Tag Archives: calcutta HC

False allegations of illicit relation with girls is cruelty. Husbnd wins Dvrc. NO Jewel returned 2 wife ! CAL HC

In this case, the CAL HC decrees that a woman making false and unfounded allegations about husband’s illicit relations is cruelty. The court goes on to say that even if such allegations were made AFTER the institution of the suit, they tantamount to cruelty !! quoting a large number of cornerstone cases, the Husband is granted divorce !

The Hon court observes : “….. written statement, ….wife alleged that the petitioner used to coach a girl at Konnagore and fell in love with her. It was also alleged that the petitioner had illicit connection with the said girl. She did not stop these. Even in her deposition she has stated that the petitioner used to mix with another girl and that when she protested, there was a quarrel with him over this. So in her deposition she also persisted that her husband had illicit connection with another girl. But, barring evidence of her own, she could not adduce any evidence to prove the above mentioned allegation. This allegation, needless to say, has been denied by the petitioner-husband. … She has, as indicated above, spoken of such allegation. But her witnesses have not said anything in this regard. Her own brother Chandidas Banerjee (witness No. 3) has not said anything in this regard. Evidence of witness No. 2 Nepal Chandra Mukherjee in this regard is extremely vague. … Before institution of the instant suit, the respondent-wife made an application under Section 125 of the Code of Criminal Procedure claiming maintenance against her husband. In this application she did not allege that her husband had love affairs or illicit contection with any girl. …. So in the facts and circumstances of the case and on consideration of the evidence on record we hold that such allegation of the respondent-wife is false and without any foundation. It is now well settled that such false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be valid ground for passing a decree of divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act…..”

while the court is ready to order some permanent alimony to the wife (who also maintains her son), the court refuses to order her any Jewels etc

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Calcutta High Court

Amarendranath Sanyal vs Krishna Sanyal on 1 June, 1992

Equivalent citations: (1993) 1 CALLT 301 HC, I (1993) DMC 565

Author: S Guin

Bench: A Bhattacharjee, S K Guin

JUDGMENT S.K. Guin, J.

This appeal is directed against the judgment and decree passed by the learned District Judge, Hooghly on 22 9 88 in Matrimonial Suit No. 161 of 1985 whereby he dismissed the suit.

1. The petitioner-husband, who is the appellant here. brought the above suit against his wife, who is the respondent here, for dissolution of the marriage by a decree of divorce on the ground of desertion and cruelty. The wife contested the suit by filing a written statement.

2. Undisputedly the marriage between the parties was solemnised according to Hindu rites on 13.3.79 and a son, who is now about 12 years old, was born out of this wedlock. It is also not disputed that since 15.10.83 the parties have been living separately and that the son, born out of this wedlock, has been living with his mother. Both sides adduced evidence-oral and documentary in support of their respective cases before the learned District Judge who on consideration of the same has held that the plaintiff failed to prove cruelty or desertion as alleged by him. With these findings, he dismissed the suit.

3. Being aggrieved the petitioner-husband has preferred the instant appeal challenging the correctness and propriety of the findings as arrived at by the learned District Judge. It has been contended on behalf of the appellant that the learned District Judge should have passed a decree of divorce on the ground of cruelty and desertion. The respondent, however, has resisted this appeal.

4. Having heard the learned Counsel of both the parties and having gone through the evidence on record, we are not inclined to interfere with the finding of the learned District Judge with regard to desertion. However, we are not inclined to support his finding as to cruelty. In paragraphs 13 and 14 of the written statement, the respondent-wife alleged that the petitioner used to coach a girl at Konnagore and fell in love with her. It was also alleged that the petitioner had illicit connection with the said girl. She did not stop these. Even in her deposition she has stated that the petitioner used to mix with another girl and that when she protested, there was a quarrel with him over this. So in her deposition she also persisted that her husband had illicit connection with another girl. But, barring evidence of her own, she could not adduce any evidence to prove the above mentioned allegation. This allegation, needless to say, has been denied by the petitioner-husband. In this case the respondent-wife has examined three witnesses including herself. She has, as indicated above, spoken of such allegation. But her witnesses have not said anything in this regard. Her own brother Chandidas Banerjee (witness No. 3) has not said anything in this regard. Evidence of witness No. 2 Nepal Chandra Mukherjee in this regard is extremely vague. According to him the respondent-wife told him that her husband had some illicit connection with some girl. So he has got no direct knowledge whether the petitioner-husband had any illicit connection with any girl. Before institution of the instant suit, the respondent-wife made an application under Section 125 of the Code of Criminal Procedure claiming maintenance against her husband. In this application she did not allege that her husband had love affairs or illicit contection with any girl. Before institution of the instant suit she also appears to have made a complaint to the General Manager of the Government of India Press where the petitioner-husband used to serve (vide Ext. 8). In this complaint against her husband, she did not make any allegation that her husband had any love affairs or illicit connection with any girl. So in the facts and circumstances of the case and on consideration of the evidence on record we hold that such allegation of the respondent-wife is false and without any foundation. It is now well settled that such false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be valid ground for passing a decree of divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act. In the case of Nimai Kumar Ghosh v. Smt. Mita Ghosh, reported in 89 C.W.N. 904 a Division Bench of this Court has held that any imputation against the character of any spouse made either by the wife or by the husband on mere suspicion and without any foundation would amount to mental cruelty and would be a valid ground for passing a decree under the provision of Section 13(l)(ia) of the Hindu Marriage Act. A Division Bench of this Court presided over by my learned brother, A.M. Bhattacharjee, J. in the case of Harendranath Burman v. Suprova Burman, has held that unfounded or baseless allegation of adultery by one spouse against the other constitutes mental cruelty of the gravest character to warrant divorce. In the case of Smt. Santana Banerjee v. Sachindra Nath Banerjee, , the wife alleged illicit sexual relation of her husband with an office colleague and also indulged in making reckless, false and motivated allegation against her husband and his close relation not only in her written statement but also in her deposition. Another Division Bench of this Court presided over by G.N. Ray, J. (as he then was) has held in that case that such allegations constitute cruelty of a very grave nature. We respectfully agree with and rely upon the decision as referred to above. It is true that the allegations, as to character of the petitioner-husband were made by the respondent-wife after institution of the instant suit. But it is well settled that such post suit allegations or events may be taken into consideration to shorten the litigation and to do complete justice between the parties. Relying upon the decision of the Supreme Court in the case of Shikhar Chand v. Digambar Jain, , the Division Bench of this Court has held in the case of Harendra Nath Burman v. Suprova Burman (supra) that the allegation made in the written statement and in the deposition can and should be taken note of in matrimonial proceeding without driving the petitioner to another proceeding on the ground of such cruelty. It has further been held that it is open to a Court, including a Court of appeal, to take notice of events which happened after the institution of the suit and afford relief to the parties where it is necessary to do in order to shorten litigation or to do complete justice between the parties. The same view has also been expressed by the Division Bench in the case of Smt. Santana Banerjee v. Sachtndra Nath Banerjee (supra). We see no reason to take a different view. So, though the allegation was made by the respondent-wife regarding the character of petitioner-husband in the written statement and was repeated in her deposition, such post-lis allegation can and should be taken note of in the instant matrimonial proceeding without driving the petitioner-husband to another proceeding on the ground of such cruelty. Thus on consideration of the facts and circumstances of the case and also having regard to the decisions as referred to above, we hold that the aforesaid unfounded and baseless allegations made by the respondent-wife against the character of the petitioner-husband in written statement and also in her deposition constitute mental cruelty of the gravest character to warrant a divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Before grant of divorce on the ground as embodied in Section 13(1)(ia) of the Hindu Marriage Act let us consider whether a decree of judicial separation will serve the purpose in the facts and circumstances of the case. Undisputedly the parties have been living separately since 15.10.83 i.e. for more than 8 years. We have seen that the respondent-wife made baseless and false allegations against her husband to the effect that he had love affairs and illicit connection with another girl. In the facts and circumstances of the case it appears to us that the marriage has broken down irretrievably and irreparably and that no useful purpose would be served by passing a decree of judicial separation on the ground of cruelty. So we are of the opinion that in the facts and circumstances of the case the petitioner-husband is entitled to a decree of divorce on the ground of cruelty.

6. At the conclusion of the hearing of appeal, the respondent-wife filed two applications one under Section 25 of the Hindu Marriage Act for permanent alimony and another under Section 27 of the said Act for return of the articles mentioned in “Annexure A” to the application. Mr. Mukherjee, learned Counsel appearing for the appellant raised no objection to the application under Section 25. But be has raised serious objection with regard to the application under Section 27. He has argued that as the respondent- wife claimed the articles and ornaments mentioned in the application as her own stridhan property, the provision of Section 27 cannot be invoked with regard to such stridhan property of the respondent-wife. He has, however, got no objection if the items of furniture such as cot (double bed), steel almirah (big size) and the dressing table are directed to be returned to the respondent-wife. In our opinion, contention as raised on behalf of the appellant must be upheld. In the application under Section 27 the respondent-wife has prayed for return of the ornaments and articles on the allegation that the said properties are her stridhan properties and so belong to her. But Section 27 of the Hindu Marriage Act provides that the Court may make such provision in the decree with respect to the property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. So the provisions of Section 27 can only be invoked for return of properties which were presented at or about the time of marriage and jointly belong to both the husband and wife. In this connection our attention has been drawn to a decision of the Division Bench of this Court presided over by my learned brother, A. M. Bhattacharjee, J. in the case of Sibnath Mukhopadhyay v. Sunita Mukhopadhyay . It has been held therein that Section 27 on its express terms would apply to such property only which (a) has been presented at or about the time of marriage and (b) may belong jointly to both the husband and wife. So Section 27 has no manner of application to the properties which exclusively belong to the wife or to the husband. The ornaments as mentioned in the Annexure ‘A’ to the application under Section 27 have been claimed by the respondent-wife as her stridhan and exclusive properties and as such the respondent-wife is not entitled to an order for return of those articles under the provision of Section 27. So the prayer for return of those ornaments must be rejected. However, she would be at liberty to seek an appropriate relief with regard to those ornaments as available to her under the general law. The cot, steel almirah and dressing table are undoubtedly of common use and may be meant for both the husband and wife. Moreover the learned Advocate for the appellant has conceded that those articles of furniture may be directed to be returned to the respondent-wife. So in the decree there would be a direction for return of the said articles to the respondent-wife. The application under Section 27 thus succeeds in part.

7. Under Section 25 of the Hindu Marriage Act any Court exercising jurisdiction under the said Act may, at the time of passing any decree on application made to it for the purpose, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just. In her application the respondent-wife prayed for payment of sufficient permanent alimony but she did not quantify it. Now the question arises as to what should be the amount of permanent alimony, whether it should be paid in a lump sum or whether it should be paid monthly. That the respondent-wife, with whom the son born out of this wedlock is living, has no income or property of her own has not been disputed before us. It appears from the evidence on record that she has been living in the house of her brother. The son is now aged twelve and so is now school going. Mr. Sinha learned Advocate for the respondent-wife has submitted that since the petitioner-husband made default in payment of alimony pendente lite and since he has already retired from the service and received pensionary benefit, a gross sum may he given as permanent alimony so that the respondent-wife may not be put into any trouble in future in the matter of maintaining herself and her son This submission appears to us to be reasonable. The petitioner used to serve in the Government of India Press and he has already retired on attaining the age of superannuation. It also appears that he made default in payment of alimony pendente the. So in the facts and circumstances of the case it appears to us to be reasonable that a gross sum should be awarded as permanent alimony. Mr. Sinha, learned Advocate for the respondent-wife has further submitted that lump sum of Rs. 45,000/- to 50,000/- may be awarded as permanent alimony to the respondent-wife. We also called for a report from the Managar, Government of India Press to know what were the pensionary benefits available to the petitioner-husband. A reply has been received and the same has been placed on record. From the letter received from the Government of India Press it appears that the petitioner-husband is entitled to get pensionary benefits as mentioned below :-

(1) C.G.E.G.I.S. Rs. 3,456.00
(2) D.C.R.G. Rs. 32,175.00
(3) Commuted value of pension Rs. 40,668.00
(4) Leave encashment Rs. 25,000.00
(5) G.P. Fund. Rs. 85,374.90

8. Besides the abovementioned pensionary benefits the petitioner-husband will get pension at the rate of Rs. 649/-+ D.A. relief per month. Thus it is clear that besides the monthly pension as mentioned above, the petitioner-husband is entitled to get other pensionary benefits to the extent of Rs. 1,86,273.00 P. Thus having considered the income and properties of the parties and also the conduct of the parties and the facts and circumstances of the case, we think it reasonable to grant a gross sum of Rs. 30,000/-as permanent alimony to be paid by the petitioner-husband to the respondent-wife and there will be direction to that effect in the decree.

9. In the result, this appeal is allowed. In the circumstances of the case we make no order as to cost. The judgment and decree of dismissal as passed by the learned District Judges, Hooghly in Suit No. 161 of 1985 are set aside. The suit is hereby decreed. ‘ The marriage between the parties is hereby dissolved by a decree of divorce on the ground of cruelty as embodied in Section 13(l)(ia) of the Hindu Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. The respondent-wife do get permanent alimony of Rs. 30,000/-from the petitioner-husband and the petitioner-husband is directed to pay the said amount within three months from this day. The petitioner-husband is also directed to return the articles of furniture namely, cot (double bed), steel almirah (big size) and the dressing table as mentioned in Annexure A to the application under Section 27 to the respondent-wife within three months from this day. The respondent-wife, however, will be at liberty to seek the appropriate reliefs with regard to her alleged stridhan properties i.e, ornaments as are available to her under the general law. The applications under Sections 25 and 27 of the Hindu Marriage Act are thus disposed of as indicated above.

A.M. Bhattacharjee, J.

11. I agree.

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Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce 

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”

The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

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Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

  2.  

     

     

15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting

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Hsbnd wins dvrc as wife regulrly leaves hubby & files false 498a 406. wife also looses appeal @ Cal. HC !!

Husband gets divorce under grounds of Cruelty as wife regularly left the husband’s house against his wish and also filed false 498a case against husband and MIL, wherein husband was arrested. This 498a also finally ends in acquittal. Wife also files an appeal against the divorce decree (which went in favour of the husband), argues at the HC that she was immensely tortured etc, but she looses appeal @ Cal. HC !!
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* wife files 498a etc
* wife left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Husband was arrested by police and had to remain in jail custody for 14 days.
* Wife also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’.

The HON HC goes on the say “….An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. ….”

* An the HON HCc concludes that “…..30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. ….”
* so wife looses her appeal against husband’s divorce (i.e. Husband’s divorce is confirmed by HC)

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Calcutta High Court

Smt. Kajal Roy vs Prasanta Kr. Roy on 10 August, 2004

Equivalent citations: (2005) 2 CALLT 567 HC

Author: J Banerjee

Bench: M H Ansari, J Banerjee

JUDGMENT Mahammad Habeeb Shams Ansari, J.

1. Instant appeal is field by defendant-wife aggrieved by the judgment and decree dated September 21, 2000 passed by the learned Additional District Judge, Howrah in Matrimonial Suit No. 37 of 1994. Thereby the suit for divorce filed on the ground of cruelty by the husband was decreed.

2. A perusal of the judgment under appeal would show that the petition under Section 13 was filed by the husband praying for a decree of divorce under Section 13 on the ground of cruelty and desertion. Learned trial Court found that the ground of desertion is not established and with regard to the ground of cruelty it was noticed that the same was founded on the ground that the wife left the matrimonial home at regular intervals and used to come back after 15/20 days and that she refused cohabitation with the husband and that finally on November 13, 1993 she left the matrimonial home with bag and baggage without the consent and knowledge of the petitioner and against the will of the husband’s mother. Learned trial Court found that the factum of cruelty pleaded has not been established but was of the view that the marital tie has deteriorated to such an extent that the parties cannot live together as husband and wife and, therefore, granted a decree of dissolution of marriage.

In coming to the aforesaid conclusion learned trial Court found that the wife admittedly left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Whereupon the husband was arrested by police and had to remain in jail custody for 14 days. She also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. Judgment in that case has been marked as Ext.2. The judgment in GR 197/1994 being the case under Section 498A Indian Penal Code was pronounced on April 6, 2004 i.e. after the date of decree under appeal and for that purpose an application being CAN 5626 of 2004 has been field for receiving the said judgment as additional evidence in this appeal. We shall consider this application a little later. Suffice it to state that appellant has not filed any affidavit-in-opposition but his learned counsel made oral submission.

3. It is the correctness of the conclusions arrived at by the learned trial Court and based whereon the decree of divorce was granted that is the subject matter of the instant appeal.

4. It is the contention of Mr. Tapan Mukherjee, learned counsel for the appellant-wife that the husband having failed to establish the acts of cruelty pleaded ought not to have been granted the decree of divorce merely because complaints under Sections 406 and 498A Indian Penal Code had been filed by the wife. It was further contended that it is the appellant-wife that was the victim of immense torture. That the wife had to go with her father for medical treatment and when she returned to her matrimonial home on January 22, 1994 along with her father to live in the matrimonial home the husband and his family members did not allow her to live at the house and thereafter when the father returned on January 23, 1994 he came to know that the wife was assaulted by the husband and his family members whereupon a complaint was filed by the father of the wife under Section 498A and another complaint filed by the wife under Section 406 Indian Penal Code with respect to the wedding gifts and ornaments. It was contended that pursuing a legal remedy for the protection of life limb and property cannot constitute cruelty. Reliance was placed upon the judgment in Smt Bina Rani Banik v. Pradip Kr. Banik, AIR 1999 Gauhati 139. It was further contended that it is the acts of the husband that led the wife to take such action and, therefore, the husband cannot take advantage of his own wrong. Reliance was placed upon the judgments in Savitri Pandey v. Prem Chandra Pandey, , and Smt. Kakali Das (Ghosh) v. Dr. Asish Kumar Das, (2003)3 CLT 60.

5. Mr. Buddhadev Ghoshal appearing along with Mr. Dipanjan Sinha Roy, learned counsel for the respondent-husband at the very outset submitted that the decree of divorce granted by the learned Trial Court can be sustained on the grounds pleaded in the petition.

Relying upon the judgments in Postgraduate Institute of Medical Education & Research and Anr. v. A.P. Wasan and Ors., ; Parma Lal v. State of Bombay, ; Koksingh v. Smt. Deokabari, and Virdhachalam Pillai v. Chaldean Bank Ltd., Trichur and Anr., , it was contended that without filing any cross-appeal or cross-objection the respondent in the appeal is entitled to canvass the correctness of the findings against him in order to sustain the decree that has been passed against the appellant.

6. Having perused the judgments cited by the learned counsel for the respondent-husband, we are of the view that if a party who could have filed a cross-objection under Order 41 Rule 22 Code of Civil Procedure but has not done so is entitled to canvass the correctness of the findings that have gone against him. Further, Appellate Court is empowered under Order 41 Rule 33 Code of Civil Procedure not only to give or refuse relief to the appellant by allowing or dismissing the appeal but is also empowered to give such relief to the respondent as “the case may require”. Accordingly the plea of the respondent herein is sustained. It is open to the respondent to canvass before us the correctness of the findings that have gone against him in the judgment and decree under appeal.

7. Having held as above let us consider whether the grounds pleaded in the petition for divorce stand established by the evidence on record. Before we take up for consideration the rival contentions, a few observations based on judicial precedents need to be noticed.

8. Cruelty is now a ground of divorce. It may be either physical or mental cruelty on the establishment of which an aggrieved spouse is entitled to divorce. Physical cruelty consists of acts of inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which causes mental or emotional suffering. After the amendment by the Hindu Marriage Laws (Amending) Act of 1976 cruelty s a ground of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is construed to be an act or omission or conduct of such type that one spouse cannot reasonably be expected to live with the other. Cruelty may consist of acts which are dangerous to life, limb or heath. It may be manifested by such acts to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. There may be instances of cruelty by an unintentional but inexcusable conduct of any party. The intention/motive is not a necessary element or ingredient of cruelty. It is the act or conduct or omission which will constitute cruelty. A single act of physical cruelty may itself amount to cruelty. A series of small acts of violence or threats may cumulatively amount to cruelty. In either case of physical cruelty or mental cruelty it is not necessary that such act or conduct be that of the spouse or at the instance of one spouse or at the instigation of one spouse against the other it may emanate from others and the omission of spouse in protecting the other spouse from such act or conduct may itself constitute cruelty in given case.

9. ‘Mental cruelty’ has been given a wide meaning and has been construed as that conduct which inflicts mental pain and suffering upon the spouse making it impossible for him/her to live with the offending spouse. It must be of such nature that the parties to the marriage cannot reasonably be expected to live together nor the parties can reasonably be asked to endure such conduct. In coming to the conclusion as to whether the alleged acts or omissions constitute cruelty, Court has to keep in mind the social status, educational level of the parties as also the society they move in. This is for the reason that what may amount to cruelty in a given case may not be so in another. In so far as mental cruelty is concerned it is no longer necessary to establish that the act or omission or conduct which constitutes cruelty has caused any sort of apprehension in the mind of the aggrieved spouse that it will be harmful or injurious for him/her to live with the other. Judicial precedents under the unamended Act, therefore, laid emphasis on the reasonable apprehension aspect of cruelty and not so much on the act or omission or conduct itself.

10. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. Nor it can be decided on the basis of the sensitivity of the petitioner. Simple trivialities which can be described as the reasonable wear and tear or married life have to be ignored. Courts will have regard only to weighty and grave incidents. Where the case is of accusations and allegations, counter-accusations and counter-allegations the Court is to have regard to the context in which such allegations or counter-allegations have been made. If the conduct complained of itself is bad enough or per se unlawful or illegal then the impact or injurious effect thereof on the other spouse need not be enquired into or considered and any such conduct would constitute cruelty.

11. The Supreme Court in Shobha Rani v. Madhukar Reddi, [a case arising under Section 13(1)(ia) of the Act] has sounded a note of caution when it observed thus;

“…We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents….”

12. The general rule governing pleadings is that the facts and reliefs must be set out in the pleadings. The facts need to be stated succinctly based on which the relief/s is/are sought. This is because the Courts grant relief founded on pleadings. The principle being that the other party is not taken by surprise. If the parties did not know that a particular matter is in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, granting relief on matters not pleaded would introduce considerations of prejudice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13. A party in matrimonial proceedings may not be allowed to make out a case on the basis of evidence for which he/she has laid no foundation in the pleadings. The general principle being that any amount of evidence would be of little avail if the same has not been less set up or started in the pleadings.

14. However, on the basis of pleadings and other admitted material divorce can be granted if there are some extraordinary features to warrant grant of divorce. It was so held by the Supreme Court in V. Bhagat v. D. Bhagat, wherein it was observed that “There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”

15. It is the contention of Mr. Buddhadev Ghosal, learned counsel for the respondent that the grounds of physical and mental cruelty pleaded in the plaint stand established by the evidence on record and, therefore the conclusion arrived at by the learned trial Court that same are not established is erroneous. On the other hand, learned counsel for the appellant contended that none of the grounds alleged have been established. It was further submitted that the evidence on the side of the respondent is of a general nature. It is the respondent-husband that has inflicted torture upon the wife and is keen to get rid of the wife as can be seen from his attitude in asking the father-in-law to take back his daughter for ever.

16. The facts on which the petition filed for grant of divorce under Section 13 of the Hindu Marriage Act, 1955 is inter alia that the marriage between the parties was performed on August 2, 1992 according to Hindu rites and customs. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’. Allegations have been made in the petition with regard to acts of mental as also act of physical cruelty which were inflicted by the wife upon the husband but was not disclosed to his family members. Allegations was made that the wife was in the habit of leaving the matrimonial home at regular intervals and used to come back after 15/20 days from her father’s house or from any other place not known to the husband and did not allow the husband cohabitation with her. The husband was made to sleep on the floor. The specific instance cited in the petition for divorce is to be found in paragraph 8 wherein it is alleged that on November 13, 1993 on ‘Kalipuja’ day wife’s father came to the matrimonial home all on a sudden and took away his daughter with bag and baggages, same was in total defiance of the husband’s mother and even without the husband’s consent and knowledge. In paragraph 10, it was alleged that on January 22, 1994 the wife returned along with her father and the father returned after about one hour stay stating that he would come back and take away his daughter. The further allegation is to the effect that;

“…At that time, your petitioner most modestly proposed to the father of the respondent for arranging permanent severance of their conjugal life through the Court of law peacefully instead of committing such wrongful acts perpetually inflicting mental injury to him and to his aged widow mother….”

17. It is alleged that the father became furious and left making threats and he returned on January 23, 1994 along with police officials of Bantra Police Station and on the directions of the father the wife took her remaining belongings and ornaments. The husband and his mother were taken to police station and thereafter the S.I. of Bantra P.S. after hearing both the parties allowed the husband and mother to leave. An allegation as to desertion by the wife has been made in paragraph 13 of the petition. It is stated that on January 23, 1994 the wife left the matrimonial home with all her belongings.

18. The ground of desertion as pleaded for grant of decree of divorce is not maintainable in the case on hand as will be evident from the provisions of Section 13(1)(ib) wherein it is laid down that decree of divorce on the ground of desertion can be granted if the other party has deserted the petitioner for a period not less than two years immediately preceding the presentation of the petition. It is clear that no suit can be decreed on the ground of desertion If the same is filed as in the case on hand within 2 years from the date of alleged desertion. In the case on hand the plea of desertion is founded on the ground that wife left the matrimonial home on January 23, 1994. The suit is filed within a month thereof i.e. on February 7, 1994.

19. As regards the grounds of cruelty alleged in the petition suffice it to state here that the incidents of cruelty alleged have not been succinctly stated in the petition except that the wife left the matrimonial home on November 13, 1993 and returned on January 22, 1994 when an altercation took place between the husband and father of the wife and another incident of January 23, 1994 when the father of the wife is said to have come with police personnel and taken his daughter away with him, the husband and mother being called to the police station. The other allegations in the petition are vague without any specific particulars having been furnished as to the date of their occurrence. The evidence of the husband as PW1 is on similar lines. He has spoken of physical assault by the wife and also that she did not share the bed with him and he had to sleep on the floor. No such particulars with date as to when said incident occurred has been stated in the plaint. Even in his deposition husband as PW1 has not furnished particulars with regard to alleged assault by the wife upon him nor did he furnish the dates from when she did not allow him to share the bed. It is only in cross-examination that the husband stated that refusal to cohabit on the part of his wife began three months after his marriage in the year 1992. He, however, admitted that from the date of his marriage till January 22, 1994 he lived in the same room with his wife and further admitted that he never informed any person regarding the refusal by the wife to cohabitation. We are, therefore, inclined to agree with the learned Trial Court that the grounds of cruelty as pleaded do not stand established.

20. As noticed supra, the learned Trial Court that the parties cannot live together as husband and wife as the ground of cruelty is established by the criminal cases filed by the wife and detention of husband in jail custody for 14 days. This conclusion by learned Trial Court is founded on the ground of complaints filed under Section 498A and 406 Indian Penal Code. The case under Section 406 Indian Penal Code having ended in acquittal.

21. It was contended by learned counsel for appellant relying upon Savitri Pandey (supra) the marriage between the parts that as the marriage between them has broken down no useful purpose would be served to keep it alive. The sanctity of the marriage cannot be left at the whims of one of annoying spouses. It was further contended that irretrievable break down of marriage is not a ground by itself to dissolve it as held by the Supreme Court in Bhagat v. Bhagat, .

22. From the evidence on record it is apparent that the instant suit was filed after the complaint was made against the husband under Sections 406 and 498A Indian Penal Code. During the pendency of the proceedings the criminal case under Section 406 Indian Penal Code was decided on April 28, 2000 and Ext.2 is the certified copy of the judgment in C.C. No. 281C/1994. The judgment in the criminal case under Section 498A Indian Penal Code had not, till then, been pronounced. Subsequently, the judgment has been pronounced in that case also and as noticed earlier an application has been filed being CAN 5626 of 2004 to receive the judgment as additional evidence in this appeal. The only submission in opposition made by the learned counsel for the appellant is that the complaint under Section 498A Indian Penal Code was made by the father of the appellant and not by the appellant herself. It was further submitted that the allegations based on which the complaint was made is not without any basis. In any event, it was submitted that, the acquittal in that case does not warrant the grant of divorce as prayed for by the respondent. As in our view, the learned Trial Court granted decree of divorce by the judgment under appeal mainly on the ground that the appellant had lodged the complaints under Sections 406 and 498A Indian Penal Code and after noticing that the respondent-husband was arrested by police and had to remain in jail custody for 14 days in connection with the criminal case supposed by the wife, it was concluded that it was not possible for the parties to live together. In order to examine the correctness of the conclusion we are of the view that the judgment in criminal case under Section 498A Indian Penal Code would be relevant for complete and proper disposal of this appeal.

23. Accordingly application being CAN 5626 of 2004 is allowed. Let the certified copy of the judgment in that case be assigned appropriate exhibit number.

24. In Smt. Nivedita Banerjee v. Sanal Kumar Banerjee, 1999(2) CHN 625, Division Bench considered the contention with respect to a complaint against the husband and in-laws made under Section 498A Indian Penal Code a criminal case was started and husband and some members of in-laws were arrested and detained in custody and ultimately the said case ended in acquittal. The Division Bench in that case found substance in the contention advanced on behalf of the husband that such an act on the part of the wife amounted to cruelty and her intention was to terminate the matrimonial relationship forever. It was opined that the act of the wife in the matter of initiating a baseless criminal proceeding amounts to cruelty. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. Another Division Bench in Sri Deepayan Chatterjee v. Smt. Papiya Chatterjee, 1990(1) CLJ 74, after having noticed that wife initiated a criminal case against husband and other in-laws under Sections 323, 342, 506/420/120B Indian Penal Code opined that it is not safe to live with a wife who can make such wild allegations.

26. From the decisions cited at the bar we are of the view that mere initiation of criminal proceeding per se would not amount to cruelty within the meaning of Section 13(1)(ia) nor the fact that the criminal case has ended in acquittal. An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. Taking recourse to law or taking shelter of law or seeking the protection of police cannot constitute an offence nor can the same tantamount to cruelty. Courts cannot discourage much less penalize young wives who are afraid of their safety and who have either suffered or apprehend suffering at the hand of their husbands and in-laws cannot be discouraged to lodge a diary at the thana or to take assistance of police authorities by lodging complaint. In the case of acquittal in criminal case after trial it cannot per se be construed that the same was initiated on a complaint which was either false or baseless. The standard of proof in the two matters i.e. criminal and matrimonial, which is a civil proceeding, are distinct and different. In criminal proceeding the charge has to be established beyond all reasonable doubt whereas the standard proof in matrimonial cases is that preponderance of probabilities. Where, however, the criminal case ends in acquittal and the charges are held to be baseless or unfounded than a matrimonial Court may draw a conclusion that the criminal case was initiated on baseless or unfounded allegations.

27. Keeping the above in view let us now examine the judgment in C.C. No. 281C/1994 Wherein the charge was under Section 406 Indian Penal Code (Ext.2). The Court acquitted the accused in that case on the grounds inter alia that;

(i) there is no evidence as to the weight of the ornaments after remodeling;

(ii) there is no evidence adduced by the prosecution showing that the ornaments were kept in the locker and in apprehension of issuing of the search warrants, the ornaments were taken out from the locker;

(iii) prosecution failed miserably to bring any evidence which shows that the accused person deliberately converted the said property to his own use by selling or by transferring those ornaments; and

(iv) there is no evidence to establish that the bank draft of Rs. 30,000/- was taken as dowry.

28. The judgment of the learned judicial Magistrate in GR 197/1994 for the offence under Section 498A/34 Indian Penal Code was rendered on April 6, 2004. It was held that;

“…prosecution has failed to adduce sufficient evidence to substantiate that the accused persons were guilty of such conduct which made the life of the wife i.e. Kajal unbearable and it was harmful on her part to live with her husband. Several contradictions of oral testimony of PW1 and PW2 when related to their testimony in earlier cases, observation and findings of the Mat Suit decree in favour of accused Prasanta Roy and non-examination of independent witnesses are the factors which lead me to opine that the evidence on record are not enough to substantiate charge under Section 498A Indian Penal Code….”

and it was further held that the prosecution has miserably failed to prove the case beyond all reasonable doubt. It is, therefore, not a case where the charge was found to be baseless or unfounded but that the same was not proved beyond all reasonable doubt and in coming to the said conclusion it was inter alia noticed that instant Mat Suit had been decreed in favour of the accused.

29. In neither of the cases it has been found that the wife field false criminal cases.

30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. In the circumstances we are of the view that no case has been made out for interference with the decree of the learned trial Court.

Accordingly Appeal is dismissed.

In the facts and circumstances of the case there shall be no order as to costs.

Let urgent xerox certified copy of this judgment be furnished to the appearing parties, if applied for, on priority basis.

Let the Lower Court Records be send down forthwith.

J. Banerjee, J.

I agree.

 

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Wife alleges Husband had illicit relations with own sister, abuse him at office, deserts him, stops him seeing own son. Decreed wife cruel. divorce granted

Key notes

  • Marriage in on 17.06.1990
  • Couple live together for three months and wife goes back to parental home on 12.09.1990
  • Then she returns back, stays for less than a year and finally leaves husband “….Rita again returned to her father’s house at Chinsurah on 26.05.1993 and at that time she was pregnant. Rita gave birth to a male child on 31.12.1993. Admittedly, Rita thereafter never returned to her matrimonial home. In the month of march, 1994 ….”
  • Husband files Matrimonial suit in 1994 alleging cruelty.
  • Wife alleges Husband had illicit relations with many women, had illicit relations with own sister, goes to his office and abuses him at his office, deserts him, stops him seeing own son in spite of court order.
  • Court appreciates depositions and evidence and decrees that wife treated husband cruelly. Divorce granted accordingly by HC.
  • So, Husband wins at Calcutta HC on 15th June, 2015, i.e. It takes approx 21 years after desertion and its just at High court !

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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side

P R E S E N T:-
The Hon’ble Justice Jyotirmay Bhattacharya
And
The Hon’ble Justice Debi Prosad Dey

F.A. No. 312 of 2007

Rita Bandopadhyay
-vs-
Abhik Bandopadhyay

For the Appellants : Mr. Sabyasachi Bhattacharya, Sr. Adv,
: Mr. Shaikh Kamaluddin, Adv.,
: Mr. Swadhin Pan, Adv.

For the Respondent : Mr. S.P.RoyChowdhury,Sr.Adv.,
: Mr. Bhaskar Ghosh, Sr.Adv.,
: Mr. Anit Kumar Rakshit, Adv.

Heard on  : 03.06.2015, 04.06.2015 & 05.06.2015

Judgment delivered on : 15th June, 2015

Debi Prosad Dey, J.

This first appeal is directed against the judgement and decree passed by the learned Additional District Judge, Second Court, Hooghly in Matrimonial Suit no. 70 of 1994 whereby and where under the learned Trial Judge has been pleased to decree the suit for divorce in favour of respondent/husband.

Being aggrieved by and dissatisfied with such judgment and decree passed by learned Additional District Judge, Second Court, Hooghly, this appeal has been preferred by the wife/appellant on amongst other grounds that the learned Trial Judge could not properly appreciate the evidences on record and that learned Trial Judge erroneously placed reliance on the decisions referred to by learned advocate for the husband/respondent and thereby came to an erroneous conclusion causing mis-carriage of justice.

The respondent/husband filed a matrimonial suit in the Court of the learned District Judge, Hooghly praying for a decree of divorce alternatively for a decree for judicial separation on the ground of cruelty.

Learned District Judge, Hooghly ultimately transferred the case to the Court of learned 2nd Additional District Judge, Hooghly for trial.

Avik Bandopadhyay was married to Smt. Rita Bandopadhyay on 17.06.1990 according to Hindu Rites and Customs and the Marriage between the parties was duly consummated.

After such marriage Rita/appellant started residing in her matrimonial home i.e. at the residence of Avik at Bangur park, Rishra within PS.-Srirampur, Hooghly. Dispute cropped up between the parties and as such Rita returned to her father’s place on 12.09.1990. At that time Rita was pregnant. Admittedly, the pregnancy of Rita was terminated for some reasons, exclusively known to Rita. Rita ultimately returned to her matrimonial home in the month of January 1992 and thereafter she started residing together with Avik. Rita again returned to her father’s house at Chinsurah on 26.05.1993 and at that time she was pregnant. Rita gave birth to a male child on 31.12.1993.

Admittedly, Rita thereafter never returned to her matrimonial home. In the month of march, 1994 respondent/husband filed a matrimonial suit against Rita under section 13(1) (ia) of the Hindu Marriage Act thereby praying for divorce. The case made out by the husband/ respondent may be summed up as follows:-

(a) While attending a party in the paternal residence of the appellant, the husband/respondent found that the name of his father has been printed in the menu card at the place of the name of the bridegroom. The matter was pointed out to the appellant’s family members but they did not tender any apology instead they burst into laughter and teased the husband/respondent by cutting cruel jokes on him over the issue under reference.

(b)Despite persistent request from the respondent/husband the appellant did not transfer her card for employment from Chinsurah Employment Exchange to Srirampur Employment Exchange.

(c)The appellant/wife got her pregnancy aborted on 21.09.1990 without having any consultation with the respondent/husband and without his knowledge.

(d)The respondent/husband did not claim any dowry in his marriage from the father of the appellant/wife and he never received any such dowry from the family of appellant/wife. Nevertheless, the father of the appellant/wife raised allegations against the respondent/husband about demand of dowry and valuables from the family of appellant/wife.

(e)The appellant /wife habitually remained absent from taking up domestic work and during the absence of maid-servant only on one occasion, she telephoned her parents. The father of the appellant/wife sent a menial to the house of the respondent/husband to work in the place of the absentee maid-servant.

(f)The appellant/wife without any reason and without the consent of the respondent/husband stayed in the house of her father from 12.09.1990 to 21st Day of January 1992. Despite best effort of the respondent/husband, the appellant wife refused to return to her matrimonial home.

(g)On 11.09.1990 during the absence of the respondent/husband at about 11 p.m. the appellant/wife was proceeding towards railway station presumably in order to return to her father’s house at Chinsurah by train but she was intercepted on the way to the station by some young man of the locality and then she divulged that she was proceeding to the railway track to commit suicide. However, somehow she was pursued to return to her matrimonial home on that night.

(h)The appellant/wife never helped the mother of the petitioner in domestic work and used to abuse the husband/respondent and his mother in filthy languages.

(i)The husband/respondent named his son as Avijit Banerjee and the said name was incorporated in the birth register of Chandannagar Municipal Corporation but the appellant/wife changed the name of his son as Sourish Banerjee only in order to humiliate the husband/respondent.

(j)Appellant/wife prevented the respondent/husband from meeting his own son and she even flouted the Court’s order by denying the visitation right of the husband/respondent in respect of his son. Ultimately, the appellant/wife refused to return to her matrimonial home for ever on 21.01.1994.

(k)On 17.03.1994 the appellant/wife had been to Srirampore office of Calcutta Electric Supply Corporation at Mahesh i.e. the work place of the respondent/husband and abused her husband/respondent in filthy language even questioning the chastity of his mother in presence of the colleagues of the husband/respondent.

(l)The appellant/wife was very much reluctant to do any domestic work and she used to abuse her husband and mother- in – law in filthy language by calling them “Rascal, Bastard” etc. One day she threw a broom stick towards the petitioner which ultimately struck her mother and thereby the wife/appellant used to misbehave with her husband in a cruel manner.

The respondent/husband thus prayed for a decree of divorce on the aforesaid grounds against the wife appellant.

The appellant/wife contested the suit in the Trial Court by filing written statement and additional written statement. The appellant/wife specifically denied the material allegations contained in the plaint.

Per contra, the case of the appellant/wife is that she had to undergo the process of abortion in view of inhuman torture meted out to her by the respondent/husband and his mother. Admittedly, the appellant/wife did not stay in her matrimonial home from 12.09.1990 to 21.01.1992.

The specific case of the appellant/wife is that she was prevented from entering into her matrimonial home and ultimately she was allowed to enter into her matrimonial home with an undertaking that she would abide by all the conditions of her husband and mother-in-law. The appellant wife stayed happily with her husband and the marital status was revived on and from January 1992 between the parties. The wife became pregnant again and she returned to her father’s house in the month of May 1993. Thereafter she gave birth to a male child. Admittedly since 26.05.1993 the wife has been residing in her father’s house and thereafter she never returned to her matrimonial home at Rishra. In para 25 of her written statement the appellant wife has specifically stated that her husband is a very mean minded person and her husband has got no personality of his own. The further case of the appellant wife is that the mother of her husband used to say that she would fetch more dowry had she been able to get her son married with some other lady. The wife further noticed that one Mithu Mukherjee was instigating her husband in commission of such torture on the person of the wife/appellant. Even Mithu Mukherjee had been to the father’s house of the wife/appellant and told her that her husband was not willing to keep any relation with the appellant/wife. The wife/appellant has further stated in her written statement that there was some sort of relationship between her husband and Mithu Mukherjee even to the knowledge of the family members of Mithu Mukherjee. The mother of the respondent/husband is a very quarrelsome lady and their house is known in their locality as the house of phantom/veritable hell. In para 3 of her additional written statement, the appellant/wife described her husband as a spoilt child of his father at the latitude given by his mother since his boyhood and that the respondent/husband picked up all the virtues, if not the vices, from his mother. Unfortunately, the appellant wife has further stated that her husband/respondent developed illegal and immoral relationship with many a girl, wife of some other person and even with his own sister and thereby described her husband as a beast and that he has lost his character. The appellant wife further besmirched the character of the mother of her husband by saying that her husband in collusion with his mother took away all the savings including the last copper of his father who brought him up. The husband/respondent is a mean- minded person who even filed a civil suit against his father claiming maintenance through his mother knowing fully well that his father is without any means. The wife/appellant thus prayed for dismissal of the suit. The Learned Trial Court after recording the evidence of both the parties was pleased to grant decree of divorce in favour of the husband/respondent on the ground of mental cruelty meted out to him by the appellant/wife.

The legality of the said judgement and decree passed by Ld. Trial Court is under challenge before us.

It would not be out of place to mention here in brief about the evidence adduced by the parties to the case under reference. Plaintiff’s witness No. 1, Avik Bandopadhyay has supported the contents of the plaint in his deposition. He has categorically denied all the allegations levelled by his wife in her written statement as well as in additional written statement. PW 1 stated in his evidence that on 17.03.1994 when he was posted at the office of Calcutta Electric Supply Corporation, Srirampur at Mahesh, the appellant/wife visited his office and insulted him touching his character and even the chastity of his mother. PW 1 tried to pacify his wife with the help of his colleagues but in vain. The aforesaid action of his wife has virtually lowered him in the estimation of his colleagues as well as his superior in the office. PW 1 vehemently denied the allegations levelled against him in his examination in chief. It has been elicited in the cross examination of PW1 that Mithu is the daughter of the sister of his father. That goes to show that Mithu Mukherjee is in fact a sister of Avik.

Plaintiff’s witness No. 2 Bikash Ghosh used to work as chief clerk at Calcutta Electric Supply Corporation at Srirampore in the year 1994 and he could remember that the wife of Avik Bandopadhyay had been to their office who stated about the immoral character of Avik and his mother. This witness has been cross examined at length. It is apparent from such cross examination that in fact the wife of Avik had been to the office of Avik on some day in the year 1994.

Plaintiff’s witness No:3 Asit Kumar Guha, another employee of the self-same office categorically stated that the wife of Avik abused Avik and his mother in filthy languages in their presence in the office of Avikbabu. It is also apparent from the cross examination of PW3 that virtually the presence of the appellant /wife in the office of Avik in the year 1994 was confirmed.

In fact from the evidence of PW 2 and PW3, it is apparent that the appellant/wife had been to the office of Avik/husband and abused him and his mother in their presence.

Plaintiff’s witness No. 4 is an employee of Allahabad Bank, Rishra branch and he has deposed about existence of one locker in his branch in the name of the appellant/wife. The evidence of PW 4 has had no bearing in the given facts and circumstances of this case.

Plaintiff’s witness No. 5 Monica Banerjee is the mother of respondent/husband. Admittedly, she has been suffering from high blood sugar and blood pressure and that’s why she could not even do the household work. She has categorically stated that she was badly treated by the appellant/wife of Avik. The further evidence of PW 5 is that the wife of Avik used to abuse her by raising question about her chastity and she used to say that Avik has got illicit relationship with his own younger sister and thereby she used to torture them mentally and some times physically. PW 5 has virtually supported the evidence given by PW 1. It has been specifically suggested to PW 5 in the cross examination that the character of her son, youngest daughter and Mithu were not good and even being aware of such relationship she did not object to their conduct.

The appellant/wife has examined herself as defendant’s witness No. 1. She has corroborated the statements made by her in the written statement as well as in the additional written statement and also in her examination in chief. In cross examination, she has specifically admitted that the written statement and additional written statement were filed on her behalf as per her instruction and she had signed on the verification after going through the same and after being aware of the contents thereof. She has admitted in her cross examination that she last visited her husband’s house about 14 years ago. She has admitted in her cross examination that there was some relationship between Mithu and her husband and house of her husband used to be described as phantom house by the local people. She has admitted in her cross examination that she stated in her written statement that her husband was a spoilt child and that her husband picked up all the virtues, if not, vices of her mother and her husband developed illicit and immoral relationship with many a girl, wife of other person and even with his own sister and is more than a beast as he has lost his character. She further admitted about the statement made by her in her written statement to the effect that her husband in collusion with his mother virtually made her father in law a beggar by extracting all his money. She has admitted that her husband opened savings bank account in her name at Allahabad Bank at Rishra branch with the facility of having one locker and the said locker still stood in her name. The gold ornament of the appellant/wife has been kept in the said locker. She has also admitted that since 26.05.1993 she has been living separately and that her husband is a mean-minded person.

On the basis of the evidence discussed here in above, the learned Trial court refused to accept the case of physical cruelty but decreed the suit by granting divorce by accepting the case of mental cruelty.

Learned advocate Mr. Bhattacharya appearing on behalf of the appellant contended that learned Trial Court was perfectly justified in rejecting the case of respondent/husband with regard to the ground of physical cruelty in as much as the learned Trial Court did not find any evidence on that score. Learned advocate appearing on behalf of the appellant further contended that the respondent/husband could not adduce cogent and clinching evidence to prove that the appellant was guilty of treating the respondent in cruel manner and thereby the learned Court was perfectly justified in rejecting such claim.

Learned Advocate appearing on behalf of the appellant however vehemently argued that the learned Trial Court erroneously relied on the decisions reported in AIR 2005 SC 534, AIR 1994 SC 710 and AIR 1990 Calcutta 367. Learned advocate appearing on behalf of the appellant took us through the aforesaid decisions and submitted that the facts and circumstances stated in the aforesaid decisions are not at all similar to the given facts and circumstances of the case under reference and the learned Trial Court has failed to appreciate the proposition of law enunciated/propounded by Hon’ble Court in the decisions referred to here in above.

Learned Advocate Mr. S.P. Roy Chowdhury, appearing on behalf of respondent/husband vehemently argued that the learned Trial Court was perfectly justified in taking into consideration the unfounded allegations levelled by the appellant/wife in the written statement as well as in the additional written statement and thereby the appellant/wife has definitely treated the husband/respondent in a cruel manner. Learned senior Advocate Mr. Roy Chowdhury took us through the evidences on record and submitted that the respondent/husband has been able to prove the cruelty to it’s hilt and the learned Trial Court correctly relied on the decisions referred to here in above.

Learned senior Advocate Mr. Roy Chowdhury pointed out the relevant paragraphs in the written statement as well as additional written statement wherein the appellant/wife made disparaging remarks touching the character of the respondent/husband as well as his mother. Learned senior Advocate Mr. Roy Chowdhury has drawn our attention to section 20(2) of the Hindu Marriage Act wherein it has been incorporated that the statements made in the pleadings may be accepted as evidence for the purpose of deciding the lis.

Learned Senior Advocate Mr. Roy Chowdhury further pointed out that the first appellate Court has had every jurisdiction to look into the subsequent events that cropped up even after the disposal of the suit by the Trial Court. Learned Advocate has drawn our attention to the order passed by other Division Bench on 28th day of February, 2009 wherein specific direction was given that the order of alimony is subject to the condition that the only child of the parties to this lis, who was then studying in class IX would go to his father’s house at Rishra on every Saturday after school hours and would come back to his mother in the evening of Sunday. It is submitted by the learned Advocate that such uncommon order was passed by other Division Bench of this Court since the appellant/wife prevented the husband/respondent from visiting his own son. Learned advocate further drew our attention to the order dated 14.05.2014 wherein it has been clearly stated that even the order dated 25.02.2009 was not complied with by the appellant/wife and the husband/respondent could not exercise his right of visitation in terms of such order. Learned Advocate vehemently submitted that the appellant/wife not only withdrew herself from the association of the respondent/husband for last 22 years but she also did not permit the husband/respondent to meet his own son. Learned Advocate Mr. Bhattacharya, appearing on behalf of the appellant/wife drew our attention to the application filed by the respondent/husband in the Trial Court dated 18.08.2001 wherein the respondent/husband himself had filed such application before learned Trial Court for exemption of the order wherein he was permitted to see his son at Hooghly Bar Library on every first and third Saturday of a month. On careful scrutiny of the Lower Court Record we find that (order No.101 Dt. 2797) that the wife/appellant did not produce the son at the Bar Library as per the order of the learned District Judge, Hooghly and the learned Trial Court’s attention was also drawn regarding such non-compliance of Court’s order by the appellant/wife. Order No.199 Dt. 18.08.2001 reveals that the appellant/wife received Rs. 130/- from the respondent/husband. That goes to show that the husband had tried to comply with the order passed by learned District Judge, Hooghly with regard to exercise of his visitation right but ultimately being frustrated about the non-compliance of such order by the appellant/wife, he submitted such application stating inter-alia that the order of visitation may be revoked.

On careful scrutiny of the materials on record as well as from the evidences on record, it transpires that the wife appellant stayed for only 3 months in her matrimonial home immediate after her marriage and she returned to her father’s house after 3 months of her marriage. Thereafter she stayed in the house of her father for 1-1/2 years. In the month of January 1992 she returned to her matrimonial home. In the meantime either she terminated her pregnancy or she went through miscarriage of her pregnancy.

She returned to her father’s house being impregnated by her husband and gave birth to a male child in the month of December, 1993. Admittedly for the last 22 years she has been residing in the house of her father without asking for any sort of re-conciliation in respect of her so called dispute with her husband. On the contrary, she made disparaging remarks against her husband touching the character and integrity of her husband. She even had been to the place of work of her husband and abused her husband with filthy languages touching the character of her husband as well as the chastity of his mother. It is, therefore, apparent that the wife has had no intention to return to her matrimonial home or to revive her marital status with her husband. The son has by this time become major. It is apparent from the facts and circumstances of this case that the respondent/husband has had no connection with his own son and the son of the respondent/husband has been staying with his mother at Chinsurah since his childhood.

The appellant/wife did not adduce any evidence to prove that her husband has got illicit relationship with his own sister or Mithu Mukherjee or with the wife of any other person or with any other lady. The wife/appellant has failed to prove that her husband is a spoilt child and that he has exploited his own father in collusion with his mother. The appellant wife has also failed to adduce any evidence to show that the house of her husband used to be described by the local people as house of phantom/veritable hell. Section 20(2) of Hindu Marriage Act may be reproduced to appreciate the contentions of the learned Advocate for the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

“Section 20(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.” Therefore, in a matrimonial suit the pleadings assume importance and, the Court may act upon on the basis of such unfounded allegations in the pleadings treating the same as evidence. Section 20(2) of the Hindu Marriage Act thus provides that pleadings may at times be accepted as evidence.

Let us now consider as to how far the learned Trial Court was justified in accepting the unfounded allegations contained in the written statement as well as in the additional written statement as the basis for accepting the case of the respondent/husband or as the basis towards mental cruelty. It is well settled principle of law that there cannot be any precedent on factual aspect. The proposition of law, which is being enunciated in the decision of the Apex Court, has to be accepted as precedent. The Hon’ble Supreme Court in the decision reported in AIR 2005 SC 534 (Ajoy Chandra, appellant Vs. Anilo Kaur) has been pleased to observe in para 12 of such decision that it is difficult to lay down a precise definition or to give extensive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

In the decision referred to hereinabove simply suspicion has been raised by other party with regard to the fidelity of her spouse and such suspicion has been accepted as infliction of mental cruelty upon the other spouse.

In the given facts and circumstances of this case, it is apparent that the appellant/wife has prevented the husband/respondent from exercising his right of visitation despite having specific order from the learned District Judge, Hooghly as well as from the other Division Bench of this Court.

Admittedly the wife/appellant made disparaging remarks with regard to the character of the husband/respondent to the extent that the husband has got sexual relationship with his own sister, with the daughter of the sister of his father, with very many other girls and even with the wife of some other person. These allegations have been levelled in the written statement as well as in the additional written statement of the appellant/wife and she has categorically admitted during her cross examination that she has made such allegations being aware of the contents there-of.

In view of section 20(2) of the Hindu Marriage Act such allegations may safely be admitted and accepted as evidence of the appellant/wife. These unfounded allegations against the respondent/husband have not been proved by the Appellant/wife. A man of ordinary prudence would definitely be humiliated in the estimation of his family members as well as his associations in terms of such allegations. The holy relationship of brother and sister has been maligned by the appellant/wife to such an extent that it definitely pricks to the conscience of the Court to accept that the appellant/wife is guilty of treating the respondent/husband with mental cruelty. Moreover the appellant/wife has also raised question about the chastity and character as well as the behaviour of the mother of her husband and thereby has definitely made an indelible mark on the mind of the husband/respondent. It would, therefore, be not only difficult for the respondent/husband to swallow such filthy allegations but also impossible for him to continue his marital tie with the appellant/wife.

The foundation of a sound marriage is tolerance, adjustment and mutual respect between husband and wife. It appears from the allegations levelled by the appellant/wife that she has had no tolerance or adjustment towards her husband far to speak of respect. The wife/appellant has been residing separately for last 22 years without any effort of re-union with the respondent/husband. In such circumstances, it may safely be stated that such unfounded allegations with regard to the character and chastity of the respondent/husband and his mother have had telling effect in the disposal of the lis. In our considered view, the learned Trial Court was perfectly justified in relying on the decision reported in AIR 2005 SC 534 to hold that decree of divorce may be granted wholly on the ground of mental cruelty.

Learned senior Advocate Mr. Roy Chowdhury appearing on behalf of the respondent /husband has relied on the decision reported in AIR 2006 SC 1675(Naveen Kohli Vs. Neelu Kohli) in support of his contentions. In para 78 of the said decision the Hon’ble Supreme Court has observed as follows:-

“We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is broken beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

It is apparent from the discussions made in the forgoing paragraphs that the marital tie between the parties to this case has virtually become non-existent since January 1994 and thereafter the parties have involved themselves in a long standing lis on the issue of continuation of their relationship. The nature of allegations raised by the appellant / wife has definitely made it impossible on the part of the respondent/husband to continue their relationship with each other as husband and wife. The appellant /wife did not even spare the character and chastity of the mother of husband/respondent. She has also made serious allegations against the character of her husband/respondent. She did not even spare the sisters and other relations of her husband while making such obnoxious allegations against her husband. In such circumstances in our considered view, it may safely be stated that the husband/respondent would in no way be interested to revive his marital status with the appellant/wife and the marital status in between the parties has broken down beyond repair in view of such mental cruelty meted out by the appellant /wife to her husband.

In the decision reported in AIR 1994 SC 710 (V. Bhagat, appellant Vs. M.D. Bhagat, respondent), the wife/ respondent made some disparaging remarks against the husband/appellant in the written statement but failed to prove the same in evidence. The matrimonial suit was decreed holding inter-alia that the husband was treated with mental cruelty by the wife. In the aforesaid decision (para 17), the Hon’ble Supreme Court has observed that unfounded allegations made by wife in a written statement against her husband and other members of the family being lunatic constitute mental cruelty. The said decision is squarely applicable in the given facts and circumstances of this case.

In the decision reported in AIR 1990 Calcutta 367(Smt. Santana Banerjee Vs. Sachindranath Banerjii), the Hon’ble High Court at Calcutta has accepted that persistent making of disparaging, derogatory remarks by the wife against husband and his close relations about their character in written statement as well as making false allegations by wife against husband that he was having illicit sexual relation with office colleague and false allegation by wife against husband of sexual perversity and bestiality amounted to mental cruelty justifying a decree of divorce.

After careful consideration of the decision referred to here in above we do hold that the appellant wife raised unfounded allegations against the respondent/ husband and his mother to such an extent that it would be impossible on the part of the husband of the respondent to continue with the marital tie and such unfounded allegations of the appellant /wife may safely be accepted as evidence in view of section 20(2) of Hindu Marriage Act.

To sum up the discussions made in the forgoing paragraphs, it is crystal clear that learned Trial Court was perfectly justified in holding that the respondent/husband was meted out with mental cruelty by the appellant/wife. The evidences on record at least justify that the appellant/wife had been to the office of respondent/husband and abused him in presence of his office colleagues.

Secondly the appellant/wife obviously with some oblique purposes prevented the respondent/husband from meeting his own son.

The appellant/wife raised serious allegations against the character and integrity of her husband and while doing so she did not even spare the sister of her husband.

The appellant/wife also did not spare the sister father and mother of her husband while raising such unfounded allegations against them in her written statement as well as in additional written statement.

The appellant/wife also tried to justify such allegations while deposing before learned Trial Court.

The appellant/wife specifically admitted before the learned Trial Court that she had made such allegations being fully aware about the contents there of.

In the given facts and circumstances we find that learned Trial Court was perfectly justified in decreeing the suit for divorce accepting the case of mental cruelty on the basis of such unfounded allegation contained in the written statement as well as in the additional written statement.

It would be impossible on the part of the respondent/husband to continue with the marital tie in view of such allegations levelled against him by the appellant/wife. The appellant/wife has virtually damaged the very basis of her marital tie to such an extent that the same cannot be repaired in any view of the matter.

We therefore, find no reason to interfere with the judgment and decree passed by the learned Trial Judge. The appeal therefore fails and is dismissed without cost.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.

Jyotirmay Bhattacharya, J   Debi Prosad Dey, J.

I agree

Jyotirmay Bhattacharya, J

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Husband cannot be compelled 2 endure company of wife who makes false complaints to police

Husband cannot be compelled to endure the company of the wife who makes false complaints to police over matrimonial differences. Just because husband brought the wife back, it does NOT mean he has condoned all her earlier wrongs. such condonation is conditional.

Sm. Krishna Sarbadhikary vs Alok Ranjan Sarbadhikary on 16 May, 1984

Equivalent citations: AIR 1985 Cal 431, 89 CWN 156

Bench: C Mookerjee, M G Mukherji

JUDGMENT

Chittatosh Mookerjee, J.

1. The principal question in this appeal is whether the learned Additional District Judge, 2nd Court, Alipore was justified in dissolving the marriage of the appellant wife with the respondent husband on the ground that she had treated her husband with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

2. On 12th December, 1976 the marriage of the parties took place according to Hindu rites at Baguihati, P. S. Rajarhat, District 24 Parganas. At the time of the marriage, the petitioner, husband (respondent herein) was aged about 36 years and the appellant wife was aged about 28 years. After marriage, they had lived at the husband’s joint family residence at 27/1/1B, Jiban Krishna Mitra Road, P. S. Chitpur, District 24 Parganas. The petitioner husband’s widqwed mother, his sister who had been divorced from her husband and his three brothers used to live with him. One brother subsequently died. Soon after her marriage, the appellant wife had conceived and on 9th October, 1967 in a nursing home, at North Calcutta, she had given birth to a daughter. During their married life the appellant, Krishna, on several occasions had left her husband’s house and had stayed her father’s house. According to the respondent husband, she used to depart without the consent or knowledge either of his mother or of himself. The appellant wife, however, denied the same and according to her, except on one occasion, with consent of her husband she used to visit her father’s house. On the evening of 10th July, 1978, the appellant wife with her daughter left her husband’s place and thereafter she did not return. There was some angry correspondence between the parties. On 14th May, 1979, the present respondent filed in the District Judge’s Court, 24 Parganas a petition for dissolving the marriage on the ground of cruelty of his wife. She contested the case. As already stated, the learned Additional District Judge, 2nd Court, Alipore has allowed the said petition and has passed a decree dissolving the marriage between the parties on the ground of cruelty.

3. Mr. Bankim Dutt learned advocate for the appellant, has submitted that there was no evidence that the appellant wife was guilty of legal cruelty and throughout their married life the appellant’s behaviour towards her husband was what was expected of a Hindu wife and occasional differences of opinion between the two were part of normal wear and tear of married life. According to the learned advocate for the appellant, there was no proof that the alleged acts of the appellant had caused reasonable apprehension in the husband’s mind that it would be harmful and injurious for him to live with her and, therefore, the Court below was wrong in holding that the appellant wife had treated her husband with cruelty. Further, submission on behalf of the appellant is that up to 10th July, 1978, the parties had admittedly lived as husband and wife and therefore the husband must be deemed to have condoned the alleged acts of cruelty on the part of his wife committed prior to 10th of July, 1978. Since 10th July, 1978 they have been living separately and they had only exchanged letters and there was neither any pleading nor proof that subsequent to 10th July, 1978 she had treated her husband with cruelty. The learned advocate for the appellant has further urged that even if the decree passed by the Court below is upheld, the appellant wife ought to be awarded permanent alimony. The learned advocate for the appellant has also submitted that appropriate order under Section 27 of the Hindu Marriage Act ought to be made in respect of the appellant’s properties lying in the house of her husband.

4. The petitioner husband who is the respondent in this appeal, in Paragraph 3 of his petition under Section 13 of the Hindu Marriage Act, had pleaded that Smt Krishna, who is the respondent in the Court below, was extremely short-tempered, rude, eccentric, whimsical and discourteous and suffered from mental disorder resulting in abnormally aggressive or seriously irresponsible conduct on her part. The petitioner husband further claimed that from the very night of the Phoolsajjya day on 14th December, 1976, she had become highly displeased with him and had expressed her extreme dissatisfaction about the gifts and presentations made to her from the petitioner’s family. The husband’s another allegation in his petition under Section 13 of the Hindu Marriage Act was that after her marriage without his permission she used to often visit and to stay for long duration at her father’s house and she had to be brought back after good deal of persuasion. Whenever the petitioner raised any protest against such frequent visit or stay, the respondent wife got annoyed, enraged and agitated and picked up quarrels with him and abused the petitioner and his family. The petitioner alleged that her mode of living and conduct had injured his mental feelings (vide Paragraphs 5 and 6 of the petition). The petitioner further pleaded that her wife had lodged a written complaint to the Officer-in Charge, Chitpur Police Station making false and unfounded charges of torture against him and the members of his family. On 19th October, 1977 she had given birth in a Nursing Home to a daughter and then she was taken back to her husband’s house. Even thereafter she had gone back to her father’s house and had to be brought back. On 10th July, 1978 she had finally left her husband’s place with her baby without the consent and knowledge of the petitioner or his family. Thereafter, she had written him letters making false and defamatory allegations of torture and Mal-treatment towards her. She had also demanded return of her ornaments and other presents made to her.

5. The present appellant in her written statement filed in the Court below had denied the aforesaid allegations of her husband. She averred that she was an obedient and submissive wife but she had been ill-treated by the petitioner’s mother and his youngest sister, who were in the habit of picking up quarrels with her and used to oppress her in such a cruel way that it was impossible for her to stay in her husband’s house. She claimed that in order to avoid further physical assaults and mental torture she had to leave her husband’s house and had to take rest in her father’s house (vide paragraph 7 of her written statement). She did not deny that she had lodged complaint with the police against her husband. But she alleged that her husband had thereafter taken her to Alipore Criminal Court and made her sign a blank paper which had been afterwards converted into an affidavit for using the same for the petitioner’s gain. She further averred that because of apprehension of losing her life, she had returned back to her father’s family. But she was ready to meet her marital obligations with the petitioner if he made provisions for separate residence for her and the baby. She also claimed return of ornaments, jewellery, furniture, clothing and other articles given in the list annexed to her written statement.

6. We may proceed to examine whether the learned Additional District Judge, 2nd Court, Alipore was justified in believing the petitioner husband’s case of cruelty against his wife (the present appellant) and in granting the decree for divorce. Both in her pleading and in course of her evidence the appellant wife has admitted that she used to frequently leave her husband’s place and stay at her father’s house. Intermittently she returned to her husband’s house. Since 10th July, 1978, she did not return at all to her husband’s house. In our view, the learned Additional District Judge for very good reasons has accepted the petitioner husband’s case that frequently the present appellant used to leave her husband’s house without consent. This part of the petitioner husband’s case has been proved by himself, his sister, Smt. Smritikana Sarvadhikari, P. W. 6, and his mother Smt. Sankurani Sarvadhikari, P.W. 3. According to these witnesses, Krishna often left their house without telling them anything. The Court below in this connection, has referred to a letter written by Krishna herself to her mother-in-law (Ext. 3(f)) and also to her mother’s letter dated 14th February, 1977 (Ext. 3(e)) to the petitioner’s mother. Both these letters referred to an incident at her husband’s house on 8th February, 1977. Both of them tendered apologies for misbehavior by her uncle, Durga Ghosh, who had taken her away to her father’s house. Krishna in her letter (Ext. 3(f)) confessed that on the said date she had not been able to restrain herself and had misbehaved. Paramesh Ghosh, the father of the appellant, in his letter dated 15th August, 1977, addressed to Smt. Sankurani Sarvadhikari referred to another incident between her and her mother-in-law’s family. He promised to take steps and stated that he was aware that her daughter was living happily in her husband’s house. Paramesh craved apologies for being unable to personally meet Smt. Sankurani. The statement made by Smt. Krishna, the appellant, in course of her evidence given in the Court below that whenever she went to her father’s house she took permission of her husband or mother-in-law is even inconsistent with not only some of the averments made in her written statement but also with other parts of her evidence. We have already mentioned that her case was that because of ill-treatment at her husband’s house she was compelled to frequently come away and to stay in her father’s house. In her evidence she had repeated some of these allegations against her husband and the members of his family. We have also mentioned that in paragraph 12 of her written statement Krishna had inter alia averred that unless proper security for her safety or arrangement for separate accommodation for herself and her child was made, she was unable to live with her husband.

7. The appellant’s allegations against her husband, her mother-in-law and other members of their family have not been corroborated by any other witness or contemporaneous documentary evidence. Such corroboration is not required as an absolute rule of law. In proof of the matrimonial offence the Court insists upon corroborative evidence unless its absence is accounted for to the satisfaction of the Court (vide Bipin Chander v. Prabhabati, 1956 SCR 830). The Supreme Court in their later decision in Dastane v. Dastane, , held the word ‘satisfied’ in Section 23 of the Hindu Marriage Act means preponderance of probabilities and not satisfaction beyond doubt. In a Bengali family a newly married girl who still retains her close affinities with her own family generally confides in her mother as to how she has been received in her husband’s house and about important incidents, if any, occurring in her husband’s house. If she felt hurt in all probabilities she would have also written letters to her parents complaining ill-treatment meted out to her. Krishna, the appellant, during her cross-examination had stated that she had kept contacts with her parents through letters. We are not prepared to believe her statement that she had to write letters in the presence of her husband who used to post these letters. In the first place, such a case was neither pleaded nor any suggestion in this behalf was given to Alok Ranjan (P.W. 1). It is also highly improbable that Smt. Krishna had no opportunities to write any letter to her parents when her husband went to office or elsewhere. In reply to further questions in cross-examination, Krishna practically admitted that except in her one letter she did not complain against her husband in her said letters. But she did not produce in Court the said letter allegedly containing the allegations against her husband, Alok Ranjan.

8. Even if we hold that out of natural shyness Krishna’s mother did not come forward to testify, we find no reasonable explanation why her father, Sri Paramesh Ghosh, or any other member of her fathers family did not depose on her behalf. Krishna had claimed in her deposition given in the Court below that all her relations knew about her experience in husband’s house, but she did not want to name them as they had not been cited as witnesses. It may be also noted that on 10th July, 1978 when she finally came away, her father had taken her back from the house of Sunil Kumar Bhattacharyya, a neighbour of Sarvadhikaries. According to Krishna, her father had drafted a complaint to the police. If the appellant’s father had been examined, he could have testified as to the circumstances under which her daughter frequently came away from her husband’s house. In this state of evidence, the Court cannot rely upon her evidence about her alleged ill-treatment at her husband’s house. Alok Ranjan had denied that in house his wife was subjected to cruel treatment, and that she was compelled to frequently leave her husband’s house. Alok’s mother Smt. Sankurani (P.W. 3), his sister Smt. Smritikana (P.W. 6) and his brother, Asit Ranjan (P.W. 5) have also denied that the appellant was cruelly treated in their house. Smt. Sankurani held a Master Degree in Bengali. Smt. Smritikana was also an M.Sc. Asit Ranjan was a Chartered Accountant. The appellant in her evidence stated that the members of her husband’s family were highly educated and cultured but their behaviour was bad. Even if from the beginning there was not much cordiality between Krishna, on one side, and her mother-in-law and sister-in-law, on the other, it is not believable that immediately after the marriage Smt. Sankurani and Smritikana would begin to torture Krishna and Smritikana who herself was a divorcee would openly threaten to wreck Krishna’s married life. Smritikana was living at her brother’s house and probably was their dependent. Therefore, it does not seem convincing that she would misbehave with her brother’s wife and try to do her any harm. Alok Ranjan and the members of his family had, no doubt, protested against Krishna’s frequent visit to her father’s place but it is not credible that Alok Ranjan, his mother and his sister would constantly cruelly treat her or that they or any of them would even go to the length of taking assistance of a Tantrik for harming her. In Bengali families unhappy relations between the mother-in-law and her daughter-in-law may not be uncommon. But the same is generally veiled and muted. Krishna was herself a grown-up wife. She had been recently married and her open revolt shortly after the marriage was somewhat unusual and indicated her unwillingness to obey her husband and her mother-in-law. We have also observed that her mother-in-law and her sons and daughters were also educated persons. They were not likely to openly threaten her or without any cause cruelly treat her. On the other hand, Krishna herself was unable to reconcile herself to the position which a newly married lady usually occupies in a middle-class Bengali joint family and could not adjust herself in her new surroundings. She was defiant and when her husband protested, she used to misbehave with him.

9. After perusing the letters of Krishna to Alok Ranjan, her suicide note and also her pleading and deposition, it appears to us that Krishna the appellant was a highly impulsive emotional lady who lacked balance and had suspicious nature. She had violently reacted when her husband and her family members had opposed her frequent visits to her father’s house. She had developed serious antipathy against her mother-in-law and sister-in-law and also harboured resentments against her husband. We also believe the evidence given on the petitioner husband’s behalf that Krishna very often flew into rage or abused and threatened him. It transpired from both oral and documentary evidence that in the first week of February 1977 an uncle of Krishna named Durga Ghosh, insulted her husband’s mother and had taken Krishna back to her father’s house. Alok Ranjan brought her back some time later. On 6th June, 1977 she had lodged a complaint against her husband at Chitpur Police Station and the police came to Alok’s house to hold an enquiry. On 9th October, 1977 Krishna gave birth to a daughter in a North Calcutta nursing home. Alok Ranjan had borne the expenses. On 26th November, 1977 she with her child without permission of her husband again left for her father’s house. On or about 12th March, 1978 Alok Ranjan brought her back to see his brother who was in his death bed and subsequently expired on 7th June, 1978. In April/May, 1978 Krishna prepared a suicide note (Ext. 2). On the night of 10th July, 1978 Krishna with her child finally left her husband’s house. On 4th May, 1977 Alok Ranjan filed his present petition for divorce. Alok Ranjan has deposed that in fits of temper his wife grew violent. She used to tear his shirt and destroyed household articles. He claimed that she also assaulted him with a broom and lathi in fits of temper. She used to abuse him in filthy language. Alok’s mother and sister stated that in presence of them Krishna had assaulted Alok. She had torn his shirt. Asit Ranjan (P.W. 5), the younger brother of Alok Ranjan, has also stated that his brother’s wife’s behaviour was indecent, unbearable and offensive. She abused his brother and assaulted him. According to P.W. 5, Krishna had shattered their hope for a peaceful life and they had been lowered in estimation of others. Asit further stated that they used to treat Krishna well and had attempted to persuade Krishna to behave properly but had failed. We have also referred to the evidence of Smritikana (P.W. 6), the sister-in-law of Krishna, who has substantially corroborated Alok, his mother and his brother about Krishna’s behaviour.

10. Dr. Satyen Sinha (P.W. 2), who was a medical practitioner, was a friend of Alok Ranjan, the petitioner. Debapriya Basu (P.W. 4) also was Alok’s colleague and his friend. Debapriya has deposed that in April, 1977 when he had visited Alok’s house, he found his wife, Krishna, abusing Alok in vulgar language, cups and spoons were lying scattered in floor. According to Debapriya, Krishna had assaulted her husband with a lathi. Similarly. P.W. 2, Satyen Sinha, P.W. 2, in May, 1977 had visited Alok’s house when he heard shouts and found Krishna in an agitated mood and was threatening his husband with a broom in her hand, The Court has rightly believed P. Ws. 2 and 3 who were disinterested witnesses. There was no plausible reasons for them to tell lies about Krishna’s aforesaid behaviour.

11. We have already observed that no witness has corroborated Krishna’s allegations against her husband and his family : (1) beating, (2) ill-treatment, (3) abusing and threatening to ruin her married Ufe and (4) confining her in a single room and preventing her from making telephone calls and writing letters in Alok Ranjan’s presence (vide Krishna’s letter Exts. 3 and 3(e)). Krishna herself at a stage of her evidence given in the Court below had stated that she had all along good relationship with her husband. She was taken in her husband’s car on many occasions even to her father’s house. Her husband used to escort her. Her husband or his family members did not object to her writing to her father’s house and that her husband used to go to see her. -Her mother and elder brother used to come to see Krishna’s mother-in-law. Thus, Krishna’s own evidence was not consistent and did not inspire confidence. Sunil Krishna Bhattacharjee (D.W. 2), was a neighbour of Alok Ranjan. Although Sunil claimed that he knew Alok Ranjan since 1961-62, he never heard any shouts from Alok’s house. He never heard Krishna shouting. Sunil’s evidence was that on 10th July, 1978 his tenant had told him that a woman from a neighbouring house was in their house and she was crying. She had a baby in her arms. He also saw Krishna crying who told him that she had been assaulted and turned out of the house. Sunil had telephoned Krishna’s father who came and took Krishna away. But Sunil admitted that he had not witnessed any other incident and he did not testify that Alok and his family members used to torture her. We conclude that Alok has satisfactorily established that her wife used to frequently leave without his or her mother’s permission and knowledge for her father’s house and used to stay there for long spelled. She used to abuse and quarrel with her husband and family and misbehaved with them. On occasions she even physically assaulted Alok Ranjan. In her pleading and also in her evidence Krishna had alleged that her husband had improper relationship with one Uma Bakshi who worked under him at the office. But she failed to prove the said allegation. Merely because the said Uma Bakshi had visited Alok’s house on one or two occasions and mef members of Alok’s family, it cannot be inferred that there was any basis for Krishna being suspicious about her husband’s fidelity.

12. We are unable to accept the submission of Mr. Dutt learned advocate for the appellant, that the aforesaid acts and conduct of the appellant, Krishna, even if proved, were merely part of ordinary wear and tear of married life and did not amount to cruelty within the meaning of Clause (la) of Sub-section (1) of Section 13 of the Hindu Marriage Act. Mulla’s Hindu Law, 15th Edn., pages 781-792 contain a very useful discussion of the concept of ‘cruelty’ and the broad general principles which emerge from the decided cases. The expression “cruelty” has not been defined in the statute presumably because ‘all cases which come before the Court must be determined on their own particular facts’ (vide Simpson v. Simpson (1951) 1 All ER 955). The accepted legal meaning of the expression “cruelty” is conduct of such a character as to have caused danger to life, limb or health (physical or mental) or to give rise to a reasonable apprehension of such danger (vide Russell v. Russell 1897 AC 395). Clause (ia) of Section 13(1) of the Hindu Marriage Act, 1955 requires that after solemnization of the marriage, if a person has treated his spouse with cruelty, the Court dissolved the marriage by passing a decree. Merely by showing that the parties are unhappy because of unruly temper of a spouse or matrimonial wranglings fall considerably short of the conduct which can amount to cruel treatment. It would not be sufficient to show that the other spouse is moody, whimsical, exacting, inconsiderate and irascible. Defects of temperament must ordinarily be accepted for better or for worse. Therefore, there may be unhappiness in a marriage and the Court cannot have for that cause alone find cruelty (see Mulla on Hindu Law, 15th Edn., pages 788-89). “What is cruel treatment must to a large extent be a question of fact or a mixed question of law and fact to be determined within the ambit of Rule and the accepted criteria”. It has been held that the legal concept of cruelty comprises two distinct elements. Firstly, the ill-treatment complained of and secondly, the resultant danger or apprehension thereto. It is not possible to specify the grounds of treatment of conduct which might constitute cruelty. It may consist of display of violent temper, unwarrantable indifference to other party’s health and happiness, deliberate refusal to co-operate. The expression “cruelty” comprehend both physical and mental cruelty. In deciding whether the act, conduct or attitude of behaviour of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim. Physical temperament, standard of living and culture of the spouses, social ideas and all other relevant circumstances have bearing on the question whether the acts and conduct complained of amount to the matrimonial offence of cruelty. Conduct alleged must ,be judged up to a point by reference to victim’s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse (see cases noted in the foot-note (g) of Mulla’s Hindu Law, 15th Edition, page 783). Therefore a particular treatment in case of one person may amount to cruelty having regard to his temperament, physique and capacity to endure such treatment. It has been said that actual intention on the part of one spouse to injure the other is not an essential factor. “It is necessary in determining this point to enquire from what motives such treatment proceeds”. Intentional acts may amount to cruelty even though the one who perpetuated the same had no intention of being cruel. But in doubtful cases the state of mind of the offending spouse would be material and may be crucial. In case the reprehensible conduct of departure from normal standard of conjugal kindness cause injury or apprehension thereof, the Court may consider that the victim should not be called on to endure it. The contrary views expressed in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 (CA) was not approved by the House of Lords in Gollins v. Gollins, 1964 AC 644 : (1963) 2 All ER 966, which laid down that neither actual or presumed intention to hurt the other spouse was a necessary element in cruelty.

13. In the instant case by reason of the petitioner’s wife frequently departing without permission from the matrimonial home the husband felt humiliated socially and was in constant fear and anxiety and he had no mental peace. His claim that his health had suffered and he was attacked with colitis has been corroborated by the deposition of Dr. Satyen Sinha (P.W. 2). Smt. Sankurani, mother of Alok Ranjan, P.W. 3, also deposed that her son sustained mental and physical pain because of the behaviour of his wife. Some times a doctor had to be consulted. We have also referred to the evidence of acts of physical violence by Krishna. We are not unmindful of the fact that in his petition under section 13 of the Hindu Marriage Act Alok did not expressly plead acts of physical cruelty and mostly averred about the acts of mental cruelty on the part of his wife. But in their correspondence prior to the filing of the case, Alok Ranjan on several occasions had alleged that Krishna had beaten him and also had in various ways cruelly treated him. Proper inference has to be made from the whole facts and matrimonial relations. Individual acts in isolation may be trivial and not sufficient to constitute cruel treatment. But cumulative effect of series of related acts may, if taken together, constitute cruel treatment. In the instant case, having regard to the agesof the parties, environments, their standard of culture and status in life, we are bound to hold that the series of acts committed by Krishna amounted to cruelty towards her husband and the same had serious consequences, both actual and apprehended, upon the husband, Alok Ranjan. Her behaviour towards her husband and his family members was indecent, unbearable and offensive. We have also referred to the fact that Krishna went to the length by lodging a complaint with the police against her husband. Actually a police officer visited Alok Ranjan’s house to enquire about her complaint when Krishna had retracted her allegations against her husband. The police actually made an enquiry when Krishna had disowned her said complaint on grounds which at the trial she herself admitted to be not true and according to her, her husband had tutored her to deny the complaint made against him. At the trial she admitted that she had made such complaint to the police. There is no evidence that there was any foundation for her making such a complaint. Therefore, in the facts of the present case, lodging of complaint of commission of criminal offence against her husband, who was a Government official, was very likely to cause an apprehension in the mind of Alok Ranjan that continued cohabitation with his wife would be harmful and injurious. It would appear that on the day Krishna finally came away, i.e. 10th of July, 1978, she and her father had again gone to police station. In such circumstances, the petitioner husband cannot be compelled to endure the company of the wife who makes false complaints to police over matrimonial differences.

14. We have also mentioned that in April/May, 1978 she had prepared a suicide note (Ext. 2). In her said note she had written that her husband would not be responsible and he was always affectionate towards her. But she was unable to withstand the oppression of her mother-in-law and sister-in-law. She had appealed to the police to take firm steps against such oppression. This propensity to commit suicide also might raise a reasonable apprehension in Alok’s mind that it would be harmful and injurious to live with Krishna. It is not necessary that the act oracts complained of must take place within what is sometimes described as the ambit of a marital relationship. It may well be that the acts may occur after the husband and wife had begun living apart (see Mulla’s Hindu Law, 15th Edn., page 783 and Cade v. Cade, (1957) 1 All ER 609). Therefore, in the instant case we need not confine our attention to the acts of the parties from the date of marriage up to 10th July, 1978 when Krishna with her child left the matrimonial home. We may legitimately take into consideration her conduct and behaviour even subsequent to the said date. We have already mentioned that after she left on 10th July, 1968 she with her father had again gone to police station presumabmy to lodge a complaint against her husband and his family. She had continued to write insulting and offensive letters to her husband making various accusations which she has failed to substantiate. She had demanded return of her moveables and on occasions insisted that unless a separate home for her was set up, she did not propose to return. In spite of protests of her husband she had continued to write such letters at Alok’s office address and Alok had in writing claimed that Krishna had done so to h umiliate him in his office. In the above view, in deciding whether Krishna had ill-treated her husband and the resultant danger of apprehension up to the date of the filing of Alok’s petition under Section 13(1)(ia) of the Hindu Marriage Act, we have already held that the same fully establish that Krishna was guilty of having cruelly treated her husband, Alok Ranjan.

15. We next take up the question whether or not Alok Ranjan, the husband, had condoned the acts of cruelty on the part of his wife, Krishna. Mr. Dutt submitted that up to 10th July, 1978 the parties had lived together as husband and wife. Mr. Dutt has submitted that on all previous occasions Krishna had returned either on her own or her husband had brought her back. Thereby, Alok Ranjan must be deemed to have forgiven the alleged acts of his wife and had reinstated her. After 10th July, 1978 the parties did not any further live together and therefore, according to Mr. Dutt, there could be no further occasion for Krishna to cruelly treat her husband. We have already pointed out that in deciding whether the husband or the wife had cruelly treated his or her spouse, the court need not confine its attention to the facts which had occurred up to 10th July, 1978 and may take into consideration the acts and conduct of the parties subsequent thereto. We have found that even after 10th July, 1978 Krishna had continued to write insulting, offensive and threatening letters to her husband. In our view, the said facts also constituted acts of mental cruelty upon Alok Ranjan. Further, the very act of Krishna leaving with the child on the night of 10th July, 1978, taking shelter in a neighbour’s house and lodging complaint to the police were also acts of cruelty towards her husband. “Condonation” means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be therefore two things : forgiveness and restoration (vide Dastane v. Dastane, ). But such forgiveness is conditional, on the condoned spouse thereafter fulfilling in all respects the obligations of marriage (vide Henderson v. Henderson 1944 AC 49). Their conjugal life had subsistedfor a short period and was repeatedly interrupted by Krishna often departing for her father’s house. During her stay in her husband’s house she used to often insult, threaten and on occasions assaulted Alok Ranjan. Therefore, even if Krishna had been reinstated, she having repeatedly committed such acts of cruelty, her previous acts of cruelty committed before her reinstatement, again revived. Mulla on Hindu Law at page 861 has referred to the decision on the subject of revival of matrimonial offence which would by itself give adequate ground for divorce or judicial separation. Commission by the condoned spouse of a matrimonial offence less than legal cruelty would be sufficient if the conduct complained of is of such persistence that will make married life together impossible (vide Richardson v. Richardson, (1949) 2 All ER 330, Thompson v. Thompson, (1912) ILR 39 Cal 395). In the instant case, on 10th July, 1978 Krishna with her child finally left her husband’s house. She had failed to prove by reliable evidence that her husband and her family had themselves cruelly treated her and they had compelled her to leave and that the marriage broke down because of the conduct of the husband without her fault. We have already held that the evidence on the side of the petitioner husband was more acceptable that Krishna used to cruelly treat her husband. In the above view, the petitioner husband was entitled to rely on all the previous guilty acts of his wife as a ground for relief under Section 13(1)(ia) of the Hindu Marriage Act, 1955. There has been no unnecessary or improper delay in instituting the present proceeding and there was no other legal ground why the petitioner husband should not be granted the relief prayed for by him.

16. In her written statement, the appellant, Krishna, had prayed for making an order in terms of section 27 of the Hindu Marriage Act, 1955 for return of her articles stated to be still lying in the home of the husband. At the time of the hearing with notice, the appellant had urged the said additional ground under Section 27 of the said Act. The Court below, however, did not frame any issue and did not pass any order in terms of Section 27 of the Hindu Marriage Act. We propose to direct the Court below to give opportunities to both parties to adduce further evidence and thereafter make appropriate orders regarding Krishna’s properties, if any, still remaining in the house of her husband.

17. In the circumstances of the case, the court below also ought to make an order for payment of permanent alimony to Krishna until and unless she remarries and also provide the maintenance of the child of the parties. Before the conclusion of the hearing the appeal, the learned advocate for the appellant filed before us statement of the monthly emoluments of Alok and the deduction made therefrom. According to the said statement, Alok’s total pay including allowances was allegedly Rs. 2086.70 per month. A total sum of Rs. 290/- per month was being deducted from his salary towards provident fund, group insurance, professional tax, income tax, surcharge and compulsory deposit. Thus, according to the present respondent, he received a net sum of Rs. 1797/- per month. We remit the question of payment of permanent alimony to the Court below for determining the same upon the evidence which may be adduced by both parties. Pending such decision by the trial Court, we direct the petitioner husband to continue to remit by money order or by account payee cheque a sum of Rs. 550/- per month to the appellant Krishna within the 15th day of each succeeding month. First such remittance or payment shall be made on or before 15th day of June, 1984. The petitioner Alok is further directed to pay or remit within three months all arrear maintenance at the rate previously fixed.

18. In the result, we dismiss the appeal against the decree for dissolution of marriage of the parties under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and affirm the decree passed by the Court below. We remit the case to the Court below for determination of the permanent alimony and maintenance payable to the appellant and her child. The Court below is also directed to make an enquiry in terms of Section 27 of the Hindu Marriage Act and to pass appropriate orders/directions. For deciding the aforesaid two matters, the Court below would be entitled to record further evidence of the parties, if adduced.

19. There will be no order as to costs.

Mukul Gopal Mukherji, J.

20. I agree.

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