Calcutta High Court (Appellete Side)
Smt. Piyasa Ghosh (Nee Mitra) vs Sri Somnath Ghosh on 12 January, 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 Rudrendra Nath Banerjee
F. A. No. 25 of 2006
Smt. Piyasa Ghosh (nee Mitra)
Versus
Sri Somnath Ghosh
For the Wife-appellant: Mr. Bidyut Kumar Banerjee,
Ms. Shila Sarkar.
For the Husband-respondent: Mr. Tapas Bhattacharjee.
Heard on: 11.12.2008.
Judgment on: 12th January, 2009.
Bhaskar Bhattacharya, J.:-
This first appeal is at the instance of a wife in a proceeding for divorce on the ground of cruelty and is directed against the judgment and decree dated 29th November, 2005 passed by the Additional District Judge, Third Court, Barasat, District- 24 Parganas (North), in Matrimonial Suit No.73 of 1998, thereby passing a decree for divorce on the ground that the wife had subjected the husband with cruelty, mental agony and humiliation by instituting a case under Section 498A of the Indian Penal Code and at the same time, the marriage had irretrievably broken down.
Being dissatisfied, the wife has come up with the present first appeal. The respondent filed a suit, being Matrimonial Suit No.73 of 1998, under Section 13 of the Hindu Marriage Act, in the Court of District Judge, Barasat thereby praying for divorce. The said suit was subsequently transferred to the Court of Additional District, Third Court, Barasat.
The case made out by the respondent in the said application for divorce may be summed up thus:
(a) The parties were married according to Hindu rites on the basis of negotiation and the marriage had taken place on 3rd March, 1995 at the place of residence of the wife.
(b) On the day following the marriage, there was acute necessity of the accommodation at the place of the husband's father and for such reason, the 'Boubhat' ceremony was held at the residence of the uncle of the husband. The place of residence of the uncle of the husband was near the place of residence of the husband's father and as there was paucity of accommodation at the place of residence of the husband's father, the father and the uncle of the husband permitted the husband to reside in the uncle's house with his wife.
(c) On 5th March, 1995, the 'Boubhat' ceremony and 'Fulsajya' were performed at the residence of the uncle of the husband and since then the parties started residing as husband and wife and the husband tried to lead the conjugal life with the wife at the said residence of his uncle.
(d) On the day fallowing the 'Fulsajya', the husband noticed that the wife was unmindful regarding any affairs of the husband and his family and sometime used to behave unmannerly with the husband and members of the family and also with the family members of the husband's uncle.
(e) Although, the marriage between the parties had taken place on 3rd March, 1995, the wife always used to fight shy of the husband and on almost all the occasions, she told the husband that it would not be possible for her to lead the conjugal life with the husband at the place of the husband.
(f) After the solemnisation of the marriage, when the husband brought the wife at her mother's place, the husband noticed that the wife behaved in such fashion and made some allegations against the parents of the husband and told in the presence of her mother that it would not be possible for her to lead the conjugal life with the husband at the place of residence of the husband's uncle.
(g) For giving contentment to the wife, the husband took loan from his employer and made new construction at the place of residence of his father with a view to shift the matrimonial home to the place of the husband's father. When the construction of the room had started and was in progress, the husband noticed that the wife used to instigate the uncle of the husband and also the parents of the husband so that the parties would not lead a conjugal life at the place of residence of the husband's father. On trifling matters, she used to quarrel with the members of the husband's family and used to through utensils.
(h) The wife was all along unmindful regarding the family affairs which is expected from a dutiful wife of a middle class family and on a very trivial matter, she used to quarrel with the husband. Soon after the marriage, the wife took all her ornaments at the place of her mother with a plea that as her mother was an employee of a nationalised bank, she would keep those ornaments in the locker.
(i) At the time of removing those ornaments, she did not take any permission from the husband or the parents and uncle of the husband and such fact of removal of ornaments was detected long thereafter.
(j) Although the marriage had taken place on 3rd March, 1995, the wife did not lead the conjugal life with the husband till the presentation of the petition.
(k) On 13th August, 1995, on some minor matters, the wife picked up quarrel and gave the husband and his parents threat that she would commit suicide and subsequently, the husband informed the matter to the mother of the wife; as a result, she came to the residence of the husband and on that occasion, the mother of the wife told the husband that as the appellant was the only daughter, her behaviour was of that nature and assured that the wife would lead the conjugal life with the husband.
(l) After that incident, her mother took the wife to her place of residence and since then she used to reside at that place.
(m) In the meantime, the wife on 31st December, 1995 sent a letter to the mother of the husband wherein she specifically stated the she took her ornaments at the place of her mother and also expressed her willingness to lead the matrimonial life with the husband. Thereafter, the husband went to the mother-in-law's house for bringing her back, but she refused to come back.
(n) The wife used to go back to her mother's house without taking any permission either from the husband or the other members of the family.
The aforesaid acts on the part of the wife amounted to cruelty and hence the suit.
Subsequently by way of amendment, the husband amended the plaint by incorporating the fact that during the pendency of the suit the wife had initiated proceeding under Section 498A of the Indian Penal Code on the false allegation and according to him, such act on the part of the wife amounted to cruelty.
The suit was contested by the appellant by filing written statement thereby denying the materials allegations made in the plaint and the defence of the appellant may be epitomised thus:
(1) The respondent never tried to live with the appellant as husband and wife from the date of marriage though the appellant tried to adjust but to no effect and the story of the construction of a room on the basis of loan from the office of the respondent was untrue. The respondent took loan of Rs.50,000/- from the mother of the appellant and the mother of the appellant paid the said amount as a loan for the interest of her daughter and a long period of time had elapsed though nothing has been repaid by the respondent to his mother-in-law.
(2) The so-called uncle of the respondent was not his own uncle but his father's cousin.
(3) Most of the ornaments, wearing apparels, VIP luggage bag, steel almirah etc. were lying with the respondent under the care and supervision of his aunt, namely, Smt. Chameli Ghosh, who was the plan maker of the matrimonial suit and the said Chameli Ghosh did not tolerate the enjoyment of the family life of the parties and the respondent could not move for an inch without knowledge and consent of his aunt. (4) The appellant was loved very much by the parents and the other members of the respondent's family but the respondent with the help of Smt. Chameli Ghosh, the wife of his so-called uncle, made continuous efforts to drive away the appellant from her house just after the day of solemnisation of the marriage.
(5) The marriage was solemnised according to Hindu rites and customs in the house of the cousin brother of the father of the husband and the husband knew nothing except his aunt. He could not proceed without the advice of the said aunt who took charge of the marriage and 'Boubhat' ceremony and 'Fulsajya' which was held in her house. The parents of the husband raised strong objection and as such the father of the husband did not take any food and was not present on the occasion.
At the time of hearing of the suit, the plaintiff alone gave evidence in support of the plaint case while the wife also deposed in opposing such prayer.
As mentioned earlier, the learned Trial Judge by the judgment and decree impugned herein had decreed the suit on the ground that the act of the appellant in filing the criminal proceeding under Section 498A of the Indian Penal Code amounted to cruelty and that the marriage had irretrievably broken down. The learned Trial Judge, however, found that the husband failed to prove any misbehaviour of the wife while she had been staying in the house of the husband's aunt and the issue of desertion was also found against the husband as the husband failed to prove that he ever tried to bring his wife back.
Being dissatisfied, the wife has come up with the present first appeal. Therefore, the only question that arises for determination in this appeal is whether the learned Trial Judge was justified in granting a decree for divorce simply because pursuant to the complaint lodged by the wife before the police after receiving the summons of the suit for divorce a case under Section 498A of the Indian Penal Code was initiated and the husband was arrested and kept in custody for a day before he obtained bail.
We have gone through the said written complaint made by the wife which is marked Exbt.-1. In that written complaint, the wife alleged that after the marriage, while she was staying in the house of the father's cousin of the husband, her husband and the wife of the said cousin of the father-in-law, viz. Chameli Ghose, maltreated both physically and mentally and drove her away. They demanded that she should pay the cost of construction of a room and consequently, her mother paid a sum of Rs.55,000/- for construction of the room. It appears from the written statement that specific allegation was made therein that a sum of Rs.50,000/- was paid by the mother of the wife for the construction of a room. The husband in his examination-in-chief did not deny the receipt of Rs.50,000/-. Although in his plaint, he stated that he took loan from his office for construction of a room, no document has been produced in support of such plea and at the same time, no suggestion was given in cross- examination of the wife that such amount was not paid by his mother-in-law. The letter written by the wife to her mother-in-law itself indicates that a room was being constructed. In such circumstances, in our view, there was no necessity of the wife to lead further evidence in support of her case of payment of money for construction of the room. The learned Trial Judge has held that he was unable to come to any definite finding on this disputed fact for want of convincing evidence. In our opinion, when there is no denial on the part of the husband about the allegation of receiving Rs.50,000/- made in his examination- in-chief and at the same time, in spite of allegation of the wife in her examination-in-chief about receipt of that amount, there being no cross- examination of the wife on this point, there was no necessity on the part of the wife of producing documents or examining her mother in support of such allegation. It has been, thus, established from the evidence that money was taken from the mother of the wife for construction of the additional room in the house of the father of the husband. If a husband after taking Rs.50.000/- from the widowed mother of the wife for making construction of the room in his father's house for leading matrimonial life, sends summons for the suit for divorce to his wife on the ground of desertion and cruelty, there is nothing wrong on the part of the wife to lodge complaint before the police. At least, it cannot be said that the allegations made before the police has been found to be baseless justifying grant of divorce on the ground of cruelty on the basis of the post suit events. We are, therefore, unable to approve the decree for divorce granted by the learned Trial Judge only on the ground of initiation of criminal proceedings as, in our view, there was just reason for filing complaint and such complaint has not been established to be false. It further appear that in spite of making allegations against Chameli Ghose, the wife of the cousin of the father of the husband, neither the said Chameli Ghose nor her husband has come forward to deny the allegations. Even none from the side of the father's family has deposed in support of the husband and the letters written by the wife to her in-laws and produced by the husband indicate that the wife had a good relation with them.
Mr. Bhattacharya, the learned advocate appearing on behalf of the respondent, tried to maintain the decree on the ground that the marriage between the parties had irretrievably broken down and that the parties are living apart for the last 13 years. It is further contended that even the marriage had not been consummated and thus, it is a fit case for not interfering with the final decree for divorce.
After going through the materials on record we find that at the time of negotiation of marriage it was never settled that the wife was required to lead her conjugal life in the house of the uncle of the husband and it is the definite case of the wife that her father-in-law disapproved this idea and for that reason did not take any food on the 'Boubhath' ceremony. It is the allegation of the wife that Sm. Chameli Ghose, the wife of her uncle-in-law did not permit her to live with the husband for the reason best known to her and inflicted cruelty both physically and mentally, as a result, she was compelled to leave that house and was waiting for the construction of the additional room in her father-in-law's house. Neither the said uncle-in-law nor his wife has come forward to deny the allegations of the wife. The learned Trial Judge, in our opinion, rightly concluded that the husband failed to prove any misbehaviour of the wife in the matrimonial home and at the same time, the desertion alleged in the plaint was also not proved.
The husband, as it appears from the materials on record, failed to make arrangement of a living room for his wife and was trying to accommodate her in the house of the cousin of his father where his aunt did not like the presence of the wife and consequently, the wife had to return back to her mother with the expectation of leading the conjugal life after the construction of the additional room in the house of her father-in-law for which her mother had paid a sum of Rs.50,000/-. The husband, instead of completing the room, started proceedings for divorce on false allegation of desertion and cruelty.
We are not at all impressed by the submission of Mr. Bhattacharya, the learned advocate for the husband, that in this case we should uphold the decree for divorce on the ground that the marriage had broken down irretrievably for twofold reasons. First, mere irretrievable breakdown of marriage is no ground of divorce under the Hindu Marriage Act, 1955 till this date. We are quite conscious that in some of the reported cases, the Supreme Court in exercise of power conferred under Article 142 of the Constitution of India granted divorce on such ground for doing complete justice between the parties but such power is not conferred upon the other Courts. The fact that the marriage has broken down irretrievably is no ground of divorce would appear from the fact that the Supreme Court in various decisions had to exercise power under Article 142 of the Constitution by granting divorce on the said ground. In the case of Navin Kohli vs. Neelu Kohli reported in AIR 2006 SC 1675, a three-Judges-Bench of the Supreme Court made the following recommendation in paragraph 96 of the judgement for amendment of the Hindu Marriage Act incorporating the irretrievable breakdown of marriage as a ground for divorce:
"Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps."
Notwithstanding such recommendation, the Act has not been amended till this date. Thus, the learned Trial Judge could not grant a decree for divorce on that ground nor can we approve such course.
Secondly, even if we assume for the sake of argument that the marriage has broken down, it is the husband who is responsible for such situation and he cannot take advantage of his own wrong. (See: Chetan Das vs. Kamla Devi reported in AIR 2001 SC 1709) We, therefore, find that the learned Trial Judge erred in law in granting a decree for divorce simply on the ground of initiation of proceedings under Section 498A of the Indian Penal Code at the instance of the wife notwithstanding the fact that it has been established from the materials on record that there was sufficient basis for making such complaint.
The judgement and decree passed by the learned Trial Judge are thus set aside. The suit filed by the respondent is dismissed. The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)