Tripura High Court
Sri Abhash Paul vs Smt. Manidipa Paul on 26 April, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
MAT App. 02 of 2011 [
Sri Abhash Paul
S/o Shri Ashutosh Paul,
Village - Laljhuri, P.S.-Kanchanpur,
District-North Tripura
............ Appellant
- Vs -
Smt. Manidipa Paul,
W/o Shri Abhash Paul,
D/o Shri Makhan Paul,
At present-Village-Algapur,
P.S. Dharmanagar, District-North Tripura.
...........Respondent.
BEFORE THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. BN Majumdar, Advocate For the respondents : Mr. A Lodh, Advocate Date of hearing : 11.04.2017 Date of delivery of Judgment & order : 26.04.2017.
Whether fit for reporting : No.
JUDGMENT AND ORDER
(Talapatra,J.)
This is an appeal from the judgment and order dated 23.03.2011 delivered in T.S.(Div)03/2010 by the District Judge, North Tripura, Kailashahar, as he then was, under Section 28 of the Hindu Marriage Act, 1955.
2. The appellant filed the petition under Section 13(1)(ia) & (ib) of the Hindu Marriage Act on the ground of desertion and cruelty for dissolution of the marriage by a decree of divorce. According to the MAT APP. 02/2011 Page 1 of 7 appellant, after his marriage with the respondent on 15.07.2005 in terms of the Hindu rites and customs, the respondent behaved abnormally and even when was pregnant, without informing the appellant, used to leave his house. The respondent used to treat the appellant with cruelty. The respondent had gone to such an extent that on the basis of false allegations, filed a complaint in the police station which was registered as Kanchanpur Police Station case No. 332/2007 under Section 498A of the IPC. She had also initiated a petition for maintenance.
3. According to the appellant, in the year 2006 the respondent left the matrimonial home and she never returned thereby depriving the petitioner of his conjugal rights and she had deserted the matrimonial home without any reasonable cause whatsoever. Despite attempts made by the appellant, the respondent did not join him in the matrimonial home and she continued to live separately and without having any relation with the appellant.
4. The respondent has, by filing written statement, contested the pleadings of the appellant and stated that after the marriage the respondent started to live with the appellant but the appellant used to torture her on unlawful demands. Being unable to bear such physical and mental torture, she was forced to leave the matrimonial home. According to the respondent, on 27.03.2006 the appellant and his relatives had driven the respondent out from her matrimonial home when she was carrying pregnancy of five months. On that day, the respondent had to take shelter at her paternal house at Algapur, Dharmanagar. The respondent has clearly stated that she filed the complaint on the basis of which the said police case was registered. The respondent has also MAT APP. 02/2011 Page 2 of 7 admitted that she filed one petition under Section 125 CrPC for maintenance of herself and her minor child. The order of maintenance has been passed by the Sub-Divisional Judicial Magistrate, Dharmanagar granting a monthly maintenance of Rs.1,200/- for them.
5. She had further disclosed in the written statement that the appellant filed one petition for restitution of conjugal rights being T.S.(RCR) 10/2008 on 04.06.2008. The said petition has been dismissed by the Addl. District Judge, Dharmanagar. According to the respondent, the petition for dissolution of marriage has been filed only to escape from the consequences of the said police case and to avoid the maintenance allowance to the respondent.
6. The trial court framed the following issues for adjudication of the said petition for dissolution of marriage:
"1. Is the suit maintainable in its present form and nature?
2. Whether the wife-respondent deserted the husband- petitioner for a continuous period of not less than 1 (one) year immediately preceding the filing of the present petition for divorce without reasonable cause and consent of the husband-petitioner?
3. Is the husband-petitioner entitled to get decree of Divorce as prayed for?
4. What other relief or reliefs the parties are entitled to?"
7. After recording the evidence of the appellant and the respondent, and two independent witnesses namely, Sri Chitta Ranjan Pal, PW2 and Sri Sridhar Chandra Dhar, DW2, the trial court dismissed the said petition for dissolution of marriage by the impugned judgment dated 23.03.2011 on observing that desertion is not without any ground or without any cause. There was sufficient cause which compelled the respondent to leave her husband's house. So this is not a desertion at all. It MAT APP. 02/2011 Page 3 of 7 has been further observed that cruelty upon the appellant is also another ground for dissolution of the marriage but in the instant case, the evidence on record discloses cruelty by the appellant on the respondent. According to the trial court, there is material on record that there was no congenial atmosphere in the matrimonial home inasmuch as the respondent was afflicted with physical and mental torture for realizing a sum of Rs.50,000/- unlawfully.
8. From the cross-examination of the respondent, as carried out on 21.03.2011 it would imminently appear that the respondent has categorically stated that "I filed criminal case under Section 498-A of IPC against my husband and in-laws at Kanchanpur court. They are acquitted in that criminal case. It is not a fact that I deserted my husband to live freely in my father's house."
9. The appellant has stated categorically that the respondent is not at all inclined to continue the marital relation and she never came back when she was approached to come back to the matrimonial home. The appellant has emphatically stated that several times the respondent was approached to come back to the matrimonial home but she flatly denied to join the appellant for living a peaceful conjugal life. The appellant has denied to have claimed a sum of Rs.50,000/- from the respondent.
10. PW2 has corroborated PW1. PW2 has stated that the respondent was not willing to continue the conjugal life with the appellant.
11. The independent witness, as adduced by the appellant has stated as under:
MAT APP. 02/2011 Page 4 of 7
"........I went to their house and heard the story from the Respondent and on their request as I am a village elder, I went to house of the petitioner and tried to know the actual fact of the dispute from the petitioner and his inmates, for settle up the matter, but the petitioner and his inmates denied to talk with me by saying that, "the reason for which she had taken shelter in the house, she knows very well and as such no need for any discussion" and thus I came back in vain"
12. Neither of the parties has denied that since 23.07.2006 the respondent is staying away from the matrimonial relation. Even Mr. BN Majumdar, learned counsel for the appellant has submitted that the petition filed for restitution of conjugal rights by the appellant was vehemently resisted by the respondent and as such by believing the statement of DW2 the trial court has committed a serious illegality. Mr. Majumdar, for perusal of this Court, has produced the judgment dated 12.09.2008 as delivered in T.S.(RCR) 10 of 2008 where the Addl. District Judge, North Tripura, Dharmanagar has observed that there was reasonable cause for leaving the matrimonial home or for initiating the criminal case. But the trial court did not have the advantage of getting the result of the T.S.(RCR)10/2008 though the said judgment was delivered on 12.09.2008. By filing this appeal, the appellant has urged this Court to re-examine the legality and sustainability of the finding that the appellant has failed to prove desertion or cruelty against the respondent.
13. Mr. A Lodh, learned counsel for the respondents has submitted that the unlawful demand followed by the physical and mental torture has been appreciated by the trial court as reasonable excuse for deserting the matrimonial home. Similarly, no evidence is available against the respondent so far the allegation of cruelty is concerned. MAT APP. 02/2011 Page 5 of 7
14. Having appreciated the submission of the learned counsel for the parties and scrutinized the records, this Court finds that the appellant has categorically stated that she was not willing to continue the marital relation with him and that is the reason whenever she was approached to come back to the matrimonial home she had completely denied. PW2 has testified in this regard. That apart, when the appellant filed the petition for restitution of conjugal rights, it is apparent from the judgment dated 12.09.2008 that the respondent had resisted such prayer by tooth and nail. No sign of reproachment has been reflected in her deposition and she had continued to bug on the matrimonial discomfort she felt before her deserting the matrimonial home.
15. For purpose of desertion, the day of leaving the matrimonial home may be very material for assessing the length of desertion but the main plank for the purpose of assessing evidence of desertion is to see whether there is animus in the relationship and whether the animus has widened to such an extent that there is no possibility of any restitution. What has come out is that the appellant has tried to take back the respondent to his home but the respondent was never positive. Not only that, after her leaving the matrimonial home on 27.03.2006, the respondent filed one complaint on 05.10.2007 based on which a police case was registered under Section 498A of the IPC and later on, as stated already, the prosecution failed to establish the charge against the appellant. There are clear evidences denying conjugal right and instituting a case for harassing them on alleged unlawful demand, which ultimately had fallen through and thus, on the basis of those elements it can be safely inferred that a case of cruelty has been made out by the MAT APP. 02/2011 Page 6 of 7 appellant but the trial court has mechanically discarded the said evidence. That was a failure of appreciating the evidence in the proper perspective. Moreover, the animus in the relation has extended to an extent that there is no chance of its restitution and hence, we are of the considered view that the marriage that subsists between the appellant and the respondent is liable to be dissolved and accordingly, the same is dissolved.
16. The appellant and the respondent are discharged from the matrimonial liability for ever. But the appellant cannot deny the responsibility of maintaining the respondent and their child. In view of that, the appellant is directed to pay a sum of Rs.50,000/- to the respondent within three months from today. Moreover, he shall continue to pay Rs.2,000/- to their son every month w.e.f. 01.05.2017 and such amount shall be paid by 10th of every English calendar month by money order. The money order charge shall be borne by the appellant. No further amount would be required to be paid in terms of the order passed under Section 125 CrPC.
17. The appeal is allowed subject to payment of the sum of Rs.50,000/- within three months from today. The decree can only be drawn after the payment is made, by dissolving the marriage, as stated above. Else the appeal shall be treated as dismissed. The decree in that event be drawn accordingly.
JUDGE CHIEF JUSTICE
MAT APP. 02/2011 Page 7 of 7