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2016 DIGILAW 122 (GAU)

Joyjit Saha v. Monti Saha

2016-02-23

HRISHIKESH ROY, L.S.JAMIR

body2016
JUDGMENT : Hrishikesh Roy, J. Heard Mr. M. K. Sah, learned counsel appearing for the appellant (husband). Also heard Mr. M. B. U. Ahmed, learned counsel appearing for the respondent (wife). 2. The appellant filed a petition under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (herein after referred to as “H.M. Act”), for a decree of divorce by contending that the respondent wife has deserted the petitioner w.e.f. 03.08.2005 by leaving the matrimonial home at Naharkatia with her minor child, to reside in her parental home at Dibrugarh. Through the impugned judgment dated 20.02.2014 in the T.S.(Divorce) No.43/2010, the learned District Judge, Dibrugarh, after considering the evidence on record found that, desertion by the respondent was under compelling circumstances and was not without reasonable cause and on the basis of such finding on the issue No.3, the divorce petition was rejected. 3. Mr. M.K. Sah, learned counsel submits that the judgment under challenge was a presumptive judgment without consideration of the evidence on record and accordingly, the legality of the impugned verdict is questioned by the appellant. The counsel submits that the appellant tried to bring back his wife from her parents’ residence but she refused to return back to the company of her husband. 4. On the other hand, Mr. M.B.U. Ahmed, learned counsel for the wife submits that the respondent was mistreated by the husband and other family members at the matrimonial home. In fact after she became pregnant, her parents had to take her to the specialist doctors under emergent situation and eventually the entire cost of medical treatment and child birth had to be borne by the retired father of the respondent. Subsequently, when the respondent along with the infant child returned back to the matrimonial home not only she but the minor child was too was ill-treated by the petitioner and his family members and that is how under compelling circumstances, the respondent had to summon her parents and leave the matrimonial home on 03.08.2005. 5. In order to prove his case of desertion by the respondent, the husband examined himself and also introduced the evidence of PW-2, Gopal Ch. Dey. On the other hand, the respondent examined herself as DW-1 and her father deposed in the Court as DW-2. 5. In order to prove his case of desertion by the respondent, the husband examined himself and also introduced the evidence of PW-2, Gopal Ch. Dey. On the other hand, the respondent examined herself as DW-1 and her father deposed in the Court as DW-2. 6.1 The husband as PW-1 while admitting that his father-in-law took away his pregnant wife to Dibrugarh, where she gave birth to a child in a reputed hospital, contended that he took care of the medical expenses of his wife. Subsequently after the wife returned to the matrimonial home with the infant child, the incident on 02.08.2005 occurred when his wife raised a hue and cry and people gathered at their residence and on the very next date i.e., 03.08.2005, the father took away the wife and the child by executing an agreement witnessed by the neighbours. The said agreement dated 03.08.2005 is produced as the Exbt.47 in the case. 6.2 The PW-2 in his evidence stated that on 08.10.2006 he went to Dibrugarh to the residence of the respondent to try to persuade her to return to the matrimonial home but she refused to return to Naharkatia. In his cross-examination, the witness stated that he was unaware that the respondent left the matrimonial home on account of the torture faced by her in her husband’s house. 7.1 On the other hand, the respondent examined herself as DW-1 and she vividly narrated how she was treated with cruelty by the husband and other family members. She complained of inadequate food and also being treated as a domestic help in the matrimonial home. The wife deposed that because of ill-health suffered through mistreatment, her father had to get her treated by specialist doctor in Dibrugarh and admit her in the hospital when she was pregnant and it is only because of the specialized care, she could safely deliver a male child on 03.03.2005. But during the entire process, the husband did not extend any monetary support and the entire expenses of about Rs. 50,000/- for treatment and the child birth, had to be borne by her father. But during the entire process, the husband did not extend any monetary support and the entire expenses of about Rs. 50,000/- for treatment and the child birth, had to be borne by her father. 7.2 As regards the incident on 02.08.2005, DW-1 in her evidence stated that on that day, she was beaten mercilessly by practically all the members of her husband’s family and in fact, she was taken to the top floor of the RCC house, where they tried to push her from the top. Moreover, the husband attempted to strangulate the baby boy and it is only at the intervention of the neighbours, the witness could save herself and her child. When the incident was informed to her father, he came to Naharkatia on the next date and took away the respondent and the child to Dibrugarh. 7.3 The evidence of DW-1 was supported in all material particulars by her father, who deposed as DW-2. In his evidence, he mentioned about the ill-treatment suffered by his daughter and the grandchild, in the hands of the husband and the family members. 8. Upon due consideration of the evidence on record, the learned Court noted that the petitioner was silent about the occurrence that took place on 02.08.2005, whereas, the respondent and her father proved that only because of the brutal assault made to the child and the respondent by the husband’s family members, the wife was forced to leave the matrimonial house with her child. Thus, the learned Court found that desertion by the respondent was for just cause and that the present case is covered under the explanation of Section 13(1)(i-b) of the H.M. Act. It was also found by the learned Judge that the respondent wanted to resume her relationship and that is why she filed the T.S.(R) No.14/2009 for restitution of conjugal rights but the case had to be withdrawn under compelling circumstances as mentioned in the evidence of the two defence witnesses. 9. It was also noted by the learned Court that the petitioner neglected to provide for his wife but only because of the order for maintenance passed by the Court, the Rs.4,000/- per-month is being provided by the husband to his wife and the minor child. 10. 9. It was also noted by the learned Court that the petitioner neglected to provide for his wife but only because of the order for maintenance passed by the Court, the Rs.4,000/- per-month is being provided by the husband to his wife and the minor child. 10. On account of the above finding, the issue No.3 was decided against the petitioner and on that basis, the divorce suit was found to be devoid of merit and the same was accordingly dismissed. 11. While hearing this Matrimonial Appeal we have gone through the evidence on record and find that the desertion in the present case was not without reasonable cause but only because of compelling circumstances faced by the wife in the matrimonial home. In fact, her own life and the life of her infant son was endangered by the family members on 02.08.2005 and in such harrowing situation the wife cannot be expected to be resigned to her destiny and remain in the matrimonial home, unmindful of the safety and well-being of her child and herself. From the evidence of the two DWs, the negligence of the husband to take care of the wife is clearly discernible in the present case. Moreover, from the Exbt.47 document, which was witnessed by about 10 neighbours, it is apparent that the respondent was escorted away by her father on account of her mal-treatment in the matrimonial home. This document was signed on 03.08.2005 and significantly that is the day when the respondent left the matrimonial home. This piece of written evidence corroborates the deposition of the two defence witnesses. More importantly it establishes that the respondent had to leave her matrimonial home because of ill-treatment suffered by her. 12. When we reflect upon the evidence on the basis of which the divorce suit was dismissed by the Court below, we find no infirmity with the impugned verdict and therefore this Matrimonial Appeal is found devoid of merit and the same is accordingly dismissed. No cost. 13. The Registry to return the LCR with a copy of this order to the concerned Court below.