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0.1.2019
2.
Asr

F.A.T 638 of 2015
Mukul Roy
Versus
Samar Bijoy Roy

Mr. Kushal Paul
…..for the appellant
Mr. Partha Sarathi Bhattacharyya
Mr. Raju Bhattacharyya
Mr. Tanweer Mondal
Mr. Arunava Maiti
….for the respondent

Oral

The parties were married on 19th November, 1992.

The cause of action in the plaint is framed principally on the ground of

cruelty. On making a search of the facts pleaded in support of the cause of

action, the major part of it, if not the whole, relates to refusal of sex by the

wife. They had physical relationship for a few days only. This pleading in the

plaint is not controverted in the written statement. The trouble seems to have

taken firm root by 2001. According to the respondent/husband the wife

completely refused to have physical relationship with him from that time.

Admittedly, the appellant/wife a junior school teacher is staying in a

house in Raiganj, Uttar Dinajpur built with a contribution from the husband.

The suit was filed in 2008 by the husband in the Court of the Additional

District Judge, 1st Court, Raijanj, Uttar Dinajpur and was decreed in his

favour on 11th December, 2015, on the ground of irretrievable breakdown of

marriage.

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The wife preferred an appeal before us against the said judgement and

decree.

The judgement analyses the relationship of the parties from the very

beginning, the absence of physical relationship between them from 2001,

their separated lives and so on and came to the conclusion that the marriage

between the parties had broken down irretrievably. On that ground divorce

was granted.

The Supreme Court has specifically opined in (Vishnu Dutta Sharma –

versus- Manju Sharma reported in (2009) 6 Supreme Court Cases 379)

and (Darshan Gupta -versus-Radhika Gupta reported in (2013) 9 Supreme

Court Cases 1) that irretrievable break down is not a ground to grant divorce

in a contested action. So, the legal premises for granting divorce was incorrect

The learned Judge of the Court below upon analysis of the evidence has

also come to the conclusion that no mental cruelty was reached by the

respondent/husband to the wife.

In my opinion, here he was in complete error. The Supreme Court in

(Satish Sitole -versus-Smt. Ganga reported in AIR 2008 SC3093)

remarked that out of sixteen years of marriage in that case the parties had

been living separately for fourteen years. The marriage had broken down

irretrievably. Since the marriage between the parties was dead for all practical

purposes and there was no chance of it being retrieved, “the continuance of

such marriage would amount to cruelty”.

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In (V. Bhagat-versus-Mrs. D. Bhagat reported in A.I.R 1994 SC 710

paragraph 17), the Supreme Court has defined mental cruelty as the pain or

suffering which a party to a marriage suffers internally.

In my opinion, when the psychological feeling of pain becomes

unbearable, the Court takes note of it as mental agony or cruelty and relieves

the parties of the relationship, which is causing this pain and suffering.

Obviously the assessment of the Court has to be made in a subjective

manner. What would amount to mental cruelty is not a closed category and

would depend from case to case on the subjective satisfaction of the learned

Judge.

“What is cruelty in one case may not amount to cruelty in another case.

It is a matter to be determined in each case having regard to the facts and

circumstances of that case” as per Justice B. P. Jcevan Reddy in the above

case.

In this case the marriage between the parties is dead and there is no

chance of reviving it. A lot of distance has been created between the parties

which cannot be bridged and there is total lack of any mental or physical

relationship. There is evidence to suggest that from 2001 the

respondent/husband had been requesting his wife to be physically proximate

with him, which she repeatedly denied to him. This more than anything was

sufficient mental torture which entitled the husband to obtain divorce. The

learned Judge failed to appreciate these factual and legal premises.
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In those circumstances, there is no point in dragging the relationship

on.

The learned Judge came to the right conclusion on facts that there

should be dissolution of marriage but has given the wrong legal reason in

support of it.

I affirm the judgement of the Court below.

The appellant does not claim alimony as submitted by learned Counsel.

The appeal is dismissed.

( I. P. Mukerji,J.)

Judgment on : 05.02.2019

Amrita Sinha, J.:-

I have heard the judgment delivered by brother Mukerji, J. in Court. As

I have a different view I am delivering this judgment separately.

This is an appeal challenging the judgment and decree dated 11th

December, 2015 passed by the learned Additional District Judge, First Court,

Raiganj, Uttar Dinajpur in MAT Suit No. 205/2008 granting divorce on the

ground of irretrievable break down of marriage between the parties.

The husband filed the matrimonial suit under Section 13 of The Hindu

Marriage Act (herein after referred to as the HMA). The primary allegation of

the husband was that though the marriage was solemnized on 19th November,
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1992 the parties did not have any physical or mental relationship for about

last six years. They resided in the same house in two separate bed rooms. The

wife had purchased a flat at Raiganj approximately 20 kms. away from the

matrimonial house at Kaliaganj without intimating him. The wife is a teacher

of a government school and leaves home at 8 o’ clock in the morning and

returns back around 8 o’ clock in the evening. The wife was not interested in

cohabitation and due to her physical structure she was unable to conceive. It

was also alleged that the wife tried to kill him by mixing medicines with

sweets. She has failed to discharge her matrimonial obligations and deserted

the petitioner husband in the year 2001. The husband prayed for divorce on

the grounds of cheating, cruelty and desertion.

The wife filed a written statement denying all the allegations made in

the plaint. She specifically mentioned that after marriage the parties had a

cordial relationship. They enjoyed several vacations together. She mentioned

that she performed all her matrimonial obligations. She looked after and took

care of her mother-in-law till her death. She also accompanied her husband

to Vellore where he was undergoing treatment. Both of them attended several

social functions together. As there was a dispute between her husband and

her brother-in-law her husband proposed to shift from their matrimonial

home to a rented accommodation. She was not willing to stay separately from

her mother-in-law in the rented accommodation. Accordingly she proposed to

her husband for purchasing a separate flat. With the permission of her

husband she obtained loan and constructed her own flat at Raiganj. Her
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husband provided money for constructing the said flat and also stood as a

guarantor in respect of the loan taken by her. She claimed that her husband

and her in-laws attended the Griha Prabesh function in the year 2007. She

mentioned that the allegations made against her are absolutely false and

baseless. There was absolutely not dispute in between the parties. She prayed

for dismissal of the suit.

The learned Court below after appreciation of the evidence arrived at

the conclusion that the wife had not treated the husband with cruelty and on

the other hand the wife is under desertion on account of the conduct of the

petitioner husband. The Court opined that a different approach should have

been taken as the petitioner husband has been unable to prove his case of

cruelty and desertion as grounds for seeking dissolution of the marriage.

The Court records that the wife was ready and willing to go back to the

husband on any terms and conditions but the husband was not inclined to

take her back. It was further recorded that the Court failed to pacify the

dispute even after taking extra effort apart from the Court hours and all

attempts ended in failure on account of the rigid stance taken on behalf of the

petitioner husband.

The Court below observed that having regard to the irretrievable break

down of the marriage keeping the dead relation in continuity without having

any fruitful purpose would not be justice suited to the parties. It is beneficial

in the interest of both the parties that the decree of divorce should be granted

as the parties have lived under desertion, most of which has been spend in
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acrimonious allegations against each other. There was no possibility of

retrieving the marriage and an order should be passed to end the agony of

both the parties.

Relying upon the decision of the Hon’ble Supreme Court passed in the

case of Satish Sitole vs. Ganga in Civil Appeal no. 7567 of 2004 dated 10th

July, 2008 the Court ordered that since the marriage between the parties is

dead for all practical purposes and there is no chance of it being retrieved the

continuance of such marriage could itself amount to cruelty and thus directed

that the marriage of the parties should be dissolved subject to the payment of

Rs.5,00,000/- by way of permanent alimony.

It appears from records that in the Court below the wife has

categorically deposed that she lived in her matrimonial home with her

husband and in laws and took care of her mother-in-law till she expired on

6th. December 2010. Apart from serving in the school she regularly performed

her obligations as wife as well as daughter-in-law. She entrusted her family

members to take care of her husband when he was undergoing treatment at

Kolkata as she was duty bound to take care of her ailing mother in law at

Kaliaganj. The wife has further deposed that when the petitioner husband

underwent an operation in the year 2008 she took care and nursed the ailing

husband during that time. Only after recovery the husband turned around

and filed the suit for divorce.

The husband in his deposition admitted that he has partly financed the

flat of his wife. He has also mentioned that the distance of the matrimonial
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home and the school where the wife was serving as a teacher was quite far off

and the wife had to take a lot of strain to reach the school and perform her

duties there. He further deposed that the newly constructed flat of the wife

was close to her place of work. It implies that the husband never objected to

the wife residing at a separate place to attend her duties in the school. It

further implies that the wife resided at a different place with the consent of

the husband only for the convenience of her job. Apart from a bald statement

the husband failed to prove that the wife refused to cohabit with her. The

parties never intended to put an end to the marriage. The animus decirendi or

the intention to desert was absent. The conduct of the wife does not amount

to desertion.

From the depositions made by the parties the learned Court below

rightly came to the conclusion that there was no cruelty or desertion by the

wife on the husband. The learned Court below also rightly disbelieved the

allegation of the husband that the wife mixed poison with sweets with the

intention to kill him. The specific finding of the Court was that none of the

grounds viz; cruelty and desertion taken by the petitioner has been proved.

The Court being aware of the fact that since none of the grounds for divorce

was proved opined that the husband ought to have taken a different approach

for putting the relationship to an end.

Though cruelty has not been defined in the Act but the dictionary

meanings as well as the decisions in this regard postulates that cruelty

involves a conduct of such character as to have cause danger to life, limb or
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health, bodily or mentally or as to give rise to a reasonable apprehension of

such danger. Normally it means any conduct which may be dangerous to

health or give rise to a reasonable apprehension of such danger.

The husband intended to highlight that there was mental cruelty on the

part of his wife. She wilfully refused to cohabit with the husband. He tried to

highlight that the behaviour of his wife towards him as well as his family

members was such that amounts to mental cruelty and he presses on the

ground of cruelty for obtaining the order of divorce.

He relies upon the following decisions to contend that the conduct of

the wife amounts to cruelty and the decree of divorce has been rightly passed

in the facts and circumstances of the instant case. Sabitri Pandey vs. Prem

Chandra Pandey (2002) 2 SCC 73 (paragraph 6), Jyotish Chandra Guha vs.

Mira Guha AIR 1970 Cal 266 (paragraphs 24-26, 35, 41-43) and V. Bhagat

vs. D. Bhagat AIR 1994 SC 710.

The learned Trial judge passed the impugned order erroneously relying

upon the judgment of the Hon’ble Supreme Court in the case of Satish Sitole

(supra), without being apprised of the fact that the said judgment was taken

into consideration by the Hon’ble Supreme Court in a subsequent judgment of

Vishnu Dutt Sharma vs. Manju Sharma (2009) 6 SCC 379 wherein the Court

specifically held that as the ground of irretrievable break down of marriage is

not a ground for obtaining divorce under Section 13 of the Act the Court

cannot add such a ground as that would be amending the Act which is a

function of the legislature. The Court further held that a mere direction of the
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Court without considering the legal position is not a precedent. The Court by

judicial verdict cannot add grounds for divorce which are not mentioned in

the Act. It is for the Parliament to enact or amend the law and not for the

Court. The Court went on to add that had the parties been willing then

divorce by mutual consent could have been granted.

In Darshan Gupta vs. Radhika Gupta (2013) 9 SCC 1 the Hon’ble

Supreme Court was not agreeable with the contention of the appellant to

grant divorce on the plea of irretrievable break down of marriage by invoking

jurisdiction under Article 142 of the Constitution of India for doing complete

justice between the parties. Suggestion was advanced that the appellant will

be ready and willing to pay the respondent whatever was considered

appropriate by the Court. Even then the Court did not accept the plea of the

appellant. The Court held that to constitute justice the picture should appear

to be same irrespective of the angle from which it is viewed. If the same

sequence of fact cannot be viewed as doing justice to the husband, they have

to be likewise viewed for the wife as well.

In Chetan Dass vs. Kamla Devi (2001) 4 SCC 250 the Hon’ble Supreme

Court held that the institution of marriage occupies an important place and

plays an important role in the society in general and therefore it would not be

appropriate to apply any submission of irretrievable break down of marriage

as a straight jacket formula for grant of divorce.

In Sabitri Pandey vs. Prem Chandra Pandey (supra) (paragraph 17) the

Court held that the sanctity of marriage cannot be left at the whims of one of
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the annoying spouses. Irretrievable break down of marriage is not a ground by

itself to dissolve it. It further held that the foundation of the family rests on

the institution of a legal and valid marriage. Approach of the court should be

to preserve the matrimonial home and be reluctant to dissolve the marriage

on the asking of one of the parties.

In Debjani Sinha vs. Bikash Sinha 2006(2) CHN 235 this Court held

that mere finding by the Trial Court that the marriage had broken down

irretrievably cannot confer upon the Court the authority to grant a decree for

divorce as the husband has failed to prove cruelty alleged in his petition for

divorce.

In the instant case the wife was all along ready and willing to stay with

the husband and continue with the marital tie. The learned Court below did

not find any fault on the part of the appellant wife. On the contrary the

learned judge observed that it was the husband who took a rigid stance to

break the marriage. The husband himself is at fault by deserting the appellant

wife and has claimed relief of divorce. It is he who inflicted mental cruelty to

the appellant wife by leaving her alone and making all sorts of filthy

allegations against her. The Court below disbelieved the evidences given

against the appellant wife. It is very gracious on the part of the wife who

inspite of all the allegations made against her is ready and willing to perform

her marital duties. Law does not entitle a person to take advantage of his own

wrong.

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The learned Court below misdirected itself by coming to the conclusion

that in the interest of both the parties the marital tie to be severed since the

marriage has broken down irretrievably. The Court ought to have appreciated

that the divorce was not in the interest of the wife. The wife was not interested

in divorce. She was also not interested with the alimony that has been

directed to be paid to her. It has been submitted that she never claimed

alimony but the husband has directly transferred the alimony amount in her

bank account. If directed she will return the same. She is eager to be united

with her husband.

The parties are at ripe age. The husband is above 60 years and the wife

is nearing 60. She submits that even though there was no fault on her part

she has to bear the social stigma of being divorced by her husband. She has

very cordial relationship with her in-laws even today. She submits that the

husband is continuing with the matrimonial suit only at the instigation of

some third party.

In the absence of legislation irretrievable break down of marriage cannot

be held to be a valid ground for dissolution of the marital tie. The same will

set a very bad precedent and will give rise to a dangerous trend in the society.

Unwilling or erring partners without any fault of the other partner will proceed

before the Court for obtaining divorce on the said ground. It is true that in

modern time difference of opinion, culture, taste etc. often leads to

acrimonious relationship in between the parties. Obtaining divorce by paying

a price has become a common phenomenon but the same is possible only if
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both the parties mutually agree to the same. In the absence of mutual

consent divorce can be granted only on the grounds as mentioned in the Act

and not otherwise.

In view of the discussions made herein above the impugned judgment

and decree of divorce cannot be sustained. The same is set aside. The petition

for divorce is rejected. The appeal is allowed.

The appellant wife will refund the alimony transferred to her bank

account as and when the same will be demanded by the husband.

Urgent certified photo copy of this judgment, if applied for, be supplied

to the parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)

LATER:

As there is difference between us as reflected in the separate

judgements delivered by us in this appeal, we refer the matter to the Hon’ble

Acting Chief Justice for taking an appropriate administrative decision in the

matter.

(I. P. Mukerji, J)

(Amrita Sinha, J)
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