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2019 DIGILAW 11 (TRI)

Subal Mondal v. Anjana Dey (Mondal)

2019-01-18

ARINDAM LODH, S.TALAPATRA

body2019
JUDGMENT : S. Talapatra, J. 1. This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment and order dated 30.06.2014 delivered in T.S.(Div) 12/2008 by the Judge, Family Court, Udaipur, Gomati. 2. The appellant instituted the suit for dissolution of marriage by a decree of divorce being TS (Div) 12/2008 on solitary ground, viz., cruelty. According to the appellant, the marriage was solemnized on 14.12.2003 as per Hindu rites and customs and thereafter he started his conjugal life with the respondent in his residence at Madhya Pratapgarh under West Tripura district. After 8-10 days from the date of marriage, the respondent started pressurizing him to live in her parental house but the appellant did not accept that proposal. Thereafter, the respondent started behaving with cruelty by abusive language and sometimes, she had tortured him physically in presence of his parents. 3. Being irritated by the conduct of his wife, the appellant informed the matter to the parents of the respondents but they did not take any interest or action to impress the respondent to lead a peaceful conjugal life. Finally, the respondent left the matrimonial home without any reasonable cause whatsoever and started living in her parental home. After three months of her leaving the matrimonial home, the appellant approached the respondent to come back but she turned down the said proposal. When she was again approached after about eight months of her stay in that manner in her parental home, she had abused the appellant in slang language in presence of her parents. 4. In the month of February, 2005 the respondent gave birth to a daughter from the wedlock, as stated. Under the pressure of the respondent, the appellant took a rented house at Jirania nearby his place of posting. The respondent lived there for about six months. When he was transferred to Agartala, the appellant along with his wife came back to their house at Surendra Pally. This time the respondent refused to cohabit with him particularly, after the birth of the female baby. 5. Within the next three months, the respondent again went to her paternal house at Udaipur and did not return. Till the day of filing the suit she had been continually staying in her parental home despite repeated pursuits made by the appellant to bring her back to the matrimonial home. 5. Within the next three months, the respondent again went to her paternal house at Udaipur and did not return. Till the day of filing the suit she had been continually staying in her parental home despite repeated pursuits made by the appellant to bring her back to the matrimonial home. Even the appellant had approached the counseling centre for impressing the respondent to come back to the matrimonial home for living a peaceful conjugal life. 6. Apart from approaching the counseling centre, the appellant had approached various influential persons to take their aid for bringing the respondent back to the matrimonial home. Without giving any heed to the said approaches, the respondent had instituted proceeding under Section 125 Cr.P.C. but on 16.08.2007 the Magistrate directed both the appellant and the respondent to stay together in a rented house at Agartala. But the respondent refused compliance. On 12.10.2007 the respondent had given a definite assurance that she would like to stay with the appellant. Ultimately, the prayer for maintenance was rejected by the Magistrate. But the Magistrate had directed the appellant to give maintenance to his daughter. 7. On 07.02.2009 the appellant filed the said suit and the decree of divorce was granted by the Judge, Family Court, Agartala. The respondent had preferred an appeal being MAT Appeal 02/2009 in this Court against the judgment and decree dated 07.02.2009 delivered in TS (Div) 12/2008. On consideration and having found procedural defects, this Court remanded the matter after setting aside the same judgment for fresh cross-examination, hearing, etc. The impugned judgment is the outcome of the said proceeding. 8. By the said judgment, the suit has been dismissed holding that the petitioner has failed to establish the grounds as resorted to for seeking the decree of divorce. Being aggrieved, the petitioner has challenged the said judgment and order dated 30.06.2014 by this appeal. 9. Ms. S. Deb Gupta, learned counsel appearing for the appellant has stated that by way of cross-examination nothing new has been added in the evidence. On the basis of the same evidence, by the judgment dated 7.2.2009 the decree of divorce was granted by the Judge, Family Court, Udaipur but by the impugned judgment, the decree has been denied which according to Ms. Deb Gupta, learned counsel is unsustainable. Ms. On the basis of the same evidence, by the judgment dated 7.2.2009 the decree of divorce was granted by the Judge, Family Court, Udaipur but by the impugned judgment, the decree has been denied which according to Ms. Deb Gupta, learned counsel is unsustainable. Ms. Deb Gupta, learned counsel has submitted that the appellant by adducing evidence has proved the case according to the standards and denial of the decree of divorce is a product of failure in appreciation of the evidence so led by the appellant. 10. From the other side, Mr. Ratan Datta, learned counsel appearing for the respondent has submitted that the appellant has failed to establish the ground as resorted for seeking the decree of divorce. 11. Ms. Deb Gupta, learned counsel has extensively referred to the evidence as recorded in the trial for demonstrating how the court below has failed to take note of material evidence. 12. To evaluate the submission made by the learned counsel for the parties, it would be appropriate to revisit the evidence for determination of the appeal. 13. In the suit filed under Section 13(i)(ia), the appellant has stated that he was treated with cruelty and the respondent has failed in his sincere attempt to bring her back and as such he is entitled to the decree of divorce. The suit was filed on 11.01.2008 whereas according to the pleading the respondent deserted the appellant on 22.06.2007. As such, the statutory period as required for the ground of desertion was not over. As such, on the face of it, this Court may reject such ground, as the case has to be determined taking into account the date of institution as the relevant date for purpose of determining the statutory period of two years. The ground of desertion had been sought to be made on the evidence. 14. The appellant was aware of this defect and as such he did not resort specifically to the ground of desertion, but at the time of argument before the Judge, Family Court, Udaipur, as it then was, the said ground was developed. However, by the judgment dated 30.06.2014, which is challenged in this appeal, the Judge, Family Court, Udaipur, South Tripura has rejected the said ground for different reasons. 15. However, by the judgment dated 30.06.2014, which is challenged in this appeal, the Judge, Family Court, Udaipur, South Tripura has rejected the said ground for different reasons. 15. So far as the ground of cruelty is concerned, the question is whether the ground of cruelty has been established by the appellant or not, can only be determined if we keenly appreciate the evidence as recorded by the family court. 16. The appellant has adduced as many as four witnesses including himself. PW1, the appellant, has stated that the marriage was solemnized as per Hindu rites and customs in the year 2003. Till 2007, the appellant and the respondent continued their married life peacefully but in the year 2007 the respondent left the matrimonial home on the day of "Jamai Sashti" and did not return till filing of the suit. His father was ill. The appellant had approached the respondent to take her back but she had refused. Even after intervention of the other well-wishers the respondent did not agree to return. The appellant sought the help of the State Commission for Women and on two different occasions they issued notice but their dispute could not be settled. It has been stated by the appellant that the respondent had without any reason filed the criminal case for "cruelty" on her and also a case seeking maintenance was instituted. He has asserted in trial as follows: "The police did not arrest me after preliminary inquiry as there was no evidence of torture by me upon the O.P. In the maintenance case before this Court the same was settled on compromise as the O.P. agreed to go back with me. The O.P. however filed another maintenance case with false allegation that I tortured her but the same was not allowed from this Court after consideration of evidence adduced from both the sides. I then filed divorce case which was allowed by this Court and on my instance maintenance was allowed @ Rs.800/- for my daughter and another Rs.800/- for the O.P. The O.P. challenged the divorce decree before the Hon'ble High Court and the divorce decree was set aside and as such this case again came up after five years. I do not have the mind to reside with the O.P. any more after all these tussle." 17. I do not have the mind to reside with the O.P. any more after all these tussle." 17. In cross-examination, the appellant (PW1) categorically admitted as follows: "I have not submitted any papers to show that a case for offence under Section 498(A) of the IPC has been filed by the O.P. against me nor I have any personal knowledge about any such sort of case. It is not a fact that the O.P. has not filed any case with allegation of offence under Section 498(A) of the IPC. It is not a fact that the police did not make any preliminary inquiry for the offence under Section 498(A) of the IPC." 18. True it is that no record is found relating to the complaint or any police case registered based on the said complaint against the appellant. 19. One Surabala Biswas, who was examined as PW2 by the appellant in the trial has stated that after marriage there was dispute between the petitioner and the respondent on the ground of frequent visit by the respondent to her father's house. One day father of the appellant came to him and stated that the respondent had left the matrimonial home with her belongings. She asked his father to inform the matter to the appellant. On information, the appellant came and went to the house of the respondent but the respondent refused to return. The petitioner then informed the Panchayat and also other local people but the respondent refused to return. PW2 has further stated that she (the respondent) along with others had insisted the appellant to reside as Ghar Jamai (the resident-husband). 20. In cross-examination, PW 2 has also reiterated that the matter was informed to the Panchayat Samiti. The other suggestions made to debase her examination-in-chief was denied. 21. PW3, Nikhil Paul is a witness from the neighborhood and the father in law of the appellant's younger sister. He has asserted that after marriage of the appellant and the respondent they used to see that the appellant and the respondent were quarreled with each other. He did not know the reason of quarrel. But on-set of the quarrel they used to go to their house. The respondent after quarrel used to refuse to reside with the appellant. The respondent, in the process, left the house and went to her father's house taking some of her belongings. He did not know the reason of quarrel. But on-set of the quarrel they used to go to their house. The respondent after quarrel used to refuse to reside with the appellant. The respondent, in the process, left the house and went to her father's house taking some of her belongings. But he has denied that he had ever heard that there was any demand of money from the appellant to the respondent. 22. PW4, Shankar Mitra has stated that after marriage the respondent used to quarrel with her parent's in law. PW4 was informed of that matter. The appellant used to help the respondent in her household works but the respondent was not satisfied. One day in absence of the appellant, the respondent left the matrimonial home with her belongings. The father in law of the respondent informed him but he advised him to inform the appellant. The appellant came and went to bring the respondent but she did not return. He had also denied the episode of demand of Rs. 50,000/-. 23. To debase the evidence as led by the appellants, the respondent also adduced four witnesses, i.e. OPWs 1 to 4. The respondent herself has deposed as OPW1 at the trial. In the cross-examination, she has stated that during marriage, her parents gave gold and cash. After marriage she has spent her life peacefully for about three months but thereafter the appellant had started torture on her for payment of Rs. 50,000/- to be brought from her parents. The appellant had pressurized her to meet the debt incurred during marriage of his younger sister. The appellant did not maintain her by providing proper food and clothing on the plea of being loaded with loan. Her sister-in-law, Prabasi Mandal had one day tortured her by strangulating her neck. After 2/3 years of marriage she gave birth to a child but the appellant even during her pregnancy did not take care of her, rather had sent her to her father's house. In that house, her daughter was born. According to her, the appellant drove her out of the matrimonial home after physically torturing her for which she was compelled to take shelter with her child in the house of her father. Till the day of recording her deposition by the Judge, Family Court, Udaipur, South Tripura she was living in the residence of her father. According to her, the appellant drove her out of the matrimonial home after physically torturing her for which she was compelled to take shelter with her child in the house of her father. Till the day of recording her deposition by the Judge, Family Court, Udaipur, South Tripura she was living in the residence of her father. Despite several attempts taken by her to settle the dispute, for the resistance provided by the appellant, the attempts were unsuccessful. 24. Even during the stay of her at her paternal house, she was regularly subjected to mental torture as whenever the appellant used to call her he did not spare any occasion to abuse her. She has categorically stated that she does not want to get the marriage dissolved. She wanted to live with the appellant peacefully along with her daughter for better future. She has denied that the appellant was ever ready to live a peaceful conjugal life. 25. In cross examination, all the suggestions made to her were denied. 26. OPW2, Lalita Das, is a witness from the area where the respondent's paternal house is situated. She has stated that the respondent's father had informed her that she was driven out of the matrimonial home on failure to fulfill the demand made by the appellant. The respondent had informed her about the torture on his daughter by the appellant on demand of money. The respondent was residing in her father's house as she was driven out of the matrimonial house by the appellant. 27. OPW2's statement could not be dented in cross-examination. 28. One Sabita Debnath was examined as OPW3 and she has contended that as the respondent had failed to fulfill the demand of the appellant, the respondent was driven out of the matrimonial home by the appellant after physically torturing her. OPW3 has also vouched that at the time of marriage the father of the respondent gave Rs. 81,000/- in cash, gold ornaments and furniture. 29. In cross-examination, OPW3 has stated on her own that the father of the respondent gave two gandas of land in the name of the appellant at Agartala. 30. OPW4, Manika Das has replicated the statements of OPW3. She has also stated that there was demand of Rs. 81,000/- in cash, gold ornaments and furniture. 29. In cross-examination, OPW3 has stated on her own that the father of the respondent gave two gandas of land in the name of the appellant at Agartala. 30. OPW4, Manika Das has replicated the statements of OPW3. She has also stated that there was demand of Rs. 50,000/- from the respondent and when she could not bring the said amount from her father, she was subjected to torture and finally she was driven out of the matrimonial home. 31. In her cross-examination, these statements made by OPW4 could not be dented. 32. From a reading of the materials as placed in the evidence, we find that there is no evidence of cruelty of worth. Even no ground has been taken for denial of cohabitation. The fundamental requirement for establishing "desertion" is conspicuous in the evidence by their absence. To prove desertion the person who is resorting to such ground has obligation to prove that without any reasonable cause the person had deserted him. In fact, though there is no animus, the said person had declined to restitute the marriage and in this course, he has passed the two years of time having deprived of the conjugal life of the petitioner. After the scrutiny of the evidentiary materials, this Court does not find any evidence to hold that those required elements have been established by the appellant. 33. On the contrary, the respondent has established overwhelmingly that there was no congenial atmosphere in the matrimonial home and she was driven out from the matrimonial home by the appellant. Even if the episode of driving out from the matrimonial home is not believed by the court, this Court is constrained to observe that the fundamental elements which are required to establish "desertion" are not available to support the contention, as raised orally, of the appellant. 34. Ms. Deb Gupta, learned counsel has relied on a decision of the Gauhati High Court in Smt. Bhulu Rani Dey (Das) Vs. Rabi Dey, reported in AIR 2012 Gauhati 128 where the Gauhati High Court had occasion to observe that continuance of such 'dead' marriage perpetrating insurmountable agony to spouse claiming divorce. Agony of the breakdown of the marriage cannot be excluded from the realm and category of cruelty. 35. Rabi Dey, reported in AIR 2012 Gauhati 128 where the Gauhati High Court had occasion to observe that continuance of such 'dead' marriage perpetrating insurmountable agony to spouse claiming divorce. Agony of the breakdown of the marriage cannot be excluded from the realm and category of cruelty. 35. This court does not find any relevance of the said principle in the present context as the respondent has established that she was ready to restitute the conjugal life but the appellant was not. He had instituted the suit for divorce. 36. The other decision as relied on by Ms. Deb Gupta is Naveen Kohli Vs. Neelu Kohli, reported in (2006) 4 SCC 558 where the Apex Court had observed that irretrievable break down of marriage should be a statutory ground of divorce. The law of divorce is, as appears to be, inadequate to deal with a broken marriage. When the parties are living separately for a sufficient length of time and one of them brings a petition for divorce decree, it can be presumed that the marriage has broken down irretrievably. It will be against the interest of both the parties as well as against the interest of the society to refuse to grant decree of divorce in such cases. 37. That judgment was followed and distinguished in the subsequent decision in Samar Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511 , where it has been again observed that the marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage. On the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. If that can be proved that, that had left to the grave mental cruelly to the appellant husband, that aspect can be considered as proof of cruelty in as much as living separately for a long period, the entire substratum of marriage disappears. 38. The apex court had occasion to observe in Samar Ghosh (supra) that the irresistible conclusion that can be derived from such circumstances is that the matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the respondent. That was a clear case of irretrievable break down of marriage. 38. The apex court had occasion to observe in Samar Ghosh (supra) that the irresistible conclusion that can be derived from such circumstances is that the matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the respondent. That was a clear case of irretrievable break down of marriage. Any further effort to keep it alive would have proved to be totally counter productive. Even in the Apex Court in Samar Ghosh (supra), the parties being present in the court the appellant was not even prepared to speak with the respondent despite the request from the court. The court in such circumstance cannot force one of the spouses to live with the other. Mental cruelty is a statutory ground and there cannot be any dispute in this matter. 39. Ms. Deb Gupta, learned counsel therefore, has sought to take advantage of this decision but unfortunately this Court finds that there is no pleading in this regard. The pleadings are sketchy. Even the suit was instituted in 2008, thereafter no amendment has been carried out. The period of separate living according to the pleadings was around one year. It is very difficult to apply the said principle on the face of such scanty pleading. However, at the same time, the court cannot direct either the appellant or the respondent to live together in the circumstances. 40. This court had occasion to interact with the respondent in the course of hearing in presence of the appellant. But now the appellant is not ready to take back the respondent. Even the respondent has clearly stated before this Court that considering the welfare of the daughter, who is now aged about 13 years, she is not agreeable to divorce, as inasmuch as that may affect her future also. 41. Be that as it may, this Court is of the view that mere long separation cannot automatically be taken as a ground unless it is pleaded definitely that despite the congenial atmosphere having existed in the matrimonial home, the respondent had started living separately, these principles cannot be applied. 42. As discussed already, the case of Samar Ghosh (supra) was between two officers of the All India Services. 42. As discussed already, the case of Samar Ghosh (supra) was between two officers of the All India Services. Their society and contours of life cannot be compared with the society and contours of life of the persons living in different strata of life, which is strongly moulded by the tradition where the marriage is sacrosanct. Apart that, this Court does not find any material on cruelty in the evidence based on which the divorce can be granted. 43. Having observed thus, this Court is of the considered view that there is no infirmity in the impugned judgment and hence, no interference is called for. 44. In the result, the appeal stands dismissed. Draw the decree accordingly. LCRs be returned.