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Tripura High Court · body

2020 DIGILAW 15 (TRI)

Pradip Das v. Soma Rani Das

2020-01-22

ARINDAM LODH, S.TALAPATRA

body2020
JUDGMENT : 1. Heard Mr. N. Majumder, learned counsel appearing for the appellant as well as Mr. H.K. Bhowmik, learned counsel appearing for the respondent. 2. This appeal emerges from the judgment dated 25.06.2015 delivered in T.S.(RCR) 145 of 2008 by the Judge, Family Court, West Tripura, Agartala. The appellant instituted the suit for restitution of the conjugal rights under Section 9 of the Hindu Marriage Act on the ground that the respondent had left the matrimonial home and relation without any reasonable excuse on 29.06.2007 whereas the marriage was solemnised on 01.12.2002 i.e. after about five years of their marriage. According to the appellant, the respondent was obstinate that deterred a peaceful matrimonial life. She used to frequently visit in her parent's house on the pretext of looking after her old mother. That apart, the respondent was reluctant to take care of the mother of the appellant who, at the relevant point of time, was about 90 years. Finally, on the birth of their only son on 29.01.2004, the matrimonial discord broke into fierce differences. The respondent has stated in the written statement that she having failed to bear the traumatic situation in the matrimonial home left for living with her parents. 3. The appellant herein adduced as many as six witnesses to establish that the situation in the matrimonial home was adequately conducive to live a peaceful conjugal life. However, the Judge, Family court, Agartala, West Tripura has accepted the version of the respondent on the scrutiny of evidence. The Judge, Family court has observed as follows: "The statements made by the PWs 1, 2, 3 and 4 that the petitioner and the respondent always used to quarrel with the petitioner and used to avoid her duties and obligations in her marriage and to take care of her mother-in-law and on that reason, she left her husband's house without any basic reason also inspire no confidence at all as in our society a married woman having a baby and no source of income cannot be expected to leave her husband's house after maintaining conjugal life with her husband for considerable period of 4 years only on such quarrel in her matrimonial home which is mere wear and tear of matrimonial life and happens in day to day in every family life. In such a circumstances, the statements made by the DW-1 appears to be more convincing and sufficient to indicate that she had to leave her husband's house under compelling circumstances and due to the torture caused upon her in her matrimonial home specially when nothing came out during cross-examination of this witness to discard the credibility in any way. Over and above, I find none of the family members of the petitioner could be produced in this case in support of the case of the petitioner who could be the best witnesses regarding the family affairs of the parties and their problem and no explanation could also be given by the petitioner for withholding such witnesses." [Emphasis added] 4. Mr. N. Majumder, learned counsel appearing for the appellant while assailing the reasons and appreciation of evidence has submitted that there is no tenable excuse for withdrawing from the society of the appellant. According to the appellant, the respondent had pressurised him to be "Gharjamai (the resident-husband)" but he refused and that had angered the respondent. However, according to the respondent, the appellant had started both physical and mental torture on her. It had become unbearable. The respondent has categorically denied the allegation of not taking care of her old mother-in-law. The appellant has further submitted that no excuse, reasonable or otherwise, is available to the respondent for leaving the matrimonial home and as such, the inference drawn by the Judge, Family Court by the judgment dated 25.06.2015 cannot be sustained. 5. Mr. H.K. Bhowmik, learned counsel appearing for the respondent has taken us to the thick of evidence and submitted that it is apparent on the face of the record that the respondent was physically beaten up by the appellant. That apart, she was not being provided food regularly or amenities like electricity, etc. According to Mr. Bhowmik, learned counsel, a cumulative reading of the evidence, it would be abundantly clear that the respondent was living in an in-conducive situation in the matrimonial home. Mr. Bhowmik, learned counsel has therefore submitted that the inference as drawn by the Judge, Family court, Agartala in the judgment dated 25.06.2015 cannot be faulted with. 6. We have revisited the evidence. It surfaces from the said exercise that from the judgment dated 25.06.2015, the Judge, Family Court has meticulously evaluated the evidence as led by the appellant and the respondent. 6. We have revisited the evidence. It surfaces from the said exercise that from the judgment dated 25.06.2015, the Judge, Family Court has meticulously evaluated the evidence as led by the appellant and the respondent. The material part of the evidence would be highlighted for purpose of deciding the solitary objection that has been raised in this appeal. The objection is whether the respondent had withdrawn from the society of the appellant without reasonable excuse or not. It appears that the respondent has categorically stated in the trial that even the appellant threatened her by saying that if she came back to the matrimonial home, she would be killed by the appellant. When she was re-examined after the suit was remanded, she has categorically stated as under: "The petitioner also started to misbehave with me and to neglect me in my matrimonial home and the situation gradually became unbearable to me. The petitioner also became reluctant to take care of me and to provide my food. He also used to confine me in dark room often. The petitioner also never allowed me to utilise electricity keeping on light, fan, etc. and to enjoy the same in my matrimonial home. Ultimately, in the month of July, 07 in a day the petitioner tortured me physically in an inhuman manner and in such a circumstances, following no other alternative I had to leave my husband's house on the following day along with my son and take shelter in my paternal home." Thereafter, the appellant did not contact her. In the cross-examination despite her experience in the matrimonial home she has made a categorical statement that "I am ready to stay together with my husband in a rented accommodation." She has denied the allegation that she failed to perform her duties and obligations towards her mother-in-law during her stay in her "matrimonial home". Even the witness adduced by the appellant has stated that they used to hear that the appellant and the respondent were quarrelling. 7. PW-1 has admitted that when he did ask the respondent why she did not feed his son and give medicine in time, she became furious and threw out all the medicines and closed the door. She attempted to commit suicide. This incident itself shows the charged situation in the matrimonial home. 7. PW-1 has admitted that when he did ask the respondent why she did not feed his son and give medicine in time, she became furious and threw out all the medicines and closed the door. She attempted to commit suicide. This incident itself shows the charged situation in the matrimonial home. Few statements of the witnesses as adduced by the appellant if collated with the statements of appellant it would be imminent that the Judge, Family Court, Agartala has noticed this piece of evidence. 8. PW-6, Amiya Choudhury has stated in the examination-in-chief that he had tried to mitigate the dispute by calling meeting in the house of the appellant. Even he had tried to convince the appellant to adjust with the wife. The wife, according to him, was responsible for the dispute inasmuch as the wife [the respondent herein] tried to separate the appellant from his old mother. But the appellant was refused to leave his old mother in order to fulfill the desire of the respondent. 9. Even, DW-5, Sri Debashish Bhowmik, has stated that since the respondent did not have the sufficient food one day, he was asked by the mother of the respondent to visit the house of the respondent and to deliver some food. When he had visited the house of the respondent, he found the injuries over the body of the respondent and he was told by the respondent that she was beaten up by her husband. DW-6, Sujoy Deb was once asked by the mother of the respondent to deliver some food to the matrimonial home of the respondent. 10. Having appreciated the evidence of the nature as noted above at length and the submissions of the learned counsel for the parties, we are of the view that leaving of the matrimonial home by the respondent was not without any reasonable excuse and still the respondent is willing to join the appellant but the respondent has, no doubt given a condition that her husband has to live in a rented house. Thus the cause that has surfaced implies that the appellant has to shun his old mother in his house. We are constrained to observe that the demand of the respondent may not rightfully be acceptable to the appellant. 11. Thus the cause that has surfaced implies that the appellant has to shun his old mother in his house. We are constrained to observe that the demand of the respondent may not rightfully be acceptable to the appellant. 11. Section 9 of the Hindu Marriage Act, 1955 is structured on two elements: (1) If the husband or the wife has, without reasonable excuse, withdraws from the society of the other, the other party may ask for a decree of restitution of conjugal life. (2) The burden of proving reasonable excuse shall be on the person who has withdrawn from the society. We are to weigh whether the respondent has established by evidence that the reasons she has assigned for leaving the matrimonial home or her withdrawing from the society of the appellant is tenable or not. 12. We have no hesitation to hold that the reasons are sufficient to leave the conjugal life. A conducive situation in the matrimonial home is the paramount requirement for enjoyment of the conjugal rights and in absence of such condition, nobody can be asked by a decree to restitute the conjugal life. The reasonable excuse therefore has been well established by the respondent and hence, we did not find any infirmity in the inference drawn by the Judge, Family Court in the impugned judgment dated 25.06.2015. The appeal appears to be without substance and accordingly, the same is dismissed. Draw the decree accordingly. Send down the LCRs forthwith.