Court:Calcutta High Court
Bench: JUSTICE B Bhattacharya, P N Sinha
Smt. Pranati Chatterjee vs Shri Goutam Chatterjee on 4 April 2006
There was no Just Reason for Depriving the Husband of the Company of the Wife and that Itself is an Instance of Mental Cruelty.
1. This first appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the judgment and decree dated 31st August, 1999 passed by the learned Judge, Family Court in Matrimonial Petition No. 150 of 1995 thereby allowing an application for grant of divorce.
2. The respondent herein filed in the Family Court a petition under Section 13(1)(ia) of the Hindu Marriage Act thereby praying for divorce and the case made out by the respondent may be summed up thus:
(a) The respondent was working as an employee of South Eastern Railway and pursuant to the negotiation between the parents of the parties, they were married on 27th February, 1989 according to the Hindu rites and thereafter they started residing as husband and wife at premises No. 120, Adyanath Saha Road, P. S. Lake Town.
(b) To the surprise of all, it was found that even on the very first day after the marriage, the behaviour of the appellant was not of the kind one expects from a new bride. She was insolent and discourteous and ill-behaved with all and created embarrassing situations by terrorising the members of the family of the in-laws.
(c) The matrimonial home comprised of a self-contained unit of a building belonging to the father of the respondent and ever since the appellant came to her matrimonial home, her parents, cousin-brothers, uncles and most of the relatives used to visit her and they used to quarrel and abuse the respondent and his mother.
(d) Ultimately, the appellant while she was in her family way voluntarily left and abandoned the matrimonial home on 23rd October, 1991 and was admitted in a Nursing Home at Calcutta and after the birth of the child, the respondent requested the appellant to return to the matrimonial home; but she refused and started causing harassment to the respondent by visiting his Office and casting aspersions against him, as a result, the superior officers of the respondent and his colleagues entertained a very bad impression about the respondent.
(e) The respondent repeatedly visited the appellant at her father’s house and requested her to return with the minor daughter and the uncle of the respondent, the maternal uncle and his cousin brothers had gone to the residence of the appellant on innumerable occasions and requested her to come back with the child but she turned down their request.
(f) Although, the appellant refused to come, strangely enough, she initiated a Matrimonial Suit being Matrimonial Suit No. 103 of 1993 in the City Civil Court at Calcutta for restitution of conjugal right and thereafter moved an application under Clause 13 of the Letters Patent, 1885 and Section 24 of the Code of Civil Procedure in the Extra Ordinary Original Civil Jurisdiction of the High Court for transferring the said suit to the High Court. The said suit was transferred to the High Court but ultimately, the suit was dismissed after recording an order that the husband was willing to take back the wife.
(g) Thereafter, in the last week of October, 1993 the appellant went to the residence of the respondent along with her close relations and created a scene and thereafter collected all her clothes, winter garments etc. which she left in the matrimonial home long back. Even thereafter, the respondent requested her to return but the respondent was harassed and driven out. Despite such a situation, the respondent had signed the admission form as the father and guardian of the daughter for the admission of the School on the request of the appellant.
(h) The appellant was a very solvent person. She had independent source of income as a Physical Instructor at Sadhana Yoga Bayam Samity, Garpar, Sukhia Street, Calcutta. She also earned money as private Messeur-cum-physiotherphist. Besides, she had inherited a Ration Shop and a whole sale stationary shop from her deceased father and that is the cause of her rude behaviour. The aforesaid acts of the appellant amounted to cruelty. Hence the suit.
3. The suit was contested by the appellant by filing written statement thereby denying the material allegations made in the application for divorce and her defence may be summarised thus:
(i) After the marriage, the parties lived as husband and wife at 120, Adyanath Saha Road, Calcutta till 23rd October, 1991. At the time of marriage, the appellant was given Golden Ornaments such as Bangle, wristlets, Boutee, Ring, Ear Ring, chain etc. and also silver ornaments such as waist chain, vermilion Box etc. and also garments such as silk, synthetic, and printed sarees and also furniture such as cot, almirah, dressing table with cushion, water-filter and other utensils valued about Rs. 80,000/- as per demand of the family members of the respondent and the respondent was also given golden ring, watch, golden bottom, garments valued at Rs. 30,000/- as per their demand.
(ii) Some days after the marriage, the respondent began to torture the appellant physically and mentally. He abused and assaulted the appellant now and then without any reason. The appellant always behaved politely with the members of the family of the in-law’s but in spite of that, the respondent at the instigation of his mother and sister ill-treated the respondent in various ways.
(iii) In June, 1989 the respondent assaulted the appellant in such a manner that she became senseless. In August, 1989 at the house of her aunt, the respondent pushed the appellant from the stairs of first floor and consequently, she fell down to the ground floor and sustained swelling injury. In January 1990 the respondent kicked the appellant and drove her away from the house and closed the door and for the above reason, a complaint was lodged before the Lake Town Police Station but at the intervention of the local people and neighbours, she again returned back to her matrimonial home. In December, 1990 the respondent again assaulted the appellant without any reason.
(iv) The appellant tolerated all these mental and physical tortures of the respondent with the hope that good sense would prevail upon the respondent in future and in 1991 the appellant became pregnant and at that condition the appellant became seriously ill.
(v) The appellant’s father got her admitted in Federation Nursing Home where the appellant gave birth to a female baby on 20th November, 1991 and after the delivery, the appellant was taken to her father’s house with the baby. The appellant as well as her father several times requested the respondent and his mother to take her back to the matrimonial home but they did not take any steps on the plea that the appellant gave birth to a female baby. When the respondent and his mother refused to take her back, the appellant was compelled to file a matrimonial suit bearing No. 108 of 1993 in the City Civil Court at Calcutta for restitution of conjugal right against the respondent and on transfer of the matter to the High Court, the same was disposed of by directing the husband to take back the appellant to the matrimonial home. The respondent gave undertaking to the Hon’ble High Court, Calcutta through his advocate that he would not misbehave with or torture the appellant in future in any manner.
(vi) In view of the order of the Hon’ble High Court and the undertaking given by the husband, the appellant went to her matrimonial home along with the baby on the same date namely, 20th September, 1993 and lived with the respondent for only ten days. During the said period the respondent in violation of the Court’s order again assaulted and tortured the appellant as because she filed the matrimonial case against him and also on the plea that she gave birth to a female baby.
(vii) The respondent and his mother did not provide sufficient food to the appellant and even did not arrange for milk or baby-food for the child. Finding no other alternative, the appellant with her baby came back to her father’s house and since then she had been staying there.
4. A rejoinder was given by the Husband to the said written statement filed by the wife and in the rejoinder, the husband alleged that the wife refused to return even after her imposed terms and conditions were fully met by building an additional room and kitchen in his house for which he had to incur huge expenditure and take loan. Instead of returning to the matrimonial home, she chose to take back all the jewelleries in the presence of the Family Court-counsellor and the receipts were filed before the Court. The other allegations made in the written statement were also denied.
5. At the time of hearing the husband himself and three witnesses were examined on his behalf while the wife, her maternal uncle and her younger brother deposed in opposing the prayer for divorce.
6. As indicated earlier, the learned Trial Judge by the Judgment and Decree impugned herein has decreed the suit on the ground that the plaintiff had proved cruelty and further, the relation between the parties had irretrievably broken down.
7. Being dissatisfied, the wife has come up with the present first appeal.
8. Mr. Banerjee, the learned senior advocate appearing on behalf of the appellant laboriously contended before us that in this case the husband failed to prove mental cruelty alleged in the application and the learned Family Court erred in law in passing a decree for divorce on the ground of mental cruelly by totally overlooking the fact that it was the husband who misbehaved with the wife in such a way that it was impossible for her to come back to the matrimonial home. Mr. Banerjee further contends that on the basis of the judgment passed by the learned Family Court is that the marriage had irretrievably broken down and according to him, that fact by itself is not a ground for divorce. Mr. Banerjee further contends that in the facts of the present case, it is well established that husband could not prove the allegation of mental cruelty and as such, was not entitled to get a decree for divorce. Mr. Banerjee took us through the entire evidence on record and submitted before us for re-appreciation of the entire evidence. He, thus, prays for dismissal of the suit for divorce.
9. Mr. Sarkar, the learned advocate appearing on behalf of the husband, on the other hand, has opposed the aforesaid contentions of Mr. Banerjee and has contended that the learned Family Court on consideration of the materials on record rightly came to the conclusion that in this case there was no reason assigned by the wife for not returning back to the matrimonial home and the wife without any just reason deprived the husband of her company and according to Mr. Sarkar, such fact by itself is an instance of mental cruelty as rightly held by the learned Family Court. Mr. Sarkar further submits that in this case, the wife and her relatives lodged false complaints against the husband before Police as well as before the employer of the husband and such act on the part of the wife did constitute mental cruelty. He, therefore, prays for dismissal of the appeal.
10. After hearing the learned Counsel for the parties and after going through the materials on record we find that the parties were married in the year 1989 and lived together for two years. Thereafter, trouble started and the wife went back to her paternal house. It appears from record that at that stage the main allegation was that there was misunderstanding between the mother of the husband and the wife.
11. Be that as it may, the wife filed an application under Section 9 of the Hindu Marriage Act for restitution of the conjugal right and the said matter was transferred to the Original Side of this Court where the husband agreed to take back the wife and accordingly, the proceedings were dropped. It further appears from record that thereafter, the wife stayed in her matrimonial home for a very short period of few days and again came back and ultimately, the present suit has been filed.
12. Although, in the written statement the wife alleged that the husband inflicted physical torture upon her and to that effect even complaint was lodged before the Police, we agree with the learned Family Court that such fact could not be proved by the wife. Even at the time of cross-examination of the husband, no suggestion was given that on the basis of a slap given by the husband she became senseless or that in her cousin sister’s house the husband pushed her in order to kill her resulting in serious injury. Only suggestion given to the husband in cross-examination was that on a day as she demanded money from the husband, he assaulted her. In her evidence, however, she narrated a new story that the husband used to suspect her moral character and alleged illicit involvement with his cousin-brother and on such suspicion he used to assault her. No such suggestion was given either to the husband or to the said cousin-brother of the husband who appeared as a witness for the husband. It further appears that husband is an employee of the Indian Railways and it is the definite allegation of the husband that the wife and her relatives often used to complaint before his employer. The written allegation made by the wife against husband about the physical torture before Police has been marked as exhibit. We have already indicated that at the time of deposition she could not prove such incident by any independent witnesses. The learned Family Court rightly held that she could easily examine her sister to prove her allegation that in her sister’s house she was pushed from the first floor by the husband. We have already pointed out that in cross-examination no suggestion was even given to the husband as regards such incident or that he ever assaulted her on suspicion of her moral character.
13. In our view, it is rightly contended by Mr. Sarkar, the learned advocate appearing on behalf of the husband, that since the wife has independent income of her, she being a physiotherapist and at the same time, she having inherited her father’s business is not at all willing to come back to the husband’s house and gets more interest in looking after the business and pursuing her profession of physiotherapist than to lead the role of a housewife by staying in the house of the husband.
14. It further appears from record that before the Family Court, the counsellor tried to mediate the matter and as per suggestion of the wife, the husband by taking loan from his employer constructed separate room and kitchen but thereafter, the wife refused to go to the husband’s place on the plea that there should be even separate stair case for the use of the wife in the residential house of the husband.
15. This Court called for the parties for negotiation but the wife expressed her intention of not going back to the husband’s house. Even at the time of argument, we enquired of Mr. Banerjee, the learned Counsel for the wife whether his client was willing to come back to the husband’s house, but Mr. Banerjee submitted it was his definite instruction that the wife would not come back to the house of the husband.
16. From the aforesaid materials, we are convinced that in this case the wife had failed to prove the allegations of physical cruelty against the husband and at the same time by her own acts by lodging false complaint against the husband both before Police and before his employer, she has committed acts of mental cruelty. Moreover, it is rightly pointed out by the learned Family Court that there was no just reason for depriving the husband of the Company of the wife and that itself is an instance of mental cruelty.
17. In the fact of the present case, we are, therefore, convinced that the husband has proved cruelty on the part of the wife for making false allegation against the husband before Police as well as his employer and also for depriving the husband of the cohabitation without any just reason and thus, this is a case where the learned Family Court rightly granted a decree for divorce. The husband is now in his forties and is deprived of the company of the wife for the last thirteen years for no fault on his part and in such a situation we feel no hesitation in approving the decree for divorce.
18. It appears from record that during the pendency of the proceedings before the learned Family Court, the wife got an order of alimony pendente lite for the daughter only as she had sufficient income. In this appeal, although, she claimed maintenance for herself and the daughter, ultimately, the said application went before Lok Adalat and Lok Adalat with the consent of the parties directed the husband to pay maintenance at the rate of Rs. 2,000/- a month to the daughter in addition to a further sum of Rs. 1,000/- for paying off the arrears of maintenance.
19. Since, we propose to affirm the decree for divorce, we are of the view that this is a fit case where the husband should further be directed to comply with the order of the Lok Adalat regarding maintenance to the daughter and at the same time, will go on paying a sum of Rs. 2,000/- a month for the maintenance of the daughter who is admittedly residing with the wife after adjustment of the arrears as per order of the Lok Adalat. The husband, however, will be at liberty to visit the daughter after giving notice to the wife. While assessing the aforesaid amount, we have taken into consideration the present monthly take-home salary of the husband which we find to be around Rs. 12,000/- a month (Gross income Rs. 14,443/-).
20. The appeal is, thus, disposed of with the aforesaid order by affirming decree for divorce and granting the aforesaid order of maintenance in favour of the daughter. In the facts and circumstances, there will be, however, no order as to costs.