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2018 DIGILAW 1043 (GAU)

KAMALAKANTA BHATTACHARJEE v. KUSUM DEVI

2018-07-17

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT/ORDER : Ajit Singh, J. This appeal has been filed by the husband- Kamalakanta Bhattacharjee-challenging the legality and validity of the impugned judgment and decree dated 31/03/2017, passed by the District Judge, Nalbari, in Divorce Title Suit No. 17/2013 dismissing the divorce petition filed by him against his wife-Kusum Devi. 2. According to the appellant, he married the respondent on 14/06/1984 and as a result of their wedlock three children were born. But, surprisingly one night in the month of may, 1995 when he came home, he found the respondent with another person in compromising position and on being asked, the respondent denied to give identity of that person and rather told him that the appellant was not able to satisfy her desire and so she had to she had to resort to illicit relationship with another person. The appellant also stated that the respondent hired some goons to assault him on the next day and so he fearing for his life, fled from home and took shelter in the house of one friend. He further alleged that the respondent had numerous relationships with many persons and thus, he being treated with cruelty had ultimately married another woman-Gita Barman-on 19.12.1995 from whom he has two children. So, he filed the suit for divorce as the marriage got irretrievably broken down. 3. The respondent contested the suit by filing a written statement stating inter-alia that she never treated the appellant with cruelty and never maintained any illicit relationship with any other person as alleged. Rather, the appellant was a person with bad character and he used to maintain numerous illicit relationships with many women. He used to torture the respondent whenever she used to make any query in this regard and the appellant ultimately married Gita Barman, one of those women with whom he had been maintaining illicit relationships and as such prayed for dismissal of the suit. 4. Both the parties adduced their respective evidence. The appellant examined himself as PW-1, brother of Gita Barman namely Karuna Barman as PW-2, Bijan Deka as PW-3 and Bipin Barman as PW-4 whereas respondent examined herself as DW-1, mother of the appellant Ambika Devi as DW-2 and the daughter of the parties namely Madhury Bhagabati as DW-3. The District Judge after examining the evidence and hearing the parties has dismissed the suit by way the impugned judgment and decree and hence this appeal. The District Judge after examining the evidence and hearing the parties has dismissed the suit by way the impugned judgment and decree and hence this appeal. 5. After hearing the learned Counsel for the parties and perusing the records, we find that although the appellant alleged that the respondent used to maintain illicit relation with many persons, he could not give any detail of specific incident. He could not even name any person with whom the respondent purportedly maintained such an illicit relationship. He could not also substantiate his allegation that he was about to be assaulted by hired goons at the behest of respondent. Karuna Barman although supported the testimony of appellant, could not state anything about the respondent regarding her having any illicit relationship with some other person and he being the brother of Gita Barman (second wife of the appellant) and being a partisan witness, his testimony could not be wholly relied upon. Similarly, Bijan Deka also admitted during his cross-examination that the appellant did not mention the name of person with whom the respondent purportedly had some illicit relationship. Therefore, we are of the view that the appellant could not prove the alleged adultery of the respondent and he was treated with cruelty by her. 6. On the other hand, the respondent categorically deposed that it is the appellant who left her and started living with Gita barman from whom he admittedly has two children. This piece of evidence corroborates the fact that the appellant has remarried Gita Barman and prima facie shows that it is he who is living with another woman. Her evidence is further corroborated by their daughter-Madhury Bhagabati who has deposed that the appellant left the respondent in the year 1995 and started living with Gita Barman. Interestingly, the mother of the appellant Ambika Devi-has also taken side of her daughter-in-law (the respondent) instead of taking side of her own son (the appellant) and deposed that the appellant is a characterless person and is involved in many illicit relationships whereas the respondent has neither neglected nor misbehaved with him nor she has ever resorted to any illicit relationship as alleged. The evidence of Madhury Bhagabati and Ambika Devi fully corroborates the evidence of the respondent and they being daughter and mother of the appellant had no reason to depose falsely against the appellant. The evidence of Madhury Bhagabati and Ambika Devi fully corroborates the evidence of the respondent and they being daughter and mother of the appellant had no reason to depose falsely against the appellant. Therefore, we have no hesitation in holding that the appellant has miserably failed to prove that the respondent treated him with cruelty and lived in adultery. 7. Simply because of the fact that both the parties have been residing separately for last so many years, would not make appellant entitled for a decree of divorce merely on asking on the ground of the marriage being irretrievably broken down. We are of the considered view that the District Judge has rightly dismissed the suit for divorce of appellant and the impugned judgment and decree does not bear any illegality calling for interference. 8. Accordingly, the appeal is dismissed.