Calcutta High Court (Appellete Side)
Tarak Nandi vs Smt. Dolly Nandi Nee Paul on 26 June, 2009
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 Prasenjit Mandal
F. A. No. 52 of 2005
Tarak Nandi
Versus
Smt. Dolly Nandi nee Paul
For the Appellant: Mr. Bikash Kr. Chattopadhyay.
For the Respondent: Mr. Shyamal Kumar Dey.
Heard on: 09.06.2009.
Judgment on: 26th June, 2009.
Bhaskar Bhattacharya, J.:
This appeal is at the instance of a husband in a suit for divorce filed on the ground of desertion and is directed against the judgment and decree dated 29th May, 2004 passed by the learned Additional District Judge, Fast Track Court at Barrackpore, District-North 24-Parganas, in Matrimonial Suit No.595 of 2002 thereby dismissing the said suit.
Being dissatisfied, the husband has come up with the present appeal. The appellant filed in the Court of the learned District Judge, at Barrasat, a suit being Matrimonial Suit No.595 of 2002 which was subsequently transferred to the Court of Fast Track, Barrackpore, for divorce on the ground of desertion and the case made out by the appellant may be summed up thus:
(a) The parties were married on 8th June, 1993 according to Hindu Rites and Customs at the place of the parents' residence of the respondent at Kasba, District-South 24-Parganas.
(b) After the marriage, the parties stayed together in the residential house of the appellant at Agarpara, P.S. Khardah and few months after their marriage, they went to Mumbai, as at that time, the husband used to carry on business in Mumbai.
(c) Subsequently, due to loss in the said business, the husband came back to Agarpara and started residing there. But the wife, very frequently used to go to her paternal home at Kasba without informing the husband or the members of the family. The said frequent leaving of the matrimonial home caused annoyance in the mind of the members of the family of the husband as the husband used to stay in a joint family consisting of his parents and other brothers and their wives. The respondent, however, did not change her habit even after the husband and his other family members asked her to amend her whimsical nature, she being a housewife of a joint family.
(d) During the stay at Mumbai, the respondent twice became pregnant but those pregnancies resulted in miscarriage due to whimsical and savage attitude of the respondent with the fear of entanglement with family and the society of the appellant. The respondent all the times abused the husband comparing the inferior financial status of the husband with that of her father's family, although, the husband tried his best to maintain the wife with all the necessities of life.
(e) After returning from Mumbai, the respondent conceived for the third time in the residence at Agarpara but the respondent always became apprehensive about the treatment undergone by the local physician and ultimately, left the matrimonial home and gave birth of a female child in a nursing home at Ballygunge Station Road and husband took all the expenses of the nursing home.
(f) After the birth of the daughter, the respondent along with the baby went to her parents' house on the plea of "Maternal Rice Ceremony" and since then the, the respondent did not intend to return to her matrimonial home.
Although the father of the husband died in the month of April, 1998, the respondent did not come to attend "Shradh Ceremony". Thereafter, the respondent did not keep any contract with the appellant and other members of the family and even she admitted the daughter at a school situated at Deshapriya Park, far away from Agarpara and near her parental house.
(g) The respondent took away all her valuable articles including gold ornaments from time to time and in the month of August, 1997, she has totally deserted the appellant and in spite of requests of the appellant, his various relatives and friends and serving letter with request of returning and restoring the relation, the respondent did not come back. Hence the suit.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summarised thus:
(1) After the marriage, the respondent went to the matrimonial home at the village Agarpara but just after the marriage she was surprised to see that the appellant was not willing to talk with the defendant at the instigation of her mother-in-law and sister-in-law.
(2) After few months of the marriage, the respondent along with the appellant went to Mumbai where at the relevant time the appellant carried on small trade with the help and association of his relatives.
However, due to dishonesty, the appellant sustained loss in business and was compelled to return at his native place.
(3) The respondent tried her best to convince the appellant to be honest in mind but she experienced bad treatment of both mental and physical torture and filthy comments regarding her paternal home. (4) During her days in Mumbai, the respondent conceived but unfortunately due to tremendous pressure from the husband she was forced to undergo abortion which led to irreparable mental injury to the respondent.
(5) After few months' stay in Mumbai, the respondent returned to the matrimonial home with her husband but the respondent experienced inhuman behaviour and ill-treatment from the husband and her in-laws. (6) In Agarpara, she once again conceived but the husband with utter dislike and annoyance tortured the respondent which caused miscarriage.
(7) The ill-treatment continued and on protest, the respondent had to digest all sorts of sinister comments regarding the parental home of the respondent and blamed her for non-fulfilling the required amount of dowry at the time of marriage.
(8) Once again, the respondent became pregnant and on 21st March, 1996 a female child was born and in connection with this pregnancy, the respondent got no financial help from any of the members of the husband's family and she was rather forced to live in her paternal home. At no point of time, the husband or any other person from the matrimonial home had come to see her. Even at the time of the birth of the child, the husband had only on one occasion came to the nursing home but refused to give any sort of financial help. The respondent, finding no other alternative, requested her brother for help and all the expenditure of the childbirth was borne by the brother of the respondent. (9) After the birth of the child, when the respondent returned to the matrimonial home they were neglected and disliked by all the members the husband's family.
(10) 7-8 months after the birth of the child, the wife went to her paternal home to pay customary visit but the husband refused to take the respondent back to his home and since then, the respondent was compelled to live in her paternal home.
At the time of hearing of the suit, the husband and his elder brother gave evidence in support of the claim for divorce while the wife and her younger brother gave evidence in opposing the claim.
The learned Trial Judge, as indicated earlier, by the judgment and decree impugned herein dismissed the suit on the ground that the husband failed to prove the allegation of desertion.
Being dissatisfied, the husband 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 the parties were married in the year 1993. The financial condition of the family of the wife is better off than that of the husband although the marriage is a negotiated one. The brothers of the wife have different kinds of business whereas the husband is the owner-cum-driver of an Auto Rickshaw. The husband resided in a joint family consisting of his parents and brothers with the wife of his elder brother in Agarpara which is the house owned by the father of the husband. The younger brother of the husband at the time of marriage was unmarried. The father of the husband died in the year 1998. One month after the marriage, the husband with the newly wedded wife left for Mumbai as the husband used to run a business in Mumbai, although according to the wife, he used to help his relative in business. The husband, however, decided to come back to Agarpara as his business in Mumbai did not prosper. In Mumbai, the wife conceived for the first time but the said pregnancy was aborted. According to the wife, the husband forced her to abort whereas according to the husband, the wife pressed for the abortion. It further appears that immediately after coming back to Agarpara, the wife again conceived but this time, the pregnancy resulted in miscarriage. According to the wife, due to heavy domestic work done by the wife in her in-law's place against medical advice, the miscarriage occurred. Thereafter, the wife conceived for the third time, and on this occasion, the wife stayed in her father's place during pregnancy and ultimately, gave birth to a daughter in the nursing home in Ballygunge near her father's house. After the birth of the daughter, the parties lived together in the joint family at Agarpara and the "Annaprashan" ceremony was held along with that of the daughter of the elder brother of the husband who was one month older than the daughter of the parties.
The wife, however, wanted to make out a case that no "Annaprashan" of her daughter was ever held and that only the "Annaprashan" of the daughter of the elder brother of the husband was performed, but in cross-examination, she was constrained to admit that such "Annaprashan" was really held as would appear from her statement that she came to the house of her father for the "Matul Bhat", 5/6 months after the "Annaprsan" ceremony of her daughter in house of her father-in-law.
The definite case of the husband is that after the said "Matul Bhat" in the month of March, 1997, the wife visited the house of the husband occasionally and from the month of August, 1997, she never came to the house at Agarpara. In the year 1998, she was informed that the father of the husband died, but in spite of such knowledge, she did not come to attend the Sradh ceremony of her father-in-law. The suit for divorce on the ground of desertion was filed on May 12, 2002, about five years after the last visit of the wife in the house at Agarpara in the month of August, 1997.
The specific defence taken in this regard in the written statement is quoted below:
"That after the child birth defendant has returned to the matrimonial home but she and her child were neglected and were disliked by all the members therein. On or about 7-8 months for a customary occasion the defendant with her child came to the paternal home. But astonishingly the plaintiff thereafter refused to take the defendant to his home and since then the defendant is compelled to live in her paternal home."
In her deposition, the wife, however, admitted in examination-in-chief on January 9, 2004 that she went back to the house of her husband but according to her, she was not "treated well" in the house of her father-in-law. On the next date of examination-in-chief on March 20, 2004, she rectified herself by saying that after "Matul Bhat", she went to the house of her father-in-law along with the daughter but they were not "received" by the members of the family of her father- in-law. The aforesaid statements support the case of the husband, that after "Matul Bhat" ceremony, she occasionally stayed in Agarpara and from August, 1997 she never came back. A suggestion was given to the husband in cross- examination that the members of his family did not talk to her and that she was not given the status of wife in the house which was denied by the husband. The wife stated in her cross-examination that she did not make any effort to go back to the house of her husband but her mother and brothers made such efforts.
The mother of the wife was not examined but her younger brother appeared as D.W.2. The D.W.2 stated in his evidence that he could not state the dates when his maternal uncle, aunt and brothers went to the house of the husband to settle the dispute between the parties. He also could not say how many times they went. He also could not say the date when his elder sister along with his aunt and the second brother went to the house of the husband. He, however, admitted that one month after the death of the father-in-law of her sister they got information from the wife of the brother of the husband but even then her sister or he himself did not go the house of the appellant. According to him, they did not take any information whether the brother of the appellant was going to be married and that they took information up to the year 2000. It is needless to mention that none of those persons who took initiative to settle the dispute between the parties were examined; on the other hand, the elder brother of the husband as P.W.2 has supported the version of the husband that he and P.W.2 came about 25-26 times to take back the wife and they wrote letters under registered post to both the respondent and her mother for sending her. The receipt of those letters is admitted but the wife did not produce those letters.
Although it was sought to be argued on behalf of the respondent that the expenses of birth of the child were born by the family of the wife and that the husband did not take any step, we find that the husband has denied such allegation and the wife refused to produce the discharge certificate from the nursing home which would indicate that the husband signed the same. Be that as it may, in this appeal where the dispute is as regards desertion started in the year 1997, those facts are immaterial. The wife in her cross-examination admitted that her relation with her husband till "Matul Bhat" of her daughter was good. Thus, in the absence of any evidence of torture in her matrimonial home, there was no justification of withdrawing from the society of the husband. It is apparent that the wife without any just cause refused to stay with the husband nor did she ever try to go back to her or to settle elsewhere even if we accept her contention that she was not liked by her in-laws'. When her relation with her husband was good till "Matul Bhat" of her daughter, there was no reason for not communicating with the husband from the year 1997 till 2002, the date of presentation of the petition for divorce. The wife in this case has failed to prove any just cause for not living with the husband and her intention to severe the relationship was final would appear from her conduct that she kept no touch with her husband till the institution of proceedings from 1997 and even after getting the news of death of her father-in-law she did not feel the necessity of standing by the side of her husband. The letters sent under registered posts were also not replied and no reason has been assigned for not giving such reply.
The learned Trial Judge, as it appears from the judgement impugned, did not at all consider the aforesaid aspects of the evidence on record and disbelieved the case of desertion simply because the husband in his cross-examination stated that he was not willing to accept his wife if she wanted to go back at that stage. Once a valuable right of divorce has accrued in favour of the husband for desertion of more than two years before the presentation of the petition of divorce, no adverse inference should be drawn against the husband if he declined to take back the wife at the time of hearing of the suit. Otherwise, no decree for divorce can be granted on the ground of desertion and the errant spouse at the time of hearing by giving a pretended proposal of resumption of relationship can frustrate the petition for divorce although desertion for more than two years is proved.
We, thus, find that in this case the husband has proved desertion of the wife from the month of August 1997 and thus, is entitled to get a decree for divorce on that ground.
The husband is an owner-cum-driver of an Auto Rickshaw and thus, after taking into consideration his financial status as well as the conduct of the wife, we pass a decree of permanent alimony for the wife by directing the husband to pay a onetime payment of Rupees one lakh and fifty thousand (Rs.1,50,000/-). For the maintenance of the daughter who is now a student of class seven, we direct the husband to pay a sum of Rs.500/- every month payable within seventh of the month for which it falls due in the name of the respondent until further order is passed by any competent court in that behalf. The decree for divorce would be effective only on payment of Rs.1.5 lakh to the wife. Such amount should be paid within a month from today. The moment such amount of Rs.1.5 lakh would be paid to the wife, the order of maintenance obtained by the wife in the criminal proceedings under Section 125 of the Code of Criminal Procedure will become ineffective.
The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prasenjit Mandal, J.)