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2021 DIGILAW 216 (TRI)

Shampa Datta v. Sougat Das

2021-12-16

S.G.CHATTOPADHYAY, S.TALAPATRA

body2021
JUDGMENT 1. Heard Mr. D. K. Daschoudhury, learned counsel appearing for the appellant as well as Mr. A. Sengupta, learned counsel appearing for the respondent. 2. By means of this appeal, the judgment and decree respectively dated 21.07.2018 and 30.07.2018 delivered in TS(Divorce) 45 of 2015 by the Judge, Family Court, Udaipur, Gomati has been called in question. By the said judgment, the Judge, Family Court has granted the divorce on the ground of cruelty within the ambit of Section-13(1)(a) of the Hindu Marriage Act, 1955. The Judge, Family Court while passing the said judgment has observed that from the evidence it becomes clear that the respondent [the appellant] had stayed in the house of the petitioner [the respondent in this appeal] that one year and few months only and thereafter the parties had been leaving separately for last four years. 3. The respondent has asserted in her written statement that though she used to do the household works, yet she did not get any appreciation at all. It is no denying fact that in our society after marriage the bride is to leave her parental home from her matrimonial home and she is to adapt with the environment of her husband and the matrimonial home becomes are abode. It has been further observed that usually nobody demands or accepts any appreciation for working for her own home. Seeking appreciation for works done in own house seems unusual. So the statement made by the respondent, as observed by the Judge, Family Court, indicates that she could not accept the petitioner and his mother as her own and that may be the reason for mad adjustment or the 'epicentre' of their matrimonial dispute. That apart, the Judge, Family Court has observed that since the parties have no child who could have acted as a bridge between the parties, their marital tie suffered severe jolt. Immediately thereafter, the Judge, Family Court has observed that there is no justification to let the brittle and dried up relationship to 'grow'. However, the ground as taken by the respondent herein for granting divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955 that the appellant had disserted the respondent for a period of more than two years immediately preceding the presentation of the petitioner has not been accepted. Thus, the decree of divorce is founded solely on the ground of cruelty. 4. Mr. Thus, the decree of divorce is founded solely on the ground of cruelty. 4. Mr. D. K. Daschoudhury, learned counsel appearing for the appellant has quite assertively submitted that there is no proved fact based on which the decree of divorce can be granted on the ground of cruelty. Mr. Daschoudhury, learned counsel has pointed out that fundamentally, three allegations have been made against the appellant, the respondent in the proceeding before the Judge, Family Court. Those are-(1) the appellant is ill tempered and on one occasion she had slapped him, (2) the appellant was not interested to share the household works. Even when she was requested, she had expressed annoyance. After detection of pregnancy, the appellant left the matrimonial home without any intimation to the respondent. In para-9 of the petition filed by the respondent, it has been stated that on 17th November, 2013, the appellant went to Durgapur with her mother at the expenses of the respondent where she was examined by one Gynaecologist. After ten days, the petitioner was informed that she became pregnant again and within two months the pregnancy was aborted. The respondent defrayed all expenses of the medical treatment. The appellant and the respondent went to Kolkata on 11.06.2014 for having consultation with one eminent Gynaecologist. Even at Agartala, the appellant was taken to another Gynaecologist of repute. But one day, the appellant was found to have left the matrimonial home with her all the belongings and gold ornaments, and she did not come back. According to Mr. Daschoudhury, learned counsel from reading of the pleadings of the respondent as filed before the Judge, Family Court, it would be apparent that the allegation against the appellant is that she never adapted to the matrimonial home and as a result she had chosen the path of behaving recklessly. 5. There is no dispute in respect of solemnization of marriage on 18.11.2012. The appellant and the respondent in the proceeding being TS(Divorce) 45 of 2015 filed elaborate statement of facts and contended that the appellant was pressurized to give up the job which she was doing under Reliance Life Insurance Company Limited. She had to leave bed early in the morning for doing all household chores. It has been admitted that she became pregnant, Her pregnancy was detected in the month of March, 2014. She had to leave bed early in the morning for doing all household chores. It has been admitted that she became pregnant, Her pregnancy was detected in the month of March, 2014. Thereafter, the appellant has stated in her written statement as follows: "While the pregnancy was three months at that time the mother of the petitioner gave her some Prasad of Thakur Bari and asked her to eat. On good faith the respondent ate the said Prasad, the miscarriage was happened." She had denied the allegation of taking away the gold ornaments. Even she had categorically stated that she made utmost effort to adjust with the matrimonial home, but on 27.06.2014 she was brutally assaulted by the respondent herein. As a result, she had take shelter in her paternal house. On that occasion she was treated at Belonia Hospital. 6. Mr. Das Choudhury, learned counsel appearing for the appellant has at the beginning stated that the appellant is ready to join the respondent in the matrimonial life and is desirous of living a peaceful conjugal life, but the respondent has denied and resisted the appellant in reconstruction of the marriage. According to Mr. Daschoudhury, learned counsel, the respondent has failed to make out any case of cruelty and the facts those were borne in the petition(pleading of the respondent) do not constitute cruelty. Hence, the impugned judgment requires interference from this court. Mr. Daschoudhury, learned counsel has criticized the judgment as challenged in this appeal by stating that the appreciation of the evidence is grossly perverse, otherwise it could have been held by the Judge, Family Court that the respondent has in order to shield his own matrimonial misconduct made the allegations against the appellant. The Judge, Family Court has failed to appreciate the circumstances in which the appellant did not approach the police even after being seriously assaulted by the respondent. Mr. Daschoudhury, learned counsel has submitted that the reason for living separately by the appellant has been accepted by the Judge, Family Court. The acts indulged by the appellant, have been used as the foundation for granting the said decree of divorce. 7. Mr. A. Sengupta, learned counsel appearing for the respondent has stated that the judgment returned by the Judge, Family Court cannot be faulted with inasmuch as the appellant has been cause of all matrimonial distresses. She had physically assaulted the respondent. 7. Mr. A. Sengupta, learned counsel appearing for the respondent has stated that the judgment returned by the Judge, Family Court cannot be faulted with inasmuch as the appellant has been cause of all matrimonial distresses. She had physically assaulted the respondent. She denied to share the household works. Not only that, the gravest part of her misconduct is making of serious allegations against the respondent and his mother. It has been alleged by the appellant that she was assaulted by him and she was treated in the Belonia hospital. But no medical record or any evidence to corroborate such statement has been introduced in the evidence. Even the appellant has attributed serious allegation against the mother of the respondent for 'causing' abortion of fetus that the appellant was carrying. Mr. Sengupta, learned counsel in order to scaffold his submission has relied on a decision of the apex court in V. Bhagat vs D Bhagat (Mrs) reported in (1994) 1 SCC 337 where the apex court has analyzed the meaning and purport of 'cruelty' as the ground of divorce in terms of Section 13(1)(ia) of the Hindu Marriage Act. The relevant passage is extracted hereunder: "Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties." 8. In V. Bhagat vs D Bhagat (supra), the apex court has intended to make out a workable definition of cruelty. Cruelty is a conduct which afflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. Cruelty is a conduct which afflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility, or otherwise, of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 9. Mr. Sengupta, learned counsel has submitted that the appellant does not have any respect for the respondent and she had spread all lies against him and his mother which were so painful that the respondent is not expected to live with the appellant. 10. We have appreciated the submission of the learned counsel for the parties as well as scrutinized the records. True it is that the appellant has, without any tenable proof, gathered impression that for taking the prasad, abortion was caused and since was given by the mother-in-law, she was held responsible for abortion. But we are constrained to observe that this is an impression a prudent person usually would not have made. Making a statement on the basis of the impression without further scrutiny is the sign of immaturity. So far the one single act of slapping is concerned, even if the allegation of the respondent is believed by this court in our considered view that cannot constitute 'cruelty' for purpose of Section 13(1)(ia) of the Hindu Marriage Act. Making a statement on the basis of the impression without further scrutiny is the sign of immaturity. So far the one single act of slapping is concerned, even if the allegation of the respondent is believed by this court in our considered view that cannot constitute 'cruelty' for purpose of Section 13(1)(ia) of the Hindu Marriage Act. The definition of the cruelty has been further developed in Vinita Saxena vs Pankaj Pandit reported in (2006) 3 SCC 778 . It has been observed in Vinita Saxena (supra) that the word cruelty is used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. Here, the appellant has squarely denied the allegation. 11. From reading of Vinita Saxena (supra), it would appear that cruelty has an inseparable nexus with the human conduct and is always dependent on social strata to which parties belong, their ways of life, relationship, temperament and emotion that are conditioned by their social status. 12. In Neelam Kumar vs. Dayarani reported in (2010) 13 SCC 298 , the apex court has observed that a single incidence in isolation, is not sufficient for the dissolution of marriage on the ground of cruelty. To constitute cruelty, it is however enough that one of the party's conduct is so abnormal and below expected norms that other spouse could not reasonably be expected to put up with it. Conduct is no longer required to be so atrociously abominable which would cause reasonable apprehension that it would be harmful or injurious to continue cohabitation with the other spouse. 13. Therefore, there is no requirement to establish the cruelty that there had been physical violence. The mental distress to an extreme nature can also constitute cruelty. The mental cruelty is necessarily a matter of inference to be drawn from the facts and circumstance of the case. 13. Therefore, there is no requirement to establish the cruelty that there had been physical violence. The mental distress to an extreme nature can also constitute cruelty. The mental cruelty is necessarily a matter of inference to be drawn from the facts and circumstance of the case. From those laws as well as from a catena of other decisions of the apex court it has been now well settled that instances of the cruelty are not to be taken in isolation but the cumulative effect of the facts and circumstances emerging from the evidence on record be assessed and the inference be drawn whether those sub-serves the definition of mental cruelty as the apex court has further set out in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511 . In Samar Ghosh (supra) the definition of the word 'cruelty' has been given a comparatively liberal meaning. Highly placed and educated spouse can be severely hurt by an act or a series of facts which in other cases may not be so painful or distressful. Thus the status of the spouses to infer about cruelty is an important element which cannot be ignored while deciding a petition seeking dissolution of marriage. 14. In the present case, in our considered view that there is no such grave act which might generate such apprehension which would pursuade desist the spouses from living together. Impression of the appellant is not a grave act. After taking prasad, the miscarriage took place. The appellant drew the impression that the mother of the respondent was behind it. But we do not find any iota of evidence that was ever uttered by the appellant to her. Such impression, for the first time, surfaced in the written statement filed by the appellant. Therefore, we will not include this act as the grave act which might completely sever all fibres of the marital relation. [15] Having observed thus, we find that the impugned judgment is unsustainable. While dealing with such cases particularly with the young spouses a substantial degree of sensibility should be exercised. Ordinary wear and tear in the marital relation cannot be used as tool for granting divorce. On every fall of hat, divorce cannot be granted. Thus, the impugned judgment and decree are set aside. The parties shall make a serious endeavour to live together and live their conjugal life peacefully. Ordinary wear and tear in the marital relation cannot be used as tool for granting divorce. On every fall of hat, divorce cannot be granted. Thus, the impugned judgment and decree are set aside. The parties shall make a serious endeavour to live together and live their conjugal life peacefully. It is only our expectation. In the result, the appeal stands allowed. Prepare the decree accordingly. Send down the LCRs thereafter.