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2020 DIGILAW 48 (TRI)

Dhrupati Banik v. Haripada Deb

2020-03-11

S.G.CHATTOPADHYAY, S.TALAPATRA

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JUDGMENT : S. Talapatra, J. 1. Heard Mr. D.C. Roy, learned counsel appearing for the appellant as well as Mr. S. Lodh, learned counsel appearing for the respondent. 2. This is an appeal under Section 19(1) of the Family Courts Act from the judgment and order dated 11.05.2017 delivered in T.S.(Divorce) 380 of 2012 by the Judge, Family Court, Agartala, West Tripura. 3. By the said judgment, the Judge, Family Court returned the finding that against the appellant, the respondent has been able to establish the allegation of cruelty. The Judge, Family Court has further observed that the son of the respondent [PW-2] had caught the respondent engaged in sexual intercourse with one Sanjib Sarkar who however has not been made party in the proceeding in defiance of Rule 8A of the Hindu Marriage (Gauhati High Court) Rules, 1988 which has been adopted by this Court. That apart, the Judge, Family Court has also observed that the appellant has made unsubstantiated allegation of illicit relation of her husband with one Rina Paul as well as of having fathered a child. Such allegation has not been substantiated by any cogent evidence. There is no evidence of the petitioner's having fathered a illegitimate child. 4. Having appreciated the evidence as led by the parties, the Judge, Family Court, Agartala, West Tripura has observed that the cruelty against the respondent has been well established and there is no possibility of their living together. Their living together might cause further cruelty to the respondent in this appeal. The appellant being aggrieved by this finding has challenged the said judgment and raised the plea that there is no specific allegation of cruelty, meted out by the appellant and thus, the impugned judgment and order cannot survive the scrutiny of law. 5. Mr. S. Lodh, learned counsel appearing for the respondent has submitted that the ground of leading adulterous life or living in adultery, even if not considered, the respondent has substantially proved the allegation of cruelty. According to Mr. Lodh, learned counsel having sexual intercourse with some other person or making unsubstantiated allegation assassinating the character generates serious cruelty and accepting such conduct of the appellant as cruelty by the Judge, Family Court has caused no wrong and hence, there is no necessity of interference by this court. 6. According to Mr. Lodh, learned counsel having sexual intercourse with some other person or making unsubstantiated allegation assassinating the character generates serious cruelty and accepting such conduct of the appellant as cruelty by the Judge, Family Court has caused no wrong and hence, there is no necessity of interference by this court. 6. For purpose of appreciating the rival contentions, this court has scrutinized the records and finds that on the basis of the rival contentions, the following two issues were considered by the Family Court: "(i) Whether respondent was treated cruelly by the petitioner in their marital relationship? (ii) Whether the petitioner is entitled to the decree of divorce as prayed for and to what other relief/reliefs?" 7. To substantiate the pleadings, the appellant and the respondent adduced oral evidence. The appellant-respondent examined himself [PW-1] and adduced Sri Raj Prasad Deb [PW-2], his son and a close neighbor namely Sri Rupak Roy [PW-3]. The appellant-respondent has adduced three witnesses including herself [DW-1], one Sanchita Deb [DW-2], the daughter of the parties and Jhulan Banik [DW-3], a close relative. 8. PW-1, Sri Haripada Deb has stated that long time after their marriage, suddenly, he noticed that the appellant has changed her life and started "to lead adulterous life with some boys" of their locality. Notwithstanding the protest from the respondent, she continued with such life and started misbehaving with the respondent. The respondent tried to mend her ways but she was not inclined to modify her activities. On 18.10.2012, his son saw his mother, the appellant, in a compromised position with one Sanjib Sarkar and PW-1 has further stated that his son [PW-2] had stated him that the appellant and Sanjib Sarkar were sharing bed "in a naked condition" in their room locking the door from inside. When her son raised protest, he was assaulted by Sanjib Sarkar. One neighbour namely Rupak Roy [PW-3] informed PW-1 about the occurrence. The respondent's son [PW-2] informed the said occurrence to Bishalgarh police station in writing [Exbt.1]. In the cross-examination, he has denied the suggestion as projected contrary to what he has stated in the examination-in-chief. But he has added in the cross-examination that the appellant had been extending threat to him. 9. PW-2, Sri Raj Prasad Deb has corroborated the episode of sexual intercourse and his getting assaulted by Sanjib Sarkar, and his filing of the complaint to the Bishalgarh police station. But he has added in the cross-examination that the appellant had been extending threat to him. 9. PW-2, Sri Raj Prasad Deb has corroborated the episode of sexual intercourse and his getting assaulted by Sanjib Sarkar, and his filing of the complaint to the Bishalgarh police station. 10. Similarly, PW-3 namely Sri Rupak Roy, corroborated the part as attributed to him by PW-1. He has categorically stated in the trial as follows: "At that time, I also found Raj Prasad Deb the son of Haripada sustained bleeding injuries below his eye. It also found no shirt on the body of Sanjib Sarkar and the wife of Haripada was wearing a nighty. Raj Prasad Deb told me that he found Sanjib Sarkar and Drupadi together in the house who tortured Raj Prasad physically." 11. The allegation that has been made by the appellant in her written statement in respect of illicit relation of the respondent with one Rina Paul sought to be supported by the appellant [DW-1] by stating in the trial as follows: "My husband had contracted a 2nd marriage with one Rina Paul and she is staying in the house of one Haripada Das at Aralia, Shantipara." She has also stated that the respondent tortured her when she protested on the issue of contracting second marriage. According to her, as stated in the cross-examination, she complained of illicit relation to the councilor of Aralia about the relation of her husband. Her daughter namely Sanchita Deb [DW-2] has stated in the trial that her father has illicit relation with one Rina Paul. But she was cautious when she has admitted that on 18.10.2012 she was not present at home and as such, she was not aware of any incident as stated by PW-2. 12. DW-3, Smt. Jhulan Banik, a relative of DW-1, has stated that she visited the "2nd wife" of the respondent and on seeing her, he [PW-1] fled from the spot. 13. On the face of such evidence, the Judge, Family Court has granted the decree of divorce by dissolving the marriage that subsisted between the parties. 14. We have given anxious consideration of the submission made by the learned counsel for the parties and found that the appellant has treated the respondent with cruelty, inasmuch as her having extra marital sex with one person was quite succinctly proved. 14. We have given anxious consideration of the submission made by the learned counsel for the parties and found that the appellant has treated the respondent with cruelty, inasmuch as her having extra marital sex with one person was quite succinctly proved. As this court is of the view that one act of adultery as that has been proved may not be the ground for dissolution marriage on the ground of living in adultery but that is an act of cruelty, and such act of cruelty has not been condoned by the respondent herein. That apart, we find the Judge, Family Court has rightly observed that by making allegation assassinating the character of the respondent and leaving it unsubstantiated further constitutes cruelty. Moreover, from the records it appears that the parties have failed to live together and they are living separately since 2012. 15. Having regard to all these aspects we are of the view that the impugned judgment as returned by the Judge, Family Court does not call for any interference and accordingly, the appeal stands dismissed. However, before parting with the records this court is persuaded to settle the maintenance allowance in terms of Section 25 of the Hindu Marriage Act in the present circumstances. For this limited purpose, we have interacted with the counsel for the parties. It appears that the appellant is getting salary around Rs. 55,000/- (gross) and after deduction, he is receiving a sum of Rs. 36,000/- at hand. Their children i.e. the son and the daughter either settled in the marital life or leading their independent life and none of them are minor or dependent on their parents. Having regard to that aspect of the matter, the respondent is directed to pay a sum of Rs. 8000/- per month to the appellant before the seventh day of every English month. 16. At this juncture, Mr. D.C. Roy, learned counsel appearing for the appellant has stated that in terms of the earlier order of maintenance, the maintenance allowance is deducted from the salary of the respondent. We are therefore of the view that the same mode can be followed also for getting the maintenance allowance remitted. The drawing and disbursing officer of the respondent shall deduct Rs. 8000/- per month from the salary of the respondent and the said amount shall be remitted to the account of the appellant. We are therefore of the view that the same mode can be followed also for getting the maintenance allowance remitted. The drawing and disbursing officer of the respondent shall deduct Rs. 8000/- per month from the salary of the respondent and the said amount shall be remitted to the account of the appellant. The said amount shall be payable w.e.f. 01.03.2020. As such, the first payment shall be made before 7th April, 2020. It is made absolutely clear that if the appellant is having any maintenance allowance from the respondent that amount shall stand merged with the amount as determined under this order, meaning the appellant will receive the maximum amount of maintenance at Rs. 8,000/- per month in the aforementioned mode. In terms of the above, this appeal stands disposed of. A copy of this order be furnished to the counsel for the parties.