Calcutta High Court (Appellete Side)
Susmita Saha Mazumder vs Susanta Saha on 17 March, 2020
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
&
The Hon'ble Justice Manojit Mandal
F.A. No. 48 of 2017
Susmita Saha Mazumder
Vs
Susanta Saha
For the Appellant : Mr. Pinaki Ranjan Mitra, Advocate.
Mr. Joydip Basu, Advocate
For the respondent : Mr. Saptangsu Basu, Advocate
Mr. Tanmoy Mukherjee, Advocate
Mr. Sounak Bhattacharyya, Advocate
Heard on : 11.12.2019, 12.12.2019, 19.12.2019,
09.01.2020 & 16.01.2020.
Judgment on : March 17, 2020.
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Samapti Chatterjee, J.
1. This appeal arises out of judgement and decree dated 19th December, 2016 passed in Matrimonial Suit No. 3918 of 2014 by Smt. Mou Chatterjee, learned Additional District and Session Judge, Fast Track Court-I, District-Howrah.
2. The fact of the case is as follows :-
The petitioner/husband in Mat Suit No.3918 of 2014 got married with the respondent/wife at Indira Bhawan, Salkia on 24.02.2012 according to Hindu Rites and Customs. The petitioner is a school teacher of Physics in Maju R.N. Basu High School. He is the only son of his parents who are senior citizens. The respondent is also a school teacher in same school. Thereafter, she was transferred in Kolora High School at Dompur from 20.12.2013. The petitioner due to his love and affection used to honour and tolerate the wishes and whims of the respondent. But day by day she became apathetic, cruel, unreasonable and arrogant. Initially she used to stay at her paternal house at 4/2, Khetra Chatterjee Lane, Salkia, Howrah for attending her school initially later on for any flimsy ground she never bother to give any formal information to the petitioner or his family members. She used to 3 strongly react and respond very harshly against a very common and innocent query since the marriage with the petitioner. She never treated him with love and respect. She used to cause serious breach of peace in the family and impeach the character of the petitioner and thus lowered down his social esteem. Initially, the petitioner ignored these behaviour but ultimately her behaviour made the petitioner's life miserable. The petitioner out of shyness could not divulge such conduct of the respondent to his parents as the petitioner's parents were very affectionate to the respondent and they might be hurt and upset.
The another case of husband is that the wife was about 8 years older than the husband. Even at the time of marriage she was going old. It would be rather difficult for her to conceive later on. So, the husband wanted an issue as soon as possible but the wife never wanted it and avoid the same for some flimsy ground as it was found that the wife had several illicit relations with her colleagues. After that she left for her paternal house with a false plea that she has to look after her old parents, though the parents stay with their son who used to look after them. She also insisted upon the petitioner to stay in a flat closer to his in-law's house situated at 6 & 7/1/1, Punjabipara Lane Salkia. Since the husband was suffering from various arthritis problems and ultimately the husband had to succumb under the pressure of the wife and moved to the rented flat beside his in-law's house. The wife used to stay at her parent's house almost day and night and the husband has to 4 take care of himself. Doctor advised him to avoid painful journey from Howrah to Maju for his neurological problem, otherwise they will have to operate his spinal cord. The wife never rectified herself and she started more cruelty. She never liked the husband and trying to find out fault with him. The wife treated him with cruelty along with her family members. The respondent started to stay at her paternal house and she never came back to the rented house. After 9th August, 2012 the husband has been compelled to live separately at the house of Subodh Kumar Mondal, Madhya Maju, Jagatballavpur, Howrah from 10th August, 2012. Since marriage the wife/respondent never cared to show any love, sympathy, attachment and mutual respect to the petitioner so, the husband/petitioner has filed this suit for divorce.
On the other hand, the wife/respondent appeared in this suit and filed Written Statement denying all materials allegations and stated that after marriage the petitioner has not arranged any place or house within District-Howrah so the wife has been arranged one rental flat after discussion with the petitioner both were residing there and fulfilling their conjugal life peacefully. She did not look after her father and mother, but she always looked to her husband and after return back from the school she used to do all works and the petitioner always refused to take any issue and he always maintained live together with respondent without any issue.5
The petitioner/husband filed another Mat. Suit being No.53 of 2013 at A.D.J, Bolpur and the same should be barred by res judicata as the husband filed a fresh suit at Howrah.
It is also stated by wife/respondent that she is an educated and cultured person and all the family members are depending upon her and the marriage is a fruit of love affairs and after few days of marriage when the respondent took the temporary accommodation at her aunt's flat she noticed that the petitioner is self-centered and was always busy in telephone in order to talk with his family members and friends. He told the respondent that he is in great economic hardship and he agreed to lead better life leading with her expense.
In the month of April, 2012 the petitioner became seriously ill for his waist pain and became bed-ridden and the wife at that time took all the arrangements for treatment and personally nursed him. She always took the household duties like making breakfast, lunch, tiffin etc including all works of nursing and thereafter went to her school. The husband used to find fault of her and abuse her by throwing articles. In the month of July, 2012 the family members of the petitioner came to the rented accommodation of the petitioner and started to behave rudely with the respondent and he stopped conversation with her. The petitioner forced the respondent to reside at the rented accommodation 6 at Maju at the instance of his family members and on 15th August, 2012 the petitioner from Bolpur called the brother of the respondent and told him that he would like to divorce the respondent and when the respondent contacted with him he abused her and warned her not to go to Bolpur. She tried her level best to adjust with the petitioner but for the cruelty on the part of the petitioner and his family members she became mentally upset and find that her life is at stake. Despite's all she prays for dismissal of the suit.
Submissions of the learned Advocates
3. Mr. Pinaki Ranjan Mitra, learned senior counsel appearing for the appellant/wife submitted that marriage was solemnized between the appellant and the respondent on 24th February, 2012 according to the Hindu rites and customs as per Hindu Marriage Act. Sometime in April the respondent/husband gathered that the appellant/wife is having illicit relation with some other persons. The fact is that the wife is eight years older than the husband but it was the love marriage.
Mr. Mitra further drew Court's attention to some portion of the cross-examination of P.W.1 the respondent/husband and the same is quoted below :-
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"After marriage I started to reside at 10/1, Panjaripara Lane, P.S- Golabari, District-Howrah. The house belongs to one relative of Sumita and we stayed after giving maintenance cost. After some days we take rent in another house being No.7/1/1, Panjaripara Lane, P.S-Golabari, District-Howrah. The agreement of rent was in the name of both of us. I suffered a pain at my spinal chord when I stayed in the first house. I have no clear knowledge regarding the surroundings of Salkia.
Not a fact that Sumita took me to the doctor Asok Das.
I cannot tell the address of Dr. Asok Das. Before marriage I went to orthopedic surgeon Dr. R.K. Das. I can file the prescription. I consulted with Dr. Asit Senapati at City Life. I went with my wife there. I have prescriptions. He advised me to take complete bed rest. I took bed rest for few days at the first house."
He also referred the testimony of P.W.2 another teacher. Some portion of the examination-in-chief and cross-examination of P.W.2 is quoted below :-
"Examination-in-chief of P.W.2- I have received a summons. I know Susanta Saha. He was my colleague. I know Sumita Majumder. She is also my colleague. I joined my service on 08.04.2004 at Maju R.N. Basu High School. Susanta joined in the school in November, 8 2002. Sumita Majumder joined in the school in the year 1993. I had good relation with both of them. Sumita Majumder stays at Salkia. We went to her house many times. All the teachers used to sit in one teachers' room. Sumita Majumder used to sit by the side of Pran Krishna Bag. He retired in the year 2007-2008. I know Sumita Majumder and Susanta Saha got married and afterwards they have filed a divorce suit. We heard regarding a relationship with Sumita and Pran Krishna Bag. We got a letter when we clean the school and I have brought that letter. This is the said letter marked as Exbt. No.6 (with no objection). I knew that Susanta was suffering from pain of spinal cord for which he was in bed rest. I went with him to doctor many tiems. After marriage he stayed in the house at Salkia on rent from February, 2012. He went to Maju at July-August, 2012. Today what I have told are all ture. Cross-examination of P.W.2-Now I am 38 years old. My house is at Gosaba, Sunderban. Now, I am staying at Sonarpur. From 2002 to my joining I do not know anything regarding the relationship with Susanta and Sumita. When I joined Susanta used to stay in a rented house near school. I also stayed with him. We had good relation. I did not know regarding the love affair with Susanta and Sumita. We were invited in the marriage of susanta on behalf of Susanta. May be Sumita also invited us.9
Not a fact that nobody went to the marriage from our school. We did not go to the house of Susanta. I did not go to the house of Susanta and Sumita at Salkia. I did not know regarding the doctors to whom he consulted at Salkia. After bed rest when he started staying at Maju I accompanied him to Park Clinic after some times when he started homeopathy treatment at Hooghly I used to got with him sometimes with car. I have no other knowledge. I cannot remember the name of the doctor of homeopathy. He was of Bhandarhati, Hooghly."
Mr. Mitra further strongly contended that 3rd case has been made out by the learned Judge though no grounds was ever taken in the plaint.
It is also strongly argued by Mr. Mukherjee that no attempt was ever made by the husband to bring the wife back.
It is further emphasized by Mr. Mitra that since no attempt was made by the respondent/husband to bring the wife back, therefore, desertion could not be proved. It is contended by Mr. Mitra that after marriage they lived together only for six months therefore case of cruelty 10 also cannot be proved. It is also not proved from the evidence that wife did not want to stay at Maju (husband's place of service).
4. Mr. Mitra drew Court's attention to some portion of the judgement appears at page 71 of the paper book and urged that learned Judge herself held that it is difficult to prove cruelty and desertion. That relevant portion of the judgement is quoted below:-
".....The petitioner/husband files this case on the ground of cruelty and desertion. He has stated that the wife neglected him, abused him with filthy languages. She used to stay at her parent's house, did not care for his ill health. He wanted issue but she does not want that. She wants to state according to her own choice. Ultimately, she deserted him.
The negligence regarding the health of the husband, using filthy languages and such other tortures are very difficult to prove with written and oral evidence because most of the time no witnesses stay at the spot. All these things can be perceived by the senses by both parties and are psychological. To adjudicate such cruelty and desertion the averments, admissions and evidences of both parties only help the Court. The demeanor and conduct of the parties noticed by the Judge at the time of trial sometimes help the Court." 11
In support of his contention reliance was placed on a Division Bench decision of this Hon'ble Court reported in AIR 2009 (CAL) Page- 167 (Smti Ananta v Ramchander).
On the point of non-proving the cruelty and desertion Mr. Mitra relied on an Hon'ble Apex Court decision reported in AIR 2013 (SC) Page-2176 Paragraphs-12 & 13 (K. Srinivas Rao v D.A. Deepa).
Reliance was also placed by Mr. Mitra on a decision reported in 2010 (1) CHN (CAL) Page-534 Paragraphs-11 & 12 (Shampa Mukherjee vs Pranab Mukherjee) and also 2004 (3) CHN Paragraphs- 12 & 19 Page-266 (Abhijit Das Gupta vs Rita Das Gupta) .
5. Therefore, in conclusion Mr. Mitra strongly submitted that the respondent/husband miserably failed to prove the case of cruelty and desertion either in the averment or in testimony and also the documentary evidence. Therefore, Court should set aside the impugned judgement and order.
6. Per contra, Mr. Saptangsu Basu, learned senior counsel appearing for the respondent/husband strongly urged that the marriage 12 was solemnized on 24th February, 2012 under Hindu Marriage and both the parties lived together only for six months.
It is further submitted that since the respondent/husband was suffering from spinal cord disorder problem, therefore, the respondent/husband was advised by the orthopedic doctor not to take painful and long journey from Howrah to Maju. Otherwise the petitioner may have to undergo spinal cord surgery. Mr. Basu also referred to some portion of paragraph 10 of the plaint which is quoted below :-
"....Fact remains that your petitioner was advised by doctors to avoid the painful journey from Howrah to Maju for Arthritis/Neurological problem otherwise there will have to operate the Spinal Cord."
Mr. Basu also referred some portion of the cross-examination of the appellant/wife and the same is quoted below :-
"....I joied in Maju R.N. Basu High School on 01.02.1993. I resigned from that school on 19.12.2013. I am Post Graduate in Geography and History. I do not know law. I wrote the fact in the affidavit by the help of my lawyer.13
Not a fact that it is false that we did not arrange the accommodation 7/1/1, Panjan Para Lane.
Not a fact it is false that I cannot arrange any place at Howrah. Not a fact it is false that I sued to look after my husband and I used to do work of my house after returning from school and my husband refused to take any issue and my husband wants to live together without any attempt to take issue.
I did not write any letter to my in-laws that my husband refused to take any issue.
Not a fact it is false that my husband always busy with phone and did not care me and he used to tell that he was in great economic hardship.
Not a fact it is false that he always claimed the accounts and the expenses.
Not a fact it is false that my husband became ill from April, 2012 and I used to look after him and nurse him.14
I did not make any arrangement outside the State for his treatment. Not a fact that my husband did not get well regarding my arrangement for treatment for which he was to consult with homeopathy doctor and now he is well.
Not a fact it is false that my husband used to neglect, abuse and throw articles upon me.
(My family members means my father, mother, brother and kakima of me)."
Mr. Basu also referred some portion of the examination-in-chief of the DW1 which is quoted below :-
"....I say that I am an educated and cultured person and all the family members are depending on me and the marriage is a fruits of love affairs and after few days of marriage when I took the temporary accommodation at my Aunti's flat but I noticed that the petitioner is self-centered and is not at all interested to interact with me rather he was always busy in telephone in order to talk with his family members or friends and when the petitioner appeared in front 15 of me, he at once keep off the phone and always told me that he was in great economic hardship.
I say that if I told the petitioner to have better livelihood at my expenses the respondent was also disagreed. I say that most of day, my mother sent the breakfast, dinner from her house. I further say that the petitioner always asked for account from me regarding daily livelihood. I say that in the month of April, 2012 the petitioner became seriously ill for his waist pain and became bedridden and at that material pint of time I took all the arrangement for treatment and personally nursed him in all respect. I further say that I took all household duties in my own hand like as making of breakfast. Lunch, tiffin etc. including al the works of nursing and thereafter went to my school. I further say that I involved myself only to recover the petitioner from his illness but in-spite of all the efforts the petitioner always tried to find fault on my part."
7. On the point of mental cruelty Mr. Basu relied on several Hon'ble Apex Court deciion reported in (I) 2002 (5) SCC Page-706 (Parveen Mehta vs Inderjit Mehta) Paragraphs-21 & 22 (II) 2002 (2) Supreme Court Cases Page-296 Paragraphs-16 & 18 (G.V.N. Kameswara Rao vs G. Jabilli).
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Mr. Basu also submitted that marriage has already been irretrievably broken down since the marriage was solemnized on 24th February, 2012 but after six months of marriage both the parties has been started living separately. In support of his contention reliance was also placed on a Hon'ble Apex Court decision reported in 2007 (4) Supreme Court Cases Page-511 (Samar Ghosh vs Jaya Ghosh) Paragraph-101.
Mr. Basu also relied on an Hon'ble Division Bench decision reported in 2019 (3) CLJ (Cal) Page-181 (Michael Hembram vs Ratna Gupta(Hembram).
8. Before parting with his argument Mr. Basu submitted that Court should dismiss the appeal thereby affirming the judgment and order passed by the learned Trial Court.
Decision with Reasons
9. Considering the submissions advanced by the learned advocates and after perusing the record we find that admittedly marriage 17 was solemnized on 24th February, 2012 between the parties under Hindu Marriage Act. It is also admitted fact that after six months of the marriage both the parties have been living separately.
10. It is further an admitted fact that it is a love marriage between the parties the respondent/husband knowing fully well that the appellant/wife is eight years older then him in spite of that out of love both of them got married on the aforesaid date.
11. It is also evident from Paragraph-13 of the plaint that the appellant/wife left the house at Maju on 9th August, 2012. Since then the respondent/husband has been living separately at the house C/o. Sri Subodh Kumar Mondal, Madhya Maju, within Police Station- Jagatballavpur, in the District of Howrah.
We also cannot ignore the fact that the respondent/husband failed to prove the case of mental cruelty and desertion either in averment or in testimony. It is the learned Judge who had made a case of desertion on her own in the judgement impugned though the respondent/husband miserably failed to prove cruelty and desertion case.
We also cannot shut our eyes on the fact that no attempt was ever made by the husband to bring the wife back therefore alleged case of 18 desertion as has been made in the plaint the respondent/husband failed to prove the same. It is the duty of the plaintiff to prove his case by adducing evidence. Unfortunately the husband completely failed to prove the case of cruelty and desertion.
It is not out of place to mention that in the impugned judgement itself the learned Judge held that "It is very difficult to prove the case of cruelty and desertion". A marriage tie cannot be broken only on the basis of some isolated incidents. A marriage tie is a family bondage. It should be the duty of both the spouses to keep the bondage intact instead of breaking the same on some scattered, isolated incidents. Mere normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
We also cannot ignore the fact that the respondent/husband miserably failed to prove his case that the appellant/wife had several illicit relations with her colleagues or the appellant/wife refused to have any physical relation with the respondent/husband. The persons with whom the appellant/wife was having illicit relation were also not made party to the proceedings. Furthermore, no names have been mentioned with whom the wife/appellant has been carrying on such illicit relation. 19
We also cannot overlook some relevant portion of the cross- examination of the P.W.1 as quoted above. We also do not find any wrong to use the pre-marital surname by the appellant/wife being an working lady as that surname (Majumder) is used in every official records.
12. We also do not appreciate the observation of the learned Judge regarding age of appellant/wife. We have to keep it in mind that it is not an arrange marriage it is a love marriage and since the mental adjustment and harmony was developed between the appellant and the respondent therefore out of love and mental match-up ended the relation to a wedlock while the respondent/husband miserably failed to prove the case of cruelty and desertion then the impugned judgement was delivered taking aid of the age gap between the parties thus everywhere in the impugned judgement the age of the appellant/wife is mentioned though knowing fully well that the wife was eight years older then the husband due to love and mental attachment marriage was solemnized where age is not a factor or creates any bar.
13. Considering the above discussion and observation and after meticulously perusing the records and also anxiously considering the decision referred by the learned advocates in our considered view since the respondent/husband miserably failed to prove the case of cruelty 20 and desertion therefore we have no hesitation to hold that the impugned judgement and decision cannot be sustained in the eye of law as well as the facts and circumstances of the case.
14. Resultantly, the impugned judgement and order is hereby quashed and set aside without any order as to costs.
15. Now we have to deal with the decision referred by Mr. Basu. The facts of Parveen Mehta case (supra) and the facts of the case in hand is completely different. Here the husband never tried to take back the appellant/wife and she was not treated by any gynaecologist. Both the parties live together as husband and wife only for six months after the marriage was solemnized.
The facts of the case of G.V.N Kameswar Rao (supra) and the facts of the present case is completely different. The case has no manner of application in the present case.
In respect of Samar Ghosh case (supra) under Sub para XIV of Para-101 marriage should be dissolved on the ground of irretrievable break down of the relation for a long period of continuous separation only can be granted by the Hon'ble Apex Court under Article 184. Irretrievably break down of marriage is not a ground for dissolution of 21 marriage under Section 13 of the Hindu Marriage Act, 1955. Accordingly that referred case of Samar Ghosh (supra) is also not applicable.
16. Urgent photostat certified copy of this judgement if applied for be supplied to the parties after fulfilling all the formalities.
(Manojit Mandal, J) (Samapti Chatterjee, J)