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Judgments of Supreme Court of India and High Courts

Anirban Ghosh vs Sanchita Ghosh on 21 December, 2017

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

PRESENT : Hon’ble Justice Dipankar Datta
and
Hon’ble Justice Sahidullah Munshi

F.A. 280 of 2008

Anirban Ghosh
v.
Sanchita Ghosh

For the appellant : Mr. Biswajit Basu,
Mr. Supriyo Chattopadhyay,
Ms. Paromita Malakar (Dutta).

For the respondent : Mr. Ganesh Shrivastava,

Mr. Sukanta Das.

Hearing concluded on : August 17, 2017

Judgment on : December 21, 2017

DIPANKAR DATTA, J.:-

1. The challenge in this appeal under section 28 of the Hindu Marriage Act, 1955

(hereafter the Act) is to the judgment and decree dated March 18, 2008 passed by

the Additional District Judge, 4th Court, Paschim Midnapore, whereby
Matrimonial Suit No.395 of 2006, instituted by the appellant on the twin grounds

of cruelty and desertion under section 13(1)(i-a) and (i-b) thereof, was dismissed.

2. The relevant facts that a reading of the application under section 13 of the Act

reveal, are these. Marriage between the parties was solemnized on August 13,

2002, according to Hindu rites and customs, at Midnapore town where the

respondent resided with her parents. After marriage, the respondent shifted to

her matrimonial home at Chandannagar. Later, the marriage was registered on

September 11, 2002. The marriage was duly consummated. During her stay at

her matrimonial home, the respondent was found by the appellant to create an

atmosphere which was not conducive to healthy matrimonial relationship. She

was ill-tempered, lacking in culture, lazy and reluctant to perform house-hold

duties. She did not care for her old and infirm parents-in-law. The mother of the

appellant came back from Vellore after undergoing surgery and treatment on

December 2, 2002 and was bed-ridden. Despite such physical condition of her

mother-in-law, the respondent insisted on going to Midnapore town alongwith the

appellant for filling up an application form in connection with a recruitment

process initiated by the School Service Commission. The respondent’s father had

come to Chandannagar on December 3, 2002 and the appellant requested his

father-in-law to take the respondent back to Midnapore town if her presence

there was so very necessary. However, he flatly refused and instructed the

appellant to take the respondent to Midnapore town on December 6, 2002 and

left. The respondent left Chandannagar and went to her paternal home at

Midnapore town on December 6, 2012, without caring for her mother-in-law, on
the pretext that she would require the assistance of her teachers to prepare for

the ensuing competitive examination. The parties lived as husband and wife for

about 86 days, whereafter she did not return to her matrimonial home. After

reaching her paternal home, the respondent informed the appellant of having

conceived. The offer of the appellant to the respondent for her treatment at

Chandannagar fell on deaf ears. On February 9, 2003, the appellant attempted to

bring the respondent back home but she refused on the ground of illness. His

request for obtaining a second medical opinion from a renowned gynaecologist of

Midnapore town was turned down which made the frustrated appellant to return

home. Despite such negative attitude of the respondent, he retained his mental

poise and continued to send monetary assistance regularly. A girl child was born

in the wedlock of the parties on July 28, 2003 at Midnapore town. The appellant

was, in the meanwhile, given an offer to stay at the respondent’s house as ‘ghar

jamai’. It was obviously not possible for the appellant to abandon his old parents

and accept such offer, and hence it was politely declined. Misbehaviour by the

parents-in-law of the appellant as well the respondent followed and she

threatened not to go back to her matrimonial home again. The appellant then

had been residing at Burdwan town where he was posted and requested the

respondent to stay there. The respondent relented but with a condition, which

was not acceptable to the appellant. She wished that the parties would have to

spend every weekend at Midnapore town at her father’s house. Faced with

refusal, the respondent threatened the appellant with dire consequences. Not

only did she threat the appellant with criminal prosecution, he was also warned
of his service being terminated. Feeling shattered by such cruel acts of the

respondent, the appellant stopped sending her monetary assistance subsequent

to May, 2003. On or about April 6, 2003, the parents and an aunt of the

respondent visited the appellant’s house and on the same day took away all the

ornaments presented to the respondent by her father and invitees to the

marriage. After the birth of the girl child of the parties, the appellant on

numerous occasions made phone calls and requested the respondent to return

with her daughter but despite a settlement attempt made by an uncle of the

respondent, her parents instigated her not to return and she obliged them. These

were followed by proceedings initiated by the respondent under section 125 of the

Code of Criminal Procedure (hereafter the Cr.P.C.) and an utterly false and

concocted complaint under section 498A/384/406/506 of the Indian Penal Code

(hereafter the IPC) on December 17, 2003. The respondent had deserted the

appellant for a continuous period of 31/2 years and treated the appellant with

cruelty. Since it became impossible for the appellant to live with the respondent

any longer and there was no chance of reconciliation, he prayed for divorce on

the grounds of cruelty and desertion.

3. The respondent contested the application by filing a written statement. The

material allegations were denied and disputed. Inter alia, the respondent pleaded

that there was no remissness on her part to lead a peaceful and happy conjugal

life and that it was the appellant and his parents who did not give her the respect

she deserved. It was specifically pleaded in paragraph 9 that the appellant with

full knowledge that the respondent had conceived, took her to her paternal home
at Midnapore town and dumped her there without ever caring to take any

information regarding her health, not to speak of taking her to a doctor for check-

up. Paragraph 13 reveals that the appellant never saw the face of his daughter

after her birth. The respondent had no independent source of earning and her

father was a retired school teacher who had joined legal profession after

retirement. He was yet to build up practice of worth to maintain his daughter and

grand-daughter. This made the respondent to repeatedly request the appellant

over telephone for monetary assistance but the same did not yield any result.

Finding no other option, the respondent applied for maintenance under section

125 of the Cr.P.C. The relevant magistrate passed an order for maintenance,

which the appellant challenged in this Court. Despite being unsuccessful in his

attempt, the appellant had not been maintaining his wife and daughter. The

respondent further denied having initiated a false and concocted criminal case

against the appellant. The appellant was described as a man who had no

compassion or sympathy for the respondent or their little daughter. The

respondent was categorical in her defence of not having deserted the appellant or

that she had treated him with cruelty; on the contrary, she alleged that the

appellant had deserted her and by making the respondent to fend for her and her

daughter without maintenance had been instrumental in treating her with

extreme cruelty. It was expressed that the respondent still loves her husband and

that she was willing to stay together with him. On such pleadings, the

respondent prayed for dismissal of the application.

4. The case of the appellant was sought to be supported by 3 (three) witnesses, i.e.

the appellant himself (PW-1), the appellant’s father (PW-2) and the appellant’s

housemaid (PW-3). The respondent herself was the lone witness in support of her

case.

5. In his examination on affidavit the appellant reiterated what he had pleaded in

the plaint. In course of cross-examination the appellant deposed that if that case,

i.e. criminal case under section 498A of the IPC had not been filed, he would

have no cause to apply for divorce. He further deposed that he never prepared

himself to divorce the respondent prior to filing of the criminal case; that the

criminal case was the root cause of the matrimonial suit, and that except for

wilful desertion there was no ground for “filing of this case” was also admitted by

him in course of cross-examination. The appellant had “passionate love towards

… wife for a week after … marriage then … lost … such love towards … wife

thereafter”. It is also revealed from his cross-examination that since February 9,

2003 he had never met his wife and that even after birth of his child on July 28,

2003, he had never seen the face of his newly born child as well as wife.

6. The father of the appellant deposed as PW-2. In his cross-examination-in-chief on

affidavit, he supported the claim of the appellant. He deposed that he had

personally requested the father of the respondent to ensure that the spouses sit

together and talk to each other for living a peaceful conjugal life but there was no

positive response from the side of the respondent’s father. In course of cross-

examination, what emerged was that the PW-2 also did not meet the respondent

after she gave birth to the girl child and naturally had not seen the face of the
child since; consequently, he had not acquired any sentiment towards his grand-

daughter. PW-2 also realised just after marriage of his son that he had no affinity

towards his wife and similarly the respondent also had no affinity towards the

wife of the PW-2. Finally, he concluded by deposing that even if the criminal case

were withdrawn, the respondent would not be brought back to her maternal

home.

7. PW-3 was the housemaid of the appellant. Her examination-in-chief on affidavit

supported the appellant’s claim. However, in course of cross-examination she

revealed that the respondent “never misbehaved with Anirban or his parents”.

8. In her examination-in-chief on affidavit, the respondent stood by her pleadings in

the written statement. She deposed that after December 6, 2002 her husband or

in-laws never met her either at her father’s house or at the hospital. She also

described the circumstances that led her to leave her matrimonial home and the

apathy and indifference of the appellant towards her which compelled her to

bring up her child on her own without any financial assistance from the

appellant.

9. There are two letters on record, the first dated November 16, 2003 addressed to

the respondent by the appellant and the other dated November 26, 2003 being

the respondent’s response to such letter. We need not refer to in detail the

contents of such letters, because the same mostly bear allegations and counter

allegations of the spouses. Certain other documentary evidences were led to

which reference, at this stage, is considered unnecessary.

10. The learned Judge of the trial court framed nine issues. After consideration of the

evidence before him, the learned Judge recorded a finding that the suit had been

instituted by the appellant feeling aggrieved by the complaint lodged by the

respondent, inter alia, under section 498A of the IPC and not being able to

withstand the stigma that is attached to a person accused in a criminal case. The

learned Judge was also of the view that prior to institution of the suit there was

no question of any desertion or cruelty from any corner and that the parties were

involved in an ego clash. The parents of the parties were found to be remiss in

discharging their duties as elders to make the situation conducive for leading of a

happy and peaceful conjugal life by the parties. In any event, the learned Judge

did not find it to be a fit and proper case where divorce ought to be granted on

the grounds of desertion and cruelty as pleaded by the appellant and,

accordingly, by judgment and decree dated March 18, 2008 dismissed the suit.

11. Appearing on behalf of the appellant, Mr. Basu, learned advocate contended that

the plea of desertion was raised by the appellant citing leaving of her matrimonial

home by the respondent on December 6, 2002 at her insistence and never to

return to such home despite having given birth to a child.

12. Insofar as the allegation of cruelty is concerned, it was first contended by Mr.

Basu that the mother-in-law of the respondent had returned from Vellore on

December 2, 2002 after treatment and leaving such ailing lady to look after

herself, the respondent left her matrimonial home on December 6, 2002. Next

certain letters written by the respondent to the appellant’s employer were placed
and it was contended that the entire episode was a humiliating experience for the

appellant which was hard to digest.

13. The last situation pointing to cruelty of the respondent, according to Mr. Basu, is

a post-decree development. Pursuant to the complaint lodged by the respondent

against the appellant, inter alia, under section 498A IPC, C.R. Case No.637/2003

had been registered. The appellant faced trial before the Judicial Magistrate, 6th

Court, Paschim Medinipur and was found not guilty by the relevant magistrate

by judgment and order dated April 16, 2012 and hence acquitted. Such acquittal,

according to him, is sufficient for this Court to hold that the appellant was

subjected to cruelty at the instance of the respondent. Mr. Basu also contended

that several letters written by the respondent to the appellant’s employer

requesting that the appellant be posted at a particular place of the respondent’s

choice caused tremendous embarrassment to the appellant and that should also

be construed as conduct on the part of the respondent which would entitle the

appellant to a decree for divorce.

14. The decision reported in AIR 1975 SC 1534 [N.G. Dastane (Dr.) v. S. Dastane]

was cited by him in support of the proposition that the standard of proof in a civil

proceeding is preponderance of probabilities and that bearing in mind the same,

the appellant must be held to have established his claim of desertion and cruelty.

The decision of the coordinate Bench of this Court reported in AIR 1961

CALCUTTA 359 [A.E.G. Carapeit v. A.Y. Derderian] was placed for enlightening

us on the law relating to cross-examination. Reliance was next placed by Mr.

Basu on the decisions of the Supreme Court reported in (2007) 4 SCC 511
[Samar Ghosh v. Jaya Ghosh], (2006) 4 SCC 558 [Naveen Kohli v. Neelu Kohli],

AIR 2002 SC 591 [Savitri Pandey v. Prem Chandra Pandey] and (1994) 1 SCC

337 [V. Bhagat v. D. Bhagat (Mrs)], as well as decisions of coordinate Benches of

this Court reported in 1999 (II) CHN 625 [Smt. Nivedita Banerjee v. Sanat Kumar

Banerjee], 2009(3) CHN 322 [Tarak Nandi v. Dolly Nandi (nee Paul)], 2010 (1)

WBLR (Cal) 265 [Smt. Manju Das v. Sri Chitta Ranjan Das], and AIR 2012

CALCUTTA 63 [Amitava Das v. Shrimati Mousumi Das] to urge that the appellant

had been successful in proving cruelty and desertion by the respondent, for

which the suit ought to have been decreed. He, thus, prayed that the appeal may

be allowed upon setting aside the impugned judgment and decree and that the

marriage between the parties be dissolved by a decree of divorce.

15. Appearing on behalf of the respondent, Mr. Shrivastava, learned advocate

contended that no case for interference had been set up by the appellant.

According to him, it was the appellant who deserted the respondent and,

therefore, he cannot take advantage of his own wrong. He placed the evidence on

record in detail to show that after the appellant left the respondent on December

6, 2002 at her paternal home, he never returned to see her or their child. It was

shown from pages 67 and 72 of the paper book, being the examination-in-chief of

the respondent, that the appellant had not been to Midnapore town on February

9, 2003 to bring her back or that there was any refusal of the respondent to

obtain second medical opinion of Dr. B. D. Ray, as alleged. It was shown that the

respondent was not subjected to any cross-examination on this aspect and,

therefore, the claim of the appellant is nothing but a creature of his evil mind.
The contention was that it is not a case where the wife had deserted her

husband, but a case where the respondent was compelled to live separately, for,

the appellant had abandoned his wife and child. It was also pointed out that for

three months the appellant paid Rs.1000/- each but since then, without any

reasonable cause, stopped sending financial assistance to the respondent and it

was the respondent who had to survive at her father’s residence with a new born

baby in her lap with whatever her father could provide on the basis of his meagre

resources. This, according to him, amounted to refusal of the appellant to

maintain his wife and child as well as torture for which recourse had to be taken

by the respondent in terms of the provisions of the Cr.P.C. He further contended

that the judgment and order of the relevant magistrate acquitting the appellant

has since been challenged in appeal and the decision is pending. In view thereof,

the decision rendered by the relevant magistrate has not attained finality and the

appellant cannot seek to derive any benefit therefrom. It was further contended

that in terms of cultures and traditions prevalent in Bengal, it is for the husband

to take his wife back home after child birth but unfortunately, in this case, there

was no such attempt on the appellant’s part. That apart, it was submitted that

there is absolutely no evidence of physical and mental torture inflicted on the

appellant by the respondent and it was because of the negative conduct of the

appellant that the respondent, perhaps being left with no other option, had

moved the court.

16. Mr. Shrivastava, in his turn, relied on the following decisions:

1) AIR 2014 SC 2881 [Dr. (Mrs.) Malathi Ravi, MD v. Dr. B. V. Ravi, MD];

2) (2012) 7 SCC 288 [Vishwanath Agrawal v. Sarla Vishwanath Agrawal];

3) (1988) 3 SCC 309 [Pawan Kumar v. State of Haryana];

4) 2009(2) WBLR (Cal) 997 [Smti Ananta v. Shri Ramchander]; and

5) 2004(3) CHN 266 [Abhijit Das Gupta v. Rita Das Gupta];

and prayed for dismissal of the appeal.

17. In course of hearing and before reserving judgment on the appeal, we were

convinced that the circumstances leading to the respondent living separately on

and from December 6, 2002 and the subsequent factual events, including in

particular the appellant’s conduct of not even returning to Midnapore town even

once for taking a look at his child’s face coupled with criminal prosecution

launched against him by the respondent, have made the entire situation so

utterly ugly that the parties might not be in a position to bury their differences

and start a new life. We had, accordingly, given them an opportunity to arrive at

a settlement before they could part ways forever. Although the parties through

their learned advocates had agreed that an endeavour would be made to trace an

amicable solution acceptable to both, we were subsequently informed that the

parties could not be ad idem on the aspect of alimony and consequently, the

talks fell through. While the respondent had claimed Rs.25 lakh for herself and

Rs.35 lakh for her minor daughter, the appellant agreed to spend Rs.5 lakh for

educational purposes of the minor daughter and Rs.7,50,000/- for 9 years and 4

months by way of Kishan Vikas Patra certificate which would approximately be

Rs.15 lakh on maturity in the year 2027 when she would reach the marriageable

age of 24 years. The appellant refused to pay any amount for the respondent on
the ground that she is employed as a teacher and earns sufficient money to take

care of her personal needs.

18. It is in this factual backdrop that we proceed to decide the appeal on merits.

19. The issues that emerge for decision before us are, whether the appellant had set

up a case for a decree to be passed under section 13(A)(i)-(a) and (i)-(b) of the Act

and whether the trial court was justified in dismissing the application.

20. Having considered the arguments advanced by the parties, we are of the clear

opinion that the allegations of desertion and cruelty levelled by the appellant

against the respondent do not stand substantiated on appreciation and analysis

of the oral and documentary evidence on record.

21. The version of the appellant that the respondent insisted him to take her to her

paternal home has to be considered in the light of her testimony before the trial

court. The respondent had travelled to Midnapore town for her appearance in an

ensuing recruitment examination to be conducted by the School Service

Commission. That the respondent having requisite qualifications intended to

become a teacher is not something unusual and from the evidence of the

appellant himself, we find that he was aware of the same. In fact, the appellant

himself claims to have purchased the application form for the respondent. Given

this background, even if the respondent had insisted that she be permitted to

travel to Midnapore town for the purpose of her preparation to write the

examination, we do not consider the same per se a conduct which is

blameworthy. However, what is to be noted is that the appellant’s mother was

unwell at the material time and she had returned from Vellore days before the
respondent left her matrimonial home. In paragraph 14 of the written statement,

the respondent pleaded that “the mother of the Petitioner had illness at the

relevant time but it is not correct to state that she was as much ill as it would be

uncommon for the respondent to come to Midnapore for her appearance in the

ensuing S.S.C. examination”. In her evidence on affidavit, the respondent

repeated what she had pleaded in paragraph 14 of the written statement. We

have not found a single question put to the respondent in course of cross-

examination in regard to her mother-in-law’s health condition being so serious,

which would require a daughter-in-law of ordinary prudence not to leave her in

such condition. On the contrary, it was the respondent’s specific claim that the

appellant and his parents did not wish the respondent to stay at her matrimonial

home.

22. We, therefore, do not see reason to hold that the incidents immediately prior to

and after December 6, 2002 are of such nature so as to attract cruelty of the

respondent towards the appellant.

23. The specific version of the respondent that after December 6, 2002 the appellant

or his parents never met her in her father’s house or at the hospital stands

uncontroverted after thorough cross-examination to which she was subjected.

The further circumstance that the child of the parties was born but the

appellant, despite having information of her birth, chose not to return to

Midnapore town to enquire about the well-being of the mother-child duo and also

the very unusual undisputed fact of the appellant not having seen his daughter’s

face for all these years, is sufficient indication of cruel conduct on the part of the
appellant himself. We are, thus, unable to accept that based on the case set up

by the appellant in the application under section 13 of the Act, he was entitled to

relief.

24. We have perused the correspondence exchanged by and between the appellant

and the respondent. The appellant wrote a letter dated November 16, 2003 to the

respondent and dispatched the same by registered post with acknowledgement

due. It is quite intriguing that the appellant wished to preserve evidence of the

respondent having received the letter, although at that point of time he may not

have derived knowledge of the FIR giving rise to the ultimate trial. We, however,

propose not to go deep and find out the appellant’s intention behind it. The letter

of the respondent dated November 26, 2003 in response to the said letter of the

appellant, however, bears ample testimony of her urge to return to the family of

the appellant with her girl child. It appears on reading such response that the

appellant and his parents were not satisfied with the respondent giving birth to a

girl child and she had questioned the appellant as to why being a man of the

modern age, he could not accept that giving birth to a girl child should not be

seen as a sin. There was no immediate reaction from the side of the appellant

and, thus, we are constrained to hold the view that the letter of the respondent,

which the appellant tendered in evidence, did more harm than good to his cause.

25. Enunciation of the law in paragraph 10 of the decision in A.E.G. Carapeit (supra)

admits of us doubt. We have, however, failed to comprehend as to how the

appellant can press the principle of law laid down in A.E.G. Carapiet (supra) for a
decision in his favour. On material aspects, he did not cross-examine the

respondent and, therefore, the decision is of no aid to him.

26. Insofar as the letters written by the respondent to the appellant’s employer are

concerned, we are inclined to observe that it would have been prudent and

proper if the respondent had restrained herself from doing so but that by itself

does not advance the cause of the appellant. We see the letters written by the

respondent as a request to the appellant’s employer to any how ensure that the

appellant stays close to the respondent and takes care of his wife and child.

27. Adverting to the aspect of desertion, we are also of the considered view that the

appellant utterly failed to establish his claim by adducing cogent evidence. We

accept Mr. Shrivastava’s contention that it was the appellant who deserted the

respondent and not vice versa.

28. The time is now ripe to consider the decisions of the Supreme Court cited by Mr.

Basu.

29. Paragraph 101 of the decision in Samar Ghosh (supra) enumerates illustrative

instances of human behaviour which could be relevant in dealing with cases of

mental cruelty. We are afraid, the guidance provided by the Supreme Court

instead of assisting the appellant goes against him having regard to his conduct

post marriage.

30. The essential elements of animus deserendi are discussed in paragraphs 8 to 10

of the decision in Savitri Pandey (supra). For reasons discussed above, we repeat

that the respondent did not desert the appellant; instead it was the appellant

who could be accused of creating such a situation that the respondent had no
other option but to leave for her paternal home merely 86 days after her

marriage.

31. Paragraph 21 of the decision in V. Bhagat (supra) emphasizes that while

scrutinizing the evidence on record to determine whether ground(s) alleged is/are

made out and in determining the relief to be granted, the circumstance of

irretrievable break down of the marriage can certainly be borne in mind although

it is not a ground by itself for divorce. Despite the position of the marital

relationship between the parties noticed above, we are unable to grant divorce

only on the ground of irretrievable break down of marriage since a high court has

no power in that behalf.

32. The decision in N.G. Dastane (supra) was cited for the proposition that the

standard of proof in civil proceedings is “preponderance of probabilities” and thus

applied, it ought to be held in favour of the appellant that he had sufficiently set

up a case of divorce on the ground of cruelty. As would be evident from the

discussions made herein above, the balance is against the appellant and in

favour of the respondent. We have no doubt in our mind that the degree of

cruelty perpetrated by the appellant on the respondent is much more than what

the respondent may have perpetrated on the appellant.

33. The sheet anchor of Mr. Basu’s contention, however, appears to be the judgment

and order dated April 16, 2012 delivered by the relevant magistrate acquitting

the appellant of the charge of commission of offences under sections

498A/406/384/34 of the IPC and section 3 of the Dowry Prohibition Act. The
said judgment was brought on record by presenting an application under Order

XLI Rule 27 of the Code of Civil Procedure.

34. We remind ourselves of Mr. Basu’s contention that entangling the appellant and

his parents without just cause in the criminal proceedings was a source of severe

mental cruelty and humiliation in the eyes of the public and only on the ground

of the relevant magistrate acquitting the appellant and his old parents, the

marital tie between the parties ought to be dissolved by a decree as prayed for on

the ground of cruelty having regard to the decisions of coordinate Benches that

have been cited.

35. Let us now ascertain what the facts in the cited decisions were and whether any

law has been laid down therein which would be applicable here.

36. In Nivedita Banerjee (supra), the wife deserted the husband with intention never

to return to her matrimonial home. Also, not only was the husband acquitted of

the charge of torture and demand for dowry, the appeal preferred by the wife was

dismissed. The coordinate Bench recorded a finding that the husband had

suffered immensely for such act of the wife and he was humiliated and his

prestige was lowered in the eyes of the public including his students. In view

thereof, the appeal against the decree for divorce was dismissed.

37. The coordinate Bench in Tarak Nandi (supra) found as a matter of fact that the

wife had withdrawn from the society of the husband without just cause, never

intending to return and that intention to severe relationship was apparent.

38. In Manju Das (supra) too, the wife left the matrimonial home without intimation

and initiated criminal proceedings which ended in the acquittal of the husband.

39. Perusal of the decision in Amitava Das (supra) reveals that on facts, the

allegations of cruelty were held to be proved.

40. Of the four decisions referred to above, all but one has held that if the wife’s

allegation of torture and demand for dowry cannot be proved by the prosecution

before the criminal court resulting in acquittal of the husband, per se that could

be considered to be an act of cruelty based on which a decree for divorce could be

passed. There is no quarrel with regard to the proposition laid down therein.

41. However, the facts and circumstances in such decisions of the coordinate

Benches are quite dissimilar to those arising here which we have examined and,

therefore, reliance placed thereon by Mr. Basu is misplaced for the reasons that

follow.

42. It is true that the appellant was acquitted after trial in the criminal proceedings

launched at the instance of the respondent. It is equally true that the judgment

and order dated April 16, 2012 has been carried up in appeal and such appeal is

pending before the Sessions Judge, Paschim Midnapore. Thus, acquittal is yet to

reach finality. We need not await the decision in the criminal appeal since having

regard to the discussions made above, we are unable to persuade ourselves to

agree with the contention of Mr. Basu that the acquittal of the appellant is itself a

ground for decreeing the suit on the ground of cruelty. The evidence on record

which are sufficient to indicate the mindset of the appellant, more particularly

the admission on his part that his love for the respondent was lost immediately

after marriage, incline us to hold that the respondent may have been forced to

launch criminal proceedings against the appellant to somehow force him to take
her and the child back and not for painting a bad picture of him before the

society at large. A husband who leaves his newly wedded wife at her paternal

home and does not return to enquire and take care of his wife, not to speak of

having a look at the new born child till this date (she is fourteen years old by

now), is himself guilty of such cruel conduct that he does not deserve any relief.

The appellant himself cannot take advantage of his disability to ensure a binding

conjugal relationship and we have no other option but to approve the judgment

and decree of the trial court.

43. Accordingly, the appeal fails and stands dismissed. Pending applications, if any,

stand disposed of.

44. Insofar as alimony is concerned, we are of the considered view that a proper

determination of the issue would be required considering the evidence regarding

the respective earnings of the parties at present. We, therefore, grant liberty to

the respondent to approach the trial court for alimony and maintenance for

herself and the child, in accordance with law.

Urgent photostat certified copy of this judgment and order, if applied, may be

furnished to the applicant at an early date.

(DIPANKAR DATTA, J.)

SAHIDULLAH MUNSHI, J. :

I agree.

(SAHIDULLAH MUNSHI, J.)

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