False case of 406 that is not pursued, false allegations of illicit relations with other women, venereal disease etc which are NOT proven are matrimonial cruelty. Wife files 498a, 406 knowing that the husband is a govt servant and has to run for bail. Divorce granted to Husband. Maintenance to son ONLY if son comes and stays with father at least once a week. CAL HC GEM !!
In this important case, the Hon HC orders “….in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.….”
“…In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband….”
“…From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her….”
IN THE HIGH COURT AT CALCUTTA
Present: The Hon’ble Mr. Justice Bhaskar Bhattacharya
The Hon’ble Mr. Justice Rudrendra Nath Banerjee
F. A. No. 191 of 2005
Sri Debabrata Chakraborty
Smt. Rina Chakraborty
For the Husband-Appellant: Mr. Sambhunath Roy,
Mr. M.M. Bhattacharya,
Ms. Sarmistha Roychowdhury,
Mr. Surojit Roychowdhury.
For the Wife-Respondent: Mr. Ajoy Debnath.
Heard on: 04.12.2008.
Judgment on: 24th December, 2008.
Bhaskar Bhattacharya, J.:-
This first appeal is at the instance of a husband in a suit for restitution of conjugal right and in the alternative, for divorce on the ground of cruelty and is directed against the judgment and decree dated 9th June, 2005 passed by the learned Additional District Judge, Third Court, Alipore, in Matrimonial Suit No.34 of 1997, thereby granting a decree for restitution of conjugal rights.
Being dissatisfied, the husband has come up with the present appeal thereby praying for a decree of divorce.
The appellant before us filed in the Court of District Judge, South 24- Parganas, a suit being Matrimonial Suit No.34 of 1997, under Section 22 and/or alternatively under Section 27(1) (d) of the Special Marriage Act, 1954 for a decree for restitution of conjugal rights with further prayer that in the event the wife-respondent was found to oppose the prayer for restitution of conjugal rights, a decree for divorce should be passed on the ground of cruelty. The said suit was subsequently transferred to the Third Court of Additional District Judge, Alipore, and was renumbered as Matrimonial Suit No.665 of 1997.
The case made out by the appellant in the aforesaid suit may be summed up thus:
a) The parties were married on 10th February, 1981 under Special Marriage Act and in the wedlock, a male child was born on 15th June, 1990.
b) The appellant is a government servant and working as a Stenographer Grade-I and is attached to the Directorate of Rationing, Food & Supplies Department, Government of West Bengal. The wife-respondent is also a steno-typist and at the time of presentation of the Matrimonial Suit, had been working in the Calcutta Municipal Corporation in its Head office and was attached to the Personnel Department.
c) The appellant, in order to live and lead a happy matrimonial life, built a house with his own money by taking loan from the Government of West Bengal sometime in the year 1992, the address of which is described in the cause-title of the application. The respondent, although was an earning member of the family of the appellant, never contributed a single farthing in the family except paying salary of the two part-time maids. She never contributed a single copper towards the construction of the building. She had her bank accounts but never kept the pass-books in the matrimonial home. The respondent had shown a little interest in the matter of upbringing the child in a decent manner. At least thrice in a week, she used to go to her mother’s house at Sobha Bazar without making arrangement for the appellant’s basic and minimum requirement of food, cooking and tiffin etc. and the appellant had to arrange those of his own and there were occasions, when the husband had to go to his office without food and took lunch in a hotel in his office-locality.
d) The respondent is a peculiar type of woman and used to return to the matrimonial home from her office always at about 9/9.30 P.M. and if the appellant enquired of the reasons for coming so late, the respondent used to shout at the top of her voice and in the process, the appellant was put to embarrassment and was lowered in the estimation of the neighbours.
e) On or about June 20, 1996 the respondent went to Thakurpukur Police Station and gave a statement that the appellant died early in the morning by taking overdose of sleeping pill. The police rushed to investigate the matter and were deceived and they left the place after rebuking the respondent.
f) The respondent was a nagging lady and persuaded the appellant to transfer the house property in her favour and the appellant, to pacify her illegal demand, tried to explain that since he had taken loan to construct the building, he would not be in a position to make any conveyance in her favour as the property remained mortgaged with his employer. The respondent not being a lady of good understanding or amenable to reasons, became furious over the matter and filed a complaint under Section 498A of the Indian Penal Code and also started other criminal cases against the appellant.
g) For the initiation of the proceeding under Section 498A of the Indian Penal Code, the appellant suffered tremendous mental agony, worries and anxieties, particularly, due to the fact that the appellant was a government servant. However, the appellant was fortunately enlarged on bail. Simultaneously with the filing of the charge-sheet, the appellant in that behalf had also to move this High Court and in the process spoiled much of his time and energy and the financial involvement in that regard was also to a huge extent.
h) The respondent also filed case under Section 94 of the Criminal Procedure Code and with the help of search warrant, she took away everything from the house of the appellant including the articles belonging to the appellant. The resultant effect of the said incident was that the appellant had no utensils to cook. The respondent was so rude and vindictive that she took all the bedsheets, pillows etc. and the appellant had to sleep on the floor for quite a few days. Subsequently, the appellant on production of vouchers could recover 3/4 items out of the seized articles.
i) The appellant not only bore all the educational expenses of the child but also paid the expenses for the chartered car and that of crèche and provided tiffin and other snacks when the occasion permitted. The respondent created all sorts of problem in school and crèche while the appellant went there to visit the child. She even issued letter to the school, crèche and the police station to stall such visit.
j) There was no justification on the part of the respondent to withdraw herself from the society of the appellant.
k) The respondent poured venom into the ears of the son and whatever tiffin, food, snacks, etc. were offered by the appellant, she cautioned the son that he should not consume those. The respondent created problem when the appellant went to visit the crèche to take information about the son. She started shouting and hearing her shout, the local people assembled there, although, they all showed sympathy to the son and the appellant. The respondent had also the habit of writing letters to the headmistress of the school asking her not to allow the appellant to talk and visit the child after school is over or at tiffin hours.
l) In the event the respondent resisted the relief of restitution of conjugal right, the appellant should be entitled to get a decree of divorce on the ground of cruelty mentioned in the application.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the specific case made out by the respondent in her written statement may be summarized thus:
a) The appellant never wanted to live and lead a happy matrimonial life but he wanted to keep the respondent as a maidservant of the house and used to constantly beat her. She was ultimately driven out from the matrimonial home.
b) The appellant has venereal diseases and used to mix with different women and even did not spare a maidservant. The respondent was driven out of the matrimonial home just for creation of obstruction in the adulterous relation of the appellant with a maidservant in the presence of the child which the respondent vehemently opposed. The respondent did not permit such type of adulterous relation within the knowledge of her only son.
c) The appellant used to reside in a colony-house and had taken huge sum of money from the mother of the respondent. Even the first matrimonial home was provided in a rented house for which the entire advance money and all other expenses had been borne out by the mother of the respondent. The respondent provided huge sum of money from her mother for building the house and she was compelled to pay her entire salary in the hand of the appellant.
d) The appellant used to snatch the entire salary from the respondent and in consequence thereof, she used to live like beggar and last of all, at the time of being driven out from the matrimonial house, she was penniless and faced immense trouble. If the cost of construction of the building was assessed by an Engineer, from such assessment, the real expenses of the construction of the house would come out and from the said assessment, it would be clear whether the same was built up out of loan amount or whether there was any contribution by the respondent.
e) The appellant had different sources of money and had got ability to make and create money from his office and acquired huge sum of illegal amount which was utilised to meet the cost of his bad habits. The appellant made arrangement for the respondent to leave her matrimonial house every week so that the appellant could take the chance of bringing women during her absence.
f) It was absolutely false that the respondent used to come back at about 9/9.30 P.M. or that she ever raised her voice at the top.
g) After being tortured and injured, the respondent was compelled to complain to the police station, as a result, the police started a case under Section 498A of the Indian Penal Code. The appellant on several occasions attempted to murder the respondent by a chopper (Bonti). The appellant is in the habit of mixing with number of women and most of the days, he used to return at the late night and when the respondent asked for explanation, she was seriously beaten.
h) The appellant was not satisfied with the company of his wife but always intended to attach himself with other women. He had illegal relation with a schoolmistress, maidservants and had contacted various venereal diseases. The respondent would file an application before the learned Trial Court to check up the appellant whether he had been affected by any venereal disease.
At the time of hearing of the suit, the appellant alone gave evidence while the respondent also was the sole witness opposing the application.
The learned Trial Judge by the judgment and decree impugned herein gave a decree for restitution of conjugal rights on the ground that the wife was willing to go back. The learned Trial Judge, however, did not consider the question of cruelty, as according to him, the main relief having been granted, no question of giving alternative relief arose. The learned Trial Judge pointed out that although various allegations of cruelty were made, the application for divorce was not amended to include those facts as ground of divorce.
Being dissatisfied the husband has come up with the present first appeal. Mr. Roy, the learned advocate appearing on behalf of the appellant, vehemently contended before us that the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering the question of grant of relief of divorce on the ground of cruelty. Mr. Roy submitted that his client prayed for restitution of conjugal rights only to give a chance to the wife with specific averment that if such prayer was opposed by the respondent, he would pray for divorce. Mr. Roy submits that in fact, his client, in evidence specifically prayed for the relief of divorce as the wife did not accept the suggestion of restitution of conjugal right as would appear from the fact that the reconciliation failed.
Mr. Roy submits that although the learned Trial Judge has not considered the question of cruelty, this Court should on the basis of evidence on record consider the question whether the activities on the part of the respondent amounted to cruelty.
Mr. Roy next submits that the respondent in her written statement having made specific allegations against the husband imputing his moral character and has even made allegations that his client was suffering from venereal diseases, but having failed to substantiate such allegations by leading any evidence, the Court should on such ground alone pass a decree for divorce on the ground of cruelty. Mr. Roy submits that unfounded allegations involving moral character made in the written statement enables the Court to pass a decree for divorce on the ground of cruelty. He, therefore, prays for decree of divorce instead of that of restitution of conjugal rights granted by the learned Trial Court.
Mr. Debnath, the learned advocate appearing on behalf of the respondent, has opposed the aforesaid contentions of Mr. Roy and has contended that the present appeal is not maintainable in view of the fact that the main relief contained in the application was granted by the learned Trial Judge. According to Mr. Debnath, if the main relief is granted, the plaintiff cannot be aggrieved in anyway and cannot prefer any appeal for claiming the alternative relief by abandoning the main relief.
Even on merit, Mr. Debnath submits that the plaintiff having failed to prove the allegations of cruelty made out in the plaint by adducing any corroborative evidence, there is no just ground of granting a decree for divorce on the ground of cruelty. According to Mr. Debnath, if the plaintiff failed to prove his case made out in the plaint, he cannot get a decree on the ground that the respondent had failed to prove the allegations made in the written statement. Mr. Debnath further contends that in this case the main ground of cruelty alleged in the plaint being that his client had initiated a proceeding under Section 498A of the Indian Penal Code, so long that proceeding is not disposed of, it cannot be ascertained whether the allegations levelled against the husband was baseless or not. Therefore, Mr. Debnath continues, in the present appeal, there is no scope of granting any decree of divorce on the ground of initiation of a proceeding under Section 498A of the Indian Penal Code.
Mr. Debnath further submits that the moment his client got back all the articles through the help of police by issue of search warrant, she did not proceed with the other criminal proceeding initiated under Section 406 of the Indian Penal Code. According to him, for mere initiation of the other proceeding under Section 406 of the Indian Penal Code no decree for divorce can be granted. He, therefore, prays for dismissal of the appeal.
Therefore, the first question that arises for determination in this appeal is whether the main relief prayed for in the suit having been granted, the plaintiff- husband was entitled to get a decree for divorce on the ground of cruelty which was taken by way of alternative relief.
As indicated above, in the plaint, the husband first prayed for a decree of restitution of conjugal right with the rider that if the wife opposed the prayer, he should be granted a decree for divorce on the ground of cruelty on the basis of allegations already made in the plaint. The wife has specifically opposed all the prayers contained in the plaint and has in her written statement not only denied those allegations but also defended her action and at the same time, made serious allegations against the husband regarding his moral character indicating that he was maintaining adulterous relation with various ladies including the maidservants and had gone to the extent of making allegation that the husband was suffering from venereal diseases and maintained such stance even at the time of trial by appearing as a witness. The learned Trial Judge, as it appears from the judgement impugned, recorded that the husband did not deny such fact in his examination-in-chief or by giving suggestion to the D.W.-1 in her cross- examination. Such finding is a perverse finding of fact inasmuch as the husband in his examination-in-chief specifically denied those facts (See pages 49-50 of the paper book) and at the same time, gave specific suggestion to the D.W.-1 that those allegations were false (See pages 83-84 of the paper book).
The learned Trial Judge after recording the submissions of the learned counsel for the parties held that as the wife had not opposed the prayer of restitution of conjugal right and was willing to go back to the house of the plaintiff, he was inclined to pass the decree for restitution of conjugal right and found no necessity to enter into the question of cruelty as, according to him, the main relief claimed in the suit had been granted. According to the learned Trial Judge, in spite of the various allegations made in the written statement against the husband involving moral character, the husband not having amended the plaint by specifically praying for the relief of divorce on those allegations, those allegations cannot be considered in this proceeding particularly when the court granted the decree for restitution of conjugal right.
In our opinion, the aforesaid reason assigned by the learned Trial Judge is not in conformity with the law of the land for the following reasons:
First, in this case, the first prayer for restitution of conjugal right was subject to the condition that the wife would not oppose the said prayer. In this case, in the written statement the wife did not plead that she accepted the fact that without just cause she left the husband’s house but on the contrary, justified her action and in addition to those pleas, made allegations involving moral character of the husband. There is even no plea in the written statement that in spite of cruel behaviour of the husband she was willing to return. The fact that the endeavour of the learned Trial Judge for reconciliation failed indicated that even at that stage, she was not willing to return. Therefore, the parties went on trial on contested hearing even for the purpose of granting the relief of restitution of conjugal right. The moment such contested trial started, it should be presumed that the defendant was opposing even the first prayer of restitution of conjugal right by maintaining that due to cruel behaviour of the husband she was entitled to live separately and such prayer being conditional, the plaintiff without further amendment of plaint was entitled to press the issue of cruelty as a ground of divorce. If she was really willing to go back without opposing the prayer of restitution of conjugal right, there was no occasion for filing written statement opposing the prayer of restitution of conjugal right and contesting the suit by giving evidence. After contesting the suit and leading evidence disputing the allegations and making counter-allegations, if the wife offers to return for the sake of “welfare of the son” such plea must be held to be a pretended concession for the purpose of frustrating the relief of divorce even after committing cruelty. As pointed out by the Apex Court in the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462, if a defendant after making false allegation against the other spouse withdraws such allegations by making amendment of the written statement, such withdrawal of the allegation will not absolve the defendant of his liability which he has already incurred by making false allegation and on that ground the Court can grant a decree for divorce.
Secondly, in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.
Therefore, the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering whether the plaintiff had established cruelty from the materials on record to enable him to get a decree for divorce.
Since all the materials are available on record and the proceedings are pending for a longtime, we have, in exercise of power conferred under Order XLI Rule 24 of the Code of Civil Procedure, decided to consider such question and accordingly, we invited the learned counsel for the parties to argue on the question whether the husband on the basis of materials on record is entitled to get a decree for divorce on the ground of cruelty.
After hearing the learned counsel for the parties and after going through the materials on record, we find that the wife has undisputedly initiated two criminal proceedings, one under Section 498A of the Indian Penal Code and the other, under Section 406 of the Indian penal Code. The proceedings under Section 498A is still pending while the other one has been dismissed as the wife did not take any further step in the matter. In her defence, the wife has alleged that the husband took money from her mother and used to force her to pay her salary while the husband has totally denied such allegations. The wife has admitted that she lodged several diaries before the police station and also told the members of the local club alleging the torture of the husband. She has further stated that due to physical torture of the husband she was injured and such injury was treated by a doctor and due to such injury she could not attend her office. The husband, on the other hand, stated that the wife never paid any amount except the salary of two maidservants and although she had bank accounts, she never kept those pass books in the matrimonial home. The wife in this case has not examined any of the club people to whom she reported the incident of physical assault nor did she examine the doctor who allegedly treated her. She even did not examine her mother in support her allegations that huge amount of money was paid to her husband by her mother to purchase the peace in the family. She even by producing her bank accounts could easily substantiate her defence showing the monthly withdrawal of money from the accounts. She refused to produce materials showing that she really took leave from her office due to physical assault on her on the basis of the medical certificate of the doctor.
In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband.
From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her.
In this case, in spite of full knowledge that the husband is a government servant, the wife made complaint under Sections 498A and 406 of the Indian Penal Code and the husband was compelled to take bail. It appears that the wife did not proceed with the case under Section 406 of the Indian Penal Code and the same was dismissed. But for filing of such criminal case, the plaintiff was harassed. Similarly, there is no sufficient reason assigned by the wife demonstrating why she would not bring any corroborative evidence of physical torture when she was treated by a doctor and she told such incident to the local club members. Similarly, she could easily by production of her bank accounts, indicate her monthly withdrawal and thus, falsify the claim of the husband that she only used to pay the salary of the two maidservants. No body from her paternal side has come forward to support her case of demand of dowry and harassment alleged against the husband and payment of Rs.50,000/- by her mother could be easily proved by production of passbook of the bank. She although asserted in her written statement that she would apply for medical examination of the husband showing presence of venereal diseases, after the denial of such fact by the husband in his examination-in-chief she forgot to take such step.
All the aforesaid facts prove that the husband has not only proved the ground of divorce pleaded in the petition of divorce but at the same time, for making false and baseless allegations in the written statement against the husband, it is a fit case to grant a decree for divorce.
In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, referred to earlier, the Supreme Court held that the act of levelling disgusting accusations of unchastity and indecent familiarity with a person outside the wedlock and allegations of extramarital relationship constituted grave assault on the character, honour, reputation, status as well as the health of other spouse. Such aspersions of perfidiousness attributed to the other spouse viewed in the context of an educated Indian person and justified by the Indian conditions and standards, would amount to a worst form of insult and cruelty which is sufficient by itself to substantiate cruelty in law, warranting the claim of a party being granted divorce.
The learned Trial Judge, thus, erred in law in passing a decree of restitution of conjugal right in the facts of the present case by refusing to exercise jurisdiction vested in him by law on the erroneous idea that the main relief having been granted there was no scope of granting the decree of divorce.
We, therefore, allow this appeal by setting aside the judgement and decree passed by the learned Trial Judge and grant a decree for divorce on the ground of cruelty.
Since the only son of the parties is living in the custody of the wife we do not propose to disturb such custody. However, the husband is directed to pay the maintenance of the said son at the same rate at which he is presently paying by virtue of the interim order passed in this appeal, however, on condition that the son should come and stay with the father for a day in every week. If the son refuses to keep relation with the father by staying with him for a day in every week, in that event, no maintenance should be paid as he has attained majority and his mother is quite capable of maintaining him.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)
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