Calcutta High Court
Ashim Ranjan Poddar vs Smt. Anusree Poddar on 15 May, 1990
Equivalent citations: 95CWN235, II(1991)DMC441
JUDGMENT S.S. Ganguly, J.
1. This is an appeal from the judgment and decree of dismissal passed by the Id. Additional District Judge, 4th Court, Alipore in Matrimonial Suit No. 78 of 1984. That suit was instituted by the husband-appellant against the wife-respondent for a decree of divorce under Section 13 of the Hindu Marriage Act, 1955.
2. Admittedly the parties were married according to Hindu Rites and Customs on 10.2.77. They lived together at the residence of the family of the appellant at Baguihati till 12.9.79. The appellant was an employee of the Indian Navy. During most of (this time he was away from home.
3. The appellant's case seems to be the following ;-
3a. The financial condition of the father of the respondent was not at all good and he was constantly in want of money. Her father's people wanted that the appellant should given up hit job with the Indian Navy and start business jointly with the husband of one of the sisters of the respondent and take up his residence at their house as a member of the family. The money which the appellant used to send to the respondent, the latter used to hand over to her parents. To satisfy the respondent the appellant resigned from the Navy after 10 years of service thereby depriving himself of the pension which came only after 15 years of service.
3b. On 6.9.79 the respondent fell ill and complained of unbearable pain in her abdomen. OB the following morning the appellant got her admitted to the R.G. Kar Medical College Hospital, the appellant and his relations visited her regularly there. On 12.9.79, however, the respondent without the knowledge and consent of the appellant executed a risk bond and left the hospital on her own and went away to her father's place. The appellant his relations went to bring her back on a number of occasions but all In vain.
3c. In 1981 the respondent started a proceeding under Section 125 of the Criminal Procedure Code against the appellant for maintenance alleging falsely that he had illicit and alleging further that the appellant and the said Smt. Biva Das had administered some spurious drugs to her by force as a result of which she became unconsious in the night of 6.9.79 3d. Lastly it was alleged that the respondent had been carrying on an illicit affair with Entail Das, the husband of her second elder sister.
3e. According to the appellant the respondent treated him with cruelty by handing over the money which he used to send to her parents and also by putting pressures on him for leaving his job and to start business with the brother-in-law and alto to live with his father-in-law. It was also urged that by making the false allegations of his having illicit connections with her own married elder sister and by making the allegation that be and his sister had administer some spurious drugs to her the respondent treated him with cruelty. It was also urged that by going away from the hospital on 12.9.79 without the knowledge and consent of the appellant and by refusing to come back to her matrimonial home the respondent deserted the appellant for a period exceeding 2 years. The appellant prayed for a decree of divorce on the grounds of cruelty and desertion and also on the ground that the respondent had committed acts of adultery since after the marriage.
4. The defence as set up by the respondent appears to be the following :-
4a. On 5.9.79 the respondent objected to the illicit relation. between the appellant and his married elder sister when the appellant assaulted her as a result of which she felt severe pain in her abdomen. At night the appellant and his sister, Biva administered some poisonous substance to her and she become very much ill and lost he" sense. On the following morning she was removed to the R.G. Kar Medical College Hospital and there she stayed for 7 days. Neither the appellant nor anybody of his family went to see her during those days. The respondent had to execute a risk bond and go away to his father's place. The appellant never went to the hospital nor to her father's place to bring her back. On the other hand she was not allowed to enter the house. She filed an application under Section 125 of the Criminal Procedure Code and it was allowed. The other allegations were all false.
4b. The parties examined themeselves and the appellant examined his aforementioned married elder sister, of Smt. Biva Das, The appellant also exhibited a number of letters (Exts. 1 and 3 series), On a consideration of all the materials on record the Id. Trial Judge concluded that the respondent did not treat the appellant with cruelty and that neither did she desert the appellant. Finding further that the story of the respondent's committing acts of adultery went unsustantiated the Id. Trial Judge dismissed the suit. Hence this appeal.
5. It is urged from the side of the appellant that on the materials on record all the three charges of the appellant against the respondent have been established. The following points may, therefore, be framed for disposing of this appeal :
1. Did the respondent treat the appellant with cruelty ?
2. Has the respondent deserted the appellant for a period exceeding two years ?
3. Was the respondent guilty of committing adultry ?
4. To what relief, If any, is the appellant entitled ?
Point No. 1.
6. .Of all the acts of cruelty as enumbrated by appellant, the first is that the respondent and his relations put pressure upon the appellant to retire from the Navy an to start a business jointly with the husband of one of the elder sisters of the respondent and to take up his residence at the residence of his father-in-law and to live there as a member of his family. The appellant actually gave up his job, with the navy only after 10 years of service thereby losing his right to get his pension which came only after 15 years' of service. He, however, did not start any business jointly with any brother-in-law's place. Granting that some pressure was put up on the appellant to give up his job from that it does not follow that he had option other than to bow down to the pressure. We agree with the Id. Trial Judge that this was no instance of cruelty.
7. Another Instance of cruelty was that the respondent handed over to her parents the money which the appellant used to send to her from abroad. From the large number of letters exhibited it appears that since her father's family was passing through very bad days the respondent could not help sending the money to her parents; but, she kept the appellant informed about these payments. There is no indication anywhere except what the appellant said as to what the amounts were being sent for. In the circumstances stated if the respondent sent these amounts for helping his near and dear ones who were very much In need of this help that cannot be considered as acts of cruelty.
8. Lastly, it is urged that by imputing that the appellant had illicit connection with his own married elder sister the respondent treated the appellant with cruelty. The respondent's definite case is that she objected to such relations on 5.9.79 as a result of which she was assaulted by the appellant. It appears further that in her application under Section 125 of the Criminal Procedure Code she used this allegation to justify her living away from the appellant. The respondent admitted in her deposition that even she did not believe in the truth of this allegation. The allegation to her own knowledge and belief was absolutely baseless. Even then she considered it proper to make it one of the grounds of her case under Section 125 of the Criminal Procedure Code. Thereby she must be taken to have treated the appellant with cruelty. The respondent said in her deposition further that she felt suspicious as on 5.9.79 she over heard a discussion between the appellant and his sister "relating to the matters usually done between husband and wife". That does not mitigate the mischief caused by her. It has been observed in Nemai Ghosh v. Smt. Nita Ghosh, AIR 1926 Cal. 150 that allegation of illicit relationship baseless or based merely on suspicion amounts to mental cruelty is made by one spouse against another and it will be a valid ground for passing a decree of divorce. These observations go fully in favour of the appellant. The Id. Trial Judge makes light of this very serious allegation by observing that when "a dirty allegation based on suspicion is replied by assault and total negligence by the other party it can hardly be treated as a ground for divorce as the petitioner refused to suffer from that treatment of mental cruelty". We do not agree. Besides the evidence of the respondent in this regard, there is nothing else to show that she came up with these allegations in time before filing her application under Section 125 of the Criminal Procedure Code. In the absence of any supporting material in the shape of medical evidence etc. the story of assault and administration of poisonous substance or spurious drug on the night of 5.9.79 also cannot be accepted. Besides the observation of the Id, Trial Judge do not apply to the allegation made by the respondent in her application under Section 125 of Criminal Procedure Code. The allegation raised on that occasion was denied by the appellant and it was disbelieved by the Id. Magistrate. There is no escape from the conclusion, therefore, that the respondent actually treated the appellant with cruelty by making baseless allegations against him imputing that he was carrying on an illicit relation with his own married elder sister. This is a ground on which the Id. Trial Judge could have passed a decree of divorce in this case.
9. Next we come to the question of desertion. We have already stated the versions of the two parties in this case. It is not disputed that the respondent was admitted to the R.G. Kar Medical College Hospital on 6.9.79 and that she left the hospital on her own executing a risk bond. The appellant's case is that this she did without his knowledge and consent and that his attempts to bring her back to the matrimonial home met with failure. The respondent's family went to see her there and that as she lay there without any medicine or attention she left the hospital on 12.9.79 for her father's place after executing the risk bound. It is also her case that she made several attempts to return to the matrimonial home after that but she was not allowed to enter the house. The versions of the two parties contradict each other. There are, however, certain salient points which appear to be very significant. The first circumstance is that though the respondent came from the matrimonial home when she was admitted to the hospital, she left the hospital on her own and Instead of going back to the matrimonial home .she went away to her father's place. There Is no satisfactory explanation as to why did she do that. It is also very much significant that since thereafter the respondent had been living at her father's place. There is no evidence excepting what comes from her to show that she ever made any attempt to go back to the matrimonial home. On the other hand admittedly she filed the application under Section 125 of the Criminal Procedure Code for getting maintenance while going on staying at her father's place. The defence taken by the appellant in that case was that he was ready to maintain the respondent provided she came back to the matrimonial home. Instead of agreeing to that proposal the respondent tried to make out a case for getting maintenance while staying away from her matrimonial home.
From these circumstances it may be safely presumed that the respondent not only voluntarily went away from the matrimonial home but she also stayed away from it without any valid justification. From this circumstances it may safely held that there was also an intention not to return to the matrimonial home. It may be that she deserted the appellant to compel him to join her at her father's place and to go on living there as a member of his family. Whatever the intention, the fact remains that the respondent went away from the matrimonial home voluntarily and she stayed away from it for a period exceeding 2 years next preceding the date of filing of the original suit. The appellant, so we hold, was entitled to get a decree of divorce on this ground also.
10. Lastly, we take up the charge that the appellant has preferred against the respondent on the ground of adultery. His case seems to be that the respondent had an illicit relationship with Netai Das, the husband of her second elder sister. No direct evidence was produced in this regard. Admittedly since after her marriage the respondent spent most of the time at the matrimonial home till she left for her father's place via the hospital. The appellant pressed into services two letters one of which, so it apears, was .not exhibited because it was not the original letter but a xeroxed copy of the same. Besides the first letter (Ext. 1) which does not even suggest any adulterous connection between the respondent and her aformentioned sister's husband, there is no other material on record to establish the truth of the allegation of the appellant in this regard. Agreeing with the Id. Trial Judge We are inclined to hold, therefore, that the charge of adultery has not been established against the respondent.
11. We conclude disagreeing with the Id. Trial Judge, therefore, that the materials on record establish that the respondent had treated the appellant with cruelty after solemnisation of her marriage and also that she had deserted the appellant for a period far exceeding two years next preceding the institution of the suit.
12. Now to the question as to the relief which the appellant should get in this appeal. As we go through the record of this case it strikes us that in keeping herself away from her matrimonial home and charging the appellant with adultery with her own married elder sister the respondent was totally guided by her relations on her father's side. In the circumstances stated we are of the view that instead of passing a decree of divorce in this case we should pass a decree of judicial separation under Section 13A of the Hindu Marriage Act, to give the parties another change to make up their differences and start living together again.
13. The points are decided accordingly. Hence, ordered that the appeal is hereby allowed. The judgment and decree passed by the Id. Trial Judge in Matrimonial suit No. 395 of 1982 of the District Judges' Court at Alipore are hereby set aside and the said suit is hereby decreed on contest. The appellant to get a decree for judicial separation against the defendant-respondent under Section 13A of the Hindu Marriage Act, 1955. No costs to either side.