Calcutta High Court Pranab Kumar Chakraborty-vs-Smt. Kumkum Chakraborty on 25 April, 2003
Equivalent citations:(2003) 3 CALLT 207 HC, I (2005) DMC 457
Author: J Banerjee
Bench: D K Seth, J Banerjee
J. Banerjee, J.
1. The appellant, petitioner filed a suit for divorce which was dismissed by the 4th Additional District Judge, Howrah by a judgment and decree dated 21.8.2000. Being aggrieved by such decision, the appellant has come before this Court.
2. His case in short is that he married the respondent Smt. Kumkum Chakraborty and the same was solemnised on 17.6.1982 according to Hindu rites and customs. Two children, one daughter and one son were born in such marriage. Father of the respondent. Shri Dilip Kumar Banerjee was a resident of Varanasi in the State of Uttar Pradesh having no permanent house. The respondent went to visit Varanasi in August, .1990 accompanied by her brother. She refused to return from there without any reason inspite of several letters/requests by the petitioner and members of his family and in this way she left the matrimonial home leaving the child daughter who was a student of class-Ill. In October, 1991 she however returned to matrimonial home. Further allegation is that the respondent completely deserted the petitioner, who was compelled to stay in a room separately on account of respondent’s refusal to cohabit with the petitioner. The further allegation of the appellant/husband is regarding several acts of cruelty committed by the respondent/wife. In this respect, the specific allegation is that the respondent is a lady of nagging character who used to utter slang and abusive languages to the petitioner and members of his family and who used to go out everyday at noon to stay in the house of widower brother-in-law after her sister’s death and used to return home late at night, and sometime did not return even in the night, that the respondent refused to do any work for the family of the husband on the plea that she was not a maid servant or cook, that she filed a criminal case under Section 498A of IPC against the appellant and members of his family falsely, that the respondent as a wife is guilty of deliberate refusal of sexual intercourse since over four years, respondent/wife even at one point of time denied the paternity of the petitioner in respect of her children.
3. The wife/respondent contested the proceeding on a written statement denying all material allegation raised in the petition. It is specifically alleged that inspite of her request, the petitioner/appellant refused to cohabit with her and to live with her, with some motive. It is also her case that she is still ready to perform her marital obligation with the petitioner provided the petitioner/appellant also agrees to perform his part in such relation. The learned Judge who tried the suit raised number of issues including the issues touching the question of the existence of the grounds of divorce taken here by the petitioner/husband, namely, desertion and cruelty and through the judgment impugned came to a conclusion that the petitioner had failed to prove that the respondent deserted him. He also held that the petitioner failed to prove that the wife/respondent treated him with cruelty. With these findings, the Court below dismissed the suit.
4. In the instant suit, the petitioner/husband has examined himself as his sole witness on facts. He has no doubt examined a formal witness a police constable as PW 2 who brought the original G.D, Entry No. 225 dated 5.10.91 and G.D. Entry No. 244 dated 4.10.91. On the other hand, the respondent/wife besides examining herself as OPW-1, also examined her brother Poltu Banerjee (OPW 2). Regarding desertion the evidence of the petitioner Pronab Kumar Chakraborty is that probably in July, 1990 the witness went to his father-in-law’s house and requested his father-in-law to come over to his house, to take his wife to the house of the father-in-law for a few days for giving direction to her. In the month of August, his elder brother-in-law came to his house, took away his wife to their house at Benaras along with the son leaving the daughter who was then a student of class-I in the custody of the petitioner. Thereafter, his wife did not return. Then on 17th or 18th February, 1991, the petitioner went to Benaras in his car for the purpose of bringing his wife back and on that occasion his wife came back with the son to the house of the petitioner. It is the further evidence of this witness that since 1990 the witness has got no sexual relationship with his wife. His wife however still resides in the bed room of the petitioner and the petitioner lives in a separate room. In the cross-examination, the petitioner has denied that his wife never deserted him. But at the same time, he has admitted that his wife is still residing in their house in which his mother and brother with family live and she also lives in joint mess with them. The respondent/wife on the other hand being examined as OPW 1 admitted that in August, 1990 she went to Benaras to her father’s house, on account of her illness with her elder brother and her son, keeping the daughter in the matrimonial home. In that occasion she resided at Benaras for 6 months. She has further disclosed during her stay she did not get any letter from her husband. She has admitted that from 4.10.91 she resided with her sister at Bally with her children and in December, 1991 she filed a case against her husband under Section 498A of IPC on the allegation that her husband used to launch assault on her. Subsequently, she started living with her husband in his house even after filing of the case under Section 498A, and in this way after compromise she started living with the husband from 1.10.92. She has denied that she refused to live with her husband as wife since 4 years before the institution of the present suit or that her husband was forced to live separately on account of her desertion. The witness has specifically claimed in her evidence at page 137 of the P.B. that she last cohabited with her husband in the first week of January, 1995. In her cross-examination she has admitted that her husband does not reside in the house where she resides with her mother-in-law and other members of her husband’s family. She has also admitted that she does not know where her husband presently resides. On a careful examination of the entire evidence of the witness, it is found that the specific allegation made by the respondent/wife that her last cohabitation with the husband was held in the first week of January, 1995, has not been challenged in the cross-examination at all. The learned counsel for the appellant/petitioner has submitted that the evidence on the point of cohabitation has got no importance in view of her statement at page 140 of the P.B. that her husband does not reside in the house where she resides. She has admitted that she does not know where her husband now resides. In course of his argument, the learned counsel has also drawn the attention of the Court to the statement made by the wife in the cross-examination at page 138 wherein the wife has admitted that all statements made in her application under Section 498A IPC are true. But the arguments thus advanced by the learned counsel is acceptable in view of the simple fact that the total evidence of the parties to the suit clearly indicates that the wife still continues to live in her matrimonial home with her in-laws. The appellant/husband prior to the filing of the suit did not share the same bed room and used to live in a separate room of the same house. It is quite probable that after the filing of the suit, the husband left his family house and now resides at a place which is unknown to the wife but that circumstance itself does not make the specific unchallenged statement of the wife regarding cohabitation between the parties in the first week of January, 1995, improbable unless it is shown by leading evidence that at that particular point of time, it was not possible for the husband to resume cohabitation with the wife as he was living in a separate house and the wife did not know the address of the same. At this stage it is required to be considered whether the appellant/petitioner is entitled to get a decree of divorce on the ground of desertion as contemplated under Section 13(1)(ib) of the Hindu Marriage Act, 1955? Under the aforesaid provision a decree of divorce can be granted to the aggrieved party if it is established that the other party has deserted the aggrieved party for a continuous period of not less than 2 years immediately proceeding presentation of the petition. The explanation attached to the aforesaid provision further lays down.” In this sub-section, the expression of desertion means, the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cogent expression shall be construed accordingly.” The question therefore, is whether the petitioner is in a position to establish here that the O.P./wife deserted him or there was a willful neglect on the part of the respondent? We have already seen from the evidence on record that the respondent/wife still resides in the matrimonial home, the family house of the petitioner/husband with her in-laws in the same mess. The only allegation is that the husband did not share the same bed room with the wife and he at the relevant point of time used to stay at a separate room of the same house. But there is no evidence to establish before the Court that the husband was compelled to live in a separate room as a result of any willful negligence on the part of the wife, in the facts and circumstances of the case as disclosed in the evidence adduced by the parties of the suit. We find that the husband/petitioner himself withdrew from the society of his wife. There is nothing to suggest even remotely in the evidence of the petitioner/husband that he is willing to live with the respondent as husband and wife, but this is not possible due to resistance offered by the wife. On the other hand, in para 7 of her written statement, the wife has specifically alleged that the petitioner/husband all along cohabited with the wife till the husband willfully withdrew himself from the matrimonial relationship with effect from first week of January, 1995. The evidence on record lends total support of this positive stand taken by the wife, in the written statement. Moreover, the wife who admittedly resides in her matrimonial home with her in-laws like mother-in-law, brother-in-law, sisters-in-law and who claims that she maintains good relation with those relation has stated clearly in her examination-in-chief at page 136 (P.B) that she is still mentally prepared to live with her husband peacefully and happily.
5. “Desertion” for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of ones spouse by the other without the other’s consent and without reasonable cause. ‘Desertion’ is not the withdrawal from a place but from a state of thing. ‘Desertion’, therefore means withdrawing from the matrimonial obligations that is to say not permitting or allowing the cohabitation between the parties. Desertion is also not a single act, complete in itself, It is a continuous course of conduct. (Sabitri Pande v. Prem Chand Pande, . In the instant case, there is no clear evidence to show that wife has not permitted or allowed the cohabitation between the parties. On the other hand, if we consider that the wife still resides in her matrimonial house with the other relations of the husband, that she is completely dependent financially upon her husband and that she is willing to live with her husband peacefully. It cannot be said that the wife has deserted the husband only because of the fact that the husband stays in a different room of the same house or that he leaves the house to stay elsewhere. In this background, we are constrained to hold that the petitioner is not in a position to establish that he is entitled to a decree of divorce on the ground of desertion by the respondent/wife.
6. The next question is whether the petitioner/appellant is entitled to get a decree of divorce on the allegation of cruelty under Section 13(1)(ib) of the Hindu Marriage Act, 1956? In the plaint, the petitioner/appellant has made some specific allegations, of the cruel acts of his wife in paragraph 12. The first allegation is that the conduct of the respondent/wife is of such a character as causing danger to life etc. without giving any specific instance of such conduct. Second specific allegation is regarding desertion of which we have already discussed above. The third allegation is that the wife is a lady of nagging character and her continuous misbehaviour for several years since 1988 will clearly establish her intention to hurt the petitioner. We must note down here that the allegation to this effect is not very clear to us. In the same paragraph, it is also alleged that the wife used to utter slang and abusive languages to the petitioner and members of his family and used to go out everyday at noon to stay in her brother-in-law’s house at Bally after her sister’s death and used to return home late at night. Regarding the said allegation it must be pointed out that no other member of the family of the husband/appellant has been examined in order to establish the allegation that the wife/respondent used to utter slang and abusive language towards husband and his members of the family. In paragraph ‘D’, the petitioner/appellant has alleged about misbehaviour of the respondent/wife without giving any specific instance but alleging that the abusive language used by the wife was also not in the liking of the local people. It is to be noted that no local people has been examined to prove that the wife/respondent created disturbance by her abusive language and shouting in the locality. Para ‘E’ consists of allegations that the wife did not do any work for the family on the plea that she was not a maid servant or cook. Para ‘F’ consist of allegation that the wife filed a criminal case under Section 498A IPC. In para ‘G’ the allegation is that the respondent is guilty of deliberate refusal of sexual intercourse since over 4 years. Paragraph H, I, J, K, L and P are repetition of the allegation made in the earlier paragraph, already noted. Para ‘M’ relates to an allegation that she disclosed before the husband that she never loved the husband and she had her fiance. Para ‘N’ contains an allegation that the respondent/wife demanded that the business and other assets of the husband should be handed over to her brothers or they should be taken into business so that after demise of the petitioner no other family member can claim any farthing out of the estate of the petitioner. In para ‘O’ allegation of desertion has been made and which we have already discussed. Now let us see how far the appellant has proved the allegations thus made, through his evidence. In his examination-in-chief at page 91 (P.B.), the appellant has stated that the reason for his bringing the divorce suit is that his wife used to insult him in open road with a view to belittle his reputation and also used to misbehave with his old mother. She also used to threaten the husband to file a case under Section 498A of the IPC and also used to threaten to commit suicide and implicate them for her death. At the very outset, it should be noted that neither the old mother nor any member of the family of the appellant has been examined in connection with this suit in order to establish the allegation that the respondent/wife used to insult the old mother abusive language. No neighbour has been examined to establish that the wife used to utter abusive language and used to insult the husband in open road. On carefully going through the cross-examination of the respondent/wife, we find that no suggestion was given on behalf of the husband/appellant that she threatens the husband that she would commit suicide and in this way would implicate the husband and members of his family in a criminal case or that she used to go out of the house everyday at noon and also used to threaten the husband to file a case against him under Section 498A of the IPC. In his evidence, the petitioner/husband has not stated anything in support of his allegation that the wife at time denied the paternity of the petitioner so far her children are concerned or she was involved in adulterous relationship with any person. In fact, the allegations raised by the appellant/ husband as the instance of cruelty except the filing of an application under Section 498A of the IPC, have not been established through the evidence adduced from the side of the husband/petitioner. The filing of the proceeding under Section 498A of the IPC is an admitted position which wife in her cross-examination has admitted, stating that all the statements made in the application under Section 498A of IPC were correct and true. In her evidence we further find that in the cross-examination, the wife has admitted that after her marriage and up to the day when she was deposing, her husband assaulted her but she is not in a position to tell on how many occasions her husband launched assault on her. She has further stated in her examination-in-chief that she filed a case under Section 498A of IPC against her husband who used to assault her very often and that took place in December, 1991. We also find from the evidence of the wife that from 4.10.91 she started living at Bally with the family of her sister with her children. He husband later on took away the children on the basis of a search warrant. The wife started living with her husband after compromise was effected in connection with the proceeding under Section 498A, on and from 1.10.92. She has also stoutly denied a suggestion that her mother-in-law, brother-in-law and other relations of the husband were also implicated as accused in the proceeding under Section 498A of IPC. From all these, it is evidence that during her stay in the matrimonial home, the husband used to assault the wife and the matter reached its climax when the wife had to leave the house with her children and when she had to take shelter in the house of her sister. So it cannot be said that the proceeding under Section 498A IPC was started by the wife only for the purpose of harassing the husband and other members of his family.
7. The learned counsel for the appellant/petitioner has submitted that from the entire evidence on record adduced by the husband/petitioner it would be evident that the wife/respondent here treated the husband with mental cruelty. On this point, the learned counsel has referred the case of V. Bhagat v. D. Bhagat, , wherein
the Apex Court has dealt with the question what kind of mental cruelty, is required to be established under Section 13(1)(i). In para 17 of such case, the Hon’ble Court made the following relevant observation:
“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot be reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be has to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. 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. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
In that case, the wife in her written statement alleged that the petitioner was a mental patient, that he was not a normal person that he required psychological treatment to restore his mental state and all the members of his family were a bunch of lunatics. These allegations were not mere protestations of an injured wife; they were positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband. It further noted that the husband was an advocate practising in the Supreme Court as well as in the Delhi High Court and the divorce petition was being tried in the Delhi High Court itself. Making such allegation in the pleadings and putting such questions to the husband while he was in the witness-box was bound to cause him intense mental pain and anguish besides affecting his career and professional prospects. Therefore, in view of the peculiar features of the case, the Apex Court held that the marriage between the parties should be dissolved.
8. The facts and circumstances of the reported case will not be helpful for advancing the allegations of cruelty made by the husband against the wife in the instant case. There is no allegation that the wife unjustly raised certain allegations touching the question of sanity against her husband and members of his family. On the other hand, we have seen that at one point of time, the wife had to leave the matrimonial home with her children and to take shelter in her sister’s house before filing an application under Section 498A IPC against her husband. The allegations raised there cannot be said to be without any justification only because the parties entered into a compromise following which the wife started living in her matrimonial home. As regards to instances of cruelty disclosed in the petition we find that in most of the case, the petitioner has not led any evidence to establish the same. Some of them are vague like anything and the petitioner husband has failed to lead any evidence to show the instances of cruel acts of the wife which is of such a nature that it caused danger to the life of the husband. In case of some other instances of cruelty like uttering abusive language towards husband or causing insult to the petitioner, the material witnesses have not been examined and such allegations are nothing but a case of oath versus oath wherein the husband has alleged those allegations in his evidence and the wife has refused or denied those allegations. In the case of S. Hanumantha Rao v. S. Ramani, reported in (1993)3 SCC 620, in dealing with the question what is mental cruelty for the purpose of dissolving marriage, the Apex Court in para 8 made the following observations:
“Before we deal with the submission it is necessary to find out what is mental cruelty as envisaged under Section 13(1)(ia) of the Act. Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party.”
9. It is well settled that the cruelty contemplated by Section 13(1)(ia) of the Act covers both physical and mental and in the case of mental cruelty, as seen from above it is the conduct of the party which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably by expected to live together.
10. Now, considering the evidence on record, we are constrained to hold that the petitioner/husband has failed to established both the allegations of desertion and cruelty. In this background, we further hold that the learned trial Judge has rightly dismissed the matrimonial suit and the present appeal must fail. The appeal is dismissed. The judgment and decree passed by the Court below are hereby affirmed.
D.K. Seth, J.
11. I agree.