Gauhati High Court
Binapani Bhattacharjee vs Pratap Bhattacharjee on 13 December, 2005
Equivalent citations: I(2007)DMC460
Author: D. Biswas
Bench: Chief Justice, D. Biswas
JUDGMENT D. Biswas, J.
1. The Principal Judge, Family Court, Guwahati by the judgment dated 22.1.1996 passed in Case No. F.C. (Civil) 22/95 granted a decree of divorce at the instance of the respondent-husband with direction to pay Rs. 45,000 as compensation. Being aggrieved thereby, this appeal has been filed by the wife controverting the legality and correctness of the judgment.
2. Mr. N. Choudhury, learned Counsel appears for the appellant when the case is called out. None appears for the respondent. We have heard the learned Counsel for the appellant and having regard to the nature of the dispute, we propose to dispose of the same.
3. The marriage between the parties was solemnised on 31 st July, 1991 and both of them settled together at Tura. The behaviour of the appellant from the very beginning towards her husband and other elder members of the family was erratic. All attempts to mend her conduct at the instance of the respectable neighbours failed. Eventually, in the month of October, 1991 the respondent himself came to Guwahati with the appellant and left the appellant in her parental home. He also visited Guwahati time and again but the appellant wanted to stay further with her mother and brother. On the other hand, the appellant insisted the respondent to come and stay with them in her mother's house. The respondent refused to oblige. On 3rd August, 1992 a son was born out of the wedlock and the respondent came to Guwahati to take the appellant and the child back to Tura. The appellant declined to go immediately and promised that she would reach Tura within 10th December, 1992. But the promise was not honoured. All attempts made by the respondent to take the appellant back to his house at Tura failed. The behaviour and conduct of the appellant as narrated above amounted to cruelty as provided in Section 10 of the Hindu Marriage Act, 1955. The respondent filed D.S. No. 5/93 for judicial separation in the Court of ADC and Civil Judge at Tura. The appellant also initiated a proceeding under Section 126 of the Code of Criminal Procedure for maintenance and the said proceeding was disposed of with direction to the respondent to pay maintenance at the rate of Rs. 400 per month to the appellant and her son. The appellant has been living separately since then denying co-habitation with the respondent. This conduct of the appellant amounted to cruelty as provided in Section 13(1)(ia) of the Act of 1955. Hence, the respondent-husband filed the suit seeking a decree of divorce.
4. The appellant as defendant filed her statement denying the averments made in the application. Apart from denying the allegation of cruelty, her case before the Family Court was that she came to Guwahati for appearing in the M.A. (Previous) Examination and this was known to her husband. She stayed back and, therefore, question of refusal to go back to her matrimonial home did not arise. The appellant also specifically denied the allegation that she refused to co-habit with the respondent.
5. On consideration of the pleading reproduced above, the learned Court below framed the following issued:
1. Is the petition maintainable?
2. Is there any cause of action?
3. Whether the suit is barred by estoppel, waiver and acquiescence?
4. Whether the respondent is cruel to the petitioner and deserted him without just cause?
5. Whether the petitioner is entitled to a decree of divorce?
6. To what relief or reliefs parties are entitled?
6. In support of their respective claim, both the appellant as well as the respondent examined themselves before the learned Family Court besides two other witnesses.
7. Insofar as the issue Nos. 1, 2 and 3 are concerned, we find no material on record to justify rejection of the suit on the ground that it is not maintainable, there is no cause of action and that it is barred by estoppel, waiver and acquiescence. The parties are living separately. The allegation made by the husband against the wife and the defence taken by the wife suggest that there is adispute between them which required the learned Principal Judge to adjudicate upon. The learned Principal Judge rightly answered the issues in favour of the respondent.
8. Issue No. 4 deals with the crux of the problem. The question is whether the wife used to treat her husband and other members of the family cruelly and left her matrimonial home without sufficient cause?
9. The respondent examined himself as P.W. 3. According to him, his wife came to Guwahati for the purpose of delivery. After birth of the child, he came to Guwahati to take her back, but she did not agree to accompany her to Tura on different pretexts. He came to Guwahati for about twenty times but she refused to go with him. The respondent also sent letter and telegram to his wife requesting her to come to Tura. Exhibit 1 is the letter, and Exhibits 1(2), 1(3) and 1(4) are the receipts of the telegram. The respondent further alleged that the appellant appeared in the examination without consulting him. In similar tune, P.W. 1 Sri Badal Saha also deposed that the appellant came to Guwahati for the purpose of delivery but did not go back to Tura for about three months. He further deposed that the respondent came to Guwahati several times to take his wife back but she refused. P.W. 2 Mohan Tripathi stated on oath that the appellant and the respondent lived at Tura for about 3 to 4 months and that they were not in good terms. He was told by the respondent that his wife did not want to go back to Tura to stay with him.
10. The evidence of the witnesses examined by the respondent shows that P.Ws. 1 and 2 were informed by P.W. 1 (respondent) that his wife was not willing to go back to Tura and stay with him. They are reported witnesses insofar as the allegation of refusal by the appellant to go back to Tura is concerned.
11. As against above evidence, the appellant (DW 3) stated that she was left in the residence of her brother at Guwahati on 3.8.1992 for the purpose of delivery. In the month of January, 1993 she appeared in the M.A. examination. Her husband also came to Guwahati to encourage her to appear in the examination. She received a telegram from her husband in the midst of the examination calling her to Tura. She could not go as her examination was going on. On 19th February, she went to Tura along with her brother, but was refused entry in her matrimonial house by the respondent. She remained there forcibly though her brother was not allowed any entry to the house. As she was not permitted to stay in her matrimonial house she had to come back to Guwahati along with her brother. She further stated during the course of her evidence that she was willing to go to her husband's house provided he takes her back. The evidence of DW1 and DW 2 is that the respondent was not willing to take back his wife to his house at Tura. D.W. 1, however, added that the appellant was not allowed by her husband to stay with him in his house at Tura.
12. The learned Principal Judge, Family Court, on consideration of the above evidence, came to the conclusion that the conduct of the appellant amounted to cruelty as she was not willing to go to Tura and her husband being a school teacher was not in a position to go to Guwahati frequently. We are unable to subscribe to the view of the learned Principal Judge for the reason that the evidence on record clearly indicates that the wife came down to Guwahati for the purpose of delivery and she stayed back to appear in the M.A. (Previous) examination. Whether her husband had consented or not, the decision of the appellant in appearing in the examination cannot under any circumstance be described as cruelty. On the other hand, the appellant was always ready to go back to Tura to stay with her husband. Even during the course of her examination before the Trial Court, she had expressed her willingness to stay with her husband. The appellant, admittedly, came to Guwahati for the purpose of delivery and for the reasons stated above, she could not come back to her husband's house. Later on when she had gone along with her brother, the respondent misbehaved with her.
13. The evidence adduced by the parties read together would show that the respondent-husband utterly failed to discharge his burden in proving the allegation of cruelty and desertion. The marriage has not irretrievably broken down for all purposes. A husband cannot take exception of his wife's decision to go for academic pursuit and make a ground out of it for divorce. The respondent-husband could not dispel the evidence that he refused entry to his wife and her brother when they went to Tura after completion of the examination. It would be apposite in the given circumstances to conclude that the respondent husband is not entitled to any decree for divorce.
14. In the result, the appeal is allowed. The judgment and decree dated 22.1.1996 passed by the learned Principal Judge, Family Court, Guwahati in Case No. F.C. (Civil) 22/95 is hereby set aside.