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2019 DIGILAW 404 (GAU)

Mainak Patra v. Ellora Patra Mahanta

2019-04-02

A.S.BOPANNA, ARUP KUMAR GOSWAMI

body2019
JUDGMENT : A.S. BOPANNA, J. 1. Heard Mr. U. K. Barman, learned counsel for the appellant. Also heard Mr. S. P. Das, learned counsel for the respondent. 2. The appellant husband is before this Court assailing the judgment dated 11.01.2018 passed by the Family Court-I, Kamrup, Guwahati in F.C.(Civil) Case No.305/2014. Through the said judgment, the court below has dismissed the petition filed by the appellant herein under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 seeking for decree of divorce against the respondent wife. 3. The brief facts are that the marriage of the appellant and the respondent was solemnized on 09.09.1987 and they have three daughters born from the marriage. The appellant at the point when the petition was filed was working as the Chief Manager, LPG Operation, Indian Oil Corporation while the respondent was working as the Chief Manager, Contract, in Oil India Ltd. The allegation with which the petition was filed before the court below is that the respondent was suspecting the appellant of having relationship with other women without any reason and that she was not even allowing the appellant to talk with any other women. In that regard, it was contended by the appellant before the court below that on several occasions she misbehaved with him in front of their friends for no reason whatsoever. It was contended by him that such act of the respondent had hurt the male ego as the conduct of the respondent amounted to assassination of his character. The respondent herein, having appeared before the court below, had filed a detailed written statement denying the allegations made against the respondent. In addition, the respondent had referred to certain instances wherein the appellant had maintained relationship with other women and the respondent had contended that, in fact, the conduct of the appellant in that regard had amounted to causing mental cruelty to the respondent and in that view, on referring to the instances, had contended that the petition filed by him is liable to be rejected. 4. The court below, on taking note of rival contentions, had framed 5 (five) issues for its consideration which read as herein under: 1. Whether the suit is maintainable in facts or law? 2. Whether the respondent has treated the petitioner with cruelty? 3. Whether the petitioner was maintaining illicit relationship with one Mukti Devi @ Hemoprabha Devi? 4. 4. The court below, on taking note of rival contentions, had framed 5 (five) issues for its consideration which read as herein under: 1. Whether the suit is maintainable in facts or law? 2. Whether the respondent has treated the petitioner with cruelty? 3. Whether the petitioner was maintaining illicit relationship with one Mukti Devi @ Hemoprabha Devi? 4. Whether the petitioner is entitled to a decree of divorce as prayed for? 5. To what relief/reliefs, the parties are entitled? 5. Since the petition was filed by the appellant herein and through the issues the burden was cast on him to discharge the initial burden with regard to the allegation of mental cruelty, the appellant himself examined as PW1. Since the issues framed by the court below had also referred to the allegation made by the respondent about the appellant maintaining illicit relationship, the said issue, no doubt, was required to be established by the respondent. In that view, the respondent, apart from examining herself as DW1, had examined their eldest daughter Ms. Nijhuma Patra as DW2 and had also examined one Sri Amar Hazarika, the personal driver of the respondent as DW3. The court below on taking note of the pleadings put forth by the parties and the evidence tendered by them, has arrived at the conclusion that the appellant has failed to establish mental cruelty inflicted on him by the respondent and, on the other hand, on taking note of the evidence tendered by the respondent arrived at the conclusion that the appellant, in fact, has inflicted mental cruelty on the respondent due to his illicit relationship. In that view, the court below was of the opinion that the petition filed by the appellant is liable to be dismissed. 6. The learned counsel for the appellant while assailing the judgment passed by the court below has taken us through the evidence tendered by the appellant as PW1 and in that light, on referring to the cross-examination, would contend that the allegation as made by the appellant, not being specifically controverted, has amounted to admission and therefore, the allegation as put forth was sufficient to establish the case of the appellant that the respondent had inflicted mental cruelty on the appellant. In that light it is contended that the said evidence was sufficient and the manner in which the court below has taken note of the evidence of the respondent and her witnesses would not be justified. 7. The learned counsel for the respondent has also referred to the evidence available on record. It is contended that the very nature of the allegation made in the petition is vague and except the evidence of the appellant as PW1 there is no other evidence to establish the allegation made in the petition before the court below. It is, on the other hand, pointed out that the respondent, in fact, had not only examined herself and put forth the details relating to the illicit relationship of the appellant but also had established the same by the evidence of DW2, who is the eldest daughter of the parities, who has referred to the specific instances and in that light the court below, having taken note of the evidence, had accepted the evidence tendered by the respondent to indicate that it was the appellant in fact who had inflicted mental cruelty on the respondent. He, therefore, contends that the court below was justified in its conclusion and the judgment of the court below does not call for interference. 8. In the light of the rival contentions put forth, before taking note of the nature of the consideration made by the court below, it is necessary for us to take note of the nature of the allegation that is contained in the petition, more particularly, in a circumstance when the petition was instituted before the court below under Section 13 (1) (ia) of the Hindu Marriage Act. In such circumstance, when dissolution of the marriage is sought on the ground that the other party has inflicted cruelty, to entitle the party to obtain a decree of divorce, the allegation is necessary to be specific. In that regard, in the instant case, the allegation essentially with regard to the mental cruelty inflicted by the respondent, as noticed by us is contained in paragraph Nos.6 and 7 of the petition. It would be appropriate to extract the same and notice so as to consider whether such allegation was sufficient to take note of the evidence based on such pleadings: “6. It would be appropriate to extract the same and notice so as to consider whether such allegation was sufficient to take note of the evidence based on such pleadings: “6. That the petitioner above names most respectfully begs to state that his marriage life with the respondent above named was very happy until last 11 years. That the petitioner did every possible thing to keep the respondent happy. He even stayed separately from his parents and family members so as to keep the respondent happy. But since last few years the respondent started suspecting him of having relationship with other women without any reason. The respondent does not even allow the petitioner to talk with any other woman. 7. That the petitioner above named most respectfully begs to state that on several occasions she misbehaved with him in front of friends of the petitioner for no reason. That the petitioner further begs to state that she said few words which hurt the male ego and assassinate his character.” 9. Even if the allegation as contained therein that on several occasions the respondent had misbehaved with him in front of the friends for no reasons and the same had hurt the male ego of the appellant is taken note, in order to prove such allegation, the court below had recorded the statement of the appellant as PW1 would not be sufficient. Even in the evidence of PW1 the specific instances or with regard to the friends who were present on such occasion has not been adverted to. If the behaviour of the respondent in front of their friends was the basis for seeking dissolution of the marriage, the appellant was required to tender such evidence of the persons before whom the respondent had conducted herself in such manner. Therefore, in that circumstance, in the absence of such evidence, even if the evidence of PW1 is taken note, the same is only through an affidavit which was filed which in fact was reproduction of the petition’s averment which we have already taken note. In that background, even though the learned counsel for the appellant has sought to contend that the statement as put forth in the evidence has not been controverted while examining the PW1, we find that such contention as put forth cannot be accepted. 10. In that background, even though the learned counsel for the appellant has sought to contend that the statement as put forth in the evidence has not been controverted while examining the PW1, we find that such contention as put forth cannot be accepted. 10. In the cross-examination of PW1 it is not as if the allegation as made by the appellant as PW1 has been accepted. In fact, sufficient suggestions have been put forth to indicate that it was the PW1 who was conducting himself in such manner by having illicit relationship with one Hemoprabha Devi. It was also suggested therein that their daughter Nijhuma Patra had noticed this aspect of the matter. 11. It is in that background in the very cross-examination of PW1, apart from not accepting the case of the appellant as PW1, it was also suggested that the conduct of the appellant would not entitle him to the relief as sought for and having so suggested in the cross-examination, the respondent, examining herself as DW1, has stated in details with regard to the specific instances relating to the illicit affairs and also the appellant not having taken care of the respondent at a critical time when she required his assistance to take treatment at NIMHANS Hospital, Bangalore. 12. In that circumstance, when at the outset we noticed that the evidence as tendered by PW1 alone was insufficient to establish his case, the evidence as tendered on behalf of the respondent through DW1 to DW3 is in fact only to discharge the burden cast upon the respondent in respect of Issue No.3 relating to the allegation made by the respondent in her written statement with regard to the illicit relationship of the appellant with one Mukti Devi @ Hemoprabha Devi. Limited to that aspect, it is necessary for us to take note of the evidence in that regard. 13. Limited to that aspect, it is necessary for us to take note of the evidence in that regard. 13. In that view, the decision relied on by the learned counsel for the appellant in the case of Chuni Lal Dwarka Nath vs. Hartford Fire Insurance Company Limited and Another, 1957 STPL 2153 P & H to contend that if no questions are put, court should presume that the witness’ account has been accepted cannot be considered in the instant fact inasmuch as, as has already been taken note by us, the very evidence as put forth by PW1 is only to the extent of reiterating the averment in the petition to which we have already referred. In that background, the extent of the cross-examination as noticed would also indicate that in addition to denying the assertion of PW1, a further case has been put forth on behalf of the respondent. 14. In that background, at this juncture, what is to be taken note is the evidence tendered on behalf of the respondent. As noticed above, the said evidence would also have relevance to Issue No.3 which was framed by the court below. In that regard, the evidence by way of affidavit tendered by DW1 would disclose that apart from stating with regard to the relationship between the parties and the care and affection expected by DW1 from the appellant, the respondent has also stated with regard to the illicit affairs of the appellant which had led to the misunderstanding between the parties. In that regard, in the cross-examination, the suggestions put forth to the effect that he had misbehaved in front of their friends has been denied. In that circumstance when in respect of the only allegation made in the petition and put forth in the evidence of PW1, a suggestion was made and was denied by DW1 and further it is noticed that there is no other evidence tendered by the appellant to prove the allegation of the respondent having misbehaved with the appellant in front of the friends, the same to that extent, would stand nullified. Even with regard to the allegation made against the appellant relating to his illicit relationship, apart from the evidence as tendered by DW1, the eldest daughter of the parties, namely, Nijhuma Patra is examined as DW2. Even with regard to the allegation made against the appellant relating to his illicit relationship, apart from the evidence as tendered by DW1, the eldest daughter of the parties, namely, Nijhuma Patra is examined as DW2. The affidavit evidence submitted by her has referred to in details with regard to the illicit relationship of the appellant herein and also the manner in which the appellant had hurt the sentiments of the respondent, more particularly with regard to the care that was refused when the respondent, her mother required treatment at NIMHANS Hospital, Bangalore. In that regard, the said witness has also stated that since the appellant failed to accompany her mother, she had to go to Bangalore for the assistance of her mother. The evidence as tendered by DW2, in fact, has not been shaken in the cross-examination inasmuch as the suggestions put on behalf of the appellant to indicate that the allegation of illicit relationship is not justified has been denied and she has also asserted that the allegation of the respondent having committed mental torture is not justified and further stated that, in fact, the appellant has caused mental agony to the respondent. In addition to the evidence tendered by the members of the family, the personal driver of the respondent was cross-examined as DW3. In his evidence he has stated with regard to the respondent suffering due to the act of the appellant. Telephonic conversation has been referred to wherein the respondent was always pleading with the appellant to maintain a good relationship and in the said conversation, the respondent had also referred to the illicit relationship of the appellant with Mukti Devi @ Hemoprabha Devi. In that background, if the said evidence is taken note, not only the allegation as made by the appellant against the respondent would not be justified, but also in the instant facts the allegation as put forth by the respondent in the written statement relating to the illicit relationship of the appellant with another woman is not a bald allegation so as to contend that the same has amounted to mental cruelty. In that circumstance, when the respondent has tendered appropriate evidence with regard to Issue No.3, the allegation made by the respondent against the appellant will have to be considered as established before the court below. In that circumstance, when the respondent has tendered appropriate evidence with regard to Issue No.3, the allegation made by the respondent against the appellant will have to be considered as established before the court below. If in that background the decision as relied on by the learned counsel for the appellant in the case of Vijaykumar Ramchandra Bhate vs. Nella Vijaykumar Bhate, (2003) 6 SCC 334 is taken note, the same cannot be of any assistance to the appellant since as already indicated the contention as taken in the written statement has not remained as an allegation, but the respondent has also established before the court below to that extent. 15. In the above background, a perusal of the judgment passed by the court below, if taken note, would indicate that the court below has also referred to the evidence in detail and in that regard, keeping in view the issues framed by it has arrived at the conclusion that the appellant has failed to establish his case to consider the prayer for grant of a decree of divorce. On the other hand, the court below has arrived at the conclusion, based on the evidence of the respondent with regard to the conduct of the appellant, that he himself had caused mental agony to the respondent. In that background, on the re-appreciation of the evidence when we find that the court below has also appropriately considered the evidence, the judgment of the court below would not call for interference. When that is the position, even though the learned counsel for the appellant has so contended that the decree of divorce is required to be granted when there is no purpose in sustaining the marriage when there is irretrievable break down and in that regard has sought to rely on the decision in the case of Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , even if the said decision is kept in view, it is to be taken note that the position of law as taken note therein as well as in several other decisions of the Hon’ble Supreme Court is that irretrievable break down of marriage is not a ground to consider divorce. In that view, even the said contention put forth by the learned counsel for the appellant would not merit consideration in a proceeding before this Court. 16. In that view, even the said contention put forth by the learned counsel for the appellant would not merit consideration in a proceeding before this Court. 16. In that view, we are of the opinion that the judgment dated 11.01.2018 passed by the court below does not call for interference. 17. The appeal, accordingly being devoid of merit, stands dismissed. 18. Registry will send back the lower court records.