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2022 DIGILAW 213 (TRI)

Champa Sarkar v. Shibaji Deb

2022-04-28

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Mr. H.K. Bhowmik, learned counsel appearing for the appellant as well as Ms. S. Deb (Gupta), learned counsel appearing for the respondent. 2. This is an appeal under section 19(1) of the Family Courts Act, 1984 from the judgment dated 04.09.2019 delivered in Title Suit (RCR) 63 of 2017 by the Judge, Family Court, Agartala, West Tripura. 3. By the said judgment, it has been observed that the respondent herein is entitled to the decree of restitution of conjugal rights, as prayed for, as the appellant herein has left the matrimonial home without any conceivable reason. 4. The respondent filed an application under section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights as the appellant herein had moved out suspecting that the respondent is involved in an extra-marital relation with one woman-which, however, according to the respondent is absolutely unfounded and a feeble attempt to build up a plausible reason to justify the incidence of leaving the matrimonial home. The respondent tried to mitigate the situation taking the help of the elders in the family. All on a sudden, on 30.06.2017, the appellant came to the house of the respondent and told his parents that she will be going to her parental home for performance of Manasha Puja. In the meanwhile, the respondent lost his job w.e.f. 31.03.2020 in view of the verdict of the Apex Court along with few thousand teachers. His efforts to take back the appellant in the matrimonial home was frustrated by the appellant. A proceeding under section 125 of the Cr.P.C. was instituted by the appellant for having maintenance from the respondent herein for her and for their daughter. The said prayer was partly-allowed. The Family Court, Agartala, West Tripura passed an order directing the respondent to pay a sum of Rs. 5,000/- per month to the appellant as maintenance. In the background of that development, the respondent finding no other alternative, as stated, filed the matrimonial suit for restitution of conjugal rights. But, the appellant herein, by filing the written statement resisted the prayer and stated that the respondent used to torture her mentally. However, in the wedlock, a female child was born on 15.07.2017. 5. In the background of that development, the respondent finding no other alternative, as stated, filed the matrimonial suit for restitution of conjugal rights. But, the appellant herein, by filing the written statement resisted the prayer and stated that the respondent used to torture her mentally. However, in the wedlock, a female child was born on 15.07.2017. 5. It has been also admitted by the appellant that on 18.06.2017, the parents and the brother and sister of the respondent visited her house and apprised her that respondent had 'discontinued the extra marital relation'. Despite that initiative also, according to the appellant, she denied to come back to the matrimonial home. But she has admitted that the respondent has lost his job in view of the decision of the Apex Court. She denied to be reunited in the matrimonial life. In those lines, the evidence was laid by the respondent and the appellant. 6. There had been no cross examination of the respondent in respect of the extra-marital relation. It is evident that the statement of the respondent [PW-1] has been corroborated by PW-2, Sourav Das and PW-3, Bikash Debnath. PW-2 and PW-3 have testified that the appellant alleged of an extra-marital affair, but they have stated unambiguously that the allegation was grossly false. 7. The respondent had examined another witness namely, Shyamal Roy [PW-4] who is a member of a local club. They had tried to mitigate their matrimonial dispute. He has also stated that the appellant alleged of an extra-marital affair against the respondent. They tried to mitigate but for the stiff resistance offered by the appellant, nothing could be achieved. 8. Tapan Das [PW-5] has made a statement that he does know the appellant closely being one of her relatives. He has expressed that the appellant is a quarrelsome lady. On every issue, she used to pick up quarrel with the respondent. Even at the instance of a local club, when the matter was sought to be mitigated, and there was effort to take the appellant back to the matrimonial home, for the resistance of the appellant, all these efforts were frustrated. 9. The appellant had examined herself as DW-1. On a scrutiny of her testimony, it appears that the said matrimonial suit has been instituted by the respondent in order to harass the appellant. The appellant was maltreated and harassed by black magic. 9. The appellant had examined herself as DW-1. On a scrutiny of her testimony, it appears that the said matrimonial suit has been instituted by the respondent in order to harass the appellant. The appellant was maltreated and harassed by black magic. That apart, the appellant had 'reasonable apprehension of physical and mental torture and thus, she felt the matrimonial home [is] unsafe and that is the reason [why] she left the matrimonial home forever on 26.06.2017.' But, she has also stated that there has been no initiative to take her back. She has admitted that she instituted a proceeding under section 125 of the Cr.P.C. being Misc. case No. 376/2017 and she got an order of monthly maintenance of Rs. 5,000/-. In respect of the extra-marital relation, what she has stated in the trial is as follows: '.............on 18-06-2017, morning my mother, elder sister, father, younger and uncle did not visit the house of my in-laws with an acquisition that my husband has been maintaining extra marital relationship with 'someone'.' 10. Later on, she has stated that she did not leave the matrimonial home of her volition but she was forced to leave the matrimonial home on 26.06.2017. The appellant has questioned the character of PW-2 and PW-3, but without any materials placed in the proceeding. 11. In her cross examination, she has admitted that she is not willing to return to her in-laws' house out of fear of torture. She has also admitted that she did not lodge any complaint against the respondent to any authority. 12. Father of the appellant [DW-2] has introduced a different story by stating that the inmates of the matrimonial home including the respondent was not happy for her daughter's dark complexion and she used to be treated as 'maid servant' in their house. He has also stated that his daughter was thrown out of the matrimonial home. He has not stated anything about the extramarital relation with anyone even though DW-1 has made a categorical reference to his statement in this regard. 13. In the cross examination, DW-2 has stated, inter alia, as follows: 'In the year 2017 myself and Gopal Sarkar went to the in-laws house of my daughter and also took her to my house in the event of Manasa Puja, at that time my daughter also took her all documents including one document of her father-in-law. 13. In the cross examination, DW-2 has stated, inter alia, as follows: 'In the year 2017 myself and Gopal Sarkar went to the in-laws house of my daughter and also took her to my house in the event of Manasa Puja, at that time my daughter also took her all documents including one document of her father-in-law. Subsequently, the document of her father-in-law was returned back. I did not file any case for returning all 'stridhan' articles from the house of her in-laws. I am not willing to return back my daughter to her in-laws house.' 14. The resistance is, therefore, from the parents as well. 15. Another witness has been examined by the appellant namely, Mintu Pada Ghosh [DW-3]. He has replicated the allegation of dark complexion and of not being smart, etc., but not stated any word about the extra-marital relation. He did not state anything substantive in the examination in chief. 16. Gopal Sarkar [DW-4], who accompanied DW-2, visited the matrimonial home of the appellant for bringing her on the occasion of Manasha Puja. He has stated that only due to physical appearance, she was not liked by the inmates of the matrimonial home and she suffered mental torture. He has admitted that the respondent has lost the job for the decision of the Apex Court. 17. But in the cross examination, he has denied that he accompanied DW-2 for bringing the appellant to the matrimonial home. 18. Having appreciated the evidence, the judgment as challenged in this appeal has been passed observing that there was no considerable reason to be in the matrimonial home inasmuch as someone's apprehension is not sufficient to draw an adverse inference against someone. It has been also observed as follows: '.........considering the entire facts and circumstances as well as evidence of DW-1 and DW-2, it is clear that the respondent has withdrawn herself from the house of the petitioner on 30.06.2017 voluntarily to attend the Manasha Puja held in her parent's house and thereafter she never returned in her in laws house in spite of taking all endeavour made by the petitioner as stated. Apart from she has failed to give any cogent evidence showing that she was being tortured by her husband and other in laws during her stay in her in laws house or she was being driven out from her in laws house after committing torture on 30.06.2017.' 19. Accordingly, the decree of restitution of conjugal rights has been issued by the Judge, Family Court, Agartala, West Tripura on 04.09.2019. 20. Mr. Bhowmik, learned counsel has submitted that the appellant had great apprehension of physical torture. Apart that she had disaffection having heard of extra-marital relation of her husband. Therefore, she had left the matrimonial home and she is not ready to return to the matrimonial home. 21. Ms. S. Deb (Gupta), learned counsel appearing for the respondent has submitted that there is no infirmity in the finding as returned by the Family Court. 22. We have given our anxious consideration to the conduct of the appellant and also scrutinized the evidence quite keenly. We do not find that the inference drawn by the Family Court suffers from any infirmity. As such, we are not inclined to interfere with the impugned judgment and decree as challenged in this appeal. But, we need to say that the parties have brought to our knowledge that there is non-payment of maintenance allowance as directed by the Family Court in the said proceeding under section 125 of the Cr.P.C. We have also considered the fact of termination of job by the respondent. Now, we direct the respondent to continue to pay the reduced amount of Rs. 4,000/- to the appellant within 7th day of every English calendar month. But considering the joblessness, the monthly maintenance has been reduced to Rs. 4,000/- from the inception. Thus, the arrear comes to Rs. 92,000/-. 23. Having considered the financial situation of the respondent, we will ask the respondent to pay lump sum amount calculated as arrear to the extent of Rs. 90,000/- reducing from Rs. 92,000/- in two equal instalments @ Rs. 45,000/-. The first instalment shall be paid within 15.07.2022 and the last instalment of Rs. 45,000/- shall be paid by 15.09.2022. This arrangement is conclusive. But, the respondent shall continue to pay Rs. 4,000/- in addition, every month, as per the direction as recorded above. 24. 90,000/- reducing from Rs. 92,000/- in two equal instalments @ Rs. 45,000/-. The first instalment shall be paid within 15.07.2022 and the last instalment of Rs. 45,000/- shall be paid by 15.09.2022. This arrangement is conclusive. But, the respondent shall continue to pay Rs. 4,000/- in addition, every month, as per the direction as recorded above. 24. In the event of non-compliance, the appellant will be at liberty to execute the order of payment of maintenance by the process of the Court. 25. In the result, the appeal stands dismissed subject to above direction. Registry is directed to prepare the decree accordingly. Send down the LCRs thereafter.