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Shri Sahadeb Das vs Smti. Mini Das on 16 December, 2019

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HIGH COURT OF TRIPURA
AGARTALA
Mat App No.10 of 2015
Shri Sahadeb Das, S/o. Lt. Banamali Das, a resident of
Goachand, P.O. Harina, P.S. Manu Bazar, Sabroom, South
Tripura.

……..Appellant(s)
Versus
Smti. Mini Das, W/o. Shri Sahadeb Das, D/o. Lt. Manindra
Chandra Das, a resident of Vill- Purba Pratapgarh, P.S. West
Agartala, District- West Tripura.
……..Respondent(s)

_B_E_ F_O_R_E_
HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON’BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. S.M. Chakraborty, Sr. Advocate,
Ms. B. Chakraborty, Advocate,
Ms. P. Sen, Advocate.

For Respondent(s) : Mr. D.R. Choudhury, Advocate,
Mr. S. Sarkar, Advocate.

Date of hearing
judgment : 16th December, 2019.

Whether fit for reporting : Yes No

JUDGMENT ORDER (ORAL)

(Akil Kureshi, CJ)

This appeal is filed by the husband challenging the

judgment and decree dated 6th May, 2015 passed by the learned

Judge, Family Court, Agartala, West Tripura in Title Suit

(Divorce) No.377 of 2011.

[2] Brief facts are as under :

The appellant-husband and respondent-wife were

married according to Hindu rights on 26th February, 1993 at
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Agartala. Out of the wedlock the couple had a girl child who was

born on 14th November, 1995. Over the period it appears that the

relations between the husband and wife became more and more

strained. According to the husband, he and his wife eventually

separated in the year 2008 which continued right up to the filing

of a divorce petition by the husband in November, 2011. The

divorce petition was founded on the allegations of cruelty and

desertion at the hands of the wife. In such petition, the husband

had alleged that after the birth of the girl child the respondent

had become aggressive. The wife could not visit the husband

wherever he was posted. From 2000 onwards the husband was

not allowed to meet his daughter. For some time attempts were

made for reconciliation. However, these attempts did not last

long. The husband alleged cruelty at the hands of the wife.

[3] The wife filed written statement and denied these

allegations. She alleged that the husband was arrogant. He was

not happy about a female child being born out of the marriage.

After the birth of the child the husband’s attitude towards her

had changed. She also alleged that the husband’s parents had

treated her with cruelty. She also asserted that it was the

husband who refused to stay with her wife though the wife was

always ready and willing to stay with him.

[4] The family Court had framed issues whether the

petitioner was subjected with cruelty by the respondent or that

he was deserted by her and whether the petitioner was entitled

to a decree of divorce.

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[5] The family Court recorded the deposition of the

husband as P.W.1 in which he had stated that during one such

altercation picked up by the wife, he had himself got annoyed

and had slapped the wife. He stated that after his transfer to

Agartala he and his wife had started living together in a quarter

but she did not reside there regularly. In the year 2010 his

parents went to the wife to persuade her to reunite which she

refused. The husband was cross-examined and his allegations

were challenged.

[6] The husband had examined two more persons namely

one Shri Jiban Kumar Bhowmik P.W.2, who was the driver of the

husband for about 6 years, employed by the government and

Shri Haradhan Chandra Das P.W.3, the brother of the petitioner.

However, neither of these two witnesses have given any details

personally known to them in support of the husband’s allegations

of cruelty or desertion by the wife. We may therefore not refer to

contents of their depositions at any length.

[7] The respondent had examined herself as D.W.1 in

which she had denied the allegations of the husband of cruelty at

her hands. In fact she alleged that the husband was not happy

about the birth of a girl child and was demanding divorce from

her. She was cross-examined by the husband.

[8] The wife had also examined one Smt. Mandira Das

D.W.2, her sister. She had a house adjacent to the house of the

wife’s father. She had deposed about the husband not being
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happy with the birth of a female child. The respondent had also

examined few more witnesses for the same purpose.

[9] On the basis of such evidence on record the learned

Judge of the family Court came the conclusion that the husband

had failed to prove the allegations of cruelty or desertion and

therefore decree of dissolution of marriage cannot be granted.

This judgment the husband has challenged in the present appeal.

[10] Mr. S.M. Chakraborty, learned senior counsel

appearing for the appellant-husband submitted that the husband

had proved the ground of cruelty as well as desertion by leading

cogent evidence. Very fact that the wife had made serious

allegations against the parents of the husband in the written

statement would also establish the ground of cruelty. He

submitted that the couple has been residing separately since

2008. They have an aged daughter. Both are self sufficient. In

any case this is a case of hopelessly broken down marriage. The

same should be dissolved.

[11] In support of his contentions he relied on the following

decisions :

(i) In case of Shobha Rani versus Madhukar Reddi,

reported in AIR 1988 SC 121, in which the fact that the

parents of the husband had demanded dowry from the wife,

was held sufficient to establish the ground of cruelty.

(ii) In case of V. Bhagat versus Mrs. D. Bhagat,

reported in AIR 1994 SC 710, in which an unsubstantiated
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allegation made by the wife in the written statement in

response to the petition for divorce filed by the husband,

was taken as a ground of cruelty.

(iii) In case of Vidhya Viswanathan versus Kartik

Balakrishnan, reported in 2014 15 SCC 21, in which it

was held that the denial of sexual pleasure by the wife for

long time without sufficient reasons would amount to

mental cruelty.

[12] On the other hand Mr. D. R. Choudhury, learned counsel

for the respondent-wife opposed the appeal contending that the

husband had not led any evidence in support of his allegations of

cruelty or desertion. His statements in the deposition were not

corroborated by any independent evidence. The wife’s deposition

was corroborated by other witnesses.

[13] In support of his contentions he relied on the following

decisions :

(i) In case of Suman Singh versus Sanjay Singh,

reported in AIR 2017 SC 1316, in which it was observed

that few isolated incidents of long past which were

condoned due to the behaviour of the parties, would not

amount to cruelty.

(ii) In case of K. Rama Kumari versus K. Anil Kumar

Banerji (died) and another, reported in AIR 2017

Hyderabad 67, in which the Division Bench of the High
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Court had discussed the law on desertion by a party to a

matrimonial proceeding.

[14] We may recall, the husband’s petition for dissolution of

marriage was based on the allegations of cruelty and desertion

by the wife. Before assessing the evidence on record to ascertain

whether he had succeeded in establishing these grounds, we may

record that presently husband is aged about 60 years and wife is

about 55 years of age. They both have a grown up daughter. The

husband is an All India Service officer of Tripura cadre. The wife

is serving in Tripura Civil Services. Both of them are thus

educated and well placed in their respective careers.

Unfortunately they have not been able to live together for over a

decade by now. The root of their disharmony go even further

back.

[15] Having said that, we may refer to the evidence on

record. The sole witness of any significance examined by the

husband was himself. In his deposition he had broadly narrated

the incidents which according to him would demonstrate cruelty

at the hands of the wife. He had also alleged unwillingness on the

part of the wife to reside with him i.e. the desertion perpetrated

by the wife. Significantly in his own deposition he had stated that

during one such altercation picked up by the wife, he got so

annoyed that he slapped her.

[16] This deposition by the husband remains largely

uncorroborated. There is no other support from any witness to
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these incidences of quarrels which were allegedly picked up by

the wife. Surely the husband could have examined some witness

who may be present during any of these quarrels. Neither his

daughter nor his parents nor any other relative has been cited as

a witness in corroboration of his allegations against the wife.

Strangely the husband has also not produced any documents in

relation to any of these incidences. When according to the

husband there were several instances of friction leading to

physical altercation and when the two are either by choice or by

necessity of transferable jobs were residing separately, it is

difficult to appreciate that there were no letters or other written

documents exchanged between the husband and wife. The

husband has not produced a single letter or notice exchanged

between him and his wife referring to any of these unfortunate

incidences.

[17] On the other hand the wife has entered the witness

box, denied the allegations of cruelty and desertion made against

her. She has also produced supporting evidence of other

witnesses.

[18] Learned senior counsel for the appellant may be

correct in contending that what should be the tolerable threshold

of cruelty must depend on facts of each case and on the

background from which the parties to the litigation may be

coming. Nevertheless bare necessary evidence to establish

cruelty or desertion must be present. When the trial Court

refused to accept the deposition of the husband as the sole basis
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of proof of the allegations and to which we are also in agreement,

we do not think that the husband has made out any case in the

present appeal.

[19] Learned senior counsel for the appellant has also

fleetingly argued that this is a case of a marriage which has

hopelessly broken down. For whatever reason, he submitted that,

it is simply impossible for the appellant and the respondent to

reside together. He therefore submitted that the marriage should

be annulled.

[20] We are conscious that the Supreme Court in exercise of

powers under SectionArticle 142 of the Constitution of India has been

granting such divorces when it is found that the marriage in a

given case has hopelessly broken down without any hope of

reunion between the couple. However, in the SectionHindu Marriage Act

such ground is not yet statutorily recognized. As an appellate

Court we must go by the permissible grounds for desertion of a

marriage contained in the Hindu Marriage Act and cannot travel

beyond it.

[21] In the result, the appeal is dismissed. Pending

application(s), if any, also stands disposed of.

(ARINDAM LODH), J (AKIL KURESHI), CJ

Dipesh

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