Calcutta High Court (Appellete Side)
Rina Kanrar vs Saroj Kanrar on 10 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 Rudrendra Nath Banerjee
F. A. No. 69 of 2006
With
F.A. No.70 of 2006
Rina Kanrar
Versus
Saroj Kanrar
For the Wife-appellant: Mrs. Rina Kanrar (in-person).
For the Husband-respondent: Mr. Pradip Kumar Panja,
Mrs. Leena Sengupta.
Heard on: 03.02.09.
Judgment on: 10th February, 2009.
Bhaskar Bhattacharya, J.:
These two appeals were heard analogously as those arise out of a common judgment dated 27th February, 2005 passed by the Additional District Judge, Seventh Court, Alipore, in Matrimonial Suit No.26 of 2002 heard analogously with Matrimonial Suit No.25 of 2002 thereby dismissing the application for restitution of conjugal life filed by the wife and passing a decree of divorce on the ground of cruelty in the suit filed by the husband for divorce.
The husband filed the matrimonial suit for divorce since renumbered as Matrimonial Suit No. 26 of 2002 on the ground of cruelty whereas the wife filed the Matrimonial suit renumbered as Matrimonial Suit No.25 of 2002 under Section 9 of the Hindu Marriage Act for restitution of conjugal life.
The case made out by the husband in the suit for divorce may be summed up thus:
(a) The parties were married according to Hindu rites and ceremony on 14th December, 1991 within the jurisdiction of the Court and the marriage was duly consummated.
(b) The marriage was a negotiated one by the elders of the families of the parties. The husband, according to usual custom, went to the house of the wife along with his relations and friends about one week prior to the marriage and talked to the wife. The wife's father, during negotiation, repetitively came to the husband's house and met him, his parents and relations. The wife had full knowledge about the education, status, employment and dwelling house of the husband.
(c) At the time of wedding, the husband presented to the wife a gold necklace, one gold ring, two earrings and two pieces gold bangles. The bride's side presented to the husband one gold ring and four gold buttons. They also presented to the couple a "khat" with bedding, one almirah, one dressing table and some household articles. Taking advantage of the fact that the wife's father was of higher social status than that of the family of the bridegroom, the bride's side did not give any ornament to her.
(d) In the night of "Fulsajyya", the wife, all of a sudden, started weeping uncontrollably and being repeatedly questioned by the husband, she gave out that she had found that her parents had deceived her saying that the husband was apposite to her standard but after arriving at the husband's house, she discovered for the first time that the husband's dwelling house was a very unassuming one and that he was a poor man. She stated that if she had known that the husband came from such a poor family, she would not have married the applicant. She further stated that she was a B.A. (Hons.) and B.Ed. and that she had come to know that her husband did not have education higher that of her. The husband replied that the wife's father was well aware that the husband was a B.Com., but in spite of repeated requests, the wife did not calm down and wept almost the whole night lamenting that she was extremely dissatisfied with the marriage. The wife resisted matrimonial advances of the husband and the marriage could be consummated after many days.
(e) After her return from "Astamangala", the wife stated that her mother had told her that she was disheartened as her husband was much lower in status than that of the husband of the elder sister of the wife and that she requested the husband to agree to a mutual divorce.
(f) Since then, the wife started misbehaving with the husband and his elders with the object of compelling the husband to a mutual divorce. She used to quarrel on flimsy pretext and only on rare occasions, she slept a night peacefully. She always thwarted matrimonial advances of the husband and had totally been non-cooperative. Her shouts were always disturbing the rest of the husband's family. All requests to her to leave the father to peace evoked shriller shouts and since then she started abusing the husband and his parents with abusive language and the misdemeanour continued till the last day of her stay. She always maintained that unless the husband agreed to a mutual divorce she would make the house a veritable hell. She refused to cook by saying that she was not meant for cooking food in the household of a poor man as she was a B.A. (Hons.) and B.Ed. and her rich father owned a palace.
(g) The wife did not agree to live and cohabit with the husband and in fact, very often at the slightest pretext, she left the matrimonial home against the wishes of the husband.
(h) After "Astamangala", she went to her parents' house on the plea of "Puja"
and returned after about a month. A short time after her return, she again went back on the plea that she was to attend musical classes and that her matrimonial home was not suitable for tuition by a music teacher. Although the husband repeatedly requested her to return, she maintained that she would return only after "Saraswati Puja". When the husband went to bring her after the "Saraswati Puja", she did not come back and went to her sister's house. The husband repeatedly requested her to come back and after about a week, the wife's father brought her to the husband's residence.
(i) Shortly after her return, she conceived although she had made use of contraceptive as rule. As soon as she became aware of her pregnancy, she started feeling ill. She stated that because of her parents' pressure she had returned but she did not agree to be the mother of a poor man's child. Since the first sign of pregnancy, she became extremely rude and abusive and went on demanding an abortion to which the husband and his relations did not agree. She started neglecting her food and out of grief hardly slept or rested. All of them repeatedly tried to persuade the wife not to insist upon an abortion but she did not relent and ultimately, she actually fell ill and had hemorrhage. As her condition deteriorated, she was taken to a nursing home where she was found to have miscarried.
(j) Within 2/3 days thereafter, the wife returned to her sister's house against the wishes of the husband and as the husband took strong exception, she came back but stayed only about a fortnight. As she again went to her parents' house against the wishes of the husband and his parents, the husband met the wife's father and asked for explanation why he had married of his unwilling daughter. After about 22 days of her departure, the father of the wife brought her back to the husband's house where she lived for only 7/8 days.
(k) Since the marriage, the wife was always insulting the family of the husband by shouting that she was living in a beggar's house. The husband intended to have a pucca house of his own and his father transferred to him a portion of a family dwelling. The husband after obtaining loan from his employee for a sum of Rs.2,52,383/- erected a pucca house for his residence. During the construction of the house, the wife started pressurising the husband that he should leave the construction of the house in the hands of her father and also insisted that he should handover the loaned amount to her father for building the house. The wife's father also harped the same tune. As a substantial portion of the building had been erected even before grant of the loan and at that time, a minor portion remained unfinished, the husband refused. This refusal on the part of the husband irritated the wife who wanted to show to the neighbourhood that the rich father-in-law had financially helped his poor son-in-law. The respondent, since her marriage, refused to have sex with the husband.
(l) The respondent, since after the miscarriage, had almost every day during her short stay in the matrimonial home abused the husband and his parents and relations with filthy language. On most days, she refused to enter the kitchen and also refused to cook food. Cooked food had to be brought to her in her room and the wife did not wash the cloths of the husband who had to wash them himself. The wife on several nights abused and insulted the husband and on many nights, the husband had to walk outside the room to avoid her abusive and arrogant language and could not sleep.
(m) The husband repeatedly appealed to the parents of the wife and to her elder sister's husband but the latter told the husband that the wife was an eccentric since her childhood and had always lived a pompous life.
(n) The husband always treated the wife with tender feeling but she always declared that whatever was her fate, she would secure a divorce from the husband and if she failed, she would commit suicide.
(o) Ultimately in the evening of 26th June, 1992, the wife became violent and started breaking and throwing down the household articles by saying that she would leave the husband's house and if she was prevented, she would kill all of them who might obstruct her. She immediately packed up her costly clothing, jewellery and valuables in suitcase and before the husband could realise anything, she rushed out of the house and went to the parent's house. Since then, she deserted the husband and voluntarily withdrew from the husband's society without any just cause.
(p) On 28th February, 1993, the police of the Budge Budge P.S. requested the husband to turn up at the police station and in the same afternoon, when the husband went to the police station he was arrested by the Budge Budge P.S. in connection with Budge Budge P.S. Case No.55 (2) of 1993 under Section 498A/406/34 of the Indian Penal Code. He was kept in the thana lock up till the next morning where after he was sent to Court. He was sent to jail custody and was released on 7th March, 1993. Because of the aforesaid fact, the husband suffered extreme physical and mental agony and public insult.
(q) The husband later on learnt that the wife on 28th February, 1993 filed a complaint to the Budge Budge Police Station alleging that her father gave to the husband as dowry of Rs.50,000/-, gold button and gold ring and gave to her one gold chain, one pair earring, two gold rings, "khat", bedding, steel almirah, dressing table, etc. and after her conception, according to the wishes of the husband's mother, the husband started pressurising her to have an abortion and that the husband took her against her wishes to the nursing home and caused a miscarriage against her will. Since then the husband's mother, younger brother and married sister and her husband were inciting the husband against the wife and relying upon such incitement, the husband tortured the wife both physically and mentally and asked the wife to bring from her father Rs.50,000/- so that the husband could complete his house.
(r) On 28th February, 1993, the husband's younger brother was arrested in connection with the said case. The police also started searching for the husband's mother and married sister and threatened to arrest but they got anticipatory bail from the Court of the District Judge, Alipore. The said criminal case is still pending. The aforesaid act on the part of the wife amounted to cruelty.
The suit was contested by the wife by filing written statement thereby denying the material allegations made in the application for divorce and her defence may be summarised thus:
(1) Within a month after the marriage, the wife became pregnant and after the same was reported to her husband he got extremely annoyed and used filthy and slang language to the wife and tortured her in many ways and ultimately, took her to a gynaecologist named Dr. M.L. Sarkar at Women's Clinic who examined the wife on 14th February, 1992 and to be more sure the said doctor advised the patient for pregnancy test and on examination of the urine, the pregnancy test reported to be positive on 18th February, 1992. All along the husband took the wife to Dr. M.L. Sarkar and also for pathological test to the pathological centre. After the pregnancy test, when it was reported to be positive the husband mercilessly tortured the wife with fists and blows and threatened that if the pregnancy be not terminated by abortion and if she refused to agree her life would be put to an end and also took her parents by name by using filthiest language. The wife got frightened with the inhumane behaviour meted out to her and she was forcibly taken by the husband to Tarangini Nursing Home on 21st February, 1992 and against her will and without her consent the abortion was performed, as a result, she lost her first child.
(2) The wife never fell and had no haemorrhage. The statement had been made to suppress the misdeed of the husband. As a result of that abortion, as she had fallen sick owing to forcible M.T.P operation, the husband took her to her sister's house and after about a fortnight, the husband took her back from her sister's house and accordingly, the wife continued to stay there.
(3) The husband took her against her consent to her father's house almost at midnight in one dress. The wife had an impression that her husband would take her back but the said impression not having been materialised, she addressed to the local panchayet stating the facts and requested them to solve the dispute and on 30th August, 1992 the local panchayet called the parties including their parents but they refused to take her back. In spite of the aforesaid acts of the husband, the wife was ready to come back and withdraw her complaint made before police.
The defence version in the suit for divorce was the plaint version in the proceeding for restitution of conjugal life and the husband denied the allegation by repeating his case made out in the application for divorce.
At the time of hearing of the suits, the husband alone gave evidence in support of the case made out in the application for divorce while the wife, her mother, her sister and a member of the panchayet gave evidence in support of her defence.
As indicated earlier, the learned Trial Judge, by the judgment and decree impugned in these appeals, allowed the suit for divorce and dismissed the application for restitution of conjugal life.
Being dissatisfied, the present two appeals have been preferred by the wife.
At the time of hearing, the wife appeared in-person while Mr. Panja, the learned Advocate appeared on behalf of the husband-respondent.
After hearing the appellant in-person and the learned advocate for the respondent and going through the materials on record, we find that in the plaint, three phases of cruelty have been alleged against the appellant in the following terms:
First Phase: On the very night of "Fulsajyya", the appellant started weeping and informed the husband that she was dissatisfied with the status and education of the husband and that, according to the appellant, the respondent was a poor man having less educational qualification. The further allegation of the respondent was that since then the wife started misbehaving with her husband and his elders with the object of compelling the husband to a mutual divorce. She started quarrelling on flimsy pretexts and only of rare occasions, she slept a night peacefully. She started abusing the husband and his parents with abusive languages and such misdemeanour continued till her last day of stay. According to the husband, the appellant used to threat that unless the husband agreed to a mutual divorce she would make the house a veritable hell. She refused to cook by saying that she was not meant to cook food in the household of a poor man as she was a B.A. (Hons.) and B.Ed. and her rich father owned a palace.
Second Phase: The wife did not agree to live and cohabit with the husband and at a slightest pretext left the matrimonial home against the wishes of the husband. Shortly after her return after Saraswati Puja, she conceived although she had made use of contraceptives a rule. As soon as she became aware of her pregnancy and started feeling ill, she became altogether nasty. She stated that because of her parents' pressure she had returned but she did not agree to be the mother of a poor man's child. She repeatedly persuaded the husband to abort the pregnancy but the husband did not agree and ultimately, she actually fell ill and had miscarriage. When her condition deteriorated, she was taken to a nursing home where she found to have miscarriage. She also wanted that the money received from the employer for the construction of the new house was entrusted to her father. She left the matrimonial home of her own in the month of June, 1992 for good.
Third Phase: The wife without just reason filed a false complaint before the Budge Budge Police Station under Section 498A/406/34 of the Indian Penal Code in the month of February, 1993, as a result, the husband was arrested and the said case is still pending. The allegation made in the said complaint that he demanded Rs.50, 000/- for the purpose of construction of the house was absolutely a false story. As a result of such complaint, her mother, brother and married sister all had to take anticipatory bail.
The wife, on the other hand, had denied all those allegations and according to her, she never misbehaved but it was her in-laws, who from the very beginning, tried to drive her out and asked her to bring Rs.50,000/- for the construction of the house. According to the wife, the husband with force caused the abortion by taking her to a nursing home at the instigation of her mother-in- law and thereafter, in the month of June, 1992 drove her away from the matrimonial home. Subsequently, in spite of repeated request to the husband he did not take her back and thereafter, in the month of August, 1992, her parents approached the local Panchayet, but the husband did not agree to take her back and consequently, she made complaint before the police in the month of February, 1993 having no other option left.
We now propose to consider how far the husband has been able to prove the aforesaid allegations of cruelty and desertion. At the very outset, we may point out that the ground of desertion is not available to the husband as according to the own statement of the husband, they lived together as husband and wife till June, 1992 whereas the suit was filed on 10th May, 1993 and as such, the statutory period of two years was not complete before the presentation of the proceedings for divorce.
In support of the allegations, the husband alone figured as a witness and no other person from his family came forward to support him.
From the evidence on record, we find that the husband has the educational qualification of B.Com. and was a clerk in Hindustan Petroleum Corporation Limited and used to get a handsome salary all through in comparison to his status as a mere clerk. At the time of final hearing, when we tried for reconciliation, the husband admitted that his gross-salary is Rs.40,000/- a month. At the time of hearing of the suit, his salary was more than Rs.20,000/-. He had admitted in his evidence that even in the year 1991 or 1992 he used to pay Rs.8,000/- a month to his mother towards family expenses which is quite a substantial amount in the year 1991 if we compare the status of the husband as a clerk. He has admitted that his wife never raised any objection for giving Rs.8,000/- a month to his mother. It further appears from the evidence that the father of the wife retired as a typist in Government Press. It is, therefore, absurd to suggest that the daughter of retired typist of the Government Press would describe such a husband as a poor man or that she did not want to become the mother of a poor man's child. Even both of them are from the same caste. At any rate, in the absence of any corroborative evidence, we are unable to accept the said allegation when the wife has denied such allegations.
Regarding misbehaving of the wife in the matrimonial home, none of the members of the husband's family has come forward to support him; on the other hand, the wife, her mother and her sister have denied the allegation and they have in one voice complained that at the time of construction of the house immediately after marriage, he demanded Rs.50,000/-. In such circumstances, we are unable to accept the contention of Mr. Panja, the learned advocate appearing on behalf of the respondent, that the wife ever misbehaved with any of the members of the husband's family or the husband in the matrimonial home. No reason has been assigned why none of the members of the family has come forward to support the allegation levelled against the wife and to deny the allegations of the wife against them.
As regards the allegation of abortion, although the husband tried to impress upon us that it was the wife who did not want to be the mother of his child, such fact has been denied by the wife in her evidence. In the plaint, no allegation was, however, made that at her instance she was taken to the nursing home for abortion whereas the allegation in the plaint was that due to self- neglect of the health, the miscarriage started in the matrimonial house, as a result, she was taken to the nursing home as her condition worsened. The husband in his evidence, however, stated that at the insistence of the wife she was taken to the nursing home for abortion and that he appointed the doctor. Once we disbelieve the case of the husband that the wife used to humiliate him by describing him as a poor man, there is no reason to accept his contention that she did not like to be the mother of his son. On the other hand, we find from the evidence on record that the husband was the only earning member of the family and he had two unemployed brothers, one elder and other younger and those persons were dependant upon him. According to the wife, the members of the family of the husband misbehaved with her and all of them demanded a sum of Rs.50,000/- for construction of the house which she was not in a position to meet and as a result, they tried to drive her out. It appears from the evidence of the husband in cross-examination that the wife insisted on living separately. If according to the husband, the wife did not love him and wanted mutual divorce from the very beginning, there was no reason for insisting on living separately with the husband. The aforesaid admission in cross-examination suggests that the allegation of the wife that the other members of the matrimonial home ill- treated her is correct, as a result, she wanted to live peacefully with the husband in a separate mess and such admission of the husband falsified his allegation that the wife wanted a mutual divorce from the beginning and for that reason she wanted abortion and misbehaved with the members of his family. Even no suggestion was given to the wife, her mother or sister that they ever wanted mutual divorce as the wife did not like the husband.
The next question is whether there was just reason for initiating criminal proceeding under Section 498A/406 of the Indian Penal Code.
According to the husband, the wife from the very beginning wanted mutual divorce but he did not agree. According to the plaint case, due to refusal on the part of the wife to cohabit, the marriage was consummated after "many days" and after Saraswati Puja she conceived. In evidence, however, the husband admitted the version of the wife that within one month of marriage she conceived which is inconsistent with the plaint case that she conceived after her return from father's house after Saraswati Puja. The evidence on record shows that she proved positive on urine test on February 18 and was aborted within 3 days thereafter. The said fact proves that she became pregnant within one month of her marriage. We have already pointed out that no person has come forward to support the allegation that she ever demanded mutual divorce and it appears from the evidence adduced by the mother, sister and the member of the local panchayet that there was a "salishi" in the local panchayet for taking back the wife but the husband refused. If the wife really wanted mutual divorce, the wife would not go to the local panchayet people to impress upon the husband to take her back. The aforesaid fact itself suggests that the husband and his family members were all out to drive her out from the matrimonial home and for that reason they forced her to abort the child. It appears that the attempt of negotiation through panchayet had taken place in the month of August, 1992 and the criminal proceeding was filed even long thereafter in the month of February, 1993. If the wife really wanted mutual divorce, there was no occasion for her to request the local panchayet for making arrangement for taking her back and the aforesaid fact indicates that the version of the wife was correct. The husband was constrained to admit in his cross-examination that in the Salish, he refused to take back the wife. If the Salish had taken place in the month of August, 1992, there was no reason for the husband to refuse to take her back when it is his definite case that he was always against mutual divorce. The husband wanted to take the plea that when he got loan for construction of his house the wife insisted that money taken as loan should be given to her father who would look after construction. Such fact has been denied but no other person has come forward to support the husband. In the absence of any corroborative evidence, no reasonable man would believe that the wife would like to make the construction of her husband's house through her father, a retired typist of Government Press, and for that reason would press the husband for entrusting him with the work of the construction of the building. The position would have been different if the wife's father was an engineer or a contractor. On the other hand, we find substance in the contention of the wife that at the time of construction of the house, he demanded Rs.50,000/- and for the inability of the wife to pay that amount, she was tortured and driven away. Therefore, at this stage, we are not in a position to hold that there was no basis for initiating proceeding under Section 498A of the Indian Penal Code which was initiated after giving sufficient time to the husband to take her back and when he refused to take her back, then and then only, she approached the police at a time when even the panchayet authority could not solve the problem. The husband in his evidence has admitted that prior to the filing of the criminal case, he was ready to take back the wife and he had very minor allegation against the wife before the institution of the criminal case. Such admission points out that the initiation of the criminal case is the real reason for filing the suit for divorce and the cruelty alleged against the wife in the plaint regarding her behaviour from the first day as indicated by us by describing those incidents as the cruelty of First Phase and Second Phase are all concocted for the purpose of giving a shape of the plaint. The fact that even in the month of August, 1992 at the time of Salish he was not willing to take her back has been established not only by the evidence of four witnesses for the wife but also from his own admission in cross-examination on 6th November, 2001 when he specifically stated that at the time of talk of compromise he was not willing to take her back. Even in his examination-in- chief, he uttered nothing as to what he did from June, 1992 till February, 1993. He admitted in cross-examination that from June, 1992, he did not pay any maintenance to the wife till the passing of the order of maintenance in the suit.
From the aforesaid material, it has been well established that the husband failed to prove any of the allegations of cruelty made in the plaint and at the same time, the allegation made in the application under Section 498A cannot be said to be baseless.
The learned Trial Judge, as it appears from the order impugned, was of the view that the allegation made against the husband before Criminal Court was baseless. In our opinion, such conclusion was based on non-consideration of the evidence on record and as pointed out by us from the evidence on record, we have found justification in the grievance of the wife.
The learned Trial Judge has further found that as the wife admitted that at the time of abortion in the nursing home, there was no other person than the doctor and nurses, it should be presumed that abortion had taken place with her consent. We have already pointed out that in the plaint, the respondent made out a case that there was miscarriage in the house due to negligence on the part of the wife and thereafter, she was taken to the nursing home where it was discovered that the pregnancy had been aborted but in evidence the husband tried to improve the case by contending that at the insistences of the wife he took her in the nursing home for abortion. The learned Trial Judge should not have believed such improved version of the husband when it is the definite case of the wife that the husband in connivance with her in-laws caused the abortion against her will and none of the in-laws has come forward to deny such allegation.
The learned Trial Judge has further found that as in the written statement, the husband was described as a person of heinous character such fact by itself was a ground for divorce. We are afraid we are not at all impressed by such finding. Once we find that a husband without any fault on the part of the wife drove her away from the house on the pressure of his parents and brothers and, at the same time, did not hesitate to abort the child to severe the relationship and tried to give false blame upon the wife, such a person cannot but be described as heinous person and, thus, the allegation in the written statement cannot be said to be unjustified. We find that in paragraph 4 of the plaint, the husband made specific case that although the bride's side gave him one gold ring and four gold buttons, no ornament was given to the bride from her side and that the husband gave her a gold necklace, one gold ring, two earrings and two pieces of gold bangles. While giving evidence, however, he admitted on November 25, 1999 that his father-in-law had given gold churis, (number of churis although not mentioned, which according to the wife is eight), one gold chain, gold earrings to the bride. Therefore, the husband is a pathological liar having no compunction of alleging false statement in the pleading and his uncorroborated versions have at every stage of the proceedings been found to be false.
Mr. Panja, as a last resort, tried to impress upon us that the marriage having been broken down for the initiation of the criminal case, we should grant a decree of divorce on such ground. We have already pointed out that it was the husband who was responsible for the initiation of the criminal proceeding and now he cannot take advantage of his own wrong. Moreover, irretrievable breakdown of marriage is not a ground for divorce and if it appears that the relation has broken down for the heinous act on the part of the husband, the Court should not pass a decree in favour of the husband.
On consideration of all the materials on record, we, thus, find that the learned Trial Judge in the facts of the present case wrongly appreciated the evidence on record and erred in relying upon the sole testimony of the husband by not at all considering the evidence adduced by the mother, sister and the member of the panchayet supporting the case of the wife.
We, therefore, allow the appeals and set aside the judgment and decree passed by the learned Trial Judge and dismiss the suit for divorce. The wife had all along tried to come back to the husband and made her position clear that if the husband was willing to take her back she would withdraw the criminal case. We find that it is a fit case for restitution of conjugal life in the suit filed by the wife. Her suit being Matrimonial Suit No.25 of 1993 is, thus, decreed by granting a decree for restitution of conjugal life. Both the appeals are disposed of by allowing those appeals.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)