Calcutta High Court
Tapan Kumar Kundu vs Sm. Biva Kundu on 15 May, 1987
Equivalent citations: AIR1988CAL223, AIR 1988 CALCUTTA 223
JUDGMENT Shyamal Kumar Sen, J.
1. The questions involved in this appeal are -- Has the appellant been treated with cruelty by the respondent? Has the respondent deserted the appellant on 11th July, 1978? The Additional District Judge, 2nd Court, Howrah dismissed the appellant's suit being Matrimonial Suit No. 112 of 1979 and held against the appellant on both the issues.
2. Being aggrieved by the said decision the appellant has preferred this appeal.
3. The case of the appellant in short is that he was married with the respondent Biva Kundu according to Hindu form of marriage on 14-3-73 and their marriage was solemnized at 16, Barrickpara Road, Behala, 24-Parganas. After the marriage the respondent stayed at the house of the appellant for about a week and thereafter she left for her brother's house at Eehala where she stayed for three months against the wish of the appellant. The marriage was negotiated in pursuance of an advertisement in the newspaper offering that a service would be arranged for the bridegroom for marrying the respondent and the appellant accordingly got a job in the State Electricity Board. During her slay at the house of her brother at Behala the respondent, her elder brother, her brother-in-law and other members and relations of the wife began to insist upon the appellant to provide a separate house and mess for the respondent to which the appellant refused to agree. The respondent used to come to the house of the appellant, stayed there for some time and then to leave for the house of her brother at Behala without the knowledge, consent or permission of the appellant or any member of his family. This habit of his wife became a source of mental torture and agony to the appellant. Since the appellant had got service in the State Electricity Board through the family members of his wife the respondent and his brother-in-law told the appellant that he was bound to obey their dictates or otherwise his life would be miserable. Since her marriage the respondent took an attitude which was obnoxious and veritable nuisance and her behaviour shocked the appellant and his family members. When the respondent stayed at the house of the appellant she failed and/or neglected to perform her marital social and household duties and obligations and was in the habit of picking up quarrels with the elderly members of the petitioner's family. She used slang words showing crude gestures thereby causing great mental agony to the appellant. The appellant sent registered letters to the respondent asking her to come back but there was no effect. The appellant became subject to torture, insult and threat and also he apprehended the loss of his life by the persons engaged by the respondent and her relations. The appellant was chased, he was insulted and assaulted on the way to and within the office premises at Mominpur area and he had to keep himself absent for some time from the office out of fear. The respondent on or about 17-7-75 all on a sudden left the premises of the appellant with her sister's son Ashim Pal without his knowledge and consent and she took all her ornaments and belongings from the ajmirah. She started living at Behala and the appellant went there to bring her back but he was ill treated and insulted by the respondent and other members of the family and she refused to come back. On or abour 17-3-76 the respondent engaged one Buddheswar Halder and some other antisocial elements led by Mahadeb Kundu her brother who came and assaulted the appellant in his office at Mominpur and he was about to be killed but for the timely resistance of his colleagues his life was saved. The appellant lodged a diary in Ekbalpur Police Station and reported the matter to the Chief Security Officer of the office. He kept himself absent from duty for a considerable period of time for fear of life. The respondent's brother-in-law who is an officer in the State Electricity Board by exerting his influence got the appellant transferred on October, 1976 from Mominpur to Behala which is near to the respondent's father's house intending to force the appellant to resign from the service and thus compelled the appellant to remain on leave for considerable period till he was transferred to Howrah in June 1977. The appellant brought the respondent to his house on 25-9-77 but her attitude remained the same and she refused to perform her marital obligations. On 9-10-77 the respondent along with her brother and some other anti-social elements came to the house of the appellant, assaulted and insulted him and took away all articles which were given at the time of marriage and forcibly obtained a signature on a letter of resignation addressed to the employer. The same was submitted in the office by Mahadeb Kundu, brother of the respondent and he induced the officer concerned to accept the same. On the next day they again compelled the appellant to pay a sum of Rs. 5,000/- by a cheque stating, inter alia that the respondent would be given in marriage again and there shall be no relationship with the appellant and the respondent. The said amount was taken on account of permanent alimony of the respondent. The respondent filed a case under Section 125 of the Criminal Procedure Code for maintenance in the Court of the 4th Judicial Magistrate at Alipore, 24-Parganas. The respondent has deserted the appellant since 11-7-1975 for a continuous period of not less than 4 years immediately preceding the filing of the application. According to the appellant the respondent has treated the appellant with such cruelty as to cause a reasonable apprehension in the mind of the appellant that it will be harmful and injurious for the appellant to live with the respondent.
4. The respondent filed written objection and contested the said suit. It is the contention of the respondent that she received very bad treatment from her husband and his relatio relation at the house of her husband. It was alleged that when she came to her brother's house to observe 'Austomongla' the relations of her husband as well as the appellant demanded scooter and other valuable articles which her brother could not provide. Thereafter they gradually began to show total negligence to her 2/3 months after the marriage and she had never been accorded good behaviour at the house of her husband. Her brother Mahadeb Kundu detected a letter written by the appellant to a lady Gouri Banerjee who was a tenant in her brother's house. The letter written by the appellant to Gouri Banerjee contained objectionable words which she did not expect from her husband. It is also the case of the respondent that the appellant became extremely furious and used to beat her regularly. The appellant used to confine the respondent in a room and kept her under lock and key. The appellant used to abuse her and did not provide for any maintenance to her. The respondent had to lead a very miserable life. She lived with her husband for two years in the hope that the relationship would again become normal but that did not materialise. Whenever the respondent used to go to her brother's or father's house, she used to come back to the house other husband on the very day or sometime after 2/3 days. In July 1975 the appellant brought the respondent to her father's house on the plea that her mother was ill and after keeping her at Behala he went away on the plea that he was going to bring sweetmeat. It has also been alleged that the appellant, however, did not come back and since then he was wilfully and deliberately deserted the respondent, his wife, with a motive to avoid her company and he has illegally withdrawn from her society.
5. Let us now consider the evidence adduced by the parties to d out if the charge of cruelty has been proved. According to the evidence of the appellant he married the respondent Biva Kundu according to Hindu rites on 14th August, 1973. On the next day i.e. 15th August, 1973 he came back with his wife Biva Kundu at his house and her friend Kumari Gouri Banerjee also came with his wife. The respondent stayed at the residence of the appellant up to 'Austomongla' i.e. for 8 days. On 17th August, 1973 he got a job in the West Bengal State Electricity Board through the help of respondent's brother Mani Kundu. The said Mani Kundu was at that time Private Secretary to the Chairman of the said board. The marriage was negotiated on the basis of an advertisement published in the Ananda Bazar Patrika on 18th February, 1973. It is admitted position that on the date of marriage i.e. on 14th August, 1973 the appellant was unemployed. The appellant in his evidence stated that he came back alone after 'Austomongla' and the respondent continued to stay at her father's house at Bahala for about 3 months without his consent. During her three months stay at her father's house the appellant visited her and requested her to come back with him but she did not agree on the plea that the appellant should provide for separate accommodation as she did not desire to live with the other members of his family. After much persuasion the appellant, however, managed to bring her back after three months to his house but during her stay with the appellant and the members of his family the respondent neglected to perform her marital and household duties and she developed the habit of picking up quarrels with his widowed mother and other members of the family. It is also the evidence of the appellant that the appellant was living with his widowed mother, two elder brothers who are married and a younger brother who is unemployed. It further appears from the evidence of the appellant that he had no pecuniary means to provide for separate accommodation for himself and his wife. The respondent occasionally used to come to the place of the appellant and stayed there with him for 15 days thereafter she used to go to her father's place. On 11th July, 1975 at about 7/7-30 A.M. the respondent left his house with her sister's son Ashim without the knowledge of the appellant and without obtaining his consent. At that time she took away all her ornaments and garments. The appellant was not at home at that time. He went out to market and on return from market he learnt about the said fact from his mother. After some days the appellant went to bring her back. She refused to come with him. On 13th October, 1975 the appellant sent a letter to the respondent by registered post with A/D which she received. The appellant also wrote a letter to the elder brother of the respondent Manasa Charan Kundu under certificate of posting requesting him to send his wife. On 17th March, 1976 one Buddhadeb Halder and the appellant's brother-in-law Mahadeb Kundu along with other anti-social elements went to the appellant's office and assaulted the appellant within the premises of the office at Mominpur with the help of his colleagues. The appellant lodged a written complaint at the Ekbalpur Police Station. Copy of the written complaint is proved and marked exhibit 4. It is the evidence of the appellant that he was transferred from Mominpur to Behala office under the influence of the respondent's brother-in-law Mani Kundu. The appellant has also stated in his evidence that the respondent, his brother and sister on two occasions threatened him to resign from service and out of fear he was compelled to remain on leave. Thereafter in the month of June, 1977 he was transferred to Howrah office. On 25th September 1977 the appellant brought the respondent to his house but her attitude towards the appellant remained the same as before. At about 7/7-30 A.M. on 9th October 1977 the respondent left his house alone in the absence of the appellant and without his consent. On the same day at about 11.30 A.M./12 noon the respondent along with his brother and brother-in-law Mani Kundu and other anti-social elements came to his house and insulted him. They asked the appellant to lender resignation. They further demanded Rs. 5000/- towards payment of alimony. They stated that the respondent will not stay with the appellant but will be given in marriage again. On the next day in the evening the appellant paid Rs. 5000/- by cheque to his brother-in-law Mahadeb Kundu the receipt of which was proved and marked exhibit 5. On 9th October 1977 the elder brother of the respondent Mahadeb Kundu took away all the wedding articles from the appellant's elder brother Bimal Kumar Kundu under a proper receipt. The said receipt was signed by Mahadeb Kundu. It was proved and marked exhibit 6. It is also in evidence that the respondent and his relations forcibly obtained the resignation letter from the appellant and his service was terminated. Subsequently on the prayer of the appellant for granting permission to withdraw his resignation letter the authorities were pleased to reinstate him with effect from January 1978. The letter from the office on the strength of which he got back his service is also proved and marked exhibit 7. The appellant in his evidence denied the allegation that he deserted the respondent. He also denied that he threatened the respondent with cruelty and physical force and drove her out of house. The appellant wrote a letter to the said Gouri Banerjee so that their problems may be solved through her. The appellant asked Gouri Banerjee to see him at his office for that purpose. It is also stated by the appellant in his evidence that the respondent filed a criminal case under Section 125 Criminal Procedure Code against him before the learned Magistrate at Alipore, district 24-Parganas and as per order of the said court he has all along been paid Rs. 150/-towards maintenance to the respondent. According to the appellant as appears from the evidence, the respondent deserted him exactly on 9th October, 1977.
6. One Bhaskar Chatterjee, Assistant Accountant attached to West Bengal State Electricity Board also gave evidence. According to him the appellant himself did not come to office for tendering resignation letter. One unknown person submitted the said application. At that time the said unknown person did not disclose his identity. In the afternoon of the day of submission of the resignation letter of the appellant the deponent went to appellant's house and enquired why he had submitted the resignation letter. There the said unknown person, who had submitted appellant's resignation letter, was found by the deponent and he came to ascertain from the appellant that the said unknown person was Mahadeb Kundu who happened to be appellant's brother-in-law. The said Bhaskar Chatterjee also in his evidence stated that the said Mahadeb Kundu asked the appellant to pay a sum of Rs. 5000/- towards maintenance of the respondent and the appellant issued a cheque in his presence and Mahadeb Kundu received the same and acknowledged the same in writing.
7. Appellant's brother Bimal Kanti Kundu also gave evidence in the said matrimonial suit. It is the evidence of the said Bimal Kanti Kundu that they were living in joint family which consists of his widowed mother, four brothers, two wives of two brothers and two unmarried sisters. He has stated in his evidence that during respondent's stay at the residence of the appellant she used to pick up quarrels with the members of the joint family. She always insulted them by referring to the fact that the appellant could get his service on the mercy of her brother-in-law (sister's husband). She also expressed her unwillingness to stay with them. She did not behave properly with their mother. She always insulted his mother and used abusive language and the same was her behaviour towards the appellant also. This witness has proved his signature and the signature of Mahadeb Kundu. brother of respondent in exhibits 6, 8 and 8(a). He has also stated that at the dictates of Mahadeb Kundu the appellant wrote out his resignation letter. According to this witness Tapan was suffering mentally and physically and could not take food properly and sleep peacefully. According to him Tapan did not attend office for three months from the date of his resignation. One Mohanlal Dey. Upper Division Clerk of West Bengal State Electricity Board also corroborated the evidence of Bimal Kanti Kundu to the effect that the appellant did not attend his office for three months from the date of resignation. According to Mohonial Dey the appellanl was reinstated on 24th December, 1977 and joined his duties on 27-12-77. I( also appears from his evidence that the appellant was absent from 10th October, 1977 to 26th December, 1977. The next witness on behalf of the appellant, Radhanath Basu Mallick, was an Assistant Secretary of the West Bengal State Eleclricity Board. According to him the appellant got adhoc appointment prior to his regular appointment on 1st December 1979. He joined the board on 17th August, 1975 in adhoc appointment. He also proved the original resignation letter submitted by the appellanl dated 10-10-77. On 19th November 1977 the appellant submitted a letter of request for withdrawal of his resignation letter which was also proved by him and marked exhibit 11. His withdrawal of resignation letter was accepted by the Secretary and an order was passed by the Secretary on 19th December, 1977. He also proved the said order which was marked exhibit 12. The period of the appellant's absence according to this witness was regularised with his leave according to service regulation. It was also stated by him that the appellant was first appointed on 1st September 1975 and was posted at Head Officer Accounts Branch at Mominpur, 24 Parganas. The appellant was released on 1st November, 1976 from Head Office and was directed to join Behala office pursuant to Secretary's order dated 25th October, 1976. The said release order was also proved and marked exhibit 13. The said witness also stated that this order to join with immediate effect at Howrah Division was pursuant to order No. Estt/Adhoc/transfer/420. dated 26-5-77. The said order was also proved and marked exhibit 13(a). He was transferred from Behala to Howrah Division on his representation according to this witness as would appear from the order sheet dated 7th May 1977. The said order sheet was also proved and marked exhibit 12(b). He also stated that Mani Kundu who was at the material time Assistant Secretary (Central Recruitment Committee) was the husband of appellant's sister-in-law. According to this witness Tapan Kundu was heard by the Enquiring Committee and order was passed for accepting of withdrawal of resignation letter. No enquiry was made by the Enquiring Committee with regard to discrepancy as per record in the personal file. He further stated that the appellant made a representation in writing to the then Chief Minister, West Bengal seeking for his transfer from Behala to any place on the basis of which he was transferred to Howrah Division. The said representation was made in writing which was also proved and marked exhibit D was issued to the Assistant Secretary of the Chief Minister, West Bengal with a forwarding letter which is also proved and marked exhibit 'E'.
8. From the evidence on record it is clear that the appellant got his job at the West Bengal State Electricity Board through the respondent's relations and taking advantage of the said position the respondent warned the husband to live apart from his joint family and to live separately with her husband. When the appellant did not agree the respondent misbehaved with him and even assaulted him physically through her relatives. Even the respondent compelled the appellant to lender resignation of service by using force through her brother and his associates and friends. The said fact could not be disputed from records. It also appears from the evidence on record that he was transferred against his wish because of the influence exercised by the respondent's relative viz, her brother-in-law who was holding a very responsible and influential position in the West Bengal State Electricity Board to a place at Behala near to her parent's house. The appellant had to make a representation against such unjust transfer to the Chief Minister and subsequently the said transfer was withdrawn and he was posted at Howrah. There cannot be any doubt that such circumstances constitute cruelty as the appellant suffered physically and mentally from such wrong treatment meted out to him by or on behalf of the respondent.
9. Next, let us consider the case of desertion alleged by the appellant. It is the case of the appellant that the respondent on 11th July, 1975 all on a sudden when the appellant was absent left the house of the appellant with her sister's son Ashim Pal without the knowledge and consent of the appellant and took all her ornaments and belongings from the almirah and started living a! Behala deserting the petitioner. It is, however, also the case of the appellant that the appellant once again brought the respondent on 25-9-77 and ultimately she deserted again with intent not to return. It also appears from the petition of the appellant before the trial court that the appellant received a summons in respect of a proceeding under Secton 125 Cr. P.C. which was filed by the respondent. It is the case of the appellant in the petition before the trial court that the respondent has deserted the appellant since 11th July, 1975 for a continuous period of not less than four years immediately after receiving the presentation of the petition. Admittedly, the respondent came back to live with the appellant on 25th September, 1977 as appears from the petition of the appellant before the trial court. Therefore, it is not correct to state that there we desertion for a continuous period of four years. In our opinion it has not been proved that the respondent left the matrimonial home on 11-7-75 with intention never to return. In fact, the appellant brought her back. It appears that the appellant paid a sum of Rs. 5000/-and it was presumed that the respondent would accept the sum on the understanding and/or arrangement that the relationship of husband and wife would cease to exist. It also appears that the respondent filed a proceeding under Section 125 Cr. P.C. claiming maintenance.
10. In the circumstances, aforesaid in our opinion the case of desertion has not been proved. However, in view of our finding on the question of cruelty that the acts of the respondent amount to cruelty, this appeal should be allowed.
11. We accordingly allow this appeal, set aside the judgment and decree under appeal and decree the petition for divorce filed by the appellant and direct that the marriage between the appellant, and respondent be dissolved. We, however, make no order as to costs.
A.M. Bhattacharjee, J.
12. I agree.