Calcutta High Court (Appellete Side)
Amrita Kumar Kar vs Smt. Mithu Kar on 5 December, 2008
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. 118 of 2006
Amrita Kumar Kar
Versus
Smt. Mithu Kar
For the Appellant/Petitioner: Mr. Biswajit Basu,
Mr. Susenjit Banik.
For the Respondent/Opposite Party: None.
Heard on: 25.11.2008.
Judgment on: 5th December, 2008
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a husband in a suit for divorce on the ground of desertion and cruelty and is directed against the judgment and the decree dated 26th July, 2004 passed by the Additional District Judge, Fast Track Court -2, Kalyani, District- Nadia, in Matrimonial Suit No. 294 of 2003, thereby dismissing the said suit.
Being dissatisfied, the husband has come up with the present first appeal.
The appellant before us filed a proceedings for divorce against the respondent under the provisions of Section 13(1) (ia) and (ib) of the Hindu Marriage Act in the court of District Judge, Nadia, being Matrimonial Suit No. 294 of 2003 which was subsequently transferred to the Fast Track Court-2, Kalyani. The case made out by the appellant in the said petition for divorce may be briefly stated as follows:
1. The parties were married according to the Hindu rites and ceremony on January 25, 1997 at the place of residence of the respondent. The appellant has a business of repairing bicycle and selling its parts and is the sole earning member of his family consisting of his parents and a younger brother. At the time of negotiation of the marriage between the parties, it was settled that the husband according to the custom of his family would not take anything as dowry and such attitude on the part of the husband was appreciated by the members of the family of the respondent.
2. Shortly after the marriage, it was found that the respondent was a person of violent nature and quarrelsome attitude was inherent in her character.
She insisted on living separately from the joint family of the appellant so that she could freely mix with her boyfriends and go out with them. Subsequently, the appellant came to know that the respondent had affairs with her boyfriends and the marriage with the appellant was settled against her wish and desire.
3. The following are the instances of the cruel behaviour of the respondents inflicted towards the appellant:
a) The respondent during her stay in the house of the appellant not only used to insult the appellant but also the elder members of the family. She used to quarrel with the appellant and the other members of her family using filthy and dirty language.
b) The respondent was a lady of suspicious nature and without any reason used to make ugly comments as regards the character of the appellant by taking the name of some fictitious girl totally unknown to the appellant.
c) The respondent had a rooted aversion towards the parents of the appellant and used to insult them without any reason. She had intractable temper and during her short stay with the appellant, there were innumerable occasions when the appellant had to bear the brunt of her fury for no fault on his part.
d) In course of the histrionic outburst of the respondent rubbed off the vermilion from her forehead, removed both the iron bangles and the Conch Shell bangles from her wrist and locked herself inside a room with the threat to take her own life resulting in humiliation of the appellant before the other members of his family. The threat of committing suicide was a natural act of the respondent and was a weapon in her hand to humiliate the appellant whenever there was a least domestic disagreement.
e) The respondent was in habit of going out of the house without taking permission of the members of the appellant's family and this became her habit and any protest against her such conduct would result in severe atmosphere in the house.
f) On April 18, 1997 the respondent informed the appellant that she did not want any child to be born in their wedlock and such comment had shocked the appellant.
g) The respondent used to take away the money which he preserved for his business and on enquiry, the appellant came to learn that she used to stay with her boyfriend. On May 4, 1997 at night she demanded Rs. 5000/-. The appellant did not pay the money and asked for the account of her expenses which infuriated her and she started assaulting the appellant by nailing on the check, neck and the breast of the appellant as a result the appellant suffered bleeding injury and on the following morning he had to go to the doctor for treatment and it took few days to recover.
h) On June 12, 1997 the appellant went to the house of the respondent on the occasion of Jamaisasthi but the appellant was shown cold shoulder and was treated as an unwanted guest. On that day, the respondent, in the presence of her all relatives threatened that unless she was provided with a sum of Rs.50,000/- in cash she would cause utmost harm to the appellant by lodging false complaint before the police for arresting the appellant and his members of the family. The respondent thereafter started blackmailing the appellant and the members of his family to pay her a sum of Rs.50,000/- on the threat of lodging false complaint before the police.
i) On October 2, 1997 at about 11 at night, the respondent finally gave out that unless a sum of Rs.50,000/- was paid to her, she would leave the house of the appellant and will take the help of the police. The appellant entreated the respondent not to indulge in such highhanded activity since it was beyond the capacity of the appellant to arrange for such a large amount. In retaliation, the respondent packed her belongings and taking her all the ornaments given to her by the parents of the appellant, she left the matrimonial home in that night.
From a letter being recovered from her Almirah it transpired that she had illicit relation with one Atanu. On the same night, the appellant lodged a complaint to the local police station stating the aforesaid conduct of the respondent.
j) The respondent after leaving the matrimonial home on October 2, 1997 lodged a false complaint against the appellant and the members of his family before the Haringhata Police station and on the basis of such complaint, the appellant and all the members of the family were arrested and were subsequently granted bail.
k) The appellant had not condoned the aforesaid acts of the respondent and filed the suit for divorce on the ground of desertion and cruelty.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the application for divorce and the defence taken by the respondent may be summed up thus:
a) The suit filed by the husband was not maintainable and was based on false statements.
b) After few days of marriage, the husband and the members of his family mentally and physically tortured the respondent for more dowries.
c) As the respondent could not pay any amount, the husband and her parents assaulted her and drove her away from the house on October 2, 1997 at 10-30 p. m and the respondent lodged a diary at Haringhata Police Station but the local police took an initiative to compromise the matter and requested both the parties for a compromise. Accordingly, on October 13, 1997 there was a compromise meeting and the husband by writing agreed to take back the wife and further agreed not to assault the wife for money.
d) But again on October 16, 1997 the husband and his associates assaulted the respondent and drove her away from the house with the threat that they would kill the respondent. The respondent became afraid and took shelter at the house of her mother and informed the Haringhata Police Station which started a case under Section 498A of the Indian Penal Code and such case was pending.
e) The suit filed by the appellant was thus liable to be dismissed.
At the time of hearing of the suit, the appellant and his brother gave evidence in support of the claim for divorce. The appellant proved the certified copies of two letters written by the respondent to one Atanu which the appellant recovered from the Almirah of the respondent after her departure along with the report of the handwriting expert certifying the genuineness of the handwriting of the respondent. Those two original letters were produced by the appellant in the criminal case filed by the respondent for maintenance and were marked exhibits in the said case and the handwriting expert was appointed by the said Criminal Court. The said expert gave report in favour of the husband certifying the letters were written by the wife. The wife and her mother, on the other hand gave evidence in this suit for divorce thereby opposing the prayer of the husband.
As indicated earlier, the learned Trial Judge by the judgement and decree impugned herein dismissed the suit with the finding that the appellant had failed to prove the allegation of cruelty so as to get a decree for divorce.
Being dissatisfied, the appellant has come up with the present first appeal.
In spite of service, the respondent has not contested the appeal. In this appeal, the appellant has come up with an application under Order XLI Rule 27 of the Code of Civil Procedure for taking some additional evidence. A Division Bench of this Court directed fresh service of notice of the said application upon the respondent but in spite of sending the copy of the application by registered post, she refused to accept the same as it appears from the postal endorsement. The respondent also did not appear to contest the application. At the time of hearing, we have taken into consideration the additional evidence sought to be adduced by the husband and we were of the opinion that the additional evidence sought to be adduced are necessary for effective adjudication of the disputes involved in this appeal. We accordingly allowed such application and marked those three additional documents as exhibits before this Court.
The first document admitted in this appeal is the judgement passed in the criminal proceedings under Section 498A of the Indian Penal Code showing that the Criminal Court had acquitted the appellant and his other members of the family on contested hearing. The second one is a photograph of the respondent sitting on a bed as indoor patient and talking with her mother in the J.N.M. Government Hospital, Kalyani for giving birth of a child. According to the appellant, he had taken such photograph on April 7, 2005. The third one is the certificate issued by the Superintendent of the J.N.M. Government Hospital, Kalyani, dated August 31, 2005, certifying that Mithu Sarkar wife of Akhil Sarkar of Subhasnagar, village- Dhakalipara, Police Station- Haringhata District- Nadia gave birth to a male child on April 11, 2005. It was further stated that she was admitted on April 6, 2005 and was discharged on April 12, 2008. By relying upon those documents, the appellant in the said application has averred that the respondent during the pendency of the present appeal is leading an adulterous life by illegally marrying one Akhil Sarker son of Sri Brindaban Sarkar of Dhakali Para, Subhas nagar, P.S. Haringhata.
We, therefore, proceed to decide this appeal ex parte not only on the basis of evidence on record but also on the basis of the additional evidence taken before this Court.
First, we propose to consider whether the appellant has proved desertion on the part of the respondent for two years prior to the filing of the suit.
According to the appellant, the respondent by making false allegation of demand of dowry left the house at 11-30 p.m. on October 2, 1997 and thereafter never returned. In the written statement, it is stated that after the incident of October 2, 1997, the police intervened and there was a meeting on October 13, 1997 where the husband gave undertaking not to assault and demand any dowry but again on October 16, 1997 the husband and his associates assaulted her and drove her away, as a result, she left the matrimonial house and on her complaint a criminal case under Section 498A of the Indian Penal Code was started against the husband and the other member of his family.
In evidence, both the wife and her mother, however, did not utter anything about the incident of October 16, 1997; on the contrary, according to them, the wife was driven away on December 26, 1997 at 11-30 in the night and she thereafter lodged complaint before the police on the basis of which the case under Section 498 A of the Indian Penal Code was started. Therefore, according to the evidence of the wife she stayed in her matrimonial home till December 26, 1997. In cross-examination, the wife stated that she stayed in her matrimonial home for 8 months while her mother stated that her daughter stayed there for 6/7 months. Therefore, the story of driving out the wife from the matrimonial home on December 26, 1997 at 11-30 in the night is a new case brought for the first time at the time of giving evidence and such fact has been falsified by the statement of the wife and her mother. The suit has been filed in the year 2003 and therefore, the fact that they living separately for more than two years prior to the institution of the proceedings has been well established.
The husband has alleged that she had love affairs with one Atanu and as such, by giving false allegation of demand of dowry, she had left. The wife on the other hand alleged that she was repeatedly assaulted for dowry and thus, she had just cause for not going back. Once factual separation of more than two years is proved, the onus in this case is upon the wife to prove just cause on her part because of her allegations.
The two letters alleged to have been written by the wife to one Atanu had been filed by the husband in the proceedings under Section 125 of the Code of Criminal Procedure initiated by the wife against the husband and as such, the certified copies of those letters and the handwriting experts report given in the said criminal proceedings have been collectively marked as Exbt.-1 series in this suit. Since the original letters were not proved, by Exbt.-1 series, the fact that has been brought before this matrimonial proceedings is that two letters alleged to have been written by the wife to one Atanu had been exhibited in the criminal case and that in the report submitted by the expert appointed by the said Criminal Court it has been opined that that the handwriting indicated in those letters was that of the wife. No suggestion has been given that no such document was exhibited in the criminal case. Therefore, by production of those exhibits, only the above facts have been proved but the genuineness of the documents cannot established unless the originals are proved before the Court; similarly the report of the expert produced in this proceedings is not binding upon the wife unless she is permitted to cross-examine the said expert. Thus, by production of the certified copies of those letters, the genuineness of those documents is not proved.
Regarding the allegation of assault and demand of dowry, all that has been stated in the examination-in-chief of the wife is that her in-laws used to torture her for more dowries. She did not remember the exact date but one day the petitioner and in-laws assaulted her and she went to the police station. The police asked her settle the matter and told her that they would come on the next day and so she started living with her husband. Thereafter, on December 26, 1997 at about 11-30 p.m., she was assaulted and driven away. Such statement is totally inconsistent with the case made in the written statement where she stated that she driven away on October 16, 1997. Even no document in support of the allegation of lodging any complaint at the instance of wife before the police in the month of October, 1997 has been produced. She has further stated that she filed a case for restitution of conjugal right which was pending but she could not give the number of such case. The mother of the wife as D.W.-2 stated that she heard from the people of Haringhata that her daughter was assaulted by the in-laws and one Bishnu Sarkar having a sweetmeat shop adjacent to the husband's house told her such fact. The said Bishnu Sarkar has not been examined by the wife. We, thus, find that the wife failed to prove any case of assault or demand of dowry by production of any cogent evidence and her evidence is contrary to the statement made in the written statement. We, therefore, find that the learned trial judge totally misread the defence statement and wrongly presumed that the husband demanded dowry. Moreover, from the additional evidence adduced before this court it is found that the criminal case under Section 498A/34 of the Indian Penal Code has been disposed of by acquitting all the accused persons and the version of the wife has been disbelieved. What is more astonishing is that she described herself to the wife of one Ashim Sarkar and gave birth to a male child during the pendency of this appeal and the photograph of the wife and her mother in hospital while the wife is found to be seated on the bed and the mother talking to her has been exhibited. The doctor's certificate regarding the birth of a male child by the respondent in the year 2005 has also been established. If the wife in spite of service does not oppose this appeal and even thereafter, refused to accept the application for additional evidence sent to her by registered post, we are left with no other alternative but to accept those additional pieces of evidence to be true. It is apparent that after the aforesaid incident she is unable to face the court and has taken the decision not to appear any further. We, accordingly, hold that there was no just cause for refusing to live with the husband and thus, desertion for more than two years has been established.
As regards the ground of cruelty, we find that the wife without just cause deprived the husband of her company and made false allegation of demand of dowry. It appears that the husband, his brother and the old parents were all arrested and humiliated for no fault on their part. Such irresponsible act on the part of the wife amounts to cruelty. Moreover, giving of birth of a child through adulterous relation with a third person during the subsistence of the conjugal relation is the worst form of cruelty a wife can inflict upon her husband. It will be definitely harmful for the husband to live with such a person as husband and wife any further.
We, therefore, hold that the husband has substantiated both the grounds of desertion and cruelty and it is fit case were the marriage should be dissolved by a decree for divorce. We accordingly pass a decree for divorce.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)