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2022 DIGILAW 60 (TRI)

Manish Roy v. Sharmistha Saha (Roy)

2022-02-09

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This is an appeal filed under Section 19 of the Family Court Act, 1984 against the Judgment and Decree dated 11.10.2018 passed in T.S.(Divorce) No.446/2011 by the learned Addl. Judge, Family Court, Agartala, West Tripura. 2. The appellant being the petitioner filed a case before the learned Judge, Family Court, Agartala, West Tripura, under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, seeking Divorce from his wife which was numbered as T.S.(Divorce)446 of 2011. 3. The case of the petitioner, the appellant herein, in short, was that his marriage was solemnized with the respondent on 09.02.2011 as per Hindu Rites and Customs. The appellant is doing a job at Kolkata and he has his own flat at Kolkata. After marriage, both the appellant-husband and the respondent-wife came to Kolkata and the mother of the appellant accompanied them for setting up their new life. On 21.02.2011, the appellant and the respondent came to Kolkata and on that night the respondent-wife started quarrelling with the appellant on the ground that why the mother of the appellant-husband accompanied them and also threatened the appellant that if the mother of the appellant stays there for 2 to 3 days, the respondent-wife will leave his flat for her paternal home. On 25.02.2011, the brother of the respondent-wife came to the flat of the appellant and took the respondent with him on the plea that the mother of the respondent is ill. When the respondent and the brother of the respondent left the flat of the appellant for Agartala, he was not present there. After returning home, the appellant found that the respondent took all her gold ornaments and documents along with her. Within a few days of the marriage, the appellant learned that the respondent is a quarrelsome lady. She always used to quarrel with the appellant and her mother-in-law. In March 2011 on being asked, the respondent said that she is not willing to live with the appellant and her marriage with the appellant was solemnized against her will. Hearing this, the appellant requested the parents of the respondent for a discussion over the matter. On 29.03.2011, the father and brother of the respondent came to Kolkata and as per the advice of the father of the respondent, she rectified her behavior. Hearing this, the appellant requested the parents of the respondent for a discussion over the matter. On 29.03.2011, the father and brother of the respondent came to Kolkata and as per the advice of the father of the respondent, she rectified her behavior. On 29.03.2011, the respondent, without any information to the appellant, left the flat at 6 A.M and came back at 10 A.M., and on being asked the appellant did not get any satisfactory answer. On 01.04.2011, the father and brother of the respondent left for Agartala. On 02.04.2011, at about 8 P.M. the respondent left the flat informing her mother in law that she is going to the nearby shop to buy 'odonil' but when the respondent was not returning for a long time, the mother of the appellant through a neighbour informed the appellant about the matter The appellant tired to contact the respondent over the phone but she was not answering the phone. The appellant left his office and searched for the respondent everywhere, but he could not trace her and at about 10 P.M. the appellant informed the matter to the parents of the respondent. The father of the respondent informed the appellant that the respondent is at her uncle's house in Beleghata. The appellant at about 10.30 P.M. went to the uncle's house at Belaghata to take the respondent back with him, but seeing the appellant, the respondent started abusing him with slang language. On 05.04.2011, the uncle of the appellant, Sri Samar Roy, and a well-wisher of the appellant Ex-Minister Shri Matilal Saha came to Kolkata to organize a meeting and they stayed in Tripura Bhawan. On 10.04.2011, a meeting took place in the coaching center of the uncle of the respondent where the uncle and father of the respondent and the uncle and well-wisher of the appellant were also present. They requested the respondent to go back to her matrimonial house but she flatly denied saying that she is not interested to lead conjugal life with the appellant. The uncle and father of the respondent told the uncle of the appellant that they will try to make the respondent understand. They requested the respondent to go back to her matrimonial house but she flatly denied saying that she is not interested to lead conjugal life with the appellant. The uncle and father of the respondent told the uncle of the appellant that they will try to make the respondent understand. On that day, in the evening, at the request of the father of the respondent another meeting took place at Tripura Bhavan and the father of the respondent informed that the respondent is not interested to continue her conjugal life with the appellant. She wants a divorce and it is her final decision. The father of the respondent also gave a list of articles that were lying in the flat of the appellant at Kolkata and also in the house of the appellant at Agartala. On 11.04.2011, the uncle of the appellant Sri Samar Roy and his well-wisher Sri Matilal Saha left for Agartala. On 14.04.2011, the respondent returned to her parental house at Agartala. On 18.04.2011, a meeting was held in the house of the well-wisher of the appellant, Ex-Minister, Sri Matilal Saha, where the uncle of the appellant, Sri Samar Roy and Joint Director of Census, Sri Biswajit Saha and the uncle of the respondent were present. After prolonged discussion, it was decided that the marriage between the appellant and the respondent will be dissolved by a decree of divorce on mutual consent. It was also decided that the appellant will return all her stridhan to the respondent and except stridhan, the respondent will not claim anything from the appellant. On the same day, the appellant returned back all the stridhan to the respondent in presence of witnesses and after obtaining a proper receipt, the gold ornaments were kept in a joint locker in the name of the appellant and the respondent at Agartala Branch. On 18.04.2011, after reaching the bank for handing over the gold ornament, the appellant found that the respondent vide letter dated 04.04.2011 sealed the locker. On 18.04.2011, the appellant prepared a mutual divorce petition through one Advocate namely, Sri Nitai Choudhury, and handed it over to the father of the respondent for taking signature of the respondent through Sri Matilal Saha, but the father of the respondent returned the same to Sri Matilal Saha without the signature of the respondent. On 18.04.2011, the appellant prepared a mutual divorce petition through one Advocate namely, Sri Nitai Choudhury, and handed it over to the father of the respondent for taking signature of the respondent through Sri Matilal Saha, but the father of the respondent returned the same to Sri Matilal Saha without the signature of the respondent. Thereafter, the appellant herein, filed a suit for getting a decree of divorce bearing registration No.T.S.(Divorce)446/2011 before the Addl. Judge, Family Court, Agartala, West Tripura. 4. After receipt of the notice, the respondent being the Opposite-party appeared before the learned Court below and after receiving the notice filed her written statement stating that all the allegations made against her by the appellant are false. After marriage on 21.02.2011, the appellant, the respondent, and the mother of the respondent came to Kolkata at the flat of the appellant. After entering the flat, the appellant came home at late hours of the night in drunken condition. The respondent very soon learned that the petitioner is a habitual drunker. When the respondent used to talk over this matter with the mother of the appellant, she, used to abuse the respondent in slang language. After 2 to 3 days of coming to Kolkata, the appellant and his mother started mental and physical torture upon the respondent on demand of cash Rs.5,00,000/-. When the torture became unbearable, the respondent informed the matter to her brother and father, and on 28.03.2011, they came to Kolkata and the appellant gave assurance to them that he will never touch liquor and never assault the respondent. On 30.03.2011, the brother of the respondent left for Delhi, his place of posting and on 01.04.2011, the mother of the appellant left for Agartala. On 02.04.2011 the appellant invited his friends to have a party and brought lot of liquor and meat. From the conversation of the appellant and his friends, the respondent learned that the appellant is planning to do some cruelty upon her. As such, the respondent got scared and came to Belaghata P.S. and made a G.D. entry. Thereafter, the police of Belaghatha P.S. informed the uncle of the respondent and he took the respondent with him to his house since then the respondent is not residing with the appellant. As such, the respondent got scared and came to Belaghata P.S. and made a G.D. entry. Thereafter, the police of Belaghatha P.S. informed the uncle of the respondent and he took the respondent with him to his house since then the respondent is not residing with the appellant. Hearing this, the parents of the respondent, Sri Ranjan Saha, tried to make contact with the uncle of the appellant and requested him not to institute any case and assured that everything will be sorted at Agartala. On 12.04.2011, the respondent came to Agartala along with her parents and since then she is residing at her paternal house. A meeting was held in the house of Sri Matilal Saha and it was decided that the appellant will return all the stridhan to the respondent and the gold ornaments which were kept in the bank locker, were also returned to the respondent. The appellant also took the gold ornament belonging to him. In that meeting, no discussion took place for mutual divorce. The respondent is ready to lead her conjugal life with the appellant. 5. Thereafter the learned Court below framed the following issues for just decision of the case:- "i. Whether the petitioner was subjected to cruelty by the wife-respondent during their marital life and if so to what extent? ii. Is the petitioner entitled to the decree of divorce as prayed for?' 6. The appellant submitted examination-in-chief on the affidavit of 5 witnesses including himself. The respondent Smt. Sharmistha Saha (Roy) submitted examination-in-chief on the affidavit of 2 witnesses including herself. The respondent and the appellant adduced their evidence and after hearing both the parties the learned Court below was pleased enough to pass the judgment and decree on 11.10.2018 and rejected the petition of the appellant. 7. Being aggrieved by and dissatisfied with the said judgment and decree passed on 11.10.2018, by the learned Addl. Judge, Family Court, West Tripura, Agartala in connection with Case No. T.S.(Divorce) 446/2011 the appellant prefers the present appeal and prayed for the following reliefs. 'A) Admit the appeal B) Call for the records of the case bearing No. T.S. (Divorce)446/2011 from the Court of the learned Addl. Judge, Family Court, West Tripura, Agartala. C) Issue notice upon the Respondent. Judge, Family Court, West Tripura, Agartala in connection with Case No. T.S.(Divorce) 446/2011 the appellant prefers the present appeal and prayed for the following reliefs. 'A) Admit the appeal B) Call for the records of the case bearing No. T.S. (Divorce)446/2011 from the Court of the learned Addl. Judge, Family Court, West Tripura, Agartala. C) Issue notice upon the Respondent. AND After hearing the parties at length, be pleased to allow the Appeal by way of setting aside the impugned judgment and decree dated 11.10.2018 which is passed in connection with the case No.T.S.(Divorce)446 of 2011.' 8. We have heard Mr. Pradip Chakraborty, learned counsel appearing for the appellant-husband as well as Mr. S. Lodh, learned counsel appearing for the respondent-wife. 9. In the course of hearing Mr. S. Lodh, learned counsel in support of his contentions has cited 2(two) Apex judgment. 1) Para 7 & 8 of the Civil Appeal No.4696 of 2013 reported in AIR 2019 SC 1914 titled as R. Srinivas Kumar v. R. Shametha and 2) Para-19 of Civil Appeal No.9318 of 2014 reported in AIR 2020 SC 111 titled as Munish Kakkar v. Nidhi Kakkar. The above-mentioned judgments are not applicable to the facts of the present case. 10. It is seen from record that on several occasions this Court summoned both parties and made attempt to settle the matter amicably. But all efforts turned unfruitful. Learned counsel appearing for both sides also made their best effort in the interest of their clients to resolve the dispute amongst them. But their efforts were of no avail. Since the appellant-husband and respondent-wife are staying separately for many years, against the consent of one spouse, the other spouse cannot by force be allowed to stay together as they cannot live a peaceful conjugal life together. However, for her future prospects/security, husband is directed to pay a sum of Rs.5,00,000/- with the wife-respondent. Further, in so far as her maintenance of Rs.14,500/- is concerned, the husband shall continue to pay the same to wife-respondent regularly till she gets married for the second time. 11. With the above observation and directions, this instant appeal stands allowed. The divorce is granted to the parties by setting aside the Judgment and decree of the Addl. Judge, Family Court, West Tripura in T.S.(Divorce)446/2011 dated 11.10.2018.