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2022 DIGILAW 61 (TRI)

Bhaskar Narayan Choudhury v. Padma Debbarama

2022-02-09

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard counsel for the appellant as well as for the respondent. 2. This is an appeal against the judgment dated 13.06.2019 and decree dated 25.06.2019, against the case No. T.S. (Divorce) 226 of 2017 by the Judge, Family Court, West Tripura, Agartala whereby the petition for dissolution of marriage subsisting between the parties as filed under Section 13(1)(ia) of the Hindu Marriage Act, has been allowed and the appellant herein was directed to pay Rs. 8,00,000/- under section 25 of the Hindu Marriage Act to the respondent herein as permanent alimony within one month from passing of the order. 3. For the sake of brevity parties are referred to as the husband and wife. The brief fact of the case is that the marriage between the husband and the respondent was solemnized on 20.07.2007 as per Hindu Rites and Customs out of love affairs. The newly married couple started residing at Dharmanagar in a rented house. A male child was born out of their wedlock. It was alleged by the respondent that it is after the marriage she came to know that the appellant is a habitual drunker. The respondent tried to rectify the matter but in vain. It is also alleged that the appellant used to return home at night in drunken conditions where many of the times his friends used to drop him as he was not in his senses. The things turn out to be more pathetic when the respondent sought help of the in-laws but they did not pay any heed to the request of the respondent. Infact it is further alleged that the appellant and his parents started mental torture upon the respondent for bringing money from the house of the respondent's father. Even the brother of the appellant and his children stopped talking to the respondent. In such an unbearable condition when the respondent asked the appellant to arrange separate accommodation for her son at Agartala for better education of their son. The appellant did that arranging the accommodation of the respondent and their son at Jagannath Bari Mandir and she stayed there for 15 days thereafter she took a rented house at Ramthakur Sangha with the consent of the appellant and started residing there. The appellant did that arranging the accommodation of the respondent and their son at Jagannath Bari Mandir and she stayed there for 15 days thereafter she took a rented house at Ramthakur Sangha with the consent of the appellant and started residing there. It is further contended that in the month of February, 2017 the appellant said that he would arrange the furniture and other household articles in the rented house but failed. It is also contended that the appellant would visit twice to the respondent but he never did so. The appellant was even reluctant to maintain the respondent and their son as alleged. On 28.05.2017, the respondent went to Dharmanagar but the mother of the appellant did not allow the respondent to enter into the house. The respondent informed the matter to the appellant and the appellant called the respondent to his maternal uncle's house. After reaching there, the appellant started assaulting the respondent. The respondent having found no option took shelter at her paternal home. Having no option wife filed TS (Divorce) before the Judge, Family Court, Agartala, West Tripura. 4. The case before the Judge, Family Court, Agartala, West Tripura was registered as T.S (Divorce) 226 of 2017 and by the order dated 13.06.2019 the said Judge took up the following points for determination: I. Whether the respondent committed cruelty upon the petitioner. II. Whether the petitioner is entitled to the decree, as prayed for and to what other relief/reliefs. While considering the points, the said Judge has relied on a decision of the apex court in N.G. Dastane v. S.N. Dastane reported in (1975) 2 SCC 326 where the apex court has observed as follows: 'The inquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness.' 5. The wife deposed herself as the PW I before the Judge, Family court and her evidence was supported by PW2 (Smt. Tanni Barua) and PW3 (Smt. Roshni Debbarma). There was no witness on behalf of the husband. The wife deposed herself as the PW I before the Judge, Family court and her evidence was supported by PW2 (Smt. Tanni Barua) and PW3 (Smt. Roshni Debbarma). There was no witness on behalf of the husband. After examining the PWs 1, 2 and 3, it was observed by the court below that wife substantiated her claim of cruelty by adducing evidence of herself supported by two witnesses. Moreover, in this present case the husband-appellant did not cross examine the wife and hence, the evidence adduced by the wife side remain unrebutted. There is nothing to disbelieved the evidence by the wife. Hence, the wife is entitled to get the decree as prayed for. 6. The wife-respondent also submitted a petition under section 25 of the Hindu Marriage Act seeking permanent alimony of Rs. 20,00,000/-. She stated that the husband is a distributor of Colgate, Kelvin care and his monthly income is more than Rs. 1,00,000/-. The Judge while considering the profession of the husband has considered the monthly income of the husband not more than Rs. 40,000/- and thus his annual income is not more than Rs. 4,80,000/-. It is further observed that considering the annual income of the husband the claim of Rs. 2,00,000/- by the wife as permanent alimony is not justified. 7. The Judge, Family Court, Agartala West Tripura by the order dated 13.06.2019 after examining the PWs advanced by the wife-respondent has allowed the petition for a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The appellant-husband was also directed to give Rs. 8,00,000/- to the wife-respondent as permanent alimony within one month from passing of this order. 8. Aggrieved by the judgment dated 13.06.2019 and decree dated 25.06.2019, against the case No. T.S. (Divorce) 226 of 2017 by the Judge, Family Court, West Tripura, Agartala, the appellant herein has preferred this appeal for setting aside the judgment dated 13.06.2019 and decree dated 25.06.2019 in case no. T.S. (Divorce) 226 of 2017. 9. In the judgment dated 13.06.2019 it has been observed that the wife has claimed permanent alimony amounting to Rs. 20,00,000/- from the husband as he is a Colgate and Kelvin Care distributor and he earns Rs. 1,00,000/- per month but she failed to submit any documentary evidence relating to such income of the respondent. 10. 9. In the judgment dated 13.06.2019 it has been observed that the wife has claimed permanent alimony amounting to Rs. 20,00,000/- from the husband as he is a Colgate and Kelvin Care distributor and he earns Rs. 1,00,000/- per month but she failed to submit any documentary evidence relating to such income of the respondent. 10. The husband, before the Family Court, while filing the objection in reply to the petition under Section 25 of the Hindu Marriage Act, 1955 for granting permanent alimony in favour of the wife to the quantum claimed by the wife as Rs. 20,00,000/- the husband submits that he was a distributor of stationary items, till 2018, but the he could not continue his business owing to his ill health and presently he had to close down his business and is employed these days and filed IT returns. Thus he did not submit any return for the last assessment year, as he has no income. 11. It surfaces from the records that as the appellant was a distributor of popular products as stated supra he might have earned and also earning a reasonable good amount in business. Moreover, this court also finds that the income tax returned filed by the appellant appears to be incomplete. It is his prima facie duty to convince this court. But it clearly indicates that he has not approached this court with clean hands as he is suppressing information about his income. Since the appellant has not approached this court with clean hands in providing the accurate income and the appellant has suppressed certain financial status and assets except taking notional fixation of permanent alimony, this court having found no material in the case of the appeal confirms the judgment dated 13.06.2019 and decree dated 25.06.2019 in case no. T.S. (Divorce) 226 of 2017. Accordingly, the appeal is dismissed. The appellant-husband is directed to pay the permanent alimony of Rs. 8,00,000/- to respondent wife as decided by the Family Court. The time granted to pay the amount is two months from today. It is clarified that no further extension of time to pay the amount will be granted.