondent remained unrepresented. Nonetheless, onus to prove the grounds of divorce in getting intended success in appeal would still lie on the appellant to answer as to why, and how the decree of dismissal of suit for divorce suffers from illegality? Therefore, the judgment under challenged is to be considered on the following points:- (i) Whether the impugned judgment suffers from any illegality? (ii) Whether the said judgment requires any interference in appeal? 22. Mr. Therefore, the judgment under challenged is to be considered on the following points:- (i) Whether the impugned judgment suffers from any illegality? (ii) Whether the said judgment requires any interference in appeal? 22. Mr. Chakraborty argued that though the marriage between the parties was an outcome of pre-marriage love affair, and they became parents of one male child after the first being aborted, under the pressure of the respondent, the charm of their marital tie was irretrievably broken down due to frequent leaving of the respondent from her marital home. He further argued that false aspersion and assassination of character of the appellant without proof creating pressure upon husband for living separately from the parents of the appellant should have been deemed as sufficient proof of mental cruelty. Further discussing the oral evidence of PW1 and PW 2 towards alleged torture and misbehaviour of the respondent even during the period of holiday tour in presence of family friend and his wife and the wife having deserted the husband since 28.11.2004 without keeping any contract, Mr. Chakraborty submitted that decree of divorce ought to have been granted. Thus criticising the judgment under challenge he submitted to set aside judgment of dismissal and to allow the appeal. Mr. Chakraborty to justify merit of his arguments relied upon the following decisions:- (1) Malathi, Ravi, M.D. Vs. B.V. Ravi, (2014) 7 SCC 640 . (2) Narendra Vs. K. Meena, (2016) 9 SCC 455 . 23. The Rule of law generally does not enable an appellate Court to declare a right in favour of one of the parties where no issue has been framed on the point and the right has not been set up in the lower Court. But Order 41 Rule 24 this Rule has given widened power to the appellate Court that in a case where both parties have adduced evidence on a point, raised in appeal, the appellate Court can record its finding extending necessary relief. 24. Learned Trial Judge on the issue of non-maintainability of the suit rightly answered in the negative as admittedly out of pre-marriage love, marriage of the parties was registered under Special Marriage Act, 1954, but she was not consummated till completion of their social marriage following all social rituals of Hindu Marriage held on 7.12.2000. 24. Learned Trial Judge on the issue of non-maintainability of the suit rightly answered in the negative as admittedly out of pre-marriage love, marriage of the parties was registered under Special Marriage Act, 1954, but she was not consummated till completion of their social marriage following all social rituals of Hindu Marriage held on 7.12.2000. Therefore the effect of registration of their marriage at first under Special Marriage Act followed by admitted ritualistic marriage as per Hindu Rites and Custom and consummation of their marriage thereafter by residing together as husband and wife relates back to its date of registration to answer in the affirmative about legality and validity of their marriage by registration under the Special Marriage Act, 1954 in the affirmative. Hence the suit for divorce under Special Marriage Act, 1954 has rightly been held to be maintainable by the concerned Trial Judge. 25. The Court also rightly observed that the term “cruelty” has not been defined anywhere with any specified terms. The term cruelty is a conduct which may be physical or mental, or, both, causing in continuation by one affecting the other to suffer irreparably. Therefore while a suit for divorce is filed by either of the spouses on the ground of cruelty, it is to be construed from the courses of conduct in terms of the matrimonial relationship upon which the affecting party claiming divorce on the ground of cruelty is to prove by adducing adequately admissible evidence by which the court, either of original, or, of appellate jurisdiction, can satisfy itself that the matrimonial relationship between the parties by virtue of the Acts of cruelty affecting the other has been irretrievably broken down and there would not be any possibility of reunion for resumption of conjugal life, since the party claiming divorce on the ground of cruelty is no more in a position to condone such acts of cruelty, and therefore there is no more second option but to separate marital tie by a decree of divorce. 26. In the case on hand, as we noticed, that the appellant seeking divorce examined himself as P.W.1 and one of his batchmates-cum-colleague, a police sergeant, namely, Sanjoy Kar as P.W. 2. 26. In the case on hand, as we noticed, that the appellant seeking divorce examined himself as P.W.1 and one of his batchmates-cum-colleague, a police sergeant, namely, Sanjoy Kar as P.W. 2. Since the Evidence-in-Chief of P.W. 1 supported by affidavit filed under Order 18 Rule 4 of the Code of Civil Procedure, presumably draft of which was prepared outside dock of the Court, is a replica of the plaint case, therefore the cross-examination at first of P.W. 1 should have to be considered to examine its evidentiary value. In the Evidence-in-Chief it was ventilated by the appellant that his wife used to insist him to stay separately from his parents and misbehave with her in-laws, she would not participate in the household works and was in the habit of frequently living her marital home. Shortening from such contentions P.W. 1 in cross-examination held on 2nd April, 2011, stated “my ground of divorce is that my wife wanted to stay separately from my parents” P.W.1 during cross-examination on 19.8.2011 like his wife D.W.1 admitted that their marriage was an effect of their pre-marriage love. He further stated that his wife used to stay with him intermittently and she would never stay with him at a stretch for a period of six months or more. Admittedly by exercising their marital life allegedly in such manner the respondent was conceived twice of which first one was aborted in the month of February 2002 and by conceiving for the second time she gave birth of a male child on 9.10.2003. 27. Admittedly the respondent filed a maintenance case under Section 125 of the Code of Criminal Procedure in the year 2011, but she did not file any criminal case under Section 498-A of the Indian Penal Code either against her husband or parents-in-law though the appellant alleged that her wife used to threat him of lodging complaint under Section 498-A of the Indian Penal Code. According to the plaint case the parties last resided together upto 28.11.2004 the respondent in cross-examination also admitted “in the year 2004 I left my in-laws’ house” but volunteered “I was driven out”. According to the plaint case the parties last resided together upto 28.11.2004 the respondent in cross-examination also admitted “in the year 2004 I left my in-laws’ house” but volunteered “I was driven out”. The appellant since had asserted that while his wife used to insult and disrespect his parents declining to participate in the household works for which sometimes local people would come and advice her, in cross-examination while he was asked to disclose the name of those local persons, he disclosed names of two viz., “Ashok Karmakar” and “Sanjoy Kar”. It is pertinent to mention that any such Ashok Karmakar was not examined, far to speak of examining any other persons from the neighbourhood, or even his parents, to get corroboration to his alleged assertion of misconduct against his wife causing alleged disrespect and insult to his parents or about her refusal to participate in the household works in her in-law’s house. However Sanjoy Kar was examined as P.W. 2, not as his neighbour, but as his colleague to prove one particular incident which allegedly took place during their holiday tour with family at Puri. 28. The appellant in cross-examination on 27.7.2011 told, “the incident of merciless assault by my wife meted out had happened in Sagarika Hotel”. He also told that the respondent was treated by Dr. N.N. Mazumdar and he would cite Dr. N.N. Mazumdar as witness. But for the reason best known to him Dr. N.N. Mazumdar was also not examined by the appellant. He in the cross-examination claimed, “I felt from her activities that she was a psychiatric patient. I do not have any papers in support of my such feeling.” The respondent however as D.W.1 on 28.6.2012 admitted, “Dr. N.N. Mazumdar had called me and also to my husband mainly for husband but my husband did not go I went. Myself and my husband had consulted and thereafter I only went to Dr. N.N. Mazumder.” Therefore the alleged feelings of the appellant that the respondent being a psychiatric patient was misbehaving in utter disregard to their marital life remained unfounded, which, of course, may be counted against the appellant subject to result of further discussions. 29. Nonetheless of not examining any person from the neighbourhood of the appellant, or, either of his parents, or, Dr. 29. Nonetheless of not examining any person from the neighbourhood of the appellant, or, either of his parents, or, Dr. N.N. Mazumdar the psychiatrist, let us now reconsider evidence of Sanjoy Kar P.W. 2, who was examined to prove the alleged cruelty and misbehaviour of the respondent allegedly caused during their family tour at Puri. P.W. 2 in Examination-in-Chief stated, “during outstaying at Puri there was an altercation between Subhransu and his wife Indrani” According to Oxford dictionary meaning of “altercation” is a noisy argument in disagreement on any matter P.W. 2 further stated, “when I asked Subhransu what was the reason for such altercation with his wife, he replied that Indrani had trouble staying with his parents and that was the reason for such altercation with his wife Indrani during stay at Puri”. 30. We take note of the evidence of the appellant in cross-examination dated 27.7.2011 who stated that, “the incident narrated in my affidavit-in-Chief is a single incident that had happened between 2001 and 2003. I do not remember the exact date.” Even then, if we assume that the appellant was truthful to his statement, then according to him the incident of “merciless assault” (emphasis supplied) by his wife took place in Sagarika Hotel at Puri while they along with P.W. 2 and his wife allegedly had gone on family tour to enjoy holidays. 31. The incident however was denied by the respondent while suggestion was put to her on that score. The respondent on 19.7.2012 denied the suggestion saying, “not a fact that I had assaulted my husband when we had gone out at Puri and Shilong.” There was no pleading on any incident of assault (if ever happened) during tour at Shilong. 32. P.W. 2 was examined as a corroborative witness. The appellant as well as the P.W. 2 though were police sergeant, were supposed to have obtained leave from their office by submitting necessary leave application for the alleged tour at Puri. According to P.W. 2 after the alleged incident of altercation as claimed by P.W. 2 deviating from any incident of “merciless assault” allegedly they had stayed at Puri for 2/3 days. The appellant or P.W. 2 did not produce any official document showing taking of leave from their office or receipt or vouture showing stay in Sagarika Hotel in the period in between 2001 and 2003. The appellant or P.W. 2 did not produce any official document showing taking of leave from their office or receipt or vouture showing stay in Sagarika Hotel in the period in between 2001 and 2003. Therefore according to the appellant even had there been a single incident of assault allegedly happened in his marital life between 2001 and 2003 the said incident suffers from contradiction. If we lay our observation some more strictly, we can easily caption the alleged incident of assault by the respondent imaginary or ‘not proved’ for being not supported by any medical document or even by the evidence of P.W. 2. The appellant also did not produce the wife of P.W. 2 for evidence as she is said to be slept in the room of the appellant with his wife for the night, after the incident. Therefore adverse inference may be drawn that wife of P.W. 2 obviously would not agree to give any corroborative evidence of the incident as alleged, against the respondent. 33. On the other hand, the conduct of the appellant in the circumstances compelled the Court to draw adverse inference for not providing the dates of the said tour at Puri, so that, in necessity the Court may not be able to exert its own discretion to call for any official records either from the office of the appellant to examine whether the appellant had been to Puri on taking leave with permission to leave Kolkata, or, the register of the hotel of Puri to examine sanctity of the statements made by the appellant on oath regarding their alleged stay on family tour. Therefore the appellant had chosen better not to mention the date of the alleged incident of merciless assault of Puri. 34. Even if we assume though not admitting, the case of seeking divorce on the ground of cruelty on the basis of the “single incident had happened in the year 2001 and 2003”, suffers from contradiction giving rather hint of utter falsehood, we find it as an admitted position that out of the wedlock, the respondent was conceived at first in November 2001, which was aborted in February 2002. On the cause of abortion, of course, there is version and counter-version. The appellant’s case was abortion had to be caused under pressure of the respondent, since she would want to be a mother at that stage. On the cause of abortion, of course, there is version and counter-version. The appellant’s case was abortion had to be caused under pressure of the respondent, since she would want to be a mother at that stage. The respondent as D.W. 1 on 28.6.2012 admitted in cross-examination, that in the year 2001 she was conceived but for some problem it was aborted, and she denied the suggestion saying, “not a fact that the abortion done by against the will of my in-laws and my husband”. Parents of the appellant were not examined likewise the parents of respondent. But initial onus on this incident of abortion that it was caused against will of the appellant and his parents remained uncorroborated, and unfounded to combat with the natural statement followed by denial of the respondent, quoted above. 35. Further, as a result of continuation of marital life, with the appellant, the respondent was conceived for the second time and in the nursing home she gave birth to a male baby on 9th October, 2003. Admitting the version of the appellant the respondent also confessed in cross-examination “it is correct that my husband borne the expenses after delivery of the child at South Suburban Nursing Home on 9.10.2003. It is correct that I had gone to my parents’ house from the hospital after delivery of my child ......It is correct that my husband had arranged for a Aya in my parents’ house as the delivery was caesarean.” Therefore even worst view is taken in respect of the denial of the respondent, to take a positive attitude, as much as we could in favour of the case of cruelty set out by the appellant on the alleged incident said to have happened between 2001 and 2003, the aforesaid evidence goes to establish that, though there had been any incident of cruelty the appellant condoned the same by residing together with the respondent, leading a happy conjugal life and a baby was born out of their wedlock on 9.10.2003 and the wife was given post delivery care as far as would have been practicable. We thus find that had there been any incident of cruelty the same was condoned by resuming cohabitation with the respondent and by becoming a father of the baby born out of their wedlock. We thus find that had there been any incident of cruelty the same was condoned by resuming cohabitation with the respondent and by becoming a father of the baby born out of their wedlock. Therefore, by such condoned act of cruelty, though the same was not proved by legal evidence, a suit for divorce on those condoned incident of cruelty cannot be answered favourably. 36. It has also been noted by us that, except maintenance case that too in the year of 2011 preferred sometimes after institution of the suit for divorce, the respondent did not file any criminal case like under Section 498-A of the Indian Penal Code against her husband and/or, parents-in-law. In the case of Narendra Vs. K. Meena (supra) it has been held that “no husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing. Such a mental cruelty could not have been taken lightly by the High Court In our opinion, only this one even was sufficient for the Appellant husband to get a decree of divorce on the ground of cruelty”. The propensity of the fact or the weight of the case of cruelty as urged by the appellant in the pleadings in the case on hand followed by his evidence is absolutely unfit to get any benefit of the ratio of the above decision which has been formulated upon certain given facts. Therefore the case of Narendra Vs. K. Meena is distinguishable and the ratio of said decision is therefore not applicable to the facts of the case on hand, which is noticed to have been left stranded without legal corroboration, rather had sufferance from contradiction from within. 37. It was also argued that when there is allegation of extra marital relationship and the respondent while failed to prove it, the same itself could be treated as an Act of cruelty. 37. It was also argued that when there is allegation of extra marital relationship and the respondent while failed to prove it, the same itself could be treated as an Act of cruelty. It is pertinent to mention that the suit for divorce on the ground of cruelty and desertion was filed by the husband and not the wife, and, it was the husband who asserted in his pleadings that his wife used to suspect him about having his extra marital relationship with some other girls other than her. The respondent in her turn defended said allegations by claiming that what she had seen and what she had heard from her husband she had disclosed. The respondent in her evidence-in-Chief at paragraph 15 stated, “after joining his police service he has been associating with men and women of questionable character and at their instances the false suit has been filed.” In cross-examination on 28.6.2012 the respondent as D.W. 1 stated “my husband disclosed me about his mixing with many women”, the appellant as P.W. 1 in cross-examination on 27.7.2011 admitted “Sukla Bhattacharjee and Suparna alias Jhumpa Maitra are my acquaintance” but he denied the suggestion that he was maintaining illicit relation with them or his wife used to object to his relationship with those ladies or that due to objection raised by his wife he used to misbehave with her. It is redundant to say that those suggestions were denied by the appellant. But the fact remains as admitted that the appellant having acquaintance with Sukla Bhattacharjee and Suparna alias Jhumpa Maitra had maintained some relationship, but either of them also, was not examined by the appellant to deny of maintaining of any extra marital relationship. 38. We have already observed that the appellant in his plaint disclosed about suspicion of his extramarital relationship by him. The respondent to such assertion reacted by answering that her husband himself disclosed about his mixing with some other girls. Names of two girls with whom the appellant had such acquaintance also came out. 38. We have already observed that the appellant in his plaint disclosed about suspicion of his extramarital relationship by him. The respondent to such assertion reacted by answering that her husband himself disclosed about his mixing with some other girls. Names of two girls with whom the appellant had such acquaintance also came out. Thus, such minimum evidence coupled with adverse inference for non-examination of Sukla Bhattacharjee or Suparna @ Jhumpa Maitra did not rule out the version of the respondent who in defence disclosed about accrual of her knowledge from her husband which is accepted as a natural and normal human behaviour built up due to staying together under the same roof, where the respondent had to see coming of her husband at home at dead night in drunken condition. 39. The appellant did not examine either of his parents to allow the Court to assess the reason as to why the respondent though after consummation of marriage was conceived twice in succession out of her wedlock with the appellant, or as to why she had to remain with her baby in her parents’ house. However, according to the appellant the respondent left her matrimonial home on 28.11.2004, whereas the respondent contended that she was driven out. The fact remains that the parties have been living separately since 28.11.2004. The respondent at the end of her cross-examination, however volunteered, “I wanted to stay separately for our betterment and settlement of my in-laws.” The appellant claimed and stated also in evidence that the respondent was reluctant to stay in her matrimonial home and, was in the habit of frequent leaving of her matrimonial home to stay with her parents. On the contrary, the respondent during cross-examination on 28.6.2012 stated, “I do not want to break my marital tie with him and so I want to stay with him in spite of his mixing with the other women”. This statement that too in cross-examination made by wife gave exposure as to how much eagerness she was having to resume his marital life with the appellant since she thought better to live in her matrimonial home nonetheless of mixing of her husband with other girls, instead of staying in seclusion in her parents’ house with her child. 40. This statement that too in cross-examination made by wife gave exposure as to how much eagerness she was having to resume his marital life with the appellant since she thought better to live in her matrimonial home nonetheless of mixing of her husband with other girls, instead of staying in seclusion in her parents’ house with her child. 40. Even though she might have some reasonable excuses to withdraw herself from remaining further in the company of her husband, still she expressed her intention not to desert, as alleged, but showed eagerness to resume conjugal life. She also stated in evidence, “we had a love marriage. At the time of reconciliation I stated that I wanted to stay with my husband” On the contrary the appellant who was put a suggestion that his wife still would want to live with him happy conjugal life, to which answered denying the same by adding “it is not a fact” i.e. not a fact that his wife still would want to live with him to pass happy conjugal life. He further replied, “I cannot answer whether the hope i.e. (illegible) by my wife that we shall be leading a happy conjugal life again”. Therefore, on the side of the respondent we find that she was still ready and willing to continue her conjugal relationship with the appellant even if the appellant would continue relationship with the other women or girls. On the other hand the appellant is noticed to have been moving within his own fumbled confusion in the matter restoring conjugal life. 41. On the so-called ground of cruelty on which the ground of divorce was mounted upon could not be proved by the appellant, and, learned Trial Court rightly rejected the prayer of divorce on the ground of cruelty deciding issue nos. 3 and 5 correctly against the appellant. 42. The appellant’s argument criticising the judgment under challenge since learned Trial Court declined to grant divorce on the ground of desertion though the responded deserted the appellant since 28.11.2004 admittedly living separately from that date. From the case of Malathi Ravi, M.D. Vs. 3 and 5 correctly against the appellant. 42. The appellant’s argument criticising the judgment under challenge since learned Trial Court declined to grant divorce on the ground of desertion though the responded deserted the appellant since 28.11.2004 admittedly living separately from that date. From the case of Malathi Ravi, M.D. Vs. B.V. Ravi, M.D. (supra) we want to lend one paragraph where the term desertion has been explained by the Supreme Court and the same is set out as follows:- “for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation”. Therefore, in absence of any straight jacket formula, conduct and behavioural attitude are to be construed to form about the “desertion” from the given facts and circumstances of each case. Staying separately by remaining away of matrimonial home may be for various reason. But when the initial onus was upon the appellant that his wife was in the habit of causing disrespect, misconduct, misbehaviour towards his parents’ declining also to participate in the household works, said onus could not be discharged by the appellant by leading satisfactory and corroborative evidence though it was well-expected and might be available within domain of the appellant. But when the initial onus was upon the appellant that his wife was in the habit of causing disrespect, misconduct, misbehaviour towards his parents’ declining also to participate in the household works, said onus could not be discharged by the appellant by leading satisfactory and corroborative evidence though it was well-expected and might be available within domain of the appellant. Rather apart from his neighbour his parents having been withheld from facing dock to give evidence on the point, adverse inference can be drawn, and, accordingly we draw adverse inference against the appellant under Section 114 (g) of the Indian Evidence Act that the respondent obviously had some reasonable causes to leave her matrimonial home, and, simply staying of the respondent with her child in her parents house admittedly since 28.11.2004 therefore did not fulfil the requirements to bring home the accusation of desertion against the respondent. From pleadings and evidence of P.W.1 it reveals that he made G.D. Entries respectively on 23rd January, 2005, 3rd August, 2005 and 27th June, 2006 at Jadavpur Police Station. The appellant is a police sergeant. He knew about the need or fate of lodging G.D.E. at P.S. There was nothing on record as to what happened finally by enquiry due to lodging of those G.D. Entries. Even either of those G. D. Entries was not exhibited by the appellant to allow the Court in what context those G.D. entries were made. Therefore, no presumption on those G.D. Entries would be available. Further although the respondent was eager to resume her conjugal life despite mixing of her husband with some other women as the respondent disclosed, she was not allowed to come back. Therefore, though either of the parents of the respondent also was not examined in the case to lend support to their daughter on the cause of her stay with them remaining away of her matrimonial home, still, the appellant having failed to discharge his initial onus, the desire of the respondent for staying separately with her husband for the purpose of betterment and settlement of her parents-in-law could not be ruled out, or, such desire should not be viewed to blame her. 43. 43. It has come out from the record that the appellant being a police sergeant under Kolkata Police has been drawing a substantive salary month by month not more than twenty five thousand in accordance with his scale though he did not produce any salary certificate despite undertaking to file the same. However out of his salary amount he had been paying Rs. 2,000/- as maintenance to his wife and son from the year 2005. Such conduct in the matter of maintaining the wife, marriage with whom was an outcome of pre-marriage love affairs and after being conceived for the second time who has given birth to that child, the appellant was giving that much of amount in the name of maintenance, as if like some alms as a charity to any poor third person, although the respondent did not raise any grievance about such quantum of maintenance paying by her husband for herself and her son, which again can give the only inference of hope if she would be honourably taken back along with her child by the appellant. In view of the principles laid down in the case of Malati Ravi M. D. Vs. B.V. Ravi (supra) though factum of separation w.e.f. 28.11.2004 is there but “animus deserendi” on the part of the respondent wife is still well alive with eagerness even at the cost of allowing her husband’s mixing with other girls, which generally on the part of an educated wife would be reasonable cause to leave matrimonial home. We have reassessed the evidence available on record and while we noticed that the respondent, presumably still with the hope of reunion till the stage did not file any criminal case against her husband and others precluding her inmates-in-laws from being harassed, or, thinking of career of her husband, the issue No.4 was rightly negated by learned Trial Court. As a result thereof virtually the suit itself having sufferance for want of genuine cause of action learned Trial Judge rightly declined to pass decree of divorce in terms of issue No.6 or to stretch any relief in terms issue No.7. 44. As a result thereof virtually the suit itself having sufferance for want of genuine cause of action learned Trial Judge rightly declined to pass decree of divorce in terms of issue No.6 or to stretch any relief in terms issue No.7. 44. Therefore the judgment under challenge in dismissing prayer for divorce have no sufferance from illegality, thus we find no reason to interfere with the judgment under challenge, since learned Trial Judge upon the giving evidence on record correctly arrived at the decision in dismissing the suit for divorce, as was filed by the appellant which is hereby upheld by this Court. The first appeal thus is dismissed. Decree be drawn up accordingly. 45. Let a copy of this judgment be communicated to the learned Trial Judge. 46. No order as to costs. 47. Urgent certified copy be supplied on priority basis if applied for.