Tag Archives: cruel

#Ridiculing #Husband Before His Close Friends, Relatives, Colleagues & Challenging His #Dignity is #cruelty: Kerala HC

“….The various letters and complaints written by the respondent against her husband before the authorities wherein the husband was working, ridiculing him among the officials, friends and relatives is well evident from the oral evidence tendered by PW2 to PW14 and Exhibits A1 to A38. Ridiculing the husband among his close friends, relatives and also before the officials wherein he was working and challenging his dignity amounts to #cruelty in all means…

…The #pain and #suffering meted out by the petitioner on registration of a crime against him by the concerned #police can very well discern from the fact that it was registered while he was at the age of 70 years. He was not #permitted to participate in the #marriage of his one and the #only #daughter, PW7. He has been #ridiculed before his #officials, friends and relatives is well evident from the various complaints and letters issued at various occasions. The extent of cruelty is well evident from the nature of #wild #allegations #levelled against him in those complaints and letters…..” : Hon Kerala HC

kerala hc

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

&

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940

Mat.Appeal.No. 360 of 2013

AGAINST THE JUDGMENT DATED 06-03-2013 IN OPNO.134/2006 of FAMILY COURT, KANNUR

APPELLANT/PETITIONER
V.V.PRABHAKARAN
S/O. KUNHIRAMAN NAMBIAR,
CHALIL, “LAKSHMIPRABHA”,
ELAYAVOOR AMSOM DESOM,
P.O. MUNDAYAD, KANNUR – 670 597.
BY SRI. V.V.PRABHAKARAN
(PARTY-IN-PERSON)

RESPONDENT/RESPONDENT:
T.CHANDRAMATHI
D/O.LATE T.K.G. NAMBIAR,
THEENDAKKARA HOUSE,
KANNAPURAM AMSOM DESOM,
P.O. MOTTAMMAL, KANNUR – 670 331.

BY ADV. SRI.K.RAJESH SUKUMARAN

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.6.2018,
THE COURT ON 01-08-2018, DELIVERED THE FOLLOWING:

A.M.SHAFFIQUE &

P. SOMARAJAN, JJ.


Mat. Appeal No. 360 of 2013


Dated this the 1st day of August, 2018

J U D G M E N T

P. Somarajan, J.

  1. Against the order dated 06.03.2013 in O.P.No.134/2006 of the Family Court, Kannur, the husband came up with this appeal aggrieved by the order refusing to grant divorce of the marriage.
  2. 2. The marriage was solemnized as early as on 13.05.1973. There are four issues in the wedlock. Since 1995, they are residing separately and the petition for divorce was filed in the year 2006 alleging cruelty. The Family Court on consideration of evidence and on hearing the parties found that there is no sufficient ground for granting divorce and consequently the application was dismissed, against which this appeal is preferred.
  3. 3. The original petition was submitted by the petitioner after a long cohabitation with his wife, the respondent herein, more specifically after the expiry of more than 22 years. This would prima facie cast a duty on the court to examine the ground alleged for divorce with its all details so as to find out the existence of elements of cruelty and whether it is sufficient to bring the relationship to an end. The petitioner had given oral evidence as PW1. PW2 to PW14 were examined in support of his case besides the marking of Exhibits A1 to A38. All these persons were examined along with the relevant documents in order to show the misbehaviour of the respondent towards her husband, the petitioner herein, and that he was subjected to continuous mental cruelty challenging his dignity among his friends, relatives, subordinate officers and higher officials. There is no much dispute that the husband/petitioner is living separately from the respondent/wife right from the year 1995. The wife is aged 60 and the petitioner is aged 70 years. There are four issues in the wedlock. They were living as husband and wife for a long period of more than 22 years. It is an admitted case of the respondent that she had preferred a complaint against her husband alleging offence under Section 498A IPC, that too in the year 2003, and a crime was registered as Crime No.379/2003 of Kannapuram Police Station. Subsequently the case was, according to the respondent, settled out of court and herself and her children had given evidence hostile to the prosecution. This would be a factor requires serious consideration as to why they have turned hostile to the criminal case initiated at their instance and whether it was a pressurizing tactics played on the petitioner who was aged more than 70 years. The intention to subject the petitioner with mental cruelty is well evident.
  4. 4. Admittedly the petitioner who is the father of PW7, was not invited for the marriage of PW7, though PW7 is the only daughter born in the wedlock. The reason advanced by the respondent that by that time he had filed a divorce O.P. against the respondent and hence cannot find any fault with her, is seemed to be so strange. The marriage of PW7 was conducted without inviting her father, the petitioner herein. Whether the relationship in between the father and mother became strained is not at all a ground for excluding the father from attending the marriage of his only daughter.
  5. 5. Exhibit A29 letter written by the respondent on 30.09.2003 is self explanatory with respect to the cruelty meted out by the petitioner from his wife. The filthy language used against her mother-in-law and the various wild allegations made against him would prima facie show the way in which he was treated by his wife, the respondent herein. Scandalous allegations were raised against him in Exhibit A30 complaint submitted to the superior officer of the petitioner. The nature of scandalous allegations raised in Exhibit A30 which was submitted to the senior officer of the petitioner would amply show the cruelty and misbehaviour showered on the petitioner by his wife, the respondent. Exhibit A28 apology letter would be an admission of what she had done against her husband, the petitioner herein. Exhibits A24 and A25 would also show the misbehaviour and cruelty unleashed against the petitioner by the respondent.
  6. 6. The various letters and complaints written by the respondent against her husband before the authorities wherein the husband was working, ridiculing him among the officials, friends and relatives is well evident from the oral evidence tendered by PW2 to PW14 and Exhibits A1 to A38. Ridiculing the husband among his close friends, relatives and also before the officials wherein he was working and challenging his dignity amounts to cruelty in all means. Filing of a complaint against her husband alleging offence under Section 498A IPC and registration of a crime against him and the admission made by her that she herself and her children turned hostile to the prosecution resulting in acquittal of the petitioner would prima facie show the way in which he was subjected to cruelty challenging his dignity. The pain and suffering meted out by the petitioner on registration of a crime against him by the concerned police can very well discern from the fact that it was registered while he was at the age of 70 years. He was not permitted to participate in the marriage of his one and the only daughter, PW7. He has been ridiculed before his officials, friends and relatives is well evident from the various complaints and letters issued at various occasions. The extent of cruelty is well evident from the nature of wild allegations levelled against him in those complaints and letters. As discussed earlier, ridiculing the husband before his friends, officials and relatives and challenging his dignity by his wife amounts to mental cruelty having far reaching effects. This cannot be condoned on a later point of time as it will remain in the mind of the petitioner as an incurable injury. The way in which he was treated and ridiculed is further evident from the fact that a publication was made regarding the marriage of her daughter under Exhibit A10 notice which is yet another attempt to degrade the dignity of her father who was excluded from attending the marriage of his one and the only daughter. The reasons advanced by the Lower Court even by quoting a Sanskrit sloga alleged to have been borrowed from the petitioner that “wife should be minister in purpose, slave in duty, Lakshmi in appearance, Earth in patience, Mother in love and prostitute in bed” would itself show the manner in which the Lower Court misappreciated the evidence involved in the case. Submission of a compromise signed by the parties, exhibited as A32, regarding the crime registered against the petitioner will not condone the earlier act of the respondent causing registration of a criminal case under the guise of an alleged offence under Section 498A IPC against her husband who was at the age of 70 years. The cruelty meted out by the petitioner is of that nature sufficient to bring their relationship as husband and wife in an irretrievable halt and hence the petitioner is entitled to the grant of a decree of divorce of the marriage with the respondent. Hence, the judgment of the Lower Court is hereby set aside. A decree of divorce of marriage of the petitioner with the respondent with effect from the date of decree is hereby granted.
  7. Appeal is allowed accordingly, no costs.

sd/-

A.M.SHAFFIQUE (JUDGE)

sd/-

P. SOMARAJAN (JUDGE)

DMR/-

#Wife #convicted of murdering 3 children files #false #dowry case. Husband wins #divorce on #cruelty. SCC

Classic case where #matrimonial #cruelty is discussed; Smt. #Mayadevi vs #Jagdish #Prasad on 21 February, 2007; #Supreme #Court of India

A married woman, mother of four kids acts cruelly to her children, keeps them tied with ropes, does NOT even feed the husband, borrows monies and refused to repay the same and finally #kills #three of her children #throwing them into a #well !! She is arrested and #convicted u/s #302IPC. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. However husband wins divorce on grounds of crulety. Supreme court affirms the same !!

This case establishes that proof beyond reasonable doubt is NOT required in matrimonial disputes: The concept of proof beyond the shadow of doubt is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial matters.

~~~~~~~~~~~~~~~~~~~~

Supreme Court of India

Smt. Mayadevi vs Jagdish Prasad on 21 February, 2007

Author: . A Pasayat

Bench: Dr. Arijit Pasayat, Dalveer Bhandari

CASE NO.: Appeal (civil) 877 of 2007

PETITIONER: Smt. Mayadevi

RESPONDENT: Jagdish Prasad

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006) Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’).

Background facts in a nutshell are as follows:

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent- husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

It was, inter-alia, stated in the divorce petition as follows:

Parties got married according to the Hindu rites on 17.4.1993. The appellant’s father was an employee in the Railway department and the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and acknowledged the receipt of the money in the diary of the respondent-husband. She used to borrow money from time to time at the behest of her parents. From the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu Sagar. The appellant used to keep the children tied by ropes and she attempted to throw them down from the rooftop and used to physically torture them. She was temperamentally very cruel and used to behave cruelly with the children also. She always used to threaten that she will destroy the whole family of the respondent and that there would be no successor left in the family. On 5.4.2002 at about 12.00 noon she left her parental home alongwith three children namely, Neha, Anu and Khemraj on the pretext that she was going to her parental house which was located in the same village. Since she did not return till evening as was told to the respondent-husband, he started searching for her. During course of search the garments and slippers of the children and the appellant were found lying near the well of Ramialji. Police was informed and on search dead bodies of the three children were recovered from the well and appellant was also taken out of the well. A criminal case was instituted and she was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). She was pregnant at that time and subsequently delivered a child. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The appellant filed her response to the petition for divorce and contended that no amount was borrowed by her father or any of her family members. The respondent-husband used to threaten her for dowry and she had never perpetuated any cruelty so far as the children and the husband are concerned. She did not know as to how the children fell into the well. She was herself unconscious and recovered after about four days. The husband, in fact, turned her out of matrimonial home on 5.4.2002 alongwith their three children. Unfortunately, she and the three children fell into the well. The appeal is pending against her conviction. The trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the trial Court that the allegation made by her alleging for dowry demand was dis-believed and the police gave final report stating that the case was falsely lodged. The trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing appellant appeal.

Learned counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police. Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband.

Learned counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal.

The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive 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.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.

In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

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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