Gauhati High Court
Sri Swapan Kumar Das vs Smt Anjali Das on 3 April, 2019
Equivalent citations: AIR 2019 GAUHATI 90, AIRONLINE 2019 GAU 175, (2019) 198 ALLINDCAS 759, (2019) 3 DMC 578
Author: A.S. Bopanna
Bench: A.S. Bopanna, Arup Kumar Goswami
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GAHC010094872018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App. 49/2018
1:SRI SWAPAN KUMAR DAS
SON OF LATE BIDHU BHUSHAN DAS, RESIDENT OF QUARTER NO. 204 B
TYPE OIL DULIAJAN TOWN, P.O. AND P.S. DULIAJAN, PIN- 786602, DIST.-
DIBRUGARH, ASSAM.
VERSUS
1:SMT ANJALI DAS
WIFE OF SRI SWAPAN KUMER DAS, C/O. GAUTAM NAHA, R/O. MARIANI,
KENEDY PARK, P.O. AND P.S. MARIANI, DIST.- JORHAT, PIN- 785634,
ASSAM.
Advocate for the Petitioner : MR. P BOIRAGI
Advocate for the Respondent : MR. R BORPUJARI
PRESENT HON'BLE THE CHIEF JUSTICE MR. A.S. BOPANNA THE HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the Appellant : Ms. B. Talukdar and Mr. S.J. Sarmah, Advocates For the Respondent : Ms. D. Borpujari, Advocate.
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Date of Hearing : 03.04.2019
Date of Judgment & Order : 03.04.2019
JUDGMENT AND ORDER
(Oral)
(A.S. BOPANNA, C.J.)
The appellant husband is before this Court assailing the judgment dated 15.03.2018 passed by the District Judge, Dibrugarh in T.S.(D) No.62/2015. The relationship between the parties is not disputed. The marriage was solemnized on 23.11.1976. Due to certain disputes in their marital life, the parties are residing separately and, in that circumstance, the appellant alleging cruelty and also desertion by the respondent had filed the petition under Section 13(1) (ia)(ib) of the Hindu Marriage Act, 1955. The Court below, after considering the rival contentions, has dismissed the petition. It is in that light, the appellant is before this Court assailing the judgment and seeking a decree for dissolution of their marriage.
2. The allegation as made by the appellant in the petition filed before the Court below is that the parties to the marriage have two daughters, namely Srimati Susmita Das, born on 06.07.1986; and Srimati Sarmistha Das, born on 11.06.1990. The appellant contended that though the elder daughter had been married, the respondent was over indulgent with the daughters because of which the younger daughter had fled from the house with a boy on two occasions. The appellant being unable to bear the insult had sold the property at Dibrugarh. In that light, the appellant had also contended with regard to the immoral activities of the respondent and her living separately from the company of the appellant. Hence, in that Page No.# 3/7 circumstance, the appellant has sought that the petition be allowed and the marriage be dissolved. The appellant had also referred to the various cases instituted by the respondent against the appellant.
3. The respondent having appeared in the said proceedings had filed a detailed written statement. The allegation as made was denied and, on the other hand, the respondent had contended that the appellant is leading an immoral life with one girl of Naharkatia. It was further contended that the appellant is also maintaining an illicit relationship with one Moni Das Gupta. In that regard, the respondent had sought to justify her action of staying away from the appellant and also sought to justify the cases filed against the appellant.
4. In the background of the contentions put forth, the Court below framed as many as six issues for its consideration. The same read as hereunder:
i. Whether the suit is maintainable ?
ii. Whether the petitioner has right to sue ?
iii. Whether the respondent has deserted the petitioner ?
iv. Whether the respondent is cruel to the petitioner ?
v. Whether the petitioner is entitled to a Decree of Divorce ?
vi. To what relief/reliefs the parties are entitled to ?
5. The appellant herein in order to discharge the burden cast upon him, had examined himself as P.W.1 and had also examined three witnesses, namely, Gautam Saha as P.W.2, Shri Page No.# 4/7 Ajay Singha as P.W.3 and Smti Rita Das as P.W.4. The respondent had not chosen to tender any evidence. The Court below on analyzing the evidence was of the opinion that the allegation as made in the petition had not been established and, therefore, the appellant is not entitled to decree of divorce. The learned counsel for the appellant while assailing the judgment has not only referred to the pleadings of the parties, but also the evidence tendered before the Court below. In that regard, it is contended that the appellant had tendered evidence to indicate the immoral activities of the respondent and, therefore, it was not possible for the appellant to continue with the marital relationship. It is the further contention of the appellant that the respondent though had filed a written statement and made certain allegations against the appellant, had not chosen to tender evidence and prove the same. In such circumstances, the unsubstantiated allegation made in the written statement specifically with regard to the character assassination of the appellant by itself would be sufficient to hold that the respondent had inflicted mental cruelty on the appellant. In that light, the learned counsel contends that the Court below ought to have taken note of the same and the marriage ought to have been dissolved.
6. The learned counsel for the respondent would, however, seek to sustain the judgment passed by the Court below. It is contended that the cases as instituted by the respondent are only to vindicate her right which is available to her in law. It is contended that merely because the respondent had instituted the cases, the same cannot be considered as having inflicted cruelty on the appellant. It is further contended that in the instant facts, when the petition had been filed by the appellant under Section 13(1)(ia)(ib), the essential ingredients thereto was required to be established by tendering appropriate evidence. When the very evidence is insufficient to establish the same, merely because the respondent has not tendered the evidence, the same cannot be held against the appellant. The Court below in that light on a Page No.# 5/7 perusal of the contentions and having analyzed the evidence, has arrived at the conclusion and the same does not call for interference.
7. In the light of the above, in addition to the appeal papers, we have also perused the record received from the Court below. In addition to the averments as taken note by the Court below, we have perused the petition filed by the appellant. In the pleadings, the appellant except referring to the cases filed by the respondent and calling her immoral besides making certain allegation against the respondent with regard to her indulgence leading to the daughters fleeing away from home, no other specific allegation has been made against the respondent in the light of ingredients as contained in Section 13(1)(ia)(ib) of the Act. The respondent had filed a detailed written statement and had denied the allegation made in the petition. In that circumstance, the appellant was required to tender appropriate evidence. In that regard, we notice that the appellant no doubt as P.W. 1 had referred to the very same averments as contained in the petition. When allegation of cruelty is made in the petition, in order to establish the same, appropriate witnesses are required to be examined. In the instant case, the witnesses examined as P.W.2 to 4 are stated to be acquaintance of the appellant. Insofar as P.W.2 and 3, the only statement in their evidence is that the younger daughter of the parties herein had eloped and, in that regard, they had learnt that the respondent had supported the daughter in her activities. Apart from the same, the said witnesses have not stated anything with regard to cruelty inflicted by the respondent. In addition, with regard to other allegations which had been made by the appellant relating to the cases instituted, no reference was made in that regard in their evidence. Insofar as P.W.4, in addition to the statements made by her with regard to the conduct of the daughter or the parties, the only allegation is that when the appellant had met her once, he stated about cruelty, but the said statement has not been established in any manner.
Page No.# 6/7 Therefore, in that circumstance, in a petition of the present nature, when the appellant has not tendered appropriate evidence, the respondent not having tendered evidence cannot be held against her.
8. That being the position, one other aspect which arises for consideration herein is as to whether the allegation as made by the respondent in the written statement not being established through evidence by itself be taken as inflicting cruelty on the appellant. To that effect, the learned counsel for the appellant has relied on the judgment of the Hon'ble Supreme Court in the case of K. Srinivas Vs. K. Sunita, Civil Appeal No.1213 of 2006 dated 19.11.2014. It is no doubt true that in the evidence arising therein, the Hon'ble Supreme Court has taken note of the criminal complaints that had been filed and, in that regard, had arrived at the conclusion that filing of such complaint without establishing the allegation therein as ill advised. Therefore, in such circumstance, the allegation made would constitute cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act.
9. Even if the said decision is kept in view and evidence herein are taken note, as already adverted to above, it is no doubt true that the respondent wife having made certain allegation had not entered the witness box to establish the same. However, what is also necessary to be taken note in the instant case is that the benefit of character assassination of the appellant cannot be granted to the appellant in the instant case, since as noticed, the appellant has also made bald allegation alleging immoral activities of respondent without tendering any evidence to establish the same. Therefore, in that circumstance, in the instant facts, the same would not arise for consideration.
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10. That apart, insofar as the cases instituted by the respondent, it is noticed that the judgment dated 10.8.2017 in Misc. Case No.39 of 2015 would indicate that the case as put forth by the respondent has been accepted by the Court below and appropriate direction has been issued in the background of the provisions as contained in the Domestic Violence Act. It is no doubt true, insofar as the complaint filed under Section 498(A) IPC, the same has been dismissed and in a circumstance where the charge in the said proceeding is to be established beyond doubt, in the instant proceeding, a consideration on the basis of preponderance of probability with regard to inflicting of cruelty on the appellant would not arise. It is also seen that though the petition filed under Section 9 by the respondent has been dismissed, the very nature of the allegation taken note therein would be sufficient to indicate that the prayer as made by the appellant in the instant proceedings cannot be granted. Therefore, if all these aspects are taken into consideration, we see no reason to interfere with the judgment passed by the Court below.
11. The appeal being devoid of merit stands disposed of.
Registry to send back the LCR.
JUDGE CHIEF JUSTICE Comparing Assistant