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2019 DIGILAW 383 (GAU)

Gopesh Deka v. Phul Kumari Deka

2019-03-26

A.S.BOPANNA, ARUP KUMAR GOSWAMI

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JUDGMENT AND ORDER : A.S. BOPANNA, C.J.:—Heard Mr. K. Bhuyan, learned counsel for the appellant. Also heard Mr. D. Das, learned counsel for the respondent. 2. The appellant is the husband of the respondent. He is before this court in this appeal claiming to be aggrieved by the judgment dated 26.5.2017 passed by the Principal Judge, Family Court, Barpeta in T.S.(M) F.C. Case No. 122/2015. Through the said judgment the Family Court had dismissed the petition filed by the appellant-husband under section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of the marriage. 3. The brief facts are that the appellant and the respondent got married on 5.8.2011 and a male child was born to them on 1.9.2012. The petition before the court below was filed by the appellant alleging cruelty on the part of the respondent and in that light, he had sought for dissolution of marriage. The allegation is that the respondent herein was behaving in a rude manner with the appellant herein and also his parents and sister. It was pleaded that the sister of the appellant was assaulted by the respondent and an FIR had been lodged in that regard. It is also contended that the respondent had physically assaulted the parents of the appellant. In that regard it is also contended that apart from behaving in a rude manner the respondent left her marital home on 30.12.2011 and has not returned thereafter. It is further contended that after leaving the marital home on 30.12.2011, the respondent has not shown any intention of returning back which is a clear act of cruelty on the appellant. Hence, it was prayed that the marriage be dissolved. 4. The respondent having appeared in the said proceeding had filed a detailed written statement denying the allegations made against her. It was contended that the appellant in fact had behaved in a cruel manner which had forced her to file a complaint under section 498A of the IPC and though in the said proceeding the appellant herein was acquitted, the fact remains that he had behaved in a cruel manner with her. Further, in the written statement all the allegations made against the respondent were denied. 5. Further, in the written statement all the allegations made against the respondent were denied. 5. In the background of the rival contentions and the pleadings, the court below framed as many as five issues for its consideration which read as herein under: (i) Whether there is any cause of action for the suit? (ii) Whether the suit is maintainable in its present form? (iii) Whether the plaintiff was subjected to mental torture by the defendant? (iv) Whether the plaintiff is entitled to decree as prayed for? (v) To what other relief/reliefs the parties are entitled? 6. In an attempt to discharge the burden cast through the issues on the parties, the appellant examined himself as PW 1 and examined two other witnesses as PW 2 and PW 3. The respondent herein examined herself as DW 1 and examined two witnesses as DW 2 and DW 3. 7. The court below having taken note of the evidence as tendered, has arrived at the conclusion that the appellant herein has failed to prove the allegations against the respondent and in that view the petition filed under section 13(1)(ia) of the Hindu Marriage Act is liable to be dismissed. Accordingly, the petition had been dismissed. 8. The learned counsel for the appellant while assailing the judgment passed by the court below has taken us through the evidence as tendered by the witnesses of the plaintiff and also the cross-examination of the respondent and witnesses who were examined during the course of the proceeding before the court below. The contention essentially is that the court below has failed to appreciate the conduct of the respondent in behaving in a cruel manner with the appellant. It is his contention that the very fact that a complaint under section 498A of the IPC was filed and the respondent had failed to establish the allegations therein would be sufficient to indicate that the same amounted to mental cruelty and, therefore, the court below ought to have held that the allegations made against the respondent were true. The learned counsel for the appellant has also sought to rely on the legal position in an attempt to convince this court that the act of the respondent as pleaded and the evidence as tendered would be sufficient to hold that the respondent had inflicted cruelty on the appellant and he was entitled to a decree of divorce. 9. The learned counsel for the appellant has also sought to rely on the legal position in an attempt to convince this court that the act of the respondent as pleaded and the evidence as tendered would be sufficient to hold that the respondent had inflicted cruelty on the appellant and he was entitled to a decree of divorce. 9. The learned counsel for the respondent, on the other hand, has taken us through the cross-examination of the witnesses examined on behalf of the appellant and has pointed out that the appellant as well as the witnesses have stated in the cross-examination that the parties are capable of continuing their conjugal life. The learned counsel for the respondent has referred to the reasons indicated by the court below with reference to the evidence to point out that the court below after taking note of the evidence available on record and on analyzing the same keeping, in view the legal position in that regard has arrived at the conclusion and, therefore, the judgment passed by the court below does not call for interference. 10. In the light of the rival contentions, before adverting to the judgment passed by the court below, we have taken note of the nature of the pleadings set up by the appellant seeking for a judgment of dissolution of marriage on the ground of cruelty. The allegation as made is about the physical assault by the respondent on the parents of the appellant and also the sister. The initial pleading is based on the physical assault which has resulted in the cruelty being inflicted on the appellant. In that background, what is necessary to be taken note is as to whether from the evidence as tendered by the appellant the allegation of cruelty has been established. Insofar as the evidence of PW 1, namely, the appellant herein is concerned, in the evidence in affidavit which has been tendered all that has been stated therein is a reproduction of the petition and the only allegation apart from the cruelty inflicted by assaulting the parents and the sister is wiping of the vermilion on the forehead with the leg of the appellant. The allegation with that regard has not been clearly established in the evidence. The allegation with that regard has not been clearly established in the evidence. In any event, in the cross-examination of PW 1, he has categorically admitted that the respondent herein still possesses the mental and physical ability to continue her conjugal life and that he has not mentioned in his evidence that the defendant had assaulted the sister of the plaintiff for which an FIR was lodged against the defendant. Be that as it may, insofar as the case of assault of his sister as already taken note, there is no explanation as to why the sister could not be examined in the said case. In any event, on the basis of the materials available, it cannot be held that the same was of a serious nature which requires to be carried forward by the appellant by making it a ground seeking for dissolution of the marriage. In that background the witness who was examined as PW 2 is a person who is known to the parties. Even in the evidence of PW 2 there is no direct allegation with regard to the cruelty inflicted by the respondent on the appellant. In fact, the said witness also in cross-examination has stated that both the parties have the capability to continue their conjugal life and in fact he has stated that he never saw any physical assault between the parties in his presence. Therefore, in that circumstance the said evidence would also have a bearing in arriving at the conclusion. The other witness examined as PW 3 is a person belonging to the same village and is a friend of the appellant. On the allegation of physical assault, the said witness further stated that he and the appellant tried to bring back the respondent to lead a conjugal life as respondent-wife bears the quality of a woman with whom one can lead a conjugal life. Therefore, the evidence as tendered by the appellant itself would indicate that the differences, if any, between the parties is not so serious so as to consider the same as a broken marriage for granting the decree of divorce. In that background when through the said evidence the charge of physical assault pleaded to prove cruelty has not been established, the evidence on behalf of the respondent would not be of much relevance. In that background when through the said evidence the charge of physical assault pleaded to prove cruelty has not been established, the evidence on behalf of the respondent would not be of much relevance. Be that as it may, the other consideration required is with regard to the allegation of the respondent having filed a proceeding under section 498A of the IPC in which she had failed. In that regard a perusal of the judgment as passed therein would indicate that the acquittal is based on the benefit of doubt. In any case, when in the instant proceeding filed under section 13(1)(ia) of the Hindu Marriage Act the allegation of cruelty is made the same will have to independently established. 11. In the above background the decision in the case of Bismita Saikia v. Pranjal Dutta, (2019) 1 Gau LR 247; (2018) 3 Gau LT 420 relied on by the learned counsel for the appellant would indicate that a Coordinate Bench of this court in the said case had taken into consideration the evidence as tendered by DW 1, DW 2 and DW 4 which had established the assault by the party therein against the mother and the sister of the husband and also the fact that she was using filthy language. It is in that light when through the evidence tendered in the said case the allegation had been established, this court was of the view that the court below had appropriately granted the decree of divorce and had accordingly dismissed the appeal. The said decision would not be of any assistance in the present case. The learned counsel for the appellant has relied on the decision in the case of Malathi Ravi M.D. v. B.V. Ravi M.D., (2014) 7 SCC 640 . In the said case, the hon'ble Supreme Court had taken note of the case that had been pleaded and evidence that was established and had accordingly arrived at the conclusion that the subsequent event which was established on the basis of undisputed materials brought on record could be taken into consideration and in that light, based on the facts had arrived at the conclusion that an allegation of mental cruelty deserved to be accepted. The said decision would not be of any assistance in the instant case since we have already taken note that the fact herein was projected on the allegation of physical cruelty and in that regard the evidence as tendered had not been established. Further, the learned counsel for the appellant has also relied on the decision in the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 to contend that the hon'ble Supreme Court in the said case while summarizing the manner in which a marital dispute would be considered has laid down certain parameters where the issue is to be taken note and the marriage is required to be dissolved. In that regard it is seen that the hon'ble Supreme Court, no doubt, has laid down therein that where there has been long period of continuous separation it may fairly be concluded that the marital bond is beyond repair. In that light it was held that the marriage becomes a fiction though supported by a legal tie. Though in the said case the hon'ble Supreme Court has laid down guidelines as stated therein, the said decision would not be of assistance herein inasmuch as PW 1 and the witnesses as PW 2 and PW 3 have stated that the parties herein can still lead their conjugal life. In that circumstance, the above fact will have to be taken note and this court cannot conclude that the parties can never lead their conjugal life and, therefore, in that view the dissolution is to be ordered. In addition to the above, learned counsel for the appellant has also sought to rely on a decision rendered by the learned Single Judge of Punjab and Haryana High Court, AIR 1996 P&H 98 to persuade us that the filing of a complaint under section 498A of the IPC itself can be considered as an act of infliction of mental cruelty on the husband. In that regard, we have taken note of the decision and we find that in the said case, the learned Single Judge while considering the evidence available on record whereby the offence of cruelty had been proved in the said proceeding, had also taken note of the conduct and filing of complaint under section 498A of the IPC and failing therein as one of the circumstances to uphold the judgment rendered by the court below. Therefore, the said decision also would not be of any consequence in the present fact. 12. In the above background, a perusal of the impugned judgment passed by the court below would indicate that the court below, while answering the issues raised, has referred to the evidence available on record and has arrived at the conclusion that the evidence is insufficient to establish cruelty as alleged therein so as to grant decree of divorce. In fact, insofar as the contention that is sought to be put forth by the learned counsel for the appellant that no purpose would be served to keep the marriage alive when the marriage has broken down, the court below in that regard has also addressed the issue by relying on the decision of the hon'ble Supreme Court in the case of Shyam Sundar Kohli v. Sushma Kohli Alias Satya Devi, (2004) 7 SCC 747 , wherein the hon'ble Supreme Court has held that mere irretrievable break down of marriage is not a ground for dissolution of marriage. 13. In view of the above, if these aspects are kept in view, we are of the opinion that the judgment dated 26.5.2017 passed by the Principal Judge, Family Court, Barpeta does not call for inference in this appeal. 14. Accordingly, the appeal being devoid of merit, stands dismissed.