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Tripura High Court · body

2016 DIGILAW 159 (TRI)

Ratna Dey (Baidya) v. Sunil Baidya

2016-07-25

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. Samarjit Bhattacharjee, learned legal aid counsel appearing for the petitioner as well as Mr. Ratan Dutta, learned counsel appearing for the respondent. 2. Being aggrieved by the judgment and order dated 08.03.2016 delivered in Cr. Misc./FC/UDP/126/2015 by the Judge, Family Court, Udaipur, Gomati District, this petition for revision under Section 19(4) of the Family Courts Act, 1984 has been set in motion. 3. From perusal of the records of the said proceeding, it appears that on 16.11.2015 the petitioner, the divorced wife of the respondent, filed the said application under Section 125 of the Cr.P.C. asserting inter-alia that after three months of the marriage, she was subjected to physical and mental torture and to mitigate the matrimonial conduct of the respondent, the local panchayat intervened but without any positive result. On 24.02.2015, the petitioner was so severely beaten up that she was compelled to leave the matrimonial home. According to the petitioner, the respondent earns Rs.20,000/- per month from his own rubber garden. But the petitioner does not have any income to maintain herself. The respondent had refused to maintain her. Though in the order dated 13.01.2016, the Judge, Family Court, Udaipur, Gomati District, Tripura has recorded that the written objection was filed by the respondent but copy of the said written objection is not available with the records sent to this court. But both the learned counsel appearing for the parties has vouched during the hearing that the written objection which has been annexed by the petitioner as part of the Annexure P/1 collectively is the written objection that was filed before the Judge, Family Court, Udaipur. 4. In the written objection, the respondent has admitted that the petitioner was his legally married wife till a decree of divorce was granted by the Judge, Family Court, Gomati District, pursuant to the judgment dated 22.09.2015 in TS (Divorce) No.41 of 2015. Before that, the respondent had filed another petition for restitution of conjugal rights being TS (RCR) No.12 of 2015. By the Judgment dated 17.06.2015, as passed in that case for restitution of conjugal rights, the petitioner was directed to join the respondent in her matrimonial home for leading conjugal life but the petitioner admittedly did not join the matrimonial home. Before that, the respondent had filed another petition for restitution of conjugal rights being TS (RCR) No.12 of 2015. By the Judgment dated 17.06.2015, as passed in that case for restitution of conjugal rights, the petitioner was directed to join the respondent in her matrimonial home for leading conjugal life but the petitioner admittedly did not join the matrimonial home. It further appears that lot of efforts were taken to conciliate the discord between the petitioner and the respondent but all failed and finally that decree of divorce was passed on 22.09.2015. In the para 21 of the written objection, the respondent has asserted as under: “That the O.P. is unemployed one and fully depends on his family income. So that O.P. is unable to pay any kind of maintenance to the petitioner and he also not bound to pay any type of maintenance to the petitioner as per section 125(4) of Cr.p.c.” 5. In support of his objection, the respondent filed a series of documents with a separate list of documents. From those documents, it appears that the respondent approached Tulamura Gaon Panchayat for mitigating the matrimonial dispute. Thereafter, he had approached Indranagar Gaon Panchayat for the same purpose. Even the matter was taken up by the legal clinic of the Sub-Divisional Legal Services Authority on 26.01.2015 and it was decided in that conciliation that the petitioner shall discharge her marital responsibilities properly. Again, the matter was taken by the Sub-Divisional Legal Services Committee, Udaipur, South Tripura. In that conciliation, it was agreed that they would approach the Family Court for divorce on mutual consent. But finally no such application on the basis of the said understanding was filed in the Court of the Judge, Family Court, Udaipur, Gomati Tripura. Later on, the respondent filed an application under Section 13(1)(a) and (1)(b)of the Hindu Marriage Act, 1955 being Title Suit (Divorce) No.41 of 2015 and finally that was decreed, though exparte. 6. Mr. Samarjit Bhattacharjee, learned legal aid counsel has submitted that both the decree for restitution of conjugal rights as well as the decree by dissolving the marriage were passed by the Judge, Family Court, Udaipur, Gomati District, exparte. Such submission of Mr. Bhattacharjee, learned legal aid counsel was seriously resisted by Mr. 6. Mr. Samarjit Bhattacharjee, learned legal aid counsel has submitted that both the decree for restitution of conjugal rights as well as the decree by dissolving the marriage were passed by the Judge, Family Court, Udaipur, Gomati District, exparte. Such submission of Mr. Bhattacharjee, learned legal aid counsel was seriously resisted by Mr. Ratan Dutta, learned counsel appearing for the respondent by stating that due notice was given to the petitioner, she appeared and participated in some parts of the proceeding, thereafter she started absenting. Affording enough opportunities to her, finally the Judge, Family Court, Udaipur, Gomati Tripura decided the cases. There is no infirmity. Mr. Bhattacharjee, learned legal aid counsel has submitted that both the exparte decrees have been challenged by the petitioner by filing two separate petitions for setting aside the ex-parte decrees in the Family Court vide case No.Civil Misc. No.12 of 2016 and Civil Misc. No.13 of 2016. 7. Mr. Bhattacharjee, learned legal aid counsel has further asserted that the respondent has also entered in appearance to contest the suit. Some of these facts may not be very relevant for deciding the present case. This court has examined the impugned judgment very carefully and it appears that the Judge, Family Court, Udaipur, Gomati has observed for rejecting the prayer for maintenance that the petitioner has been residing separately and she was working as an attendant in the chamber of a doctor, but now the petitioner is unemployed and she is not in a position to maintain herself. Having regard to the objection as noted by this court, the Judge, Family Court, Udaipur Gomati, Tripura has observed as under: “Thereafter the O.P. filed a RCR case and in that case this Court order passed favouring the O.P. but despite of all these efforts the petitioner did not returned to the house of the O.P. As the petitioner did not returned to the house of the O.P. then the O.P. also filed a divorce case and in that case also this Court passed order favouring the O.P. and the O.P. obtained a decree of divorce. All the allegations brought against the O.P. by the petitioner are false. All the allegations brought against the O.P. by the petitioner are false. As the petitioner engaged herself in the chamber of doctor as attendant and also getting a monthly salary by which she can maintain herself and as the petitioner was not willing to go back to the house of the O.P. and as the OP obtained a decree of divorce in his favour, so, the petitioner is not entitled to get any maintenance allowance from the O.P. The O.P. is a tapper in other’s rubber garden and his monthly income is Rs.3,000/-.” Apart that, the Judge, Family Court, Udaipur, Gomati Tripura has observed that since the petitioner could not assign the reasons for which she had been targeted by the husband for torture, her allegations cannot be believed. It would be apparent from the petition filed under Section 125 of the Cr.P.C. that the petitioner used to be tortured on the complaint of not discharging the domestic duties. 8. Mr. Bhattacharjee, learned legal aid counsel appearing for the petitioner has submitted that from the principal reason as given by the Judge, Family Court, Udaipur, Gomati District, it appears that as the petitioner is engaged herself in the chamber of a doctor and as she is not willing to go back to the house of the respondent and as the respondent obtained a decree of divorce in his favour, the petitioner is not entitled to get any maintenance allowance. According to Mr. Bhattacharjee, learned legal aid counsel the premises under which the prayer of maintenance has been rejected is entirely untenable in law. According to him, Section 125 of the Cr.P.C. clearly explains that: “‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.” 9. Mr. Bhattacharjee, has further submitted that even the respondent has not pleaded that the petitioner has remarried and despite the decree of divorce the petitioner has to be treated as the wife for purpose of Section 125 of the Cr.P.C. He has further submitted that the basic premise that has been assigned in the petition for filing this petition under Section 125 of the Cr.P.C. is that the petitioner has been discontinued from her engagement in the chamber of a doctor. But that aspect of the matter has not at all been considered by the Judge, Family Court, Udaipur, Gomati. But that aspect of the matter has not at all been considered by the Judge, Family Court, Udaipur, Gomati. That apart, when it is a statement on oath versus another statement of oath and when the petitioner has stated before the Judge, Family Court, Udaipur, Gomati, Tripura that income of the respondent is Rs.20,000/- (Rupees twenty thousand) per month from his own garden, how the court would in absence of other rebuttal evidence has relied on the statement on oath by the respondent alone? Even the respondent did not cross-examine the petitioner on her statement on cruelty or torture and on the statement on income of the respondent. However, Mr. Bhattacharjee, learned legal aid counsel has fairly indicated that in the statement made by the respondent it has been clearly stated that his income is Rs.3,000/- as the tapper from the garden owned by the other person. 10. From the other side, Mr. Ratan Dutta, learned counsel appearing for the respondent has, in order to refute the submission of Mr. Bhattacharjee, learned legal aid counsel, submitted that the cross-examination was not properly carried out inasmuch as this semiliterate persons even if asked to cross-examine each other, they would definitely not able to carry out the cross-examination meaningfully. But the court, despite a series of decisions of this High Court, did not give the aid to the parties such as to properly cross-examine by engaging counsel. In this regard, Mr. Bhattacharjee, learned legal aid counsel has also supported Mr. Dutta, learned counsel and he has relied on a decision of this court reported in Rinku Biswas vs. Dilip Biswas, 2014 (3) GLT 540 : 1 (2015) DMC 83. In that case it has been observed that: “The right of cross-examination is a very important right. In many cases the Family Courts are recording the testimony by way of affidavit. When affidavits are tendered in evidence, it has been found that more often than not these are affidavits in the language of Counsel where many facts relevant and irrelevant are stated. It is necessary that such witnesses be cross-examined. Even where a witness appears in person before the Court, the opposite party has a right to cross-examine such witness. Without cross-examination, the veracity of the statement made in the examination-in-chief cannot be tested. At the same time, the art of cross-examination is not so simple. It is necessary that such witnesses be cross-examined. Even where a witness appears in person before the Court, the opposite party has a right to cross-examine such witness. Without cross-examination, the veracity of the statement made in the examination-in-chief cannot be tested. At the same time, the art of cross-examination is not so simple. It takes years of experience for a lawyer to learn how to effectively cross-examine a witness. How can we expect an illiterate villager to cross-examine the witnesses? As far as cross-examination is concerned, the same must be invariably allowed in every case.” 11. It has been pointed out by Mr. Dutta, learned counsel that the cross-examination as carried out of PW1 is so inadequate it appears that the respondent was not even in a position to properly cross-examine the petitioner. Mr. Dutta, learned counsel has also fairly pointed out that even the petitioner did not cross-examine the OPW1, the respondent herein. Mr. Dutta, learned counsel, however, has pointed out that from the judgments passed in the matter of the restitution of conjugal rights and the divorce, it would be evidently clear that the petitioner had voluntarily and without ‘sufficient cause’ deserted the petitioner. He has referred a few passages from those two judgment/order. In the judgment and order dated 17.06.2015 delivered in TS(RCR) No.12 of 2015, it has been observed that: “6. From careful scrutiny of the evidence on record it is found that the OP. Respondent left her husband’s house on her own will. Her departure from her husband’s house is voluntary. 7. So, the petitioner is entitled to get the direction for getting back his wife and also entitled to get decree for restitution of conjugal rights. The petitioner is under obligation to maintain a happy home so that the O.P. respondent can go back. The O.P. respondent is directed to go back to her husband’s house. Therefore, this petition for Restitution of Conjugal Rights stands allowed.” 12. In the judgment dated 22.09.2015 delivered in TS (Divorce) No.41 of 2015, the court observed that: “6. It is admitted and established fact that the O.P. respondent now is not living with the petitioner. From the evidence as adduced by the petitioner a clear picture of unhappiness in the marital life comes out. The petitioner was willing to continue his marital life but the O.P. respondent left the house of the petitioner without any cogent ground. It is admitted and established fact that the O.P. respondent now is not living with the petitioner. From the evidence as adduced by the petitioner a clear picture of unhappiness in the marital life comes out. The petitioner was willing to continue his marital life but the O.P. respondent left the house of the petitioner without any cogent ground. So, it can be said that there is desertion on the part of the OP. Respondent. It is also transpired from the evidence of the petitioner that the O.P. respondent used to misbehave with the petitioner. So, it can also be said that there is cruelty on the part of the O.P. respondent. So, there is both cruelty as well as desertion on the part of the O.P. respondent. 7. Therefore the petitioner is definitely entitled to get decree for divorce on the ground of cruelty land desertion as the O.P. respondent did cruelty upon the petitioner by misbehaving with him and deserted the petitioner without any cogent ground. Therefore, the petition of the petitioner for divorce stands allowed. The Hindu marriage between the petitioner Shri Sunil Baidya and the O.P. respondent Smt. Ratna Dey (Baidya) stands dissolved.” 13. Having referred these observations, Mr. Dutta, learned counsel has strongly contended that it is not the respondent who treated the petitioner with cruelty but the Judge, Family Court, Udaipur, Gomati has clearly found it was the petitioner who treated the respondent with cruelty and that she failed to discharge her marital obligation. Thus, according to Mr. Dutta, learned counsel for the respondent, the petitioner cannot be treated as fit to have the maintenance allowance as prayed under Section 125 of the Cr.P.C. Mr. Dutta, learned counsel has made a reference to the provision of Section 125(4) of the Cr.P.C. to show that unless the wife ‘can assign’ the reasons for desertion for leaving the matrimonial home, she will not be entitled to get any maintenance. Mr. Dutta, learned counsel has further submitted that since the petitioner did not challenge the decree of divorce, after the appellate period was over the respondent has contracted the second marriage lawfully and he has urged to note this fact for purpose of conciliation of factors. 14. In rejoinder, Mr. Mr. Dutta, learned counsel has further submitted that since the petitioner did not challenge the decree of divorce, after the appellate period was over the respondent has contracted the second marriage lawfully and he has urged to note this fact for purpose of conciliation of factors. 14. In rejoinder, Mr. Bhattacharjee, learned legal aid counsel has relied on a decision of the Gauhati High Court in Hamidur Rahman vs. Anisa Begum reported in (2012)4 GLR 290 where it has been observed as under: “Human relationship is complex in nature and more often than not, it is quite enigmatic. It does not always follow a set pattern. It cannot always be compressed within the four corners of the legal framework or examined through the legal prism. Even in the face of a decree for restitution of conjugal right, a wife cannot be forced or compelled against her will to live with her husband. There may be a variety of reasons for a wife to refuse to live with her husband which may be beyond the judicial reach. The fact that the husband has obtained a decree for restitution of conjugal right and the wife refuses to resume her conjugal life, it will not automatically mean that the wife has refused to live with her husband without any sufficient cause, thus disentitling her from claiming maintenance from her husband. As pointed out above, in spite of such a decree, there may be a variety of reasons preventing the wife from resuming her conjugal life. Again, if the husband does not extend a helping hand to the needy wife on the ground that he has obtained a decree for restitution of conjugal right and the wife has refused to comply with the same, he cannot get the benefit of subsection (4) of Section 125, Cr PC. An order for restitution of conjugal right by itself is not a ground for refusal of maintenance under Section 125, Cr PC unless it is made out that the person in whose favour it was made was willing to discharge his obligations as a husband. In the present case, the learned Magistrate has held that no effort was made by the petitioner to bring the respondent home or to provide her maintenance even after obtaining the decree for restitution of conjugal right.” 15. In the present case, the learned Magistrate has held that no effort was made by the petitioner to bring the respondent home or to provide her maintenance even after obtaining the decree for restitution of conjugal right.” 15. To be very precise, this judgment does not pursue this court to accept the reasons given therein. No doubt that no legal framework is so perfect to accommodate all the situations but when the legal frameworks provide the substantive method or procedure to be followed by a court, the court cannot depart from that. The court is under obligation to observe and to be guided by those procedures. Procedures are not to be brushed aside, as they have their distinct mechanism to achieve the legislative object. However, another decision as referred by Mr. Bhattacharjee, learned legal aid counsel in Vanamala vs. H. M. Ranganatha Bhatta reported in (1995) 5 SCC 299 has its ramification in the context of this case. The passage which deals in the similar context is reproduced herein: “Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Subsection (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs. 500/in the whole, as such magistrate things fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the subsection defines the expression 'wife' to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent had neglected or refused to maintain her. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent had neglected or refused to maintain her. Counsel for the respondent, however, invited our attention to Subsection (4) of Section 125, which reads as under: (4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said subsection does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, Subsection (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded.” [Emphasis added] 16. Having regard to the law as enunciated by the apex court, this court does not have any difficulty to observe that Section 125(4) of the Cr.P.C. ceases its significance the moment a decree of divorce is passed because the former wife does not have any obligation thereafter to live with the husband. It is an admitted position in this case that the petition under Section 125 of the Cr.P.C. was submitted after the decree of divorce was passed by the judge, Family Court, Udaipur, Gomati, Tripura. It cannot also be disputed that a divorced wife can also claim maintenance under Section 125 of the Cr.P.C. The object of Section 125 Cr.P.C. is to arrest the vagrancy. It cannot also be disputed that a divorced wife can also claim maintenance under Section 125 of the Cr.P.C. The object of Section 125 Cr.P.C. is to arrest the vagrancy. At that relevant time of filing the petition under Section 125, the petitioner has very clearly claimed in her petition that she had no engagement for earning her livelihood in any manner. But that aspect of the matter was not even looked into by the Judge, Family Court, Udaipur, Gomati District. 17. Having regard to all these observations and the conspectus of facts as emerged from the records as well as from the submission of learned counsel for the parties, this court is of the opinion that for substantive justice, the impugned judgment and order be interfered with and set aside and the matter be remitted back to the Judge, Family Court, Udaipur, Gomati District, Tripura for reconsideration having due regard to the observations made in this petition. Accordingly, it is ordered. To make the position clear, this court would make further direction that the Judge, Family Court, Udaipur, Gomati Tripura shall afford opportunity to engage counsel to both the parties for assisting the parties in the proceeding. The proceeding shall commence from the stage of the examination-in-chief. On application, the parties may be allowed to adduce further evidence. Mr. Bhattacharjee, learned legal aid counsel appearing for the petitioner has stated that the two proceedings being Civil Misc. No.12 of 2016 and Civil Misc. No13 of 2016 are pending before the Judge, Family Court, Udaipur, Gomati, Tripura. 18. Since all these proceedings are between the same parties, there shall be an effort to simultaneously hear for purpose of disposal. It has been urged by the learned legal aid counsel that a time frame be fixed to bring the proceedings to their logical end expeditiously. It is expected that the proceedings be drawn to their logical ends within six months from the date of receipt of the copy of this order along with the records. It is also made clear that the Judge, Family Court, Udaipur, Gomati District shall take further attempt to reconcile the matter. If it is found that there is room for settlement, the parties may be asked to explore possibility of such settlement. It is also made clear that the Judge, Family Court, Udaipur, Gomati District shall take further attempt to reconcile the matter. If it is found that there is room for settlement, the parties may be asked to explore possibility of such settlement. If it is found that such settlement is not possible, the matter as regard granting of the maintenance allowance shall be decided on the merit of the case. 19. Accordingly, this petition stands partly allowed. A copy of this order be furnished to the learned counsel for the parties for their use. Registry is directed to send the LCRs as early as possible.