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2022 DIGILAW 333 (TRI)

Dipali Saha v. Bimal Bikash Saha

2022-08-11

S.G.CHATTOPADHYAY, T.AMARNATH GOUD

body2022
JUDGMENT 1. Mr. D.J. Saha, learned counsel on instruction of Mr. T. Debbarma, learned counsel appearing for the appellant along with his client namely Smt. Dipali Saha. On the other side, the respondent namely Sri Bimal Bikash Saha appears in person. 2. This is an appeal under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 09.12.2021 passed by the learned Judge, Family Court, Agartala, West Tripura in Case No. T.S. (Divorce) 255 of 2017 whereby the marriage tie between the respondent husband and the appellant wife was dissolved by a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. 3. The brief fact is that the marriage of the appellant wife and respondent husband was solemnized on 04.02.1993 following the Hindu Rites and customs. Out of their wedlock a male child was born namely Banik Kamal Saha. There were several disputes between the appellant and the respondent which had also led to physical and mental abuse of the appellant. The respondent had filed a petition before the learned Family Court seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 vide case No. T.S. (Divorce) 255 of 2017. On 17.11.2021 the learned Family Court heard the matter in absence of the appellant wife despite the fact that the appellant wife was out of station for the purpose of her treatment. The learned Family Court heard the ex-parte against the appellant and the decree of divorce as prayed for by the present respondent husband stands allowed. Hence, the present appeal. 4. The appellant has submitted that marriage was peaceful at the beginning. However, later on after the demise of father in law in the year 1996 some family dispute started between the respondent husband and his brother regarding share of household property and the Bookstall situated at Orient Chowmuhani, Agartala. He has submitted that the appellant wife tried to help the family to settle the dispute amicably between the two brothers, rather the respondent husband misunderstood her good intentions and started to misbehave with her and alleged her of having bad intentions. 5. It has been further stated by the appellant that the respondent used to abuse her demanding money from her father and blamed the wife for her interference due to which the respondent husband was at loss for not getting a better share in his ancestral property. 5. It has been further stated by the appellant that the respondent used to abuse her demanding money from her father and blamed the wife for her interference due to which the respondent husband was at loss for not getting a better share in his ancestral property. The appellant wife being badly abused by all household members and day by day she was being tortured physically, mentally and emotionally. The appellant wife preferred CR-165/2014 under Domestic Violence Act before the Court of Judicial Magistrate, 1st Class, Agartala. During the pendency of that case, the appellant wife was again subjected to cruelty by her husband and in-laws and preferred a complaint in the East Agartala Women P.S. and an FIR was registered under Section 498(A), 34 of the IPC vide FIR No. 1060 dated 27.10.2016. 6. The respondent husband has approached the Family Court time and again with similar litigation against the wife with false allegations and himself withdrawn those litigations as he failed to prove them. During the pendency of the case, there was an offer made from the respondent husband to pay Rs. 10,00,000/- for permanent settlement to which the appellant wife did not agree to and demanded more alimony for the rest of her life and in a meeting before the book sellers of Orient Chowmuhani and well wishers of both the parties, the respondent husband promised to provide a portion of his homestead land as her shelter and to pay Rs. 15,00,000/- as permanent alimony. The appellant wife depends on her husband financially having no sufficient income. At present, the respondent husband and his family have chased away the appellant wife from the house of the husband and she is left with no place for shelter and is in a dire strait condition. 7. The trial court has framed the following issues for points of Determination. Those are as follows: I. Whether the instant petition is maintainable in its present form and nature? II. Whether the petitioner was treated with cruelty by the respondent since after their marriage and lastly on 14.07.2017? III. Whether the petitioner is entitled to get a decree of divorce as prayed for? IV. To what other relief/reliefs the parties are entitled thereto? 8. The trial court had also examined six witnesses adduced by the respondent husband. II. Whether the petitioner was treated with cruelty by the respondent since after their marriage and lastly on 14.07.2017? III. Whether the petitioner is entitled to get a decree of divorce as prayed for? IV. To what other relief/reliefs the parties are entitled thereto? 8. The trial court had also examined six witnesses adduced by the respondent husband. The appellant wife could not turn up to adduce any evidence nor she cross examined the witnesses of the respondent husband to rebut their contentions due to her health issues. 9. It has been further stated by the appellant that she has been suffering from neurological disorder and gynecological disorder for a long time. During the trial, the appellant wife sometimes could not appear before the learned Family Court due to her bad health conditions and the same was taken note of by the Family Court in its order dated 17.11.2021. The court below has heard the matter in absence of the appellant despite the fact that the counsel on record had prayed for time on the ground that the appellant wife was out of station for the purpose of treatment. The prayer was rejected by the learned Family Court and the matter was heard ex-parte against the appellant wife. 10. Today, when both the parties were present, this court queried whether there is any possibility of mutual settlement or any scope of living together. Both the parties have answered in the negative. The respondent husband has stated before this court that it is not at all possible on his part to adjust and live with the appellant wife under the same roof. The appellant wife has stated that after such a long period of separation she will not be able to cope up with the respondent husband and as such, it is not possible on her part also to stay with the respondent husband. 11. It may be noted that the respondent husband is at present aged about 50 years (approx.) and the appellant wife is aged about 45 years. Both of them are against the proposal of staying together and continuing their marital life. 11. It may be noted that the respondent husband is at present aged about 50 years (approx.) and the appellant wife is aged about 45 years. Both of them are against the proposal of staying together and continuing their marital life. Thus, this court thinks it appropriate to remand the matter back to the court of the Judge, Family Court, Agartala, West Tripura for deciding afresh after hearing both the parties and providing them all opportunities, as the matter was earlier decided ex parte against the appellant wife. Ordered accordingly. The Registry shall send a copy of this order forthwith. With the aforesaid observation, the appeal stands disposed of.