Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 242 (TRI)

Tapas Goswami v. Nanda Saha (Goswami)

2022-05-19

S.G.CHATTOPADHYAY, S.TALAPATRA

body2022
JUDGMENT S. Talapatra, J. - Heard Mr. A. Acharjee, learned counsel appearing for the appellant and also heard Mr. K. Nath, learned counsel appearing for the respondent. 2. By means of this appeal, filed under Section 19(1) of the Family Courts Act, 1984, the judgment dated 17.01.2020 delivered in Title Suit (divorce) 09 of 2019 by the Judge, Family Court Udaipur, Gomati District, has been challenged. 3. By the said judgment, the matrimonial suit instituted by the appellant under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 has been dismissed by returning the finding that even though pressurizing one's husband to be a resident husband may amount to mental cruelty, but such cruelty has been condoned by the appellant as he resided and lived with the respondent for a considerable period at the parental house of the respondent. According to Section 23(1)(b) of the Hindu Marriage Act, cruelty is condonable marital offence and such condonation is an absolute bar in granting any relief based on the conduct which has been thus condoned. It has been further observed that the appellant has committed matrimonial misconduct and thus he is not entitled to a decree of divorce. 4. Mr. A. Acharjee, learned counsel appearing for the appellant has submitted that the appellant tried his level best to make their matrimonial life sail smoothly, but for conduct of the respondent, he has failed to lead a peaceful conjugal life. It has been categorically alleged that the respondent used to pressurize the appellant to live as the resident husband (ghar jamai in local term) in her paternal house, even sometimes, she used to demand money but as he was not employed at that point of time he had failed to make such demand. 5. The appellant tried to make the respondent understand that her conduct is not conducive for a peaceful conjugal life but her cruel treatment did not stop and his efforts went in vain. It has been categorically stated that the appellant used to be mercilessly beaten by the respondent. 6. The appellant left the parental house of the respondent on 1.6.2016 having been driven out by her. From that day, he has been living with his widowed mother. It has been categorically stated that the appellant used to be mercilessly beaten by the respondent. 6. The appellant left the parental house of the respondent on 1.6.2016 having been driven out by her. From that day, he has been living with his widowed mother. In para 12 of the petition being Title Suit (Divorce) 09 of 2019, it has been further stated that the appellant was arrested by the police and detained in the R.K. Pur Police Station, however, on the following day the appellant was released from the Police Station on personal bond. At that time, the respondent tried to implicate the appellant in a police case on allegation of theft. It has been also asserted that the respondent filed a complaint under Section 12 of the Protection of Women from the Domestic Violence Act, 2005 being C.R.03 of 2018 in the court of the Chief Judicial Magistrate, Gomati Tripura. The appellant has further stated that there were numerous complaints against him. Even the initiative taken by the family elders for reconciliation of marital discord has been foiled by the respondent. 7. Mr. A. Acharjee, learned counsel has taken us to the thick of the evidence, recorded by the Family Court. The appellant testified in the trial as PW. 1. While giving testimony in the said Court, it appears from his examination-in-chief filed under Order XVIII Rule 4 of CPC, he has laid his response in respect of the written statement filed by the respondent herein. It may be noted that a very short written statement has been filed by the respondent wherein she has denied all the allegations but has admitted that the respondent has been living separately since 2016. In para 10 of the said statement, the respondent has vouched that she is waiting for re-construction of the matrimonial relation but for the appellant that did not come to restitute the same. 8. Mr. K. Nath, learned counsel has appeared for the respondent and submitted that there is no reason to interfere with the findings of the Judge, Family Court, Udaipur, Gomati District. Mr. Nath, learned counsel has pointed out that the petitioner (the appellant) was arrested by the police as is evident from Exbt. 01 that the appellant 'under influence of liquor in the house of the informant', created nuisance. Mr. Nath, learned counsel has pointed out that the petitioner (the appellant) was arrested by the police as is evident from Exbt. 01 that the appellant 'under influence of liquor in the house of the informant', created nuisance. The respondent was persuaded to inform the police and accordingly the police detained the appellant under Section 90 (2) of the Tripura Police Act and taken him to the custody. In the medical examination, the doctor opined that the appellant had consumed the alcohol and was not in a position to control himself. That apart, Mr. Nath, learned counsel has submitted that it is correct that all the alleged misconducts of the respondent were condoned by conduct and, as such, those episodes cannot be brought back for the purpose of providing the grounds of divorce on cruelty and desertion. He has further pointed out that the respondent is ready to re-construct their marital life and she had openly stated that during her cross-examination. In the cross examination, as pointed out by Mr. K. Nath, learned counsel for respondents, it has been clearly stated by the respondents that 'I want my husband to stay with me at my parental home'. Mr. Nath, learned counsel based on the said submission has stated that the respondent is ready to live with the husband but the husband (appellant) is reluctant to re-construct the marriage. 9. On the basis of the rival pleadings the Family Court framed the following issues for adjudication on this suit: '(i) Is the suit is maintainable? (ii) Has, the respondent after the solemnization of marriage, treated the petitioner with cruelty? (iii) Has the respondent deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition? (iv) Is the petitioner entitled to get a decree of divorce as prayed for?' 10. The Judge, Family Court having appreciated the evidence by the parties returned finding separately on each issue and thereafter given the concise observation why she was inclined to dismiss the said divorce suit. 11. We have scrutinized the records of the evidence and found that the appellant (the petitioner, who instituted the suit for divorce) adduced 03 witnesses namely (1) Sri Tapas Goswami (PW-1), (2) Smt. Kona Rani Goswami (PW-2) and (3) Sri Bimalpada Goswami (PW-3) and 2 documents viz. medical prescription of one Dr. Anjan Kr. Chakraborty (Exbt. 11. We have scrutinized the records of the evidence and found that the appellant (the petitioner, who instituted the suit for divorce) adduced 03 witnesses namely (1) Sri Tapas Goswami (PW-1), (2) Smt. Kona Rani Goswami (PW-2) and (3) Sri Bimalpada Goswami (PW-3) and 2 documents viz. medical prescription of one Dr. Anjan Kr. Chakraborty (Exbt. 1) and extract copy of GD Entry No. 5 dated 18.5.2016 (Exbt. 02). On the other hand, the respondent examined 02 witnesses namely Smt. Nanda Saha(Goswami) (DW-1) and Sri Suman Baran Saha (DW-2). It appears that Issue No. 1 has been decided in favour of the appellant whereas Issue No. 2 has been decided against the appellant. So far Issues No. 3 and 4 are concerned, those were decided against the Appellant. While deciding the Issue No. 3, it has been observed by the Judge, Family Court, Udaipur that it is well established principle that proof of fact of separation, which is one of the essential ingredients of matrimonial offence of desertion, does not consist merely in ascertainment of which party left the home first. The rule is now well settled that a spouse may be guilty of such misconduct as would render the continuance of marital relations so unbearable that the other spouse is compelled to live separately. In such cases, the person whose activities are responsible for separation is the offending one. 12. In fine, these findings have been questioned in this appeal as according to the appellant, those findings are not based on fair appreciation of the evidence. The appellant (PW. 1) in his examination-in-chief has stated that his marriage with the respondent was solemnized on 24.9.2002 as per the Hindu Rites and Customs. In their wedlock, one son was born. On the day of filing of the divorce suit, he was 12 years of age. It has been alleged by the appellant that the respondent used to misbehave with his parents taking the advantage of earning. The appellant has admitted that there was a meeting for mitigation of the marital disputes but that did not succeed for the obstinacy of the respondent. 13. The appellant has admitted that by the order dated 17.06.2017 passed in the proceeding drawn up under Section 125 Cr.P.C. by the Judge Family Court, Udaipur, Gomati District he has been asked to pay a sum of Rs. 13. The appellant has admitted that by the order dated 17.06.2017 passed in the proceeding drawn up under Section 125 Cr.P.C. by the Judge Family Court, Udaipur, Gomati District he has been asked to pay a sum of Rs. 3500/- per month for maintenance of the respondent and his minor child. In para 12 of the examination-in-chief, the appellant has made the following serious allegation against the respondent. '12. That it has come to the notice of me that the respondent wife has also got engaged in extraneous affairs with other person in which I objected and actually over this issue I was ousted from the house of the respondent after physically assaulting me.' It has also been stated by the appellant that he was arrested by the police on the complaint of the respondent. It has been quite categorically stated that there had been a well-designed conspiracy to frame him in a criminal case for theft. The appellant has vouched before the Court that the respondent (wife) had been living separately since 2012 and hence, the act of desertion has been well proved. 14. PW. 3, Sri Bimalpada Goswami has corroborated the substantive part of the version of PW-1 (the appellant). PW-2 Smt. Kona Rani Goswami has stated that the respondent used to misbehave with the appellant taking the advantage of his poor income. PW-2 has also stated that in order to avoid misbehavior of the respondent, the appellant had adjusted in order to continue living with the respondent and tried to make the respondent understand that he deserved a happy conjugal life, but there had been no impact on the respondent. The respondent, titled as DW. 1, has stated in the trial that the allegation of extraneous affair with any other person as made by the appellant has been designed to obtain the decree of divorce. It has been stated by her that on 17.05.2016, her husband, the appellant, came to her hut in a drunken condition and without any reason, he committed physical torture on her. She had, finding no alternative, immediately informed the police and the police took care of the situation. She has clearly denied any attempt from the end of the appellant to settle the dispute and take her back to the matrimonial home. According to her, the appellant never tried to settle up the disputes. She had, finding no alternative, immediately informed the police and the police took care of the situation. She has clearly denied any attempt from the end of the appellant to settle the dispute and take her back to the matrimonial home. According to her, the appellant never tried to settle up the disputes. Till now, she has been waiting with a broken heart to see the day when their matrimonial discord will be over. 15. Finally, she has stated that her husband has deserted her with ill intention to derive a decree of divorce through the process of law. One Suman Baran Saha (DW. 2) has corroborated the respondent on every aspects. After scrutinizing the evidence, we are persuaded to extract part of the statement made in the cross-examination by the appellant. He has stated that though several times his wife misbehaved with him but he is unable to give any specific date of her misbehavior. Subrata Deb, who was the former Chairperson of Udaipur Municipal Council, has acceded to the fact that he cannot remember the date of the meeting held to mitigate the matrimonial dispute. Whenever, the meeting was held, no written resolution was prepared but, he has finally admitted that his wife did not lodge any criminal case against him with any allegation, even though the appellant had made such allegation. In one part, it has been stated that the marriage of the respondent with the appellant is the second marriage of the respondent. In that background, the respondent has stated that it is an incorrect statement and stated that she has not disclosed any fact of her first marriage to the appellant as alleged. However, she has denied the allegation of adulterous life as levelled by the appellant. She has categorically stated in her cross-examination that she has not mentioned in her written statement that she was beaten up by her husband and by her mother-in-law. She has, however, admitted that during the period from 2011-2016, the appellant lived in the parental house of the respondent. She has also admitted in the cross-examination that whenever her husband used to ask her about travelling with others, she used to beat her husband. We believe that this statement has not properly been recorded. From analysis of the trend of responses made in the cross-examination, it should also be treated as denied. She has also admitted in the cross-examination that whenever her husband used to ask her about travelling with others, she used to beat her husband. We believe that this statement has not properly been recorded. From analysis of the trend of responses made in the cross-examination, it should also be treated as denied. Finally, she has stated that she is ready to live with the husband (the appellant), but at her parental home. DW. 2, Suman Baran Saha has in his cross-examination denied the fact that the appellant took any initiative for mitigating the matrimonial discord. We have anxiously read the observations of the Judge, Family Court who passed the impugned judgment and in our considered view that such observations are highly mechanical. We find, even though, the respondent is offering to live with the appellant but she has put condition that the respondent shall live in her parental home. It cannot be denied that for last 6 years, they have lived separately and we do not find any attempt from the side of the respondent for re-union. 16. We have gathered that the appellant was ready to live with the respondent in her parental house, which he did not like at all. Our further impression is that as the appellant was financially weak the respondent has taken that advantage to force him live in her parental house. We have also appreciated the position of the parties in the society. As such, we are also of the view that this is not a case where we can straight way grant the decree of divorce, but in exercise of the power given to this Court to provide alternative relief, we think that a decree of judicial separation should be passed. This inference has been drawn on the basis of the nature of the conduct and the continuous and serious marital discords. 17. Hence, when we dismiss the petition (the suit) for granting the decree of divorce on the ground of cruelty and desertion, but we have come to an inference that the appellant and the respondent cannot live their matrimonial life peacefully. As consequence, we declare that the parties shall live separately. Hence, the parties are allowed to live separately. 18. Having observed thus the suit is partly allowed as we grant the decree of judicial separation. As consequence, we declare that the parties shall live separately. Hence, the parties are allowed to live separately. 18. Having observed thus the suit is partly allowed as we grant the decree of judicial separation. Unless, the parties do start living together as husband and wife with leave of the court, nobody shall interfere with their respective life. We did not find any necessity to pass any order as regards the access of the appellant to his son, as the son has attained the majority. Decree shall be drawn in terms of the above. Thereafter, the LCRs be sent down. Pending application(s), if any, shall also stand disposed of.