Calcutta High Court (Appellete Side)
Smt. Jharna Roy vs Sri Sudipta Roy & Anr on 3 July, 2023
03.07.2023
SL No.1
Court No.8
(gc)
FAT 378 of 2018
CAN 6 of 2023
Smt. Jharna Roy
Vs.
Sri Sudipta Roy & Anr.
Mr. Siddhartha Banerjee,
Ms. Soni Ojha,
Ms. Sonia Nandi,
... for the Appellant.
Mr. Pradip Kr. Dutta,
Mr. Sandip Ghosh,
Mr. Debayan Ghosh,
...for the Respondent No.1.
The matter has appeared in the list today in order to ascertain whether application for mutual divorce has been filed by the parties before the learned District Judge, Alipore and if so, if it has been disposed of by the learned District Judge, in the meantime.
However, during the pendency of this appeal instead of filing an application the respondent/husband has filed the instant application for modification or variation of the order dated 1st May, 2023. The appellant however, was agreeable to file an application for mutual divorce. On 1st May, 2023 on consideration of the DNA report we invited the parties to express their views and in response the learned Counsel for the parties had agreed to file an application for mutual divorce before the learned District Judge, Alipore within two 2 weeks from date that is 1st May, 2023. Both the parties had admitted that the marriage has irretrievably broken and is completely unworkable. Now with a view to resile from the views expressed by the respondent no.1 an application has been filed on 15th May, 2023 on a specious plea that the applicant had never consented for mutual divorce and a prayer for modification has been made in this application.
The applicant by filing this application wanted to resile from the submission made on behalf of him that applicant is also inclined to file an application for mutual divorce.
We distinctively remember that the date when the order was passed the willingness of the applicant to file an application for mutual divorce was expressly conveyed to Mr. Sandip Ghosh learned Advocate representing the respondent no.1/applicant and it was on the basis of such instruction Mr. Ghosh has made such submission. However, choice was given to the parties to file an application for mutual divorce as the appellant/respondent no.1 had realized that the allegation of adultery is clearly disproved by the DNA report and this might have an adverse consequence on the merits of the appeal.
Accordingly, we propose to decide the appeal on merits.
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It was the positive case of the husband that he never had any physical relation with the wife and the child was born not by his loin but due to his wife's adulterous relationship with the respondent No.2. Initially, the wife had refused the DNA test, the reason being that she did not want her privacy to be used injudiciously and invaded at the whims of the respondent no.1. She has all throughout contended and maintained a stand that marriage was consummated and they had conjugal relationship and the child was born within the wedlock.
In the appeal, the wife has all throughout contended that they are the biological parents of the child, however, this time she agreed to have the DNA test conducted at the instance of the husband.
In an application filed by the husband being CAN 829 of 2020 on 10th February, 2020, a Coordinate Bench passed the following order:-
"The first respondent in this appeal has prayed for an order for conduct of a medical test through DNA profiling to ascertain the paternity of Sweta Roy claimed by the appellant to have been born to the parties through the wedlock. The respondent has throughout alleged before the court below and us that the child is not his but is fathered by Satadal Singha, the proforma respondent herein.4
The learned judge of the court below in the judgement and decree under appeal dated 30th April 2018 had held the appellant-wife guilty of adultery. He had also declared that Sweta was not the child of the respondent. It is on record that the appellant had at the proceedings before the trial court refused to undergo the DNA test. Now she is willing.
It may not follow from the proof of adultery that the issue born out of marriage is not that of the husband. It may be the case that adultery is proved, but still the paternity of the child belongs to the husband. In some cases adultery may result in a child being born outside the wedlock.
Mr Datta, learned counsel appearing for the respondent-husband, is very firm in his submission that his client is not the father of the child, and that Sweta should not be allowed to use his name. He refuses to maintain her.
Mr Banerjee, learned counsel for the appellant, argues that the learned judge made an error in his finding with regard to paternity.
We are of the opinion that for complete adjudication of the disputes between the parties, this application (CAN No.829 of 2020) by the appellant should be allowed. Learned counsel for the parties agree that the DNA test report would be accepted by them without asking for any further expert probe into the correctness of the report.
In those circumstances, we direct the Secretary to the Health Department, Government of West Bengal to cause any competent officer subordinate to him to nominate a specially equipped State hospital 5 for conduct of the paternity test of the child, Sweta Roy, through the DNA profiling technology. The child, Sweta, and the parties to this appeal - Smt. Jharna Roy, Sri Sudipta Roy and Sri Satadal Singha - would have to submit to the test and render all cooperation in its conduct. The nominated hospital will have to submit a report in this court by 20th March 2020. The obligation to take steps in the matter would be in the appellant. Copies of the report before its filing in court should be circulated to the above persons, except Sweta, who undergo the test." (emphasis supplied) The paternity test report of the child was ultimately filed on 13th March, 2023. The observations of Dr. Kshitij Chandel, Scientist 'B' (Biology), Director, C.F.S.L., Kolkata are recorded in the order dated 13th March, 2023, which reads:-
1. The genetic profile of Ms. Jharna Roy (Source of Exhibit B: Blood Sample) is consistent as the biological mother of Ms. Sweta Roy (Source of Exhibit A: Blood Sample).
2. The genetic profile of Mr. Sudipta Kumar Roy (Source of Exhibit C: Blood Sample) is consistent as the biological father of Ms. Sweta Roy (Source of Exhibit A: Blood Sample).
3. Mr. Satadal Singha (Source of Exhibit D:
Blood Sample) is not the biological father 6 of Ms. Sweta Roy (Source of Exhibit A:
Blood Sample).
On 1st May, 2023, in presence of the parties, we recorded the submission of Mr. Sandip Ghosh, Advocate for the respondent No.1 that since the marriage has irretrievably broken down, an application for mutual divorce may be filed before the learned District Judge, Alipore. As stated above an application has now been filed for recalling of the order to the extent that the respondent No.1 did not agree to file an application for mutual divorce.
The appellant/wife before the learned Trial Court had all throughout denied allegation of adultery and specifically contended that the plaintiff is the biological father.
The allegation of the husband was that after the marriage there had been no physical relation between the parties and the respondent no.1 resided in the matrimonial home only for 12 days. It was alleged that the appellant was involved in a relationship with the respondent no.2. In the evening of 28th May, 2023, both the defendants came to the house of the plaintiff and during such visit the respondent no.2 cautioned the plaintiff not to create any disturbance. On 4th June, 2003 it was alleged that the brother of the plaintiff namely Mithu had seen the respondent no.1 and 2 in a compromising position. Thereafter, on 5th June, 7 2023 the respondent no.1 left the house and did not return thereafter.
The plaintiff in his evidence had stated that on 4th June, 2003 when he was not in the house his younger brother Mithu accidentally discovered through the window that the respondent no.1 and the respondent no.2 were involved in sexual intercourse. The plaintiff during cross-examination has stated that the appellant was in love relationship with her sister's husband Satadal the defendant no.2 and after his brother found them in a compromising position she left the matrimonial home on the very next day, that is, 5th June, 2003.
The plaintiff alleged that Satadal informed the plaintiff that on 2nd April, 2004 the appellant/wife would give birth to a child and forced him to go to the hospital to sign few documents. On 4th April, 2004 the appellant gave birth to a female child.
It was alleged that at that time the appellant informed the plaintiff that Satadal is the father of the child. Thereafter, the appellant filed a false criminal case under Section 498A/406/120B of the IPC and also a Misc. Case no.34/206 under Section 125 of the Cr.P.C. against the plaintiff in order to harass the plaintiff.
The plaintiff in his cross-examination has also stated "our marriage has not been consumed at all as no cohabitation made at any time".
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The plaintiff further reiterated that he never had any physical relationship with his wife and he disowned the child.
The appellant in support of her contention and to prove the falsity of the claim of adultery had produced three witnesses. She herself was examined as DW1, the respondent no.2 Satadal was examined as DW2 and her brother Rajesh as DW3. The appellant in his evidence has stated that the plaintiff was not intended to lead conjugal life with the respondent and he had no love and affection for her. The plaintiff and his family members claimed dowry of Rs.1,00,000/- (One Lakh only) and it was duly paid. In spite of acceding to such demand the plaintiff and her in-laws continued to torture the appellant mentally and physically. She was shocked by the cruel act and rude behavior of her husband on the day of Boubhat ceremony at the husband's place. She alleged that her husband was jealous about Satadal and he fabricated false stories against him. She also made allegation against brother of the plaintiff Mithu. She has categorically stated that Mithu had bad intention and motive. Mithu wanted to have an illicit relationship with her and being refused by her Mithu raise false allegation against her about adultery. She claimed that the plaintiff is the biological father of the child. She referred to two letters dated 4th December, 2004 and 18th 9 December, 2004 in which such issue was addressed. She denied the allegation of adultery.
She alleged that from the hospital she was brought to the matrimonial house but due to torture she had to live her matrimonial home. She alleged that in December, 2004 she made a complain to the "Kolkata Nagarika Sanmelon" and on the basis of a conciliation arrived at between them she returned to her matrimonial home on 30th January, 2005 but again she was physically and mentally tortured as a result whereof she left for her paternal house on 22nd February, 2005.
The learned Single Judge on the basis of preponderance of probability that the wife deserted the plaintiff without reasonable excuse and she also refused to have sexual relationship during her brief stay at matrimonial house. Such refusal of coitus by the wife is a cruelty. Moreover, long desertion refusing conjugal life to husband is also cruelty. Evidence of Mithu with regard to adulterous relationship of the appellant with her Jamaibabu, defendant no.2 is established as his evidence has not been shaken by cross-examination. The learned Trial Court proceeds on the basis that refusal to undergo DNA test coupled with the evidence of PW2 and materials showing non-consumption of marriage for which the appellant is responsible, the plaintiff is entitled to decree and the marriage 10 between the parties was accordingly dissolved on 15th January, 2023.
This decree is under challenge.
On a reading of the impugned judgment it appears that the refusal of the wife to undergo DNA test had heavily weighed against the appellant. The other findings are greatly influenced by the act of refusal of the wife to accede to the request for DNA test. The learned Trial Court has taken exception to such refusal and thereby accepted the allegation of the husband that the child was born as a result of her adulterous life with the defendant no.2 which could be evident from DNA test. The presumption of adultery was accepted in view of refusal to undergo DNA test and the evidence of PW2.
Now there is a change in circumstances. We have reproduced the finding with regard to DNA profile of the child which clearly establish that the plaintiff is the biological father of the child. If these facts were known to the learned Single Judge we are sure that the learned Single Judge would not have blindly accepted the evidence of PW2. PW1 has clearly stated that he did not witness any such physical act. The appellant has all throughout contended that she was framed by PW2 as she did not accede to his carnal desire and to his lascivious wink. She was not staying alone in the house. She was in her matrimonial home. She is not familiar 11 with the surroundings. She was not having a comfortable stay at her matrimonial home and there must be some reason for her to leave the matrimonial home. It is the duty of her husband and his family members to ensure her happiness as she was put to a different environment.
The evidence clearly shows that the plaintiff was suspicious about her conduct and he did not accept her as a wife. However, during the brief period of stay it is now proved that they had physical relationship and the marriage was consummated. It was a positive case of the plaintiff that he never had any physical relationship with his wife and he has not the biological father of the child. The plaintiff approached the Trial Court for DNA test in order to prove adultery. It is possible that even if the paternity is proved still the case of adultery can be established. In the instant case, the sole basis of adultery is the birth of the child.
It is not unusual for the husband of the sister of the wife to visit his sister-in-law. Nothing objectionable could be demonstrated in the said relationship excepting the evidence of PW2 who claimed to have witnessed an act of sexual intercourse of the appellant with her Jamaibabu. PW2 claimed to have seen it through the window. The appellant had clearly denied it. The court has to consider the vulnerability of the appellant who had 12 left her parents and decided to stay at the matrimonial home with the expectation of a blissful married life and compelled to leave the place ue to accusation of adultery. She had made a positive allegation against PW2.
She has all throughout contended that the marriage was consummated and the plaintiff is the biological father. This fact is now established in the appeal.
It is well settled that false allegation of adultery (Kakoli Das vs. Ashis Das; AIR 2004 Cal
176) unchastity and casting aspirations on character (See. Vijoy Kumar Bhate vs. Nilavijoykumar Bhate; AIR 2003 SC 2462:
2003(6) SCC 334) would constitute a cruelty.
Lack of respect, faith and understanding causing pain and disrepute to the other partner amounts to cruelty. Normally proof of adultery is circumstantial. Evidence of adultery must be clear and cogent both as to inclination, opportunity and conduct so as to lead to the irresistible conclusion that the offence has been committed. Merely because Satadal may have visited once or twice cannot raise a presumption that adultery was committed. Moreover, Satadal is a family relation of the appellant and is not unusual for a Jamaibabu to visit his sister-in-law. Adultery is a very serious allegation. The appreciation of offence in such cases 13 must be careful and proper. Causing aspersion against a woman is a very serious thing and unless there is cogent evidence beyond any doubt such a finding should not be recorded. The appellant expects his wife to stay with him with the false allegation of adultery and unchastity. In fact, such unjustified allegation is a sufficient reason for not staying with the plaintiff/husband. It cannot be said to be a willful neglect on the part of the wife in referring to stay at the matrimonial home. The attempt of character assassination, stigmatization, infidelity and unchastity if not prove would furnish a ground for divorce as it amounts to cruelty.
In view of the aforesaid and more particularly having regard to the DNA test report we are of the view that the wife is entitled to a decree on the ground of cruelty.
The judgment of the learned Trial Court is accordingly set aside.
The learned Counsel for the appellant has submitted that in view of such abominable conduct of the respondent no.1 the appellant is not willing to stay with the husband and has prayed for a decree of divorce being passed in her favour as the facts clearly reveal that the appellant was subjected to humiliation, disrepute and character assassination. In fact, the respondent no.1 had also prayed for divorce. While we are of the view that the plaintiff 14 has failed to prove his case and the matrimonial suit ought to have been dismissed, however, having regard to the aforesaid facts, we decree the suit in favour of the wife on accepting the prayer for dissolution of marriage on the ground of cruelty. In fact as observed earlier the plaintiff also agreed to file an application for mutual divorce.
In view of the aforesaid we allow the appeal and declare that the marriage between the parties took place on 15th January, 2003 is dissolved by a decree of divorce with effect from this date i.e. 3rd July, 2023. The appellant shall deposit any additional court fees if payable for the relief granted in favour of the appellant within two weeks from the date of assessment by the stamp reporter.
We award cost of Rs.1,00,000/- (Rupees One Lakh only) for the humiliation caused to the wife. In the event the said cost is not paid within four weeks from date the appellant shall be at liberty to execute this order as a decree of the court.
The appellant would be at liberty to initiate appropriate proceeding for permanent alimony and any other remedies that are available to the appellant under the law and in accordance with law.
The marriage between the parties stand dissolved on and from this date.
The department shall draw up the decree as expeditiously as possible.15
After the decree is drawn up LCR shall be returned to the appropriate Court.
CAN 6 of 2023 is disposed of.
FAT 378 of 2018 is allowed.
(Uday Kumar, J.) (Soumen Sen, J.)