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Sri Bikash Borah vs Smti Swapnali Saikia on 4 October, 2019

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GAHC010184542018

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Mat.App. 62/2018

1:SRI BIKASH BORAH
S/O SRI DULAL CHANDRA BORAH, RESIDENT OF B-39, MINAL
RESIDENCY, J K ROAD, PS GOVINDPARA, DIST BHOPAL, MADHYA
PRADESH

VERSUS

1:SMTI SWAPNALI SAIKIA
D/O DR. JOGEN CH. SAIKIA
RESIDENT OF HOUSE NO 3, RUPALI PATH, BYE LANE NO 2, JUNALI R G B
ROAD, PS GEETANAGAR, GUWAHATI 24, DIST KAMRUP ASSAM

Advocate for the Petitioner : MRS. K DEKA

Advocate for the Respondent : MS. M BORAH

BEFORE
HONOURABLE THE CHIEF JUSTICE (ACTING)
HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT ORDER
(CAV)
Date : 04-10-2019
(Manish Choudhury, J)

Heard Ms. K. Deka, learned counsel for the appellant. Also heard Ms. M. Borah,
learned counsel, appearing for the respondent.

2. This appeal, under Section 19 of the Family Courts Act, 1984, is presented against the
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judgment and order dated 30.06.2018 passed by the Court of learned Principal Judge, Family
Court – I, Kamrup, Guwahati in F.C.(Civil) Case No. 390/2014. By the said judgment and
order, the learned Family Court while allowing the petition of the respondent seeking
dissolution of her marriage with the appellant by a decree of divorce on the allegation of
cruelty, has dismissed the counter-claim filed by the appellant seeking the same relief of
dissolution of his marriage with the respondent on the ground of cruelty. In the present
appeal, the appellant has sought for setting aside of the impugned judgment and order of
the learned Family Court in so far as allowing the petition of the respondent seeking of
dissolution of the marriage is concerned, and has further sought for allowing the counter-
claim preferred by the appellant before the learned Family Court by reversal of the order of
dismissal.

3. Before proceeding further as regards the rival contentions of the parties, it is
necessary to state the respective versions, in brief, projected by the contesting parties
seeking, finally, the same relief of dissolution of their marriage.

4. It is admitted by the parties that their marriage was solemnized on 11.03.2011 under
the Special Marriage Act, 1954 before the Marriage Officer, Kamrup (M) at Guwahati. The
petition was filed before the learned Family Court on 09.05.2014 by the respondent-wife
initially under the Hindu Marriage Act, 1955. The petition was, later on, amended and the
same was preferred for dissolution of marriage under Section 27(1)(b) Section 27(1)(d) of
the Special Marriage Act, 1954. The appellant had also prayed for dissolution of his marriage,
by filing a counter-claim along with the written statement, by a decree of divorce under
Section 27(1)(b) Section 27(1)(d) of the Special Marriage Act, 1954.

5. The respondent stated that after solemnization of the marriage on 14.03.2011, she
along with the appellant and his parents went to her matrimonial home at Bhopal where the
couple stayed till 28.03.2011. On 29.03.2011, the couple went to Delhi, the workplace of the
appellant, to start their conjugal life. In Delhi, the appellant instead of taking the respondent
to his rented house, stayed along with her in a hotel nearby the railway station. During that
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period, the appellant citing financial hardship and his willingness to set up his own business,
pressurized the respondent with his demand for money and also seduced her to have sexual
intercourse. The respondent was sent back to Guwahati to join her contractual job under a
Government project where she joined before marriage, with the assurance to bring her back
after her resignation in June, 2011. But the appellant, contrary to his assurance, did not
come to Guwahati till August, 2011 on the pretext of official work, tour, etc. Thereafter, the
appellant visited Guwahati as well as the respondent’s parental house at Moranhat and
during that period too, the appellant pressurized the respondent to ask money from her
parents. After their return to Guwahati from Moranhat, the appellant tortured her physically
as well as sexually and did not take her along with him to Delhi. It was only in December,
2011, the couple went to Delhi and started to live in the rented house of the appellant which,
according to the respondent, was improperly located and unhygienic. The respondent alleged
to have brought the household items from Guwahati to Delhi at her own cost by carrier. But
the appellant resumed his demand of money for which he harassed her on her refusal. The
appellant even during her illness did not take due care for which the parents of the
respondent had to visit Delhi to stay with her till her recovery. As the respondent got selected
for a contractual job under the National Vector Borne Disease Control Programme, she came
back to Guwahati in February, 2012 to join in the new job. In June, 2012, the appellant came
to Guwahati to stay with the respondent for a month and during that period, the appellant
who cohabited with her as a usual husband. The respondent had alleged that the appellant
and his family prior to the marriage, deceitfully introduced the appellant as a software
engineer, well settled in Delhi and believing so and assured of a happy married life, the
respondent entered into the marital relationship. Though the appellant’s family treated her
well for a few days, they started mentally harassing her demanding dowry. Alleging that the
appellant had no empathy towards their marital relationship and intentionally stayed away
from her since September, 2012 by stopping communication with her and by not visiting her.
The respondent had alleged to be passing her days in extreme agony for a period of two
years at the time of institution of the petition seeking dissolution of her marriage, though the
appellant instituted a petition, in the meantime, seeking restitution of conjugal rights only in
order to escape from arrest in a case, G.R. Case No. 6786/2013, which the respondent
lodged under Sections 376/406/419/496/498A, Indian Penal Code (I.P.C.).

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6. While admitting factum of marriage, the appellant by denying the contentions of the
respondent-wife in his written statement, had also lodged a counter-claim with it. The case
projected by the appellant in the counter-claim, in brief, is that his family is settled in the
district of Bhopal, Madhya Pradesh, though they originally hail from Assam. He has been
working as a Software Engineer in a company at Noida, U.P. since the year 2010. He further
stated that the respondent is a Master Degree holder in Biotechnology and was working as a
District Project Officer under National Vector Borne Diseases Control Programme at
Guwahati. After the marriage, he along with the respondent and his parents came to Bhopal
from Guwahati on 14.03.2011 for the marriage reception ceremony scheduled at Bhopal on
27.03.2011. The conjugal life between them was started at Bhopal on 16.03.2011. But on
17.03.2011, he had to leave for Delhi for official duty and returned back to Bhopal on
23.03.2011. After the reception held on 27.03.2011, both of them reached Delhi on
29.03.2011. As the respondent-wife was supposed to leave for Guwahati on 31.03.2011 after
staying at Delhi only for two nights, in order to continue her job after marriage till June,
2011, the appellant arranged for her stay in a hotel for her convenience in order to catch the
flight, instead of taking her to his rented accommodation in Faridabad. Thereafter, though
both of them joined their respective jobs, they were in touch with each other over phone,
mail, etc. On 14.08.2011, the appellant after taking leave from his company job, reached
Guwahati and stayed with the respondent in her flat at Guwahati. Thereafter, on 16.08.2011,
both of them went to the respondent’s paternal home at Moran but on 21.08.2011, he had to
go back to Delhi on receiving call from the company and thereafter, had to go to Cochin for
Software Installation job. The appellant admitted that during that time, there was good
cordial relation between them. That his job required visits to various sites as per the
directions of the company, was explained to the respondent-wife prior to the marriage. The
respondent also, at no point of time, had stated that she would resign from her job and join
him in Delhi. Denying the allegation of demand of dowry and torture of the respondent on
her refusal as false, it was stated that the respondent landed in Delhi on 15.12.2011 to
restart their conjugal life. From 02.01.2012, the respondent started having back pain, fever
and stomach pain for which the appellant took all care including medical examination which
showed that she suffered from Jaundice. As the respondent’s father is a Doctor, she used to
take only those medicines, which were prescribed by her father. On 09.01.2012, the
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respondent’s parents arrived in Delhi. As she got an interview call, the respondent came back
to Guwahati on 14.01.2012 for the interview, without taking any kind of permission from the
appellant as he was never in support of the respondent joining another job at Guwahati while
she was adamant to join such a job. Though she joined in her new job in October, 2012, the
respondent stayed in Guwahati alone during that intervening period, despite numerous
requests from him to join him in Delhi. The appellant came to Guwahati in June, 2012 and
stayed till 25.06.2012 during which period, the respondent asked him to settle in Assam.
Following her request, he had even applied for new jobs at two places in Assam. As interview
was due in September, 2012, the appellant went back to Delhi to join his job and on
01.09.2012, he came back to Guwahati to appear in the written test and the interview for the
jobs which he did not ultimately get. Referring to the calls, as alleged by the respondent, he
stated that those were calls from his company clients only. As about the condition of the
rented house at Faridabad which the respondent termed as unhygienic, he stated that he
took the same as per his financial capacity. The household items alleged to be brought by the
respondent, were already taken by her in February, 2012, he averred. Since the beginning of
the marriage life, the respondent did whatever she liked and on several occasions, she
abused the appellant in filthy language despite no fault on his part. The appellant stated to
have tolerated such tortures inflicted upon him by the respondent as he never thought of
dissolving the marriage. In December, 2012, the respondent suddenly called him and without
citing any reason, abruptly asked him for mutual divorce but the appellant did not respond to
the said proposal. After joining in her new job in October, 2012, the respondent started
behaving in a completely different manner and stopped picking up his phone calls. Faced
with such situation, the appellant stated to have come to Guwahati along with his parents in
April, 2013 in order to meet the respondent for resolving the differences between them, if
any, amicably but the respondent not only refused to meet them but also did not receive his
phone calls. Thus, without meeting the respondent, all of them had to leave Guwahati. It
was since September, 2012, the respondent-wife had kept herself away from the appellant
and she had neither contacted him nor visited her matrimonial home since then, which had
caused immense mental and physical trauma to the appellant. Thereafter, the appellant, to
his surprise, learnt in August, 2013 that the respondent had filed a complaint being
Complaint Case No. 6786/2013, making concocted allegations, against him and his old and
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innocent parents alleging criminal breach of trust, cheating by personation, commission of
rape and subjecting her to cruelty, which got registered as a police case under Sections
376/406/419/496/498A, I.P.C. The appellant and his parents had to approach the High Court
and they were granted pre-arrest bail by the High Court. Forgetting all these misdeeds of the
respondent, the appellant stated to have sent an e-mail on 13.08.2013 urging her to solve all
her stated problems in an amicable manner but the same was not responded to. Though he
filed a petition for restitution of the conjugal rights, he having realized that the lives of his old
and ailing parents apart from his own, would be in danger at the hands of the appellant as
she had resorted to false case, he had withdrawn the said petition on 21.06.2014 and
preferred the counter-claim seeking dissolution of his marriage by a decree of divorce on the
ground of the respondent’s wilful desertion and inhumane torture inflicted on him.

7. Ms. Deka assailing the findings of the learned Family Court, has submitted that no
case of cruelty, either mental or physical, and desertion can be made out from the evidence
led by the respondent-wife and in such view of the matter, the learned Family Court could not
have rendered such a finding. Rather, it is the appellant who has led sufficient evidence in
support of his contentions regarding cruelty and desertion and, as such, the counter-claim
filed by the appellant ought to have been allowed. The respondent had instituted a case
under Sections 376/406/419/496/498A, I.P.C. not only against the appellant but also his
parents falsely who did not interfere in their matrimonial relationship at any point in any
manner whatsoever. In support of her submission, she has placed reliance in the decision in
Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273.

8. Per contra, Ms. Bora supporting the decision of learned Family Court, has submitted
that the learned Court had rightly allowed the petition of the respondent on the ground of
cruelty and dismissed the counter-claim of the appellant. As the learned Family Court has
rendered the judgment after rightly appreciating the rival contentions, there is no reason to
disturb the said findings in appeal. She has further placed reliance in the decision of
Vijaykumar Ramchandra Bhate vs. Neela Vijakumar Bhate , reported in (2003) 6 SCC 334.

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9. We have considered the submissions of the learned counsel for the parties and also
considered the materials available in the records of F.C.(Civil) No. 390/2014, in original, as
the learned counsel for the parties have referred to the respective evidence led by the
contesting parties.

10. Upon the rival pleadings of the parties, the learned Family Court had framed three
issues each in respect of the petition of the respondent-wife as well as in respect of the
counter-claim of the appellant-husband. One of the issues in respect of the petition of the
respondent-wife was that as to whether the appellant had treated the respondent with
cruelty. In respect of the counter-claim, the learned Family Court had framed issues, firstly,
whether the respondent had treated the appellant with cruelty ? and, secondly, whether the
respondent had deserted the appellant ?

11. In support of her petition, the respondent examined herself as P.W.1. Though the
father of the respondent submitted his evidence on affidavit as P.W.2, the said evidence
stood expunged by the learned Family Court as he did not appear for cross-examination. On
the other hand, the appellant examined himself as D.W.1 and also adduced the evidence of
one Smti. Nilima Borah as D.W.2, who were cross-examined by the respondent.

12. Both the parties had admitted that their marriage was solemnized on 11.03.2011
under the Special Marriage Act, 1954 before the Marriage Officer, Kamrup (M), Guwahati. It
has further emerged from the evidence of the parties that since September, 2012, they have
been living separately from each other at different places. What has further emerged is that
during the period between 11.03.2011 and September, 2012, the spouses had lived together
a few times, on each occasion for a short period of time, which periods were interspersed.
After the marriage on 11.03.2011, at Guwahati, both of them along with the appellant’s
parents went to Bhopal on 14.03.2011 as the appellant’s family resides in Bhopal, Madhya
Pradesh. As per the version of the appellant, the conjugal life between them was started on
16.03.2011. But on 17.03.2011, he had to leave Bhopal for Delhi wherefrom he came back to
Bhopal on 23.03.2011. There was a marriage reception ceremony in Bhopal on 27.03.2011.

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After the said reception ceremony, the couple left for Delhi and reached there on 29.03.2011.
There is no allegation of the respondent to the effect that during the said period of her brief
stay in Bhopal, anybody from the appellant’s family had treated her badly. In Delhi, the
couple stayed for two nights in a hotel, instead of staying at the rented accommodation of
the appellant located in Faridabad. An allegation was made by the respondent that instead of
taking her to his rented accommodation, the appellant had accommodated her in a hotel.
She had stated that she came back to Guwahati from Delhi by flight on 31.03.2011. It was
not explained by the respondent as to why such stay in the hotel had any correlation with
the allegation of cruelty. The version of the appellant was that as the respondent was
supposed to come back to Guwahati by catching a morning flight from Delhi on 31.03.2011,
he preferred to stay together in a hotel for those two nights for the convenience of the
respondent, instead of taking her to Faridabad which is far off from the Airport. When cross-
examined, the respondent stated that she was not aware that the appellant had taken her to
the hotel for her convenience. Thereafter, there was nothing on record to show that the
spouses stayed together at one place until August, 2011.

13. The appellant stated to have reached Guwahati on 14.08.2011 after getting leave from
his company and stayed with the respondent in her flat at Guwahati till 16.08.2011, on which
day they both went to the respondent’s paternal home at Moran. But on 21.08.2011, the
appellant had to go back to Delhi and thereafter, went to Cochin for attending his official duty
and it was stated by him that during that time, they had good cordial relationship. The
respondent had also stated that the appellant acted like a responsible husband during that
period and admitted that after one week, he went to Delhi for his official works with the
assurance that he would come back to Guwahati to take her to Delhi in December, 2011. It
has also emerged from the version of the respondent that she after coming back from Delhi
in January, 2011, joined her contractual post at Guwahati. From February, 2011 to August,
2011, the parties had not stayed together at one place. It was the testimony of the
respondent that during that time, the mother of the appellant used to tell her to shift to
Delhi. The version of the appellant was that the respondent was supposed to continue in her
job till June, 2011 to complete her one year job tenure and thereafter, to join him at Delhi.

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From the aforesaid testimonies of the parties, it can be noticed that after 31.03.2011, they
again stayed together from 14.08.2011 to 21.08.2011 and during that period they had no
allegation against each other.

14. It was in December, 2011, the appellant came to Guwahati and after staying in
Guwahati for one week, they both left for Delhi. It was the case of the respondent that she
took few household belongings like T.V., storewell, etc. which the appellant had not denied,
along with her in December, 2011 with a view to start a new life, as per the respondent, at
Delhi and stayed at the rented house at Faridabad. The respondent stated to have fallen sick

in the 1st week of January, 2012. While the respondent had alleged that the appellant did not
take due care of her by not taking her to a Doctor, the appellant had asserted that he had
taken all necessary care of the respondent and had also taken her to a Doctor who after due
medical examination, confirmed that she had suffered from Jaundice and prescribed
medicines for her. But the respondent, whose father is a Doctor, had taken medicines which
were prescribed by her father. The respondent had stated that it was at the request of her
father, the appellant had admitted her in a hospital and had done her medical checkup. It
was during that period, the parents of the respondent visited her in Delhi. As she got an
interview call from a Government Organisation in the meantime, she after recovery had come
back to Guwahati to attend the interview with due permission of the appellant. The appellant
on the other hand, had stated that the respondent left Delhi for Guwahati in February, 2012
and he also accompanied her to Assam. While the respondent stated that he was not in
favour of her joining in a new job, the respondent had stated that the appellant did not make
any intervention, rather, he showed eagerness asking her to join the job. While the
respondent had stated that the appellant also expressed his willingness to settle himself in
Assam, the appellant, on the contrary, stated that it was on the persuasion of the respondent
he tried to get a job in Guwahati for which he appeared in some interviews also. The
respondent had stated that the appellant came to Guwahati in June, 2012 in order to stay
with her for a month. It was alleged that he used to get missed calls from unknown numbers
and he hesitated to receive those calls and tried to conceal things and she found his such
behaviour unsound. On the other hand, the appellant had sought to explain that those calls
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were calls from his company and customers and he did not want to receive those calls in
order to avoid causing disturbance to her. He further stated that being in a company job, he
had to keep the mobile phone switched on at all the times. The respondent had admitted
that the appellant had made efforts to secure a job in Assam and having failed to secure a
job in Assam, he left for Delhi to continue his job. Subsequent to that, none of the parties
had stated they had stayed together at one place and both of them had admitted that they
have been living separately since September, 2012. On a combined reading of the
testimonies of the appellant and the respondent together, it clearly transpires that they lived
together at one place on three occasions, that too, for a short period on each occasion. It is
on the aforesaid premises, the allegations and counter-allegations of the respective parties
are to be considered.

15. From the materials on record, it does not emerge that except for the period
immediately after the marriage i.e. from 14.03.2011 to 29.03.2011, the respondent-wife had
stayed with the parents of the appellant in Bhopal and it does not emerge from her
testimony that anything untoward had happened during that brief period of stay. She had,
however, alleged vaguely in her petition that there was some demand of dowry from her
mother-in-law but there was no specific allegation. There was absolutely no whisper as
regards any allegation of demand of dowry from the father of the appellant. Though an
allegation was made that there was deception on the part of the parents of the appellant
who projected the appellant as a well settled Software Engineer, the respondent did not lead
any evidence to substantiate the said allegation. She alleged that on enquiry, she found the
appellant as fake and he married her by giving false identity and fraudulent information and
his intention was to extract money from her as dowry. Such allegation which she had made
when she filed her evidence on affidavit initially on 22.06.2015, had been changed by herself,
later on, materially by submitting additional evidence on affidavit on 11.01.2016 where she
had stated that the appellant is a Software Engineer at R.M.S. Software Pvt. Ltd, Noida, Uttar
Pradesh since 2010 and he used to earn not less than Rs. 1,50,000/- per month as salary.
The respondent in her petition, also demanded an amount of Rs. 50,00,000/- as permanent
alimony from the appellant. The stand of the respondent on that count is found to be
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vacillating. While admitting that he has been working as a Software Engineer at R.M.S.
Software Pvt. Ltd., the appellant had stated that his monthly salary was not Rs. 1,50,000/-
but Rs. 35,000/- for which he exhibited his pay slips (Ext.-C, Ext.-D and Ext.-E) as well as a
bank statement (Ext.-F).

16. It is noticed that the respondent had instituted a case, initially as a complaint case,
before the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati which, later on,
was forwarded to the Geetanagar Police Station for enquiry and report. As the complaint was
made by the respondent against the appellant and his parents, who stayed in Bhopal,
Madhya Pradesh for commission of offences under Sections 376/406/419/496/498A, I.P.C., a
case was registered by police being Geetanagar Police Station Case No. 146/2013 under
those Sections of law. The appellant and his parents were granted pre-arrest bail in
connection with Geetanagar Police Station Case No. 146/2013 and the police after
investigation, had submitted charge sheet only against the appellant under Section 498A,
I.P.C. which is indicative of the facts that no prima facie case was found by the police to lay a
charge sheet against the parents of the appellant for any of the offences mentioned above,
and against the appellant under Sections 376/406/419/496, I.P.C. As has been admitted by
both the parties, they have been living separately from each other since September, 2012 at
two different places but the respondent had chosen to institute a case under Sections
376/406/419/496/498A, I.P.C. in the year 2013. Neither party had exhibited the F.I.R. or the
charge sheet filed in connection with Geetanagar Police Station Case No. 146/2013 (G.R.
Case No. 6786/2013) and, as such, there is no occasion for us to know any details about the
same. There is also no explanation on the part of the respondent as to why she had leveled
such allegations, that too, after a period of delay. There is no testimony of the respondent to
the effect that there was any forceful sexual act on the part of the appellant against her
during the periods they were together. It is submitted by Ms. Deka, by referring to the
additional affidavit filed on behalf of the appellant, that the G.R. Case No. 6786/2013 had
ended in acquittal of the appellant by virtue of a judgment and order dated 03.12.2018
passed by the Court of learned Judicial Magistrate, First Class, Kamrup (M), Guwahati.

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17. The term ‘cruelty’ is not defined in the Special Marriage Act, 1955. Cruelty can either
be physical cruelty or mental cruelty. As there is no allegation of physical cruelty in the case
in hand, no dilation is required in that respect. Mental cruelty is the conduct and treatment of
one spouse against the other which causes mental suffering, trauma or fear to the
matrimonial life and such conduct and treatment has to be of such magnitude as to cause a
reasonable apprehension in the mind of the other spouse that it would be harmful and
injurious for the petitioner to live any longer with the other party. It has to be borne in mind
that cruelty is distinguishable from the ordinary wear and tear of family life. It is a matter to
be considered and determined in each case having regard to the facts and circumstances of
that particular case.

18. In Vijaykumar Ramchandra Bhate (supra), the question that has arisen is as to
whether the averments, accusations and character assassination of the wife by the appellant-
husband in the written statement constitute mental cruelty for sustaining the claim for
divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955, a provision pari materia to
the provision of Section 27(1)(d) of the Special Marriage Act, 1954. It is held to be well
settled that leveling disgusting accusations of unchastity and indecent familiarity with a
person outside wedlock and allegations of extra-marital relationship is a grave assault on the
character, honour, reputation, status as well as the health of the wife. Such aspersions
attributed to the wife viewed in the context of an educated Indian wife and judged by Indian
conditions and standards would amount to worst form of insult and cruelty, sufficient by itself
to substantiate cruelty in law, warranting the claim of the wife being allowed. In the case in
hand, the appellant in the written statement had stated that the respondent used to share
issues relating to her married life with friends, specially males. It was stated that the
respondent had the habit of roaming around with her boyfriends prior to her marriage and
she did not abandon the said habit after the marriage and concocted the story about
infliction of cruelty by him in order to get a decree of divorce. During the cross-examination,
he stated that the respondent wanted to go out with boys. From a perusal of it, it does not
appear that the appellant had made any character assassination of the wife by scurrilous
accusations of unchastity or extra marital relationship assaulting the character, honour,
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reputation, etc. of the wife so as to entitle the wife to claim dissolution of marriage on the
ground of cruelty in law. The ratio exposited in the decision in Vijaykumar Ramchandra Bhate
(supra) is found to be inapplicable to the fact situation obtaining in the present case.

19. From the case presented by the respondent, as has been discussed above, it does not
inspire any confidence that the case falls in the category wherefrom a conclusion can be
arrived at that because of the conduct and treatment of the appellant the respondent had
undergone such mental suffering, trauma or fear in her matrimonial life which has the effect
to cause an apprehension, much less reasonable apprehension, in her mind that it would be
harmful and injurious for her to continue the matrimonial relationship any longer with the
appellant. The allegations made by the respondent in relation to the incidents enumerated in
the case on hand, without corroboration of any kind, cannot be termed as cruelty so as to
entitle her to the dissolution of the marriage by a decree of divorce under Section 27 of the
Special Marriage Act, 1954. Having regard to the materials on record, we are of the
considered opinion that the learned Family Court was not justified in its approach to come to
a conclusion that the respondent was compelled to file the case against the appellant and his
family members finding no alternative when the demands of the appellant crossed all limits
and she was subjected to continuous physical and mental torture. In such view of the matter,
the present appeal in so far as against the petition filed by the respondent-wife is concerned,
succeeds and resultantly, the decision of the learned Family Court of granting the decree of
divorce, in our considered opinion, in favour of the respondent-wife, deserves to be reversed.
Accordingly, the appeal against that part of the judgment and order dated 30.06.2018 is
allowed by setting aside and quashing the dissolution of the marriage by a decree of divorce.

20. One of the pleas that was raised for grant of divorce by the appellant in the counter-
claim was under Section 27(1)(b) of the Special Marriage Act. It provides for grant of divorce
on the ground of desertion for a continuous period of not less than 2 (two) years
immediately preceding the presentation of the petition. As per prescription of Section 27(1)

(b) of the Special Marriage Act, a wife or a husband can seek dissolution of marriage by
decree of divorce if the other party has deserted the spouse seeking the divorce for a
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continuous period of not less than 2 (two) years immediately preceding the presentation of
the petition. Desertion, in the context of a case seeking dissolution of marriage, has been
interpreted, in essence, as intentional permanent forsaking and abandonment of one spouse
by the other without that other’s consent and reasonable cause. Desertion does not mean
simple withdrawal by one spouse from the company of the other spouse.

21. The learned Family Court had observed that the appellant stated that since the month
of September, 2012, the respondent kept herself away from the appellant and stopped
receiving his phone calls. It further arrived at a finding that the appellant since June, 2012
behaved indifferently towards the respondent by harassing her with demand of dowry and
becoming violent at the non-fulfillment of his demands, about which a discussion has already
been made above, and having observed so, the learned Family Court had further held that
the allegation of desertion brought by the appellant in the counter-claim was not proved.

22. Notwithstanding the above finding of the learned Family Court as regards desertion,
the records of F.C.(Civil) Case No. 390/2014 shows that the petition was filed by the
respondent-wife seeking dissolution of marriage by decree of divorce on 09.05.2014.
Responding to the same, the appellant had filed his written statement along with the
counter-claim on 21.06.2014. It is an admitted version of both the appellant and the
respondent that they have been living separately since September, 2012. Thus, at the time of
presentation of the counter-claim by the appellant-husband, the condition of 2 (two) years
continuous period was not satisfied and as such, the ground of desertion, taken by the
appellant, has to be held as untenable in the present case.

23. The appellant in his evidence as D.W.1 had reiterated the same facts as in the written
statement and counter-claim. He further alleged that the respondent had the habit of
roaming around with her boyfriends prior to her marriage and she did not abandon her said
habit even after her marriage and she had, in order to get the decree of divorce with
alimony, made allegations against him which were concocted and also instituted the criminal
case. In order to substantiate his said allegation, he exhibited few photographs as exhibits
Page No.# 15/18

under objection from the respondent. He asserted that he used to give money to the
respondent occasionally and also used to pay her mobile bills, cable connection bills, etc. By
exhibiting a number of mobile bills, he had stated about the number of calls he used to give
to 3 mobile numbers of the respondent. He further stated that respondent used to stay in a
3-bedroom flat given to her by her father at Guwahati and used to have the services of a car
driver. In his cross-examination, he admitted about sending the respondent to Guwahati to
continue her job. He stated that he came to Guwahati for settlement but despite numerous
phone calls, the respondent did not pick up the phone. He stated to have told the facts to
D.W.2 when he and his parents visited her on 14.03.2013 at Jorhat. D.W.2, a retired
professor, is a resident of Jorhat. The appellant is the son of her husband’s younger brother
and the respondent is the daughter of her cousin brother. Because of such relation, the
appellant was known to her since his birth. The marriage between the appellant and the
respondent was arranged through her. After their marriage on 11.03.2011, the couple visited
her house in Jorhat in June, 2012 and at that time, both looked happy. The appellant’s father
is a heart patient and as he had undergone a heart operation in 2010, the appellant’s mother
had to stay with him always as there was nobody to look after since their only daughter is
settled happily in Norway with her family. She stated that once in April, 2013, the appellant
and his parents visited her house at Jorhat and they told D.W.2 as to how they had suffered
at the hands of the respondent. It was told to her by the appellant that the respondent did
not want to stay with the appellant and refused to go to Delhi to stay with him, by preferring
to stay in Guwahati alone in her flat. On being made aware about the events in the aforesaid
manner, D.W.2 stated to have talked to the respondent’s father with the proposal as to
whether the elders of both the sides should talk to the spouses in order to sort out their
differences. Without giving any reply to the said proposal, the respondent’s father blamed
her for arranging the marriage of his daughter with the appellant before switching off the
phone. D.W.2 had, however, admitted that she never met the respondent intimately since she
had grown up but proposed the marriage as both the families were known to her. She further
stated that in July, 2013, she was informed by the appellant’s mother over phone about filing
of the criminal case against the appellant and his parents.

Page No.# 16/18

24. Thus from the evidence of D.W.2, it is evident that after the marriage on 11.03.2011,
she met the couple only on one occasion in June, 2012 when the couple visited her house at
Jorhat and she found, at that time, both of them happy. D.W.2 does not have first hand
knowledge about the married life of the spouses for the period subsequent to June, 2012. It
was in the month of July, 2013 only D.W.2 was informed about institution of the case against
the appellant and his family. The said witness was told about the alleged torture by the
appellant and his parents only in April, 2013 when they visited her house at Jorhat. But it
was from September, 2012 i.e. much prior to April, 2013, the appellant and the respondent
have been staying separately with they both continuing their jobs at Delhi and Guwahati
respectively. The prayer for dissolution of the marriage, in the petition as well as in the
counter-claim, was made for the events that had occurred between 11.03.2011 and
September, 2012. Thus, the testimony of D.W.2 in view of her admission about the source of
her knowledge, does not carry much value in so far as regards the marital relationship
between the appellant and the respondent is concerned and it cannot be said that her
deposition has lent any corroboration to the contention of the appellant with regard to his
plea for divorce on the ground of cruelty.

25. The decision in Arnesh Kumar (supra), was rendered in a criminal appeal where the
petitioner apprehended his arrest in a case under Section 498A, I.P.C. and Section 4 of the
Dowry Prohibition Act, 1961. After discussing the rate of charge sheeting in cases under
Section 498A, I.P.C. and the rate of conviction in such cases after trial, the Hon’ble Supreme
Court in order to ensure that police officers do not arrest the accused unnecessarily and
Magistrates do not authorize detention casually and mechanically, has given certain directions
to all the State Governments to instruct its police officers not to automatically arrest when a
case under Section 498A, I.P.C. is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down therein flowing from Section 41, Code of Criminal
Procedure, 1973. We do not find any relevance of the said decision with the merits of the
instant appeal arising out of a judgment and order of the learned Family Court in a petition
and a counter-claim seeking divorce.

Page No.# 17/18

26. As has been noticed above, the contesting parties had stayed together at one place
only on three occasions, on each occasion for a brief period, interspersed between
11.03.2011 and September, 2012 to discharge their marital obligations to each other. The
events which had occurred between them have already been discussed above wherefrom it is
found that allegations and counter-allegations were made by each respective spouse without
any corroboration from any other quarter. The testimony of the appellant, in the context of
the aforesaid discussion, does not also inspire us to come to a conclusion that he had been
able to make out a case of infliction of mental cruelty on him by the respondent so as to
entitle him for the dissolution of his marriage by decree of divorce. The allegations and
counter-allegations leveled by one against the other, even assumed to be true, appear to
have arisen out of the types of life the parties are accustomed to in relation to their social
and economic conditions as well as their perception to culture and human values. The
conduct and behaviour of one spouse vis-à-vis the other spouse in the case in hand appear
to have caused unhappiness, dissatisfaction and emotional upset but the same cannot be a
ground for grant of divorce on the ground of mental cruelty. Such irritations and oppositions
of one spouse about the conduct and behaviour of the other spouse could not be adequate
for grant of divorce under Section 27(1)(d) of the Special Marriage Act, 1954. Though the
parties have stated that they have been living separately since September, 2012, such
separate living per se does not enable the Court to grant a decree of divorce when it does
not fall under any of the statutory prescriptions of Section 27 of the Special Marriage Act,
1954. Thus, we hold that the appeal to that part of the judgment and order dated
30.06.2018, whereby the learned Family Court had dismissed the counter-claim of the
appellant, fails and accordingly, the appeal to that part of the judgment and order is rejected.

27. With the aforesaid observations, the present appeal stands disposed of.

28. The LCR is to be sent back accordingly.

JUDGE CHIEF JUSTICE (ACTING)
Page No.# 18/18

Comparing Assistant

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