Calcutta High Court (Appellete Side)
Sarathi Paul vs Samir Kumar Paul on 18 February, 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 Tapan Kumar Dutt
F. A. No. 365 of 2006
Sarathi Paul
Versus
Samir Kumar Paul
For the Appellant/Petitioner: Mr. Pradip Kumar Panja.
For the Respondent/Opposite Party: Mr. Shyamal Sanyal,
Mr. Supriya Ranjan Ghosh,
Mr. Kapil Saha.
Heard on: 15.01.2009.
Judgment on: 18th February, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the judgment and decree dated 30th March, 2006 passed by the Additional District Judge, Fourteenth Court, Alipore, in Matrimonial Suit No.1494 of 2001, since renumbered as Matrimonial Suit No.11 of 2002 thereby dismissing the said suit.
Being dissatisfied, the wife has come up with the present first appeal. The appellant before us filed a suit being Matrimonial Suit No.1494 of 2001 in the Court of District Judge for divorce. The said suit was subsequently transferred to the Fourteenth Court of Additional District Judge at Alipore and was renumbered as Matrimonial Suit No.11 of 2002.
The case made out by the appellant in the said petition for divorce may be epitomised thus:
a) The parties were married on the basis of negotiation of their guardians according to the Hindu rites and customs on 19th February, 1998 at premises No.165/14, Diamond Harbour Road, P.S.-Thakurpukur at the residence of the appellant's father.
b) At the time of negotiation, the guardian of the respondent demanded various articles as dowry and the appellant satisfied those demands.
c) After the solemnisation of the marriage, the appellant went to the matrimonial home at Belur Govt. Housing Estate, P.S.- Bally, District -
Howrah with all her golden ornaments, utensils, sarees and other domestic articles along with other presents which she obtained from her father and relatives at the time of marriage as her "Stridhan" properties amounting to Rs.1,25,000/-. The respondent's guardian received cash amount of Rs.60,000/- as a dowry.
d) The parties lived together as husband and wife and the marriage was consummated. Subsequently, they registered their marriage before the Marriage Registrar on 24th May, 1998.
e) After one month from the date of solemnisation of the marriage, the respondent and his family members started demanding further dowry and asked the appellant to bring money from her father for the purpose of purchasing refrigerator, motorcycle and taking telephone connection in the house. The respondent and the members of his family were not satisfied with the presents that had been given at the time of marriage and they pressurised the appellant to withdraw money from her provident fund account. When the appellant refused to comply with such demand, the respondent and the members of his family started ill-behaviour, assault, abusing in filthy language at every now and then and tortured the appellant both physically and mentally. Even then, the appellant tried to satisfy them in every sort of household works and other affairs but the respondent drove her out from the matrimonial home on 6th May, 1998 and from that day, the appellant has been residing in her father's house.
f) The appellant informed the matter to the Pradhan, Bally Gram Panchayat and a 'salish' was held in the office of the Gram Panchayat and in the said meeting, the respondent refused to accept the appellant as his wife.
g) With a view to restore the relationship, the appellant along with her brother went to the matrimonial home on 20th October, 1998 in order to resume the conjugal life but the respondent and his family-members drove out the appellant and her brother by insulting and abusing in filthy language. The appellant lodged a complaint in the local police station on that day.
h) On 25th October, 1998, the respondent along with three unknown persons came to the appellant's father's house and threatened her with dire consequences for going to their house on 20th October, 1998 and stated that if she tried to go to the respondent's house in future, she would be murdered. On that day, a diary was lodged in the local police station. The aforesaid conduct on the part of the defendant amounted to cruelty and, thus, the suit for divorce was filed.
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 summed up thus:
(1) Since the date of marriage and till her desertion on 6th May, 1998, the marriage was consummated only on 20-25 days and on most of the days, the wife preferred to stay in her brother's house. She started pressurising the respondent for permanent settlement at her brother's house by leaving the parents of the respondent forever. The appellant tried to impress upon the respondent that she would be happy forever if he agreed to the proposal of the wife as she earned a handsome salary as a government schoolteacher and the respondent was employed in an ordinary private firm.
(2) As the respondent did not accept the aforesaid proposal, the appellant was annoyed and she passed remarks by saying that the respondent is an impotent person. This sort of false allegation had caused mental agony and trauma which had spread among the family members of the appellant and the respondent. The suit was, thus, liable to be dismissed.
At the time of hearing of the suit, the appellant herself and one Soma Biswas, a neighbour of the appellant, gave evidence in support of the case for divorce while the respondent alone deposed in opposing the prayer.
As indicated earlier, the learned Trial Judge, by the judgment and decree dated 30th March, 2006, was pleased to dismiss the suit holding that the appellant had failed to prove the ground of divorce.
Being dissatisfied, the appellant has come up with the present first appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find the sum and substance of the grievances of the appellant in the matrimonial proceedings is that as she was unable to comply with the demand of further dowry from the part of her in-laws, they drove her out of the matrimonial home after inflicting physical and mental torture and the husband with some unknown persons came to her father's house threatening that if she intended to return to the matrimonial home she would be murdered. According to her, prior to that incident, she along with her brother went to the husband's house but she was allowed to stay. The husband has, on the other hand, denied such allegation and has contended that the wife wanted that he should stay with her in a separate accommodation and he having refused, she of her own left the matrimonial home by informing the local Panchayat office.
In support of the abovementioned allegations, the wife herself and one Soma Biswas, her neighbour of the paternal house, were examined. Not a single witness has been examined by the wife, in whose presence a sum of Rs.60,000/- was allegedly paid to the husband as dowry. No document was produced showing withdrawal of Rs.60,000/- from the bank or the source of payment of such amount. Even the own brother of the wife did not appear as the witness to prove that he took her sister to the matrimonial home when they were driven away. He could enlighten the Court about the source of dowry or the future demand of dowry. The P.W.-2, Soma Biswas, stated that she tried to settle the dispute with the help of the brother of the wife and went to the matrimonial home. The wife, however, never alleged either in her deposition or in her pleading that P.W.-2 was also present with her and her brother in the matrimonial home. A specific suggestion was given to the P.W.-2 that she was never present in the matrimonial home. It appears that P.W.-2 was an unsummoned witness. It further appears from Exht.-A(1), the minutes of the Panchayat meeting, that before the Panchayat Authority, no complaint was made as regards the allegations of physical or mental cruelty or of demand of dowry. The husband, as it appears from that document, refused to stay with the wife on the ground that she alleged "absence of manhood" against the husband.
From the above evidence it is established that the allegations made by the wife against the husband of inflicting cruelty, demanding dowry and driving out the wife from the matrimonial home are untrue. In our opinion, the learned Trial Judge rightly concluded that as the wife used to earn Rs.10,000/- a month whereas the husband used to earn much less, the wife did not like the idea of spending money for the husband's family and for that reason, she of her own, left the matrimonial home.
Mr. Panja, the learned advocate appearing on behalf of the wife, as a last resort tried to impress upon us that the parties having separated for a long time the, marriage has practically broken down and accordingly, we should grant a decree for divorce. We are afraid, we are not at all impressed by such submission. In this case, it was the wife who has left the matrimonial home of her own by giving false allegations against her husband and as such, now cannot complain that the marriage has broken down. One, in a matrimonial proceeding, cannot take advantage of one's own wrong. Moreover, the mere fact, that the marriage between the parties has broken down irretrievably, is by itself no ground of divorce till today. We are quite conscious that the Supreme Court in several matters in exercise of power conferred under Article 142 of the Constitution of India has granted divorce for doing complete justice between the parties on the ground of irretrievable breakdown of marriage, but such power is not available to any other Courts in India and even the Apex Court has refused to exercise power under Article 142 on the ground of irretrievable breakdown of marriage where it appeared that the party applying for divorce was taking advantage of his own wrong. (See: Chetan Das vs. Kamla Devi reported in AIR 2001 SC 1799) We, therefore, find no reason to interfere with the decision of the learned Trial Judge and consequently, we dismiss the appeal. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Tapan Kumar Dutt, J.)