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2022 DIGILAW 229 (TRI)

Mousumi Saha v. Subal Das

2022-05-12

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Ms. P Chakraborty, learned counsel appearing for the appellant and Mr. Somik Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing on instruction of Mr. A Dey, learned counsel for the respondent. 2. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 from the judgment dated 15.11.2019 delivered in TS (Div) 13/2010. By the said judgment, the District Judge, Gomati district, Udaipur dissolved the marriage that subsisted between the appellant and the respondent. 3. The suit was originally instituted before the Judge, Family Court, Agartala but by a judicial order, the said matrimonial suit was transferred to the court of the District Judge, Gomati District, Udaipur. 4. The marriage between the parties admittedly took place on 13.08.2011 and thereafter, they had consummated the marriage and in the wedlock their only girl Chandni Das was born on 11.02.2014. At the instance of the appellant, several cases against the respondent were instituted being PRC 247/2013, Misc. 16/2013 and CR(DV)05/2014. All those cases are related to matrimonial discord or domestic violence and for maintenance under Section 125 of CrPC. Serious allegations was brought against the appellant that she had abetted the suicide of the mother of the respondent and accordingly, a prosecution was launched against her under Jirania Police Station Case No. 47/2015 under Section 306/507/109 of the IPC. 5. The appellant, as well, brought some criminal prosecutions against the petitioner [the respondent herein] on the same allegations which were interfered by this court in Crl. Rev. Pet. 30/2016. This court had occasion to hold that on the self-same allegation fresh prosecutions cannot be allowed to take place. However, in the proceeding for maintenance, the appellant acceded to have the maintenance from the appellant. 6. The respondent herein, filed a petition under Section 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights being TS(RCR) 31 of 2015. By the judgment dated 26.03.2016, the judge, Family Court, Agartala, West Tripura allowed the suit for restitution of conjugal rights being TS (RCR) 31 of 2015. By the judgment dated 26.03.2016, the Judge, Family Court, West Tripura, allowed the suit for restitution of conjugal rights directing the appellant to join the matrimonial home with immediate effect. By the judgment dated 26.03.2016, the judge, Family Court, Agartala, West Tripura allowed the suit for restitution of conjugal rights being TS (RCR) 31 of 2015. By the judgment dated 26.03.2016, the Judge, Family Court, West Tripura, allowed the suit for restitution of conjugal rights directing the appellant to join the matrimonial home with immediate effect. It has been observed in para 7 of the judgment that the appellant did not come forward to challenge or question the statements of the witnesses and as such it has been further observed that there is no reason to disbelieve the statements of the respondent as that remained unchallenged by the appellant herein. That apart, the witnesses as adduced by the respondent appeared reliable to the Judge, Family court, West Tripura, Agartala. 7. Ms Chakraborty, learned counsel appearing for the appellant has fairly admitted that the said judgment and decree as passed in TS (RCR) 31 of 2015 was not assailed by the appellant. Thereafter, the respondent filed a matrimonial suit under Section 13(1)(ia)(ib) of the Hindu Marriage Act praying for dissolution of the marriage by a decree of divorce being TS (Div) 13 of 2018. The said suit was decreed by the judgment dated 15.11.2019 which is, as noted above, under challenge in this appeal. 8. The District Judge, Gomati Judicial District, Udaipur while allowing the suit, has, after appreciation of the evidence, observed that in view of the clear evidence of the petitioner (the respondent in this appeal) about ill treatment on him and his mother and the corroboration by PW 2 and PW 3, it can safely be concluded that the respondent had treated the petitioner with cruelty. The fact that the mother of the petitioner [the respondent therein] committed suicide by jumping before the running train due to torture on her by the appellant and that the appellant was charge-sheeted in the case of abetment of suicide being Jirania PS case No. 47 of 2015 under Section 306/506/109 of the IPC are the also evidence of cruelty on the respondent. It is also apparent that despite passing of decree in TS(RCR) 31 of 2015 by the court of the Judge, Family Court, Agartala against the appellant, she did not restore the conjugal life with the petitioner till the institution of the TS (Div) 13 of 2018. This indicates arrogance of the appellant towards the respondent. It is also apparent that despite passing of decree in TS(RCR) 31 of 2015 by the court of the Judge, Family Court, Agartala against the appellant, she did not restore the conjugal life with the petitioner till the institution of the TS (Div) 13 of 2018. This indicates arrogance of the appellant towards the respondent. The evidence is also clear that of numbers of civil and criminal cases were launched by the appellant against the respondent. Admittedly, all the cases were settled amicably and the respondent was acquitted from the criminal cases. 9. It has been further observed in para 23 of the said judgment that the conciliation failed and nothing positive has happened in their relation. It is an admitted position that the appellant and the respondent are living separately for the last four years and owing to multiple disputes and quarrels, the wife [the appellant] voluntarily left the matrimonial home whereas the husband [the respondent] alleged that the wife had subjected his mother to mental and physical torture and consequently, she committed suicide. After investigation, the police report charge-sheeting the petitioner was filed. 10. Finally, the grounds as resorted to, in the matrimonial suit, have been examined and the following observations have been returned: '25. In view of the clear evidence of the petitioner corroborated by PW. 2 and PW. 3 and other materials on record showing cruelty caused to the petitioner by the respondent and the respondent having failed to rebut the evidence on the side of the petitioner, I am of the view that the ground of cruelty against the respondent has been proved from the side of the petitioner. In the case of Smt. Maya Devi v. Jagdish Prasad - AIR 2007 SC 1426 it was held that the concept of proof beyond reasonable doubt is not applicable in matrimonial disputes. In the case of Vimla Bai v. Panchu Lal - AIR 2007 Rajasthan 99 it was held that involvement of wife in murder case amounts to cruelty. 26. In the case of Smt. Maya Devi v. Jagdish Prasad - AIR 2007 SC 1426 it was held that the concept of proof beyond reasonable doubt is not applicable in matrimonial disputes. In the case of Vimla Bai v. Panchu Lal - AIR 2007 Rajasthan 99 it was held that involvement of wife in murder case amounts to cruelty. 26. Now, coming to the question of desertion, on perusal of the record and evidence it appears that it is the admitted position that the petitioner filed RCR case against the respondent in the Family court, Agartala bearing No. TS (RCR) 31 of 2015 which was decreed in favour of the petitioner and against the respondent ex-parte and the Court passed direction on 26.03.2016 to the respondent to restore conjugal life with the petitioner but the respondent did not obey the order of the Court. The instant divorce case was filed by the petitioner on 30.05.2017 and the RCR decree against the respondent was passed by the Family court, Agartala on 26.03.2016. Therefore, it is clear that the respondent has deserted the petitioner for more than two years. Moreover, the mother of the petitioner committed suicide on 27.09.2014 and from the record it is evident that the respondent has been living away from the petitioner since 28.09.2014. Situated thus, the ground of desertion also stands established against the respondent.' 11. Ms Chakraborty, learned counsel has submitted that the appellant did not get the proper opportunity inasmuch as when the proceedings of the suit for restitution of the conjugal rights were going on in the court of the Judge, Family court, Agartala, she was raising her only daughter and she was not in a position to take part in the proceeding. 12. It has been also contended by Ms Chakraborty, learned counsel appearing for the appellant that the allegations as brought against the appellant by the respondent are all concocted. On the contrary, the appellant was subjected to intolerable physical torture and she was made to leave the matrimonial home. The respondent never took any care either of the child or herself. With hope that she would be able to restore the matrimonial life, she had agreed to withdraw all the cases but that moment did not visit her life. 13. The respondent never took any care either of the child or herself. With hope that she would be able to restore the matrimonial life, she had agreed to withdraw all the cases but that moment did not visit her life. 13. Ms Chakraborty, learned counsel appearing for the appellant further admitted that the appellant did not make any endeavour after the decree of restitution of conjugal rights was passed to join the family of the respondent. Neither had she expressed any desire to join him in the matrimonial life. As a result, the decree of restitution of conjugal rights reached its finality without being challenged by the appellant. 14. Mr. Somik Deb, learned senior counsel has pointed out that trauma that has visited the life of the respondents is so intense that the respondent despite his best efforts would not be able to live with the appellant. Mr. Deb, learned senior counsel has pointed out to the 'suicide' that the mother of the respondent has committed. It has been stated by Mr. Deb, learned senior counsel that it was not a suicide but it is a suicide abetted by the appellant. This perception cannot be erased as the respondent himself is the witness of the attending circumstances. 15. Be that as it may, this court will not take this issue further as the competent court did not return any finding of guilt against the appellant. As Mr. Deb, learned senior counsel has submitted that there were multiple litigations lodged by the appellant against the respondent and he had suffered cruelty by that machination. Despite that, at one point in life he had intention to reconstruct the matrimonial life but the respondent foiled in his attempt absolutely in the face of her arrogance. Therefore, there is no reason to destabilize the finding as returned by the District Judge, Gomati Judicial District, Udaipur. 16. On scrutiny of records we have found that the respondent has established the grounds of cruelty and desertion to the satisfaction of the court. The respondent did not challenge any pleading as laid in the petition filed under Section 13(ia)(ib) of the Hindu Marriage Act, 1955. Even no effective cross-examination was carried out when the respondent led the oral evidence. 17. The respondent did not challenge any pleading as laid in the petition filed under Section 13(ia)(ib) of the Hindu Marriage Act, 1955. Even no effective cross-examination was carried out when the respondent led the oral evidence. 17. In the written statement, the appellant did give her version stating that she was treated with cruelty both physically and mentally to bring money from her parental home. As the torture was unbearable she left the matrimonial home and she had admitted that she had brought a series of litigation against the appellant. Even she had returned to the matrimonial home on 27.09.2014, but she was greeted with similar cruel treatment. As a result, she finally left the matrimonial home. 18. It appears further from the record that the neighbour namely, Smt. Saraswati Roy, PW 2 came forward and corroborated the testimony of the respondent (PW 1) on all material points. When she was cross-examined, no part of her testimony could be dented. Similarly, another neighbour, namely, Smt. Namita Debnath (PW 3) has corroborated the statement of the respondent (PW 1) and she has stated that the appellant is 'quarrelsome and irrational woman'. She had illustrated the occurrence of suicide of the mother of the respondent in the following words: 'the petitioner's mother was died (sic) due to regular mental and physical torture by the respondent [appellant herein] in absence of petitioner [respondent herein]. On 26.09.2014 at about 9 p.m. when I was cooking suddenly I heard shouting form the petitioner's house then after hearing due and cry myself and my family members with other neighbours rushed to the petitioner's house and saw the respondent [the appellant] had physically assaulting the petitioner's mother and she had been crying in the yard. We tried to mitigate the matter after consulting with the respondent. On 27.09.2014 I heard that, petitioner's mother was compelled to commit suicide for torturing by the respondent' 19. One Pritam Das has almost replicated the said incident and he had narrated some other incidents which demonstrate the matrimonial misconduct of the appellant. Nothing could be achieved from the cross-examination. 20. The appellant has appeared in the proceeding as DW 1 and categorically stated that for the police case, she was not in a position to restore the conjugal life with her husband. This statement was made voluntarily in the court of the District Judge. Nothing could be achieved from the cross-examination. 20. The appellant has appeared in the proceeding as DW 1 and categorically stated that for the police case, she was not in a position to restore the conjugal life with her husband. This statement was made voluntarily in the court of the District Judge. In the cross-examination, she had narrated the torture on her as recorded in the written statement. The crux of the examination in chief (filed under Order 18 Rule 4 of the CPC) is that she was compelled to leave the matrimonial home finally on 28.09.2014 on failing to tolerate the cruelty meted out to her by the respondent on unlawful demands. 21. Having appreciated the submission as advanced by the counsel for the parties and scrutinized the records keenly, we do not find that the findings returned by the District Judge suffer from any infirmity. Apart that, when the appellant did not join the matrimonial home in compliance of the decree of restitution of conjugal rights, the provision of Section 13(1A)(ii) will operate. The said provision lays that 'there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.' The divorce can be granted by the matrimonial court having noted the said fact. 22. Only this fact alone is enough for a court of competent jurisdiction to pass a decree of divorce. The fact relating to non-compliance of the decree of restitution is not challenged. Rather, the appellant (DW 1) has admitted that position and voluntarily stated in the court of the District Judge that she is not in a position to join the matrimonial home for the suicide of her mother in law. Therefore, the decree of divorce as prayed by the respondent was irresistible. 23. Having observed thus, we do not find any merit in this appeal. Accordingly, this appeal stands dismissed. Prepare the decree accordingly. Thereafter, send down the LCRs. Pending application(s), if any, also stand disposed of.