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2018 DIGILAW 256 (GAU)

Dhrubajyoti Baruah v. Rakhi Baruah

2018-02-12

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT : Ajit Singh, J. 1. This appeal under Section 19 of the Family Court Act, 1984 read with Section 39 of the Special Marriage Act, 1954 has been filed by the husband-Dhrubajyoti Baruah - challenging the legality and validity of the impugned judgment dated 10/11/2016 passed by the Principal Judge, Family Court No. 1, Kamrup, in F.C.(Civil) Case No. 210/2013, whereby she has dismissed his suit for divorce against his wife-Rakhi Baruah. 2. The brief facts are these. Appellant married the respondent on 19/01/2006 as per the provisions of the Special Marriage Act. At that time he was in search of a job and according to him, the parents of the respondent and her aunt promised to support him monetarily till he gets a job. After marriage, they started living as husband and wife in a rented house and out of their wedlock a girl child was born on 14/3/2008. Also, after the birth of child, the parents of the respondent stopped monetary support to appellant and the respondent started humiliating him for his inability to earn sufficient money to run his family. Thus, the respondent started treating him with cruelty and on 04/04/2009 she deserted him without any just cause. Due to such harassment, the appellant shifted to a room on 04/04/2009, which was free from rent as provided by one Narayan Das in lieu of teaching his daughter folk songs-'Bargeet'. Appellant requested the respondent to stay with him but in vain and hence, he filed the petition for divorce on the grounds of desertion and cruelty. 3. The respondent contested the suit by filing written statement stating inter-alia that there was no promise on the part of her family members to monetarily support the appellant. Appellant had no sufficient means of income and he could not support his family. After birth of the child, the expenses of the family also increased many folds and the income of appellant remained more or less the same. Appellant then started treating her with cruelty and indirectly asked her to bring money from her parents. She was running a small herbal parlour, but after birth of the child she also could not attend her duties and thus her earnings also stopped. While living in the rented house, she went to her parental home on 15/3/2010 and stayed there till 20/04/2010. She was running a small herbal parlour, but after birth of the child she also could not attend her duties and thus her earnings also stopped. While living in the rented house, she went to her parental home on 15/3/2010 and stayed there till 20/04/2010. During that period, appellant left the rented house on 04/04/2009 and started living separately in a rent free room. Respondent tried to contact him over telephone on several occasions and called him to stay with her, but, he did not respond and remained adamant. Finding no other alternative, respondent stayed in a rented house along with her baby at Rukminigaon till 31/03/2012. She alleged that the appellant did not come to visit her and did not even come on the birthday of their baby. She also visited the room of appellant and accompanied him to her matrimonial home during Magh Bihu festival from 13/01/2011 to 16/01/2011 to find some amicable settlement, but all her efforts were proved to be futile. Finding no other alternative and being unable to pay the rents of the rented house, she ultimately moved to her aunt's place on 21/03/2012. Hence, she pleaded that she did not desert the appellant without any just cause and never treated him with cruelty and as such prayed for dismissal of the suit. 4. Both the parties adduced their respective evidence. Appellant adduced his evidence as PW-1 and one Sri Lakshyan Kumar Nath as PW-2, whereas the respondent adduced her evidence as DW-1 and her aunts-Smti Stuti Deka as DW-2 as well as Smti Tultul Bora as DW-3. The Family Court relying upon the evidence of the respondent came to the conclusion that appellant failed to prove that the respondent deserted him without any just cause and treated him with cruelty and vide the impugned judgment the suit of the appellant was dismissed. Hence this appeal. 5. None appeared for the Respondent. However, after hearing the learned Counsel for appellant and after perusing the records, we find ourselves in complete agreement with the findings of the Family Court. It is the evidence of appellant that he shifted himself to a rent free accommodation. According to him, he did it due to continuous humiliation and cruel treatment by the respondent. But the same fact is not supported by cogent evidence. It is the evidence of appellant that he shifted himself to a rent free accommodation. According to him, he did it due to continuous humiliation and cruel treatment by the respondent. But the same fact is not supported by cogent evidence. The PW-2 (Sri Lakshyan Kumar Nath) has deposed that the respondent used to treat appellant with cruelty. But, his is not a direct evidence and he has stated in his examination-in-chief itself that he had heard from the appellant that after birth of the child, the family members of the respondent stopped supporting him financially and he was subjected to harassment and mental torture by the respondent. It is the evidence of PW-2 that the appellant used to earn a meagre sum of Rs. 5000/- per month, which was obviously not sufficient to meet the day-to-day expenses. It is his further evidence that the respondent started living with her aunt Smti Stuti Deka (DW-2) from 04/04/2010. On the other hand, the respondent has categorically deposed that appellant started living in the rent-free accommodation while she was in her parental home and she had to remain in the rented house with her baby for some time. But, since she could not pay the rents, she had to move to the house of her aunt. Though, DW-2 (Smti Stuti Deka) submitted her evidence in the form of affidavit, the same was subsequently withdrawn as she could not appear before the court for cross examination. However, the evidence of the respondent is supported by her another aunt DW-3(Smti Tultul Bora). Thus, it is crystal clear that appellant failed to prove that the respondent used to treat him with cruelty and she deserted him without any just cause. 6. It is expected by a wife that her husband should be capable of maintaining her as well as their offspring. Failure on the part of the husband to do so amounts to a just cause for desertion. It is clear that appellant did not do anything and could not meet the day-to-day expenses of his family. He even moved to a rent free accommodation putting the respondent in a precarious condition compelling her to even leave the rented house for not being able to pay the rents and stay with her aunt. It is clear that appellant did not do anything and could not meet the day-to-day expenses of his family. He even moved to a rent free accommodation putting the respondent in a precarious condition compelling her to even leave the rented house for not being able to pay the rents and stay with her aunt. Therefore, we have no hesitation but to hold that appellant failed to prove that the respondent treated him with cruelty and also deserted him without any just cause. Hence, we do not find any illegality or infirmity in the impugned judgment of the Family Court. 7. In view of the above, we find no merit in the present appeal. It is accordingly dismissed.