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2019 DIGILAW 307 (GAU)

JYOTIKA KALITA v. PANKAJ KALITA

2019-03-07

A.S.BOPANNA, SANJAY KUMAR MEDHI

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JUDGMENT : A.S. BOPANNA, J. 1. The appellant is before this Court assailing the judgment dated 14.12.2016 passed by the Family Court, Kamrup in F.C. (Civil) No.438/2012. 2. The appellant herein is the wife of the respondent, their marriage being solemnized on 11.10.2006 at Guwahati. Due to certain dispute arising out of their marital relationship, the respondent-husband had instituted the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage. The Court below through the impugned judgment dated 14.12.2016 has allowed the petition and granted the decree of divorce by dissolution of marriage between the parties. It is in that light, the appellant-wife claiming to be aggrieved by the same is before this Court in this appeal. Heard Ms. P. Chakraborty and Ms. K. Khan, learned counsel for the appellant, as also Mr. P.B. Mazumdar and Mr. A.K. Saikia, learned counsel for the respondent and perused the appeal papers including the record secured from the Family Court. Insofar as the relationship between the parties, there is no serious dispute and it is also an accepted position that the parties have a female child named Miss Bhumika Kalita, who was born on 23.08.2007. The allegation as put forth by the respondent-husband while seeking dissolution of the marriage under Section 13(1)(ia) of the Hindu Marriage Act is about the cruel treatment meted out to him by the appellant-wife. It was alleged that the appellant-wife was misbehaving with the respondent-husband's mother by ill treating her and if the respondent-husband intervenes in the matter, he was being abused in filthy language by threatening him of filing false case against him. In that regard, it was the allegation of the respondent-husband that appellant-wife was also demanding for living separately from his other family members with her and was also insisting of sending away the sister-in-law and her daughter. The allegations as made was also sought to be substantiated by indicating that the appellant wife had filed a false complaint invoking section 498(A)/497 of the Indian Penal Code by alleging cruelty and adultery on the respondent-husband. The respondent-husband, in addition to the said allegation, had also referred to the conduct of the appellant in carrying on a relationship with her brother-in- law due to which she was interested in securing a residence close to his house. With the said allegation the petition had been filed. 3. The respondent-husband, in addition to the said allegation, had also referred to the conduct of the appellant in carrying on a relationship with her brother-in- law due to which she was interested in securing a residence close to his house. With the said allegation the petition had been filed. 3. The appellant-wife who was the respondent in the said proceeding, no-doubt had appeared and filed her written statement denying the allegation and had also made certain counter allegations against the respondent-husband. She has alleged that he was carrying on his relationship with the widowed sister-in-law and was not interested in carrying out the marital relationship with the appellant-wife. 4. Based on the rival pleadings, the Court below had framed the following issues for his consideration :- (1) Whether the respondent/opposite party has treated the petitioner with cruelty ? (2) Whether the petitioner is entitled to a decree of divorce as prayed for ? (3) To what relief/reliefs the parties are entitled ? 5. In order to discharge the burden cast on the parties by the issues framed by the Court below, the respondent-husband had examined himself as P.W.1. The appellant-wife had not chosen to examine herself nor any witness. The Court below in that light, having taken note of the pleadings between the parties and the evidence available to the extent as tendered by the parties, has arrived at the conclusion that the respondent-husband has established his case seeking for dissolution of the marriage on the ground of cruelty. Accordingly, the judgment and decree has been granted. 6. Learned counsel for the appellant while assailing the same would contend that the Court below has arrived at its conclusion despite there being insufficient evidence establishing the allegation of cruelty against the appellant. It is her contention that the very nature of the pleadings would indicate that the respondent-husband in-fact had behaved in a cruel manner with the appellant herein. It is her contention that despite such cruel treatment, the appellant-wife had only put-up with the situation keeping in view the interest of the minor daughter and to carry on their relationship in that regard. She, therefore, contends that the mere filing of the proceedings under Section 498(A) cannot be held against the appellant inasmuch as she has only exercised her legal remedy in accordance with law. She, therefore, contends that the mere filing of the proceedings under Section 498(A) cannot be held against the appellant inasmuch as she has only exercised her legal remedy in accordance with law. Therefore, she seeks that the judgment and decree passed by the Court below be set aside. 7. Learned counsel for the respondent-husband would refer to the contention as put forth through the averments made in the petition and the evidence tendered by the respondent-husband as P.W.1. has not been controverted in the cross-examination except further denial and, in that circumstance, the said evidence would be sufficient for the Court below to arrive at the conclusion. The Court below has appropriately taken note of the same and has arrived at a conclusion. It is pointed out that the appellant-wife had not chosen to tender any evidence before the Court below and, in that light, the Court below is justified and the judgment and decree does not call for any interference. 8. In the light of the rival contentions as put forth and the pleadings as raised before the Court below, it is seen that the averments as made in the petition would set out the case of the respondent-husband with regard to the conduct of the appellant-wife and, in that light, the allegation of cruelty. It is no doubt true that when such allegation is made and an issue with regard to cruelty had been framed by the Court below, appropriate evidence in that regard is required to be tendered. In a normal circumstance when certain acts of cruelty referring to their marital relationship and more particularly in a circumstance where the respondent-husband has referred to the cruel treatment meted out to his mother and sister-in-law is made, the evidence of the said person or any other witness in addition to the evidence of the husband would be necessary. However, in the instant case, it is noticed that the evidence-on-affidavit filed by the husband as P.W.1 is in respect of the very allegation that has been made in the petition mentioning the instances due to which he has alleged cruel treatment by the appellant wife. As taken note, the cross-examination is not in the nature of challenging the statements which have been made nor the statement of P.W.1 with regard to cruel treatment being discredited in any manner. As taken note, the cross-examination is not in the nature of challenging the statements which have been made nor the statement of P.W.1 with regard to cruel treatment being discredited in any manner. Further, though a written statement was filed by the appellant-wife and certain allegations were made against the husband, she has not chosen to tender any evidence. 9. In that regard, a perusal of the record secured from the Court below would indicate that on completion of the evidence of the respondent husband, when the matter was taken up for consideration on 22.09.2016, though the appellant was present, she has indicated to the Court that she will not adduce evidence, which has been recorded by the learned Judge. It is in that view, the matter was listed for argument and considered by the Court below. In such circumstance, when there was no effective cross-examination of P.W.1 and there was no evidence tendered on behalf of the appellant before the Court below, the Court below has no option but to take note of the evidence of P.W.1 and on analyzing the same has arrived at the conclusion. Further, in a matter of the present nature, when the respondent-husband in his petition was alleging cruelty on behalf of the appellant wife, and the appellant wife though had filed written statement has made certain allegation of illicit relationship with the sister-in-law, but has not chosen to tender any evidence to establish the charge, the very allegation being made in such manner would amount to cruelty. Therefore, in that circumstance, when the Court below has referred to the evidence available before it and on analyzing the same has, thereafter arrived at its conclusion and in the present appeal while re-appreciating the evidence available on record, there is no other contrary material nor there is any evidence to dispute the claim as put forth by the respondent before the Court below, the judgment passed by the Court below would not call for interference. 10. Having reached the above conclusion, what is also to be taken note is that in the proceedings before the Court below and as also during the pendency of this appeal, an attempt was made to settle the matter insofar as the issue of alimony is concerned. 10. Having reached the above conclusion, what is also to be taken note is that in the proceedings before the Court below and as also during the pendency of this appeal, an attempt was made to settle the matter insofar as the issue of alimony is concerned. The fact that the appellant was ready to receive the alimony so as to protect the interest of the minor daughter would indicate that the appellant rather than continuing with the relationship has reconciled to receive the benefit of alimony. Though certain offer and counter offers were made, the parties have not agreed on a figure as the dispute with regard to quantum is being raised. Therefore, to that extent, the parties will have to adduce appropriate evidence so as to enable the Court below to arrive at the conclusion with regard to appropriate alimony. Hence, to that extent, liberty is reserved to the appellant wife to file an appropriate petition under Section 25 of the Hindu Marriage Act seeking for alimony and in that proceeding, all contentions relating to the same are left open to be urged. Further, the undisputed fact is also that the appellant had instituted a petition under Section 125 of the Code of Criminal Procedure seeking maintenance for herself and the minor daughter in a proceeding in F.C. (Criminal) No.298/12. The appellant herein is granted a sum of Rs.3500/- while the daughter a sum of Rs.2500/-. Thus, in all the maintenance as ordered is in a sum of Rs.6000/-. 11. To that extent, it is made clear that notwithstanding the approval of dissolution of marriage by this Court in this appeal, pending consideration of the petition for permanent alimony, the maintenance as ordered by the Court below in the Section 125 Cr.P.C. proceedings shall continued to be paid and, in the meanwhile, due to any change in circumstance, if entitled for enhancement of the maintenance and is raised in an appropriate proceedings, the disposal of the present appeal shall not be considered as a bar. Needless to mention that any of the observations made relating to the merits of the matter on the issue of cruelty shall remain limited to consideration of this appeal and shall not be used against the parties in any other proceedings. 12. In that view of the matter, we see no reason to interfere with the impugned judgment and decree dated 14.12.2016. 13. 12. In that view of the matter, we see no reason to interfere with the impugned judgment and decree dated 14.12.2016. 13. Accordingly, the appeal being devoid of merit stands disposed of.