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2019 DIGILAW 904 (GAU)

Kankan Das v. Manashi Kalita

2019-08-16

ARUP KUMAR GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : Manish Choudhury, J. Heard Mr. P.P. Das, learned counsel for the appellant. Also heard Ms. K.K. Choudhury, learned counsel appearing for the respondent. 2. This appeal, under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 05.07.2017 passed by the learned Principal Judge, Family Court I, Kamrup, Guwahati in F.C.(Civil) Case No. 454/2013, whereby, the petition filed by the appellant as the petitioner under Section 13(1) of the Hindu Marriage Act, 1955, seeking dissolution of his marriage with the respondent has been dismissed. 3. The case, in brief, projected by the appellant in his petition is that the marriage between the appellant and the respondent was solemnised on 22.04.2012 in observance of Hindu rites and after the marriage, they started to live as husband and wife at the house of the appellant. But after a few days of the marriage, the appellant came to know that the respondent was a mental patient, which fact was kept concealed from him by the guardians of the respondent. Narrating an incident that occurred on 28.08.2012, he stated that when he and his other family members were sleeping at night, the respondent, at about 2-00 a.m., attempting to commit suicide, jumped into the well of the house of the appellant. Having come to know about the same, the appellant and his family members tried to rescue the respondent from inside the well but when they failed to do the same, they immediately informed the fire station at Sualkuchi. Thereafter, the fire service personnel came to the house of the appellant and rescued the respondent from inside the well. With regard to the said incident, the appellant stated to have lodged an ejahar before the Sualkuchi Police Station and Sualkuchi Police Station registered the same vide General Diary Entry No. 577 dated 29.08.2012. The matter was also informed to the local Gaonbura, who also issued a certificate in that regard. The appellant stated that he came to know that the respondent had also earlier attempted to commit suicide 5 years before her marriage and on 15.12.2012, she consumed petrol. After being recovered from the well, the respondent was admitted at Primary Health Centre, Sualkuchi for treatment and after treatment, the relatives of the respondent took her to her parental house. The appellant stated that he came to know that the respondent had also earlier attempted to commit suicide 5 years before her marriage and on 15.12.2012, she consumed petrol. After being recovered from the well, the respondent was admitted at Primary Health Centre, Sualkuchi for treatment and after treatment, the relatives of the respondent took her to her parental house. Thereafter, he came to know that the respondent was taken for treatment by her family members to one Dr. Sangita Dutta, who is a Psychiatrist and the appellant stated that the respondent was, at the time of the presentation of the petition, was also under the said treatment. Stating so, the appellant asserted that it would not be possible for him to continue his conjugal life with the respondent as there was apprehension that the respondent might attempt to commit suicide again. For such apprehension, he stated to have been suffering from mental agony and had prayed for dissolution of his marriage. 4. On appearance, the respondent had filed her written statement denying the allegations of the appellant made in the petition and stated that the petition was not maintainable being misconceived, false and frivolous. Admitting about the solemnization of the marriage, the respondent stated that the allegation in respect of her mental status and suppression of the same by her family members, were defamatory, made with the intention to ruin her and her family members' reputation. Because of such spreading of false rumours in the village, the family of the respondent had suffered. Her two unmarried younger sisters had also become victims as no suitable marriage proposals were forthcoming for them. The respondent stated that the marriage was an arranged one and prior to the marriage, the appellant and his family members visited their house to see her and they knew everything about her family as they belonged to the same village. At that time, there was no objection from the family of the appellant and accordingly, the marriage was solemnised. It was contended that after few months of their conjugal life, the appellant became very reluctant to give her company and most often, he used to keep himself involved in outside activities disregarding all his responsibilities towards her. At that time, there was no objection from the family of the appellant and accordingly, the marriage was solemnised. It was contended that after few months of their conjugal life, the appellant became very reluctant to give her company and most often, he used to keep himself involved in outside activities disregarding all his responsibilities towards her. She stated that the family members of the appellant, residing as a joint family, started torturing her physically and mentally and when she raised objection and expressed grievance about the same to the appellant, the appellant used to perpetrate physical and mental torture upon her. The intensity of physical and mental torture started increasing day by day. She alleged that she had to wake up early in the morning to do all household chores from cooking, cleaning, washing clothes, etc which sometimes she had to do without being provided with food. When she had fallen ill in the first week of August, 2012, she was sent to her parental house to take rest after the family physician of the appellant treated her. On 12.08.2012, the family members of the appellant came to her parental house and took her back. But after a few days again due to mental torture and hard work, she fell sick and was unable to get up from her bed. When she wanted to go to her parental house, the appellant refused. She requested the appellant to take her to a doctor but the appellant kept postponing the same. Regarding the allegation about her attempted suicide, she stated that she found herself in the well all of a sudden and tried very hard to save herself. When she shouted for help, few neighbours came and fire station personnel rescued her. Without making any further statement regarding the said incident, she prayed for calling of the records of General Diary Entry No. 577/2012 dated 29.08.2012. She alleged that the family of the appellant had spread rumours about her attempt to commit suicide in the village outraging her dignity and ruining her reputation as well as of her family. As a result, she is living a very miserable life with her father, who having suffered a stroke is bedridden for last few years, along with her two unmarried sisters, one brother and mother. 5. As a result, she is living a very miserable life with her father, who having suffered a stroke is bedridden for last few years, along with her two unmarried sisters, one brother and mother. 5. The respondent stated that after the treatment at the Primary Health Centre, the appellant's family members along with one hospital ASHA employee dropped her at her parental house for better treatment as they were aware that the respondent was sick for last few weeks. On the next day, the appellant's father requested her family members to come to the appellant's house and on being there, when they asked as to how the incident took place, the appellant stated that they were sleeping on the same bed but he did not know what happened. Since that incident, the respondent has been staying in her parental house. Though the appellant agreed to bear all the expenses, he never paid anything for her. When she asked for maintenance for her day to day need, the appellant though agreed to pay, had not paid anything. Replying to the allegation in respect of the treatment from the Psychiatrist, the respondent stated that both the families agreed to take her to a doctor in Guwahati but every time, the appellant used to make some kind of excuse. As a result, her family took her to the psychiatrist in Down Town Hospital, Guwahati on 06.09.2012 as the appellant did not turn up to go to the doctor on that day too and to bear the expenses of her treatment of depression. She asserted that she suffered from depression for which she had undergone treatment and she had become completely fit. 6. On the basis of the pleadings of the parties, the learned Family Court framed the following issues for adjudication : 1. Whether the opposite party has treated the petitioner with cruelty ? 2. Whether the petitioner is entitled to get a decree of divorce as prayed for ? 3. To what relief / reliefs, the parties are entitled ? 7. During the course of proceeding, the appellant adduced evidence of 4 (four) witnesses viz. P.W.1 - the appellant, P.W.2 Smti Manumati Das, a neighbour of the appellant, P.W.3 - Sri Dipak Deka, the Gaonbura of the village of the appellant and P.W.4 Sri Prasanta Rajbongshi, another neighbour of the appellant. These witnesses were cross-examined by the side of the respondent. During the course of proceeding, the appellant adduced evidence of 4 (four) witnesses viz. P.W.1 - the appellant, P.W.2 Smti Manumati Das, a neighbour of the appellant, P.W.3 - Sri Dipak Deka, the Gaonbura of the village of the appellant and P.W.4 Sri Prasanta Rajbongshi, another neighbour of the appellant. These witnesses were cross-examined by the side of the respondent. From the respondent's side, 4 (four) witnesses were examined viz. D.W.1 the respondent, D.W.2 Sri Dimbeswar Kalita, D.W.3 - Sri Paresh Chandra Kalita and D.W.4 Sri Gautam Kalita who were duly cross-examined by the appellant's side. 8. The learned Family Court, upon appreciation of the evidence led by the parties, decided all the three issues against the appellant. It has observed that though the appellant had alleged that the respondent was suffering from mental disorder and same was concealed by her family members, he had failed in his attempt to prove that the respondent has suffered from mental sickness or he was inflicted with mental cruelty by the respondent. 9. Mr. Das, learned counsel for the appellant has submitted that from the evidence on record it is clearly established that there was an attempt on the part of the appellant to commit suicide at about 2-00 a.m. in the night intervening 27.08.2012 and 28.08.2012. The learned Family Court had erred in holding that the allegation as regards consumption of petrol by the respondent was not established. The learned Family Court had also erred in holding that there was no medical evidence to support the allegation that the respondent is a mentally sick person when there is clear admission on the part of the respondent that she had taken treatment from a psychiatrist and she had suffered from depression which facts themselves establish the fact of mental disorder of the respondent. In view of such mental sickness of the respondent it is not possible for the appellant to continue the conjugal relationship and the learned Family Court by not taking into consideration the evidence on record in the proper perspective, had arbitrarily and unjustifiably dismissed the petition. 10. Opposing the said submissions on behalf of the appellant, Ms. Choudhury, learned counsel appearing for the respondent has submitted that there is abject failure on the part of the appellant to bring home the allegations made in his petition. 10. Opposing the said submissions on behalf of the appellant, Ms. Choudhury, learned counsel appearing for the respondent has submitted that there is abject failure on the part of the appellant to bring home the allegations made in his petition. The evidence on record, by no stretch, goes to show that the incident of finding the respondent inside the well is related to any kind of mental sickness on the part of the respondent. There is absolutely no evidence as regards consumption of petrol by the respondent at any point of time at her parental house after that incident. Similarly, the allegation as regards the respondent's attempt to commit suicide prior to the marriage was completely false. All these unsubstantiated allegations have ruined the family of the respondent including herself, in the society beyond repair for the times to come. In view of the same, the petition did not merit consideration and accordingly, the same was rightly dismissed. Consequently, this present appeal is also liable to be dismissed. 11. We have duly considered the submissions made by the learned counsel on behalf of the parties. We have also perused the materials available in the record of F.C. (Civil) Case No. 454/2013, in original. 12. It transpire from the records that though the petition has been filed under Section 13(1) of the Hindu Marriage Act, seeking dissolution of marriage but no specific ground has been cited in the said petition. A perusal of the statements and averments made in the petition indicates that the appellant has sought the dissolution of his marriage on the ground that the respondent has suffered from mental disorder and because of such, he suffered cruelty to the extent that the appellant cannot reasonably live with the respondent and evidence has been sought to be led in that regard. In his evidence, filed in the form of affidavit, P.W.1 i.e. the appellant had reiterated the same as he had been mentioned in his petition, recapitulated above. In his cross-examination, he denied the suggestion that after the marriage, he and his family members had physically and mentally tortured the respondent and due to such torture, the respondent had suffered from illness and was to be provided medical treatment by the appellant's family physician. He further denied the suggestion that the respondent was not provided with food and was not allowed to go to her parental house. He further denied the suggestion that the respondent was not provided with food and was not allowed to go to her parental house. He also denied the suggestion that on 28.08.2012, they making a plan left the appellant inside their well after throwing her there and hearing her cry, the neighbours came and rescued her. He stated that they called the fire service. He stated that when his family called the parents and villagers of the respondent, they did not want to take the responsibility and he denied that the parents and villagers of the respondent came to the house of the appellant to discuss the matter but his family did not give any response. As regards his allegation about the incident of 15.10.2012, he stated that the respondent was at her parental house and he did not go to visit her. He further reiterated that prior to their marriage, the respondent tried to commit suicide. He denied that due to their torture, the respondent had suffered from depression and had to be provided treatment from a psychiatrist by her parents as she was taken to the doctor without his knowledge. He stated to have visited the doctor when she called him and narrated all the facts. He denied the suggestion that the respondent was completely well and was capable to lead a conjugal life. 13. The testimonies of P.W.2, P.W.3 and P.W.4, filed in the form of affidavit, are almost similar in nature. P.W.2 regarding the incident of 28.08.2012, had stated that the respondent attempted to commit suicide and she jumped into the well. Having come to know about the same, she as a neighbour, along with other neighbours came to the spot and tried to rescue the respondent. Thereafter, the fire station at Sualkuchi was informed and the fire service personnel came and rescued the respondent from the well. After the treatment at the nearby Primary Health Centre, the respondent was taken to her parental house and since then the respondent has been living in her parental house. In her cross-examination, P.W.2 disclosed that the appellant is her nephew and she knew the respondent prior to her marriage, which was an arranged one. She stated, on cross-examination, that at about 2-00 a.m. on 28.08.2012, when the respondent fell inside the well, she was sleeping in her house. In her cross-examination, P.W.2 disclosed that the appellant is her nephew and she knew the respondent prior to her marriage, which was an arranged one. She stated, on cross-examination, that at about 2-00 a.m. on 28.08.2012, when the respondent fell inside the well, she was sleeping in her house. She came outside the house hearing the shouting of the respondent and found the respondent inside the well. She denied the suggestion that the respondent did not attempt to commit suicide and the respondent was forcibly thrown inside the well. During the period after the marriage and till that incident, P.W.2 stated to have a good relation with the respondent and she found the respondent normal and polite. She stated that the parental house of the respondent is at a distance of 1 Km from the appellant's house. P.W.3, the Gaonbura deposed, in his cross-examination, that at 2-00 a.m. on 28.08.2012, he was at his own house. It was in the morning only he came to know from his neighbours that the respondent fell inside the well. He did not come to the place of occurrence at that time and he was not aware how the respondent fell inside the well. P.W.4 stated during his cross-examination that though the villagers of the appellant and the respondent are adjacent, he did not know the respondent prior to the marriage solemnised on 22.04.2012. On 28.08.2012, on hearing cry at about 2-00 a.m., he came to the house of the appellant from his house crossing their boundary wall. He saw the respondent inside the well and the family members of the appellant trying to rescue her. When they failed to do so, the fire brigade was informed. He denied the suggestion that the respondent did not made attempt to commit suicide. It was denied by him that due to torture at her matrimonial home the respondent suffered from depression and then, she was taken to the psychiatrist. 14. In her evidence as D.W.1, the respondent asserted the same as she stated in the written statement, indicated above. When cross-examined, she stated that she was not aware how she fell inside the well and who rescued her from inside the well. She admitted that during 2012 she took treatment from Dr. Sangita Dutta on three occasions. 14. In her evidence as D.W.1, the respondent asserted the same as she stated in the written statement, indicated above. When cross-examined, she stated that she was not aware how she fell inside the well and who rescued her from inside the well. She admitted that during 2012 she took treatment from Dr. Sangita Dutta on three occasions. She denied the suggestion that she is a mentally disturbed person and she on her own, after coming out of the house, jumped into the well at night. She admitted that she was rescued and was provided treatment at a Primary Health Centre at Sualkuchi and since then, she is at her parental house. She denied the suggestion that she consumed petrol while at the parental house. She categorically denied that she was suffering from mental illness since the date she fell inside the well. She further denied the suggestion that the family members of the appellant did not inflict torture on her. She denied that she suppressed the fact of her mental disorder from the appellant at the time of her marriage. 15. The depositions of D.W.2, D.W.3 and D.W.4, also filed in the form of affidavit, are similar in nature. They stated about the solemnisation of the marriage, an arranged one, on 22.04.2012. They stated that after the marriage, the appellant and the respondent started living as husband and wife at the house of the appellant. They came to know after few months of their marriage that the appellant and his family members started torturing the respondent mentally and physically and they also heard that after a few months of marriage on 28.08.2012, the respondent found herself inside a well at the appellant's house and when she shouted in order to save herself, she was rescued by the neighbours and the fire brigade personnel whereafter, the respondent was provided treatment at the Primary Health Centre. They further stated that since after the incident of 28.08.2012, the respondent is in her parental house. In his cross-examination, D.W.2 stated that he was not aware as to whether the respondent was thrown inside by somebody but he guessed that she did not jump herself. D.W.3, in his cross-examination, did not specifically mention anything about the incident of 28.08.2012. Similarly, D.W.4, in his cross-examination, stated that he was not aware as to how the incident of 28.08.2012 had happened. D.W.3, in his cross-examination, did not specifically mention anything about the incident of 28.08.2012. Similarly, D.W.4, in his cross-examination, stated that he was not aware as to how the incident of 28.08.2012 had happened. He, an uncle of the respondent further stated that the respondent was not mentally sick and he was not aware that she consumed petrol. 16. From a reading of the entire evidence led by the appellant in his efforts to seek dissolution of the marriage, it has emerged that the appellant has sought to place reliance on few alleged events to bring home the allegation that the respondent being a mentally disturbed person, had inflicted cruelty upon him by her those acts which has given rise to a genuine apprehension in his mind that it would no longer be reasonably safe for him to continue the conjugal relationship with her. 17. Admittedly, the marriage was an arranged one and the villages of the appellant and the respondent are adjoining villages, situated at a distance of 1 Km from each other. The appellant had alleged that the respondent had earlier i.e. about 5 years before the marriage, made an attempt to commit suicide but the appellant has failed to lead any evidence in that regard. Similarly, the appellant has alleged that when the respondent was at her home after the incident of 28.08.2012, she once consumed petrol. But neither he nor any of the witnesses viz. P.W.2, P.W.3 and P.W.4 has been able to bring any evidence, not to speak of any cogent and reliable evidence, to substantiate the allegation. They did not claim that they were eye-witnesses to the said incident. It was not even asserted that they heard about the consumption of petrol by the respondent from any other person. Thus, the said allegation is not in the realm of even hearsay evidence. Nothing as regards consumption of petrol, could be elicited by the appellant's side from the cross-examination of the D.W.s. there is no evidence even to infer that such an incident had, in fact, had ever occurred. 18. Another assertion of the appellant was that the respondent had taken treatment for her mental illness from a psychiatrist, Dr. Sangita Dutta of Down Town Hospital, Guwahati. 18. Another assertion of the appellant was that the respondent had taken treatment for her mental illness from a psychiatrist, Dr. Sangita Dutta of Down Town Hospital, Guwahati. It is seen that in order to substantiate the said assertion, the appellant's side had submitted an application on 02.02.2016 before the trial court for issuance of summons to the Down Town Hospital authority to produce the treatment particulars of the respondent and also the discharge certificate on the ground that the respondent being a lunatic, was treated by Dr. Sangita Dutta, psychiatrist at the hospital on 06.09.2012. The respondent did not object to the said prayer. The learned trial court by its order dated 16.05.2016, issued summons for the production of the records, as prayed for by the appellant, from the Down Town Hospital authority. It is reflected in the order dated 29.11.2016 of the learned Family Court that in response to the same, the Down Town Hospital authority had submitted a report to the effect that there was no record of providing medical treatment to the respondent as she was not admitted in the hospital. Thus, the appellant had failed to show that the respondent had taken any treatment at the hospital for her suffering from any kind of mental illness. The appellant has failed to bring in any other evidence to substantiate his allegation as regards the mental illness of the respondent. The respondent had admitted about taking treatment for depression from Dr. Sangita Dutta which, admittedly, was after the incident of 28.08.2012. But, depression, per se, cannot be equated with mental illness. There is no evidence that the respondent had suffered from any kind of mental disorder on 28.08.2012. Neither the evidence of the doctor was adduced nor any document regarding medical treatment of the respondent was exhibited. P.W.2 who is an aunt of the appellant, had deposed that she, during the period after the marriage till the incident of 28.08.2012, had found the respondent normal and polite. From the above, it cannot be held that the respondent has suffered from any mental disorder. 19. P.W.2 who is an aunt of the appellant, had deposed that she, during the period after the marriage till the incident of 28.08.2012, had found the respondent normal and polite. From the above, it cannot be held that the respondent has suffered from any mental disorder. 19. Under Section 13(1)(iii) of the Hindu Marriage Act, one spouse can seek dissolution of the marriage on the ground that the other spouse has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to leave with the respondent. Explanation (a) to the said clause states that the expression "mental disorder" means mental illness, arrested or incomplete development of mind or psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. 20. Considering the said legal provision as regards mental disorder coupled with the ground of cruelty, provided as a ground for seeking dissolution of marriage under Section 13(1)(a) of Hindu Marriage Act, 1955, in view of the plea taken by the appellant for his dissolution of marriage, it was incumbent on the part of the appellant to establish the same by cogent and reliable evidence. But on appreciation of the evidence on record, the learned Family Court while deciding issue no. 1, has reached a finding that no case is made out by the appellant to reach an opinion that the respondent, suffering from mental disorder, had inflicted cruelty upon the appellant and decided the issue no. 1 in the negative. The learned Family Court has held that the appellant has failed to prove the mental sickness of the respondent or cruelty by the respondent. Having so decided the issue no. 1, the learned Family Court has also decided the other two issues in the negative and against the appellant. 21. In so far as the incident of 28.08.2012 is concerned, it has emerged from the evidence on record that at about 2-00 a.m. on 28.08.2012, the respondent was found inside a well located in the premises of the appellant. It has also emerged that the respondent had raised hue and cry from inside the well seeking help and on hearing the same, the appellant, his family members and the neighbours came near the well and tried to rescue the respondent from inside the well. It has also emerged that the respondent had raised hue and cry from inside the well seeking help and on hearing the same, the appellant, his family members and the neighbours came near the well and tried to rescue the respondent from inside the well. When such attempt to rescue the respondent from the well had failed, the fire service station at Sualkuchi was informed and after reaching the place of occurrence, the fire service personnel rescued the respondent from inside the well. Though the appellant stated that he had lodged an ejahar on 29.08.2012, stating the incident to be an attempt of the respondent to commit suicide, which resulted into a General Diary Entry No. 577/2012 dated 29.08.2012,he did not produce the copy of the said ejahar in original. The evidence of the appellant was to the effect that at that point of time, he was at his bed and he was not aware as to how the incident had happened. Similarly, the evidence of the respondent was to the effect that she was not aware as to how she fell inside the well. No evidence has been led about the size, construction, depth, breadth, location, etc. of the well. There would be other possibilities due to which the respondent was found inside the well like the respondent fell inside the well accidentally or she was carried away during her sleep and thrown inside the well or she had somnambulism which might or might not be related to mental illness, etc. In view of such different possibilities, the onus was on the appellant to establish that it was definitely an attempt to commit suicide and the same was due to her mental illness and to rule out all other possibilities. The appellant has failed to discharge the said burden. As has been discussed above, none of the other witnesses has been able to throw any light as to how the respondent was found inside the well. One can conceive that if there was an attempt to commit suicide by the respondent, as alleged by the appellant, there would not have been any attempt from the respondent to save herself by crying for help. One can conceive that if there was an attempt to commit suicide by the respondent, as alleged by the appellant, there would not have been any attempt from the respondent to save herself by crying for help. In such situation, it is not possible to visualize for the Court to reach anything that there was an attempt on the part of the respondent to commit suicide on 28.08.2012 and such attempt was related to her mental illness in any manner. It cannot be also said that because of the said incident, the appellant has suffered any mental cruelty. Thus, we are of the considered opinion that the learned Family Court was not unjustified in its approach to finally hold that the appellant has failed to substantiate his allegations while seeking the dissolution of the marriage on the ground of cruelty. In order to reassure about the same, we have also perused and revisited the evidence on record and having done so, we are not persuaded to reach any different opinion than the one reached by the learned Family Court. In such view of the matter, this appeal lacks merit and deserves to be dismissed. Accordingly, the same is dismissed. 22. Return the LCR forthwith.