Calcutta High Court (Appellete Side)
Smt. Ananya Banerjee vs Sri Samarendra Nath Banerjee on 18 April, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 225 of 2004
Smt. Ananya Banerjee
Versus
Sri Samarendra Nath Banerjee
For the Appellant/Petitioner: Mr Jiban Ratan Chatterjee,
Mr Arup Banerjee,
Mr Arun Kumar Saha.
For the Respondent/Opposite Party: Mr Amitava Mukherjee,
Mr Sourav Sengupta,
Ms Arpita Saha.
Heard on: 13.03.2008, 18.03.2008 & 08.04.2008.
Judgment on: 18th April, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a wife in a suit for divorce on the ground of non-compliance of a decree for restitution of conjugal right, and this appeal is preferred against the judgment and decree dated 27th April, 2004 passed by the learned Additional District Judge, Second Court, Burdwan, in Matrimonial Suit No.23 of 1999.
The facts giving rise to filing of the present appeal may be summed up thus:
(a) The parties were married on 7th December, 1981 according to the Hindu rites and customs and a male child was born in the said wedlock.
(b) The husband, an employee of the State Bank of India, was posted in Chittaranjan, where he used to live in his official quarter. After marriage, the respondent started living at the quarter of the husband but subsequently they started residing at a newly constructed house of the husband at Burdwan town from November, 1985 for the purpose of treatment of their son and the husband used to visit the house at Burdwan from Chittaranjan at the weekend.
(c) According to the husband, he found that the said house at Burdwan was occupied by his father-in-law and his family members and apprehending that he would be put into great trouble for eviction of his father-in-law, he requested the appellant to live with him in his quarter at Chittaranjan but she did not agree to the proposal.
(d) Subsequently, she came to his quarter in 1991 and stayed there for sometime but returned to the husband's house at Burdwan. As in spite of the repeated requests to come back to Chittaranjan, she paid no heed to such request, the husband was compelled to initiate a suit for restitution of conjugal right, which was registered as Matrimonial Suit No.8 of 1992.
(e) The learned Additional District Judge, Second Court, Burdwan, by judgment and decree dated 28th February, 1994 decreed the said suit and directed the wife to come to the residence of the husband within three months with a direction upon the husband to arrange for a separate accommodation of his dependent family members, namely, mother, brother and sister. In compliance with the said direction of the Court, the husband arranged for separate accommodation of his dependant family members but in spite of that, the wife did not come. It further appears that the wife preferred an appeal before this Court against the decree of restitution of conjugal right but ultimately, the said appeal was dismissed as not pressed after long seven years.
(f) In view of the aforesaid fact, the husband filed the suit out of which the present appeal arises for divorce on the ground of non-compliance of the earlier decree of restitution of conjugal right.
The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and her defence was that she was always willing to go back to Chittaranjan but as the husband did not make any arrangement for shifting her mother-in-law, brother-in-law and sister-in-law, she was prevented from coming to the quarter of the husband at Chittaranjan due to fear of her life.
At the time of hearing of the suit, the husband and his brother gave evidence in support of the petitioner while the wife and the only son of the parties deposed in opposing such prayer.
The learned Trial Judge by the judgment and decree impugned herein has decreed the suit.
Being dissatisfied, the wife has come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on record we find that undisputedly the husband, in the past, filed a suit for restitution of conjugal right and such suit succeeded.
The learned Trial Judge directed the wife to go back to the husband's quarter at Chittaranjan with a direction upon the husband to remove his mother, brother and sister to some other place.
It is the specific case of the husband that he made all the arrangements for their shifting and actually took house on rental basis for them but in spite of such fact, the wife did not return.
Before this Court an application under Order XLI Rule 27 of the Code of Civil Procedure was filed by the husband for taking the additional evidence showing that after the passing of the decree in the earlier suit, the address in the ration-cards of his brother, sister and mother were changed and that even the Bank account of the mother and the L.I.C. papers of the brother disclosed that their addresses were changed from the official quarter at Chittaranjan to some other place. The rent receipts granted by the landlord of the rented premises and the receipt showing posting of the security guard in respect of the official quarter was also filed. The wife, although in the affidavit-in-opposition to such application denied those as forged documents, we are not at all impressed by such submission. The ration-cards itself show that there was change of address of the brother, mother and sister and that even the L.I.C. authority has communicated the change of address in respect of the policy of his brother. After taking into consideration the aforesaid documents, we are convinced that the wife had no intention of complying with the decree for restitution of conjugal right as would appear from the further fact that she preferred an appeal before this Court and the said appeal continued for several years before it was dismissed for default. If she intended to comply with the decree for restitution of conjugal right and come back to the husband, she would not have preferred any appeal against such decree and unnecessarily dragged the appeal for several years.
The husband in his evidence stated that he repeatedly tried to bring the wife back but she refused. Even the letter written by the learned advocate asking her to comply with the decree of restitution of conjugal right has been marked exhibit. We do not find any reason to disbelieve the said version of the husband and thus, there is no just ground to interfere with the judgment and decree passed by the learned Trial Judge. It has been well established, in this case, that the wife without any just cause refused to comply with the direction of restitution of conjugal right although the husband made separate arrangement of the residence of sister, brother and mother who were all dependent upon him. No documentary evidence has been produced showing that she ever expressed her desire to come or that she ever complained before the husband or anybody else that she was driven out by the husband as alleged or that the husband was not willing to shift his mother, brother and sister.
We, thus, affirm the judgment and decree passed by the learned Trial Judge. After taking into consideration the fact that the husband is an employee of the State Bank of India and is earning about Rs.25,000/- a month who is going to retire in the next month from his service together with the conduct of the wife towards the husband, we grant a decree for permanent alimony of Rs.5,00,000/- to the wife at a time provided she vacates the residential house constructed by the husband in Burdwan. The said house should be vacated and the vacant and peaceful possession thereof should be handed over to the husband within three months from today and the moment the same will be handed over, the husband should simultaneously pay a sum of Rs.5,00,000/- as one time permanent alimony by way of Banker's cheque of any Nationalised Bank. For the next three months or until the handing over of the possession of the house to the husband, whichever will be earlier, the husband will go on paying the alimony at the rate he had been paying during the pendency of this appeal.
The appeal is, thus, disposed of with the aforesaid modification. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)