Calcutta High Court (Appellete Side)
Anirban Ghosh vs Sanchita Ghosh on 21 December, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
F.A. 280 of 2008
Anirban Ghosh
v.
Sanchita Ghosh
For the appellant : Mr. Biswajit Basu,
Mr. Supriyo Chattopadhyay,
Ms. Paromita Malakar (Dutta).
For the respondent : Mr. Ganesh Shrivastava,
Mr. Sukanta Das.
Hearing concluded on : August 17, 2017
Judgment on : December 21, 2017
DIPANKAR DATTA, J.:-
1. The challenge in this appeal under section 28 of the Hindu Marriage Act, 1955
(hereafter the Act) is to the judgment and decree dated March 18, 2008 passed by
the Additional District Judge, 4th Court, Paschim Midnapore, whereby
Matrimonial Suit No.395 of 2006, instituted by the appellant on the twin grounds
of cruelty and desertion under section 13(1)(i-a) and (i-b) thereof, was dismissed.
2. The relevant facts that a reading of the application under section 13 of the Act
reveal, are these. Marriage between the parties was solemnized on August 13,
2002, according to Hindu rites and customs, at Midnapore town where the
respondent resided with her parents. After marriage, the respondent shifted to
her matrimonial home at Chandannagar. Later, the marriage was registered on
September 11, 2002. The marriage was duly consummated. During her stay at
her matrimonial home, the respondent was found by the appellant to create an
atmosphere which was not conducive to healthy matrimonial relationship. She
was ill-tempered, lacking in culture, lazy and reluctant to perform house-hold
duties. She did not care for her old and infirm parents-in-law. The mother of the
appellant came back from Vellore after undergoing surgery and treatment on
December 2, 2002 and was bed-ridden. Despite such physical condition of her
mother-in-law, the respondent insisted on going to Midnapore town alongwith the
appellant for filling up an application form in connection with a recruitment
process initiated by the School Service Commission. The respondent's father had
come to Chandannagar on December 3, 2002 and the appellant requested his
father-in-law to take the respondent back to Midnapore town if her presence
there was so very necessary. However, he flatly refused and instructed the
appellant to take the respondent to Midnapore town on December 6, 2002 and
left. The respondent left Chandannagar and went to her paternal home at
Midnapore town on December 6, 2012, without caring for her mother-in-law, on
the pretext that she would require the assistance of her teachers to prepare for
the ensuing competitive examination. The parties lived as husband and wife for
about 86 days, whereafter she did not return to her matrimonial home. After
reaching her paternal home, the respondent informed the appellant of having
conceived. The offer of the appellant to the respondent for her treatment at
Chandannagar fell on deaf ears. On February 9, 2003, the appellant attempted to
bring the respondent back home but she refused on the ground of illness. His
request for obtaining a second medical opinion from a renowned gynaecologist of
Midnapore town was turned down which made the frustrated appellant to return
home. Despite such negative attitude of the respondent, he retained his mental
poise and continued to send monetary assistance regularly. A girl child was born
in the wedlock of the parties on July 28, 2003 at Midnapore town. The appellant
was, in the meanwhile, given an offer to stay at the respondent's house as 'ghar
jamai'. It was obviously not possible for the appellant to abandon his old parents
and accept such offer, and hence it was politely declined. Misbehaviour by the
parents-in-law of the appellant as well the respondent followed and she
threatened not to go back to her matrimonial home again. The appellant then
had been residing at Burdwan town where he was posted and requested the
respondent to stay there. The respondent relented but with a condition, which
was not acceptable to the appellant. She wished that the parties would have to
spend every weekend at Midnapore town at her father's house. Faced with
refusal, the respondent threatened the appellant with dire consequences. Not
only did she threat the appellant with criminal prosecution, he was also warned
of his service being terminated. Feeling shattered by such cruel acts of the
respondent, the appellant stopped sending her monetary assistance subsequent
to May, 2003. On or about April 6, 2003, the parents and an aunt of the
respondent visited the appellant's house and on the same day took away all the
ornaments presented to the respondent by her father and invitees to the
marriage. After the birth of the girl child of the parties, the appellant on
numerous occasions made phone calls and requested the respondent to return
with her daughter but despite a settlement attempt made by an uncle of the
respondent, her parents instigated her not to return and she obliged them. These
were followed by proceedings initiated by the respondent under section 125 of the
Code of Criminal Procedure (hereafter the Cr.P.C.) and an utterly false and
concocted complaint under section 498A/384/406/506 of the Indian Penal Code
(hereafter the IPC) on December 17, 2003. The respondent had deserted the
appellant for a continuous period of 31/2 years and treated the appellant with
cruelty. Since it became impossible for the appellant to live with the respondent
any longer and there was no chance of reconciliation, he prayed for divorce on
the grounds of cruelty and desertion.
3. The respondent contested the application by filing a written statement. The
material allegations were denied and disputed. Inter alia, the respondent pleaded
that there was no remissness on her part to lead a peaceful and happy conjugal
life and that it was the appellant and his parents who did not give her the respect
she deserved. It was specifically pleaded in paragraph 9 that the appellant with
full knowledge that the respondent had conceived, took her to her paternal home
at Midnapore town and dumped her there without ever caring to take any
information regarding her health, not to speak of taking her to a doctor for check-
up. Paragraph 13 reveals that the appellant never saw the face of his daughter
after her birth. The respondent had no independent source of earning and her
father was a retired school teacher who had joined legal profession after
retirement. He was yet to build up practice of worth to maintain his daughter and
grand-daughter. This made the respondent to repeatedly request the appellant
over telephone for monetary assistance but the same did not yield any result.
Finding no other option, the respondent applied for maintenance under section
125 of the Cr.P.C. The relevant magistrate passed an order for maintenance,
which the appellant challenged in this Court. Despite being unsuccessful in his
attempt, the appellant had not been maintaining his wife and daughter. The
respondent further denied having initiated a false and concocted criminal case
against the appellant. The appellant was described as a man who had no
compassion or sympathy for the respondent or their little daughter. The
respondent was categorical in her defence of not having deserted the appellant or
that she had treated him with cruelty; on the contrary, she alleged that the
appellant had deserted her and by making the respondent to fend for her and her
daughter without maintenance had been instrumental in treating her with
extreme cruelty. It was expressed that the respondent still loves her husband and
that she was willing to stay together with him. On such pleadings, the
respondent prayed for dismissal of the application.
4. The case of the appellant was sought to be supported by 3 (three) witnesses, i.e.
the appellant himself (PW-1), the appellant's father (PW-2) and the appellant's
housemaid (PW-3). The respondent herself was the lone witness in support of her
case.
5. In his examination on affidavit the appellant reiterated what he had pleaded in
the plaint. In course of cross-examination the appellant deposed that if that case,
i.e. criminal case under section 498A of the IPC had not been filed, he would
have no cause to apply for divorce. He further deposed that he never prepared
himself to divorce the respondent prior to filing of the criminal case; that the
criminal case was the root cause of the matrimonial suit, and that except for
wilful desertion there was no ground for "filing of this case" was also admitted by
him in course of cross-examination. The appellant had "passionate love towards
... wife for a week after ... marriage then ... lost ... such love towards ... wife
thereafter". It is also revealed from his cross-examination that since February 9,
2003 he had never met his wife and that even after birth of his child on July 28,
2003, he had never seen the face of his newly born child as well as wife.
6. The father of the appellant deposed as PW-2. In his cross-examination-in-chief on
affidavit, he supported the claim of the appellant. He deposed that he had
personally requested the father of the respondent to ensure that the spouses sit
together and talk to each other for living a peaceful conjugal life but there was no
positive response from the side of the respondent's father. In course of cross-
examination, what emerged was that the PW-2 also did not meet the respondent
after she gave birth to the girl child and naturally had not seen the face of the
child since; consequently, he had not acquired any sentiment towards his grand-
daughter. PW-2 also realised just after marriage of his son that he had no affinity
towards his wife and similarly the respondent also had no affinity towards the
wife of the PW-2. Finally, he concluded by deposing that even if the criminal case
were withdrawn, the respondent would not be brought back to her maternal
home.
7. PW-3 was the housemaid of the appellant. Her examination-in-chief on affidavit
supported the appellant's claim. However, in course of cross-examination she
revealed that the respondent "never misbehaved with Anirban or his parents".
8. In her examination-in-chief on affidavit, the respondent stood by her pleadings in
the written statement. She deposed that after December 6, 2002 her husband or
in-laws never met her either at her father's house or at the hospital. She also
described the circumstances that led her to leave her matrimonial home and the
apathy and indifference of the appellant towards her which compelled her to
bring up her child on her own without any financial assistance from the
appellant.
9. There are two letters on record, the first dated November 16, 2003 addressed to
the respondent by the appellant and the other dated November 26, 2003 being
the respondent's response to such letter. We need not refer to in detail the
contents of such letters, because the same mostly bear allegations and counter
allegations of the spouses. Certain other documentary evidences were led to
which reference, at this stage, is considered unnecessary.
10. The learned Judge of the trial court framed nine issues. After consideration of the
evidence before him, the learned Judge recorded a finding that the suit had been
instituted by the appellant feeling aggrieved by the complaint lodged by the
respondent, inter alia, under section 498A of the IPC and not being able to
withstand the stigma that is attached to a person accused in a criminal case. The
learned Judge was also of the view that prior to institution of the suit there was
no question of any desertion or cruelty from any corner and that the parties were
involved in an ego clash. The parents of the parties were found to be remiss in
discharging their duties as elders to make the situation conducive for leading of a
happy and peaceful conjugal life by the parties. In any event, the learned Judge
did not find it to be a fit and proper case where divorce ought to be granted on
the grounds of desertion and cruelty as pleaded by the appellant and,
accordingly, by judgment and decree dated March 18, 2008 dismissed the suit.
11. Appearing on behalf of the appellant, Mr. Basu, learned advocate contended that
the plea of desertion was raised by the appellant citing leaving of her matrimonial
home by the respondent on December 6, 2002 at her insistence and never to
return to such home despite having given birth to a child.
12. Insofar as the allegation of cruelty is concerned, it was first contended by Mr.
Basu that the mother-in-law of the respondent had returned from Vellore on
December 2, 2002 after treatment and leaving such ailing lady to look after
herself, the respondent left her matrimonial home on December 6, 2002. Next
certain letters written by the respondent to the appellant's employer were placed
and it was contended that the entire episode was a humiliating experience for the
appellant which was hard to digest.
13. The last situation pointing to cruelty of the respondent, according to Mr. Basu, is
a post-decree development. Pursuant to the complaint lodged by the respondent
against the appellant, inter alia, under section 498A IPC, C.R. Case No.637/2003
had been registered. The appellant faced trial before the Judicial Magistrate, 6th
Court, Paschim Medinipur and was found not guilty by the relevant magistrate
by judgment and order dated April 16, 2012 and hence acquitted. Such acquittal,
according to him, is sufficient for this Court to hold that the appellant was
subjected to cruelty at the instance of the respondent. Mr. Basu also contended
that several letters written by the respondent to the appellant's employer
requesting that the appellant be posted at a particular place of the respondent's
choice caused tremendous embarrassment to the appellant and that should also
be construed as conduct on the part of the respondent which would entitle the
appellant to a decree for divorce.
14. The decision reported in AIR 1975 SC 1534 [N.G. Dastane (Dr.) v. S. Dastane]
was cited by him in support of the proposition that the standard of proof in a civil
proceeding is preponderance of probabilities and that bearing in mind the same,
the appellant must be held to have established his claim of desertion and cruelty.
The decision of the coordinate Bench of this Court reported in AIR 1961
CALCUTTA 359 [A.E.G. Carapeit v. A.Y. Derderian] was placed for enlightening
us on the law relating to cross-examination. Reliance was next placed by Mr.
Basu on the decisions of the Supreme Court reported in (2007) 4 SCC 511
[Samar Ghosh v. Jaya Ghosh], (2006) 4 SCC 558 [Naveen Kohli v. Neelu Kohli],
AIR 2002 SC 591 [Savitri Pandey v. Prem Chandra Pandey] and (1994) 1 SCC
337 [V. Bhagat v. D. Bhagat (Mrs)], as well as decisions of coordinate Benches of
this Court reported in 1999 (II) CHN 625 [Smt. Nivedita Banerjee v. Sanat Kumar
Banerjee], 2009(3) CHN 322 [Tarak Nandi v. Dolly Nandi (nee Paul)], 2010 (1)
WBLR (Cal) 265 [Smt. Manju Das v. Sri Chitta Ranjan Das], and AIR 2012
CALCUTTA 63 [Amitava Das v. Shrimati Mousumi Das] to urge that the appellant
had been successful in proving cruelty and desertion by the respondent, for
which the suit ought to have been decreed. He, thus, prayed that the appeal may
be allowed upon setting aside the impugned judgment and decree and that the
marriage between the parties be dissolved by a decree of divorce.
15. Appearing on behalf of the respondent, Mr. Shrivastava, learned advocate
contended that no case for interference had been set up by the appellant.
According to him, it was the appellant who deserted the respondent and,
therefore, he cannot take advantage of his own wrong. He placed the evidence on
record in detail to show that after the appellant left the respondent on December
6, 2002 at her paternal home, he never returned to see her or their child. It was
shown from pages 67 and 72 of the paper book, being the examination-in-chief of
the respondent, that the appellant had not been to Midnapore town on February
9, 2003 to bring her back or that there was any refusal of the respondent to
obtain second medical opinion of Dr. B. D. Ray, as alleged. It was shown that the
respondent was not subjected to any cross-examination on this aspect and,
therefore, the claim of the appellant is nothing but a creature of his evil mind.
The contention was that it is not a case where the wife had deserted her
husband, but a case where the respondent was compelled to live separately, for,
the appellant had abandoned his wife and child. It was also pointed out that for
three months the appellant paid Rs.1000/- each but since then, without any
reasonable cause, stopped sending financial assistance to the respondent and it
was the respondent who had to survive at her father's residence with a new born
baby in her lap with whatever her father could provide on the basis of his meagre
resources. This, according to him, amounted to refusal of the appellant to
maintain his wife and child as well as torture for which recourse had to be taken
by the respondent in terms of the provisions of the Cr.P.C. He further contended
that the judgment and order of the relevant magistrate acquitting the appellant
has since been challenged in appeal and the decision is pending. In view thereof,
the decision rendered by the relevant magistrate has not attained finality and the
appellant cannot seek to derive any benefit therefrom. It was further contended
that in terms of cultures and traditions prevalent in Bengal, it is for the husband
to take his wife back home after child birth but unfortunately, in this case, there
was no such attempt on the appellant's part. That apart, it was submitted that
there is absolutely no evidence of physical and mental torture inflicted on the
appellant by the respondent and it was because of the negative conduct of the
appellant that the respondent, perhaps being left with no other option, had
moved the court.
16. Mr. Shrivastava, in his turn, relied on the following decisions:
1) AIR 2014 SC 2881 [Dr. (Mrs.) Malathi Ravi, MD v. Dr. B. V. Ravi, MD];
2) (2012) 7 SCC 288 [Vishwanath Agrawal v. Sarla Vishwanath Agrawal];
3) (1988) 3 SCC 309 [Pawan Kumar v. State of Haryana];
4) 2009(2) WBLR (Cal) 997 [Smti Ananta v. Shri Ramchander]; and
5) 2004(3) CHN 266 [Abhijit Das Gupta v. Rita Das Gupta];
and prayed for dismissal of the appeal.
17. In course of hearing and before reserving judgment on the appeal, we were
convinced that the circumstances leading to the respondent living separately on
and from December 6, 2002 and the subsequent factual events, including in
particular the appellant's conduct of not even returning to Midnapore town even
once for taking a look at his child's face coupled with criminal prosecution
launched against him by the respondent, have made the entire situation so
utterly ugly that the parties might not be in a position to bury their differences
and start a new life. We had, accordingly, given them an opportunity to arrive at
a settlement before they could part ways forever. Although the parties through
their learned advocates had agreed that an endeavour would be made to trace an
amicable solution acceptable to both, we were subsequently informed that the
parties could not be ad idem on the aspect of alimony and consequently, the
talks fell through. While the respondent had claimed Rs.25 lakh for herself and
Rs.35 lakh for her minor daughter, the appellant agreed to spend Rs.5 lakh for
educational purposes of the minor daughter and Rs.7,50,000/- for 9 years and 4
months by way of Kishan Vikas Patra certificate which would approximately be
Rs.15 lakh on maturity in the year 2027 when she would reach the marriageable
age of 24 years. The appellant refused to pay any amount for the respondent on
the ground that she is employed as a teacher and earns sufficient money to take
care of her personal needs.
18. It is in this factual backdrop that we proceed to decide the appeal on merits.
19. The issues that emerge for decision before us are, whether the appellant had set
up a case for a decree to be passed under section 13(A)(i)-(a) and (i)-(b) of the Act
and whether the trial court was justified in dismissing the application.
20. Having considered the arguments advanced by the parties, we are of the clear
opinion that the allegations of desertion and cruelty levelled by the appellant
against the respondent do not stand substantiated on appreciation and analysis
of the oral and documentary evidence on record.
21. The version of the appellant that the respondent insisted him to take her to her
paternal home has to be considered in the light of her testimony before the trial
court. The respondent had travelled to Midnapore town for her appearance in an
ensuing recruitment examination to be conducted by the School Service
Commission. That the respondent having requisite qualifications intended to
become a teacher is not something unusual and from the evidence of the
appellant himself, we find that he was aware of the same. In fact, the appellant
himself claims to have purchased the application form for the respondent. Given
this background, even if the respondent had insisted that she be permitted to
travel to Midnapore town for the purpose of her preparation to write the
examination, we do not consider the same per se a conduct which is
blameworthy. However, what is to be noted is that the appellant's mother was
unwell at the material time and she had returned from Vellore days before the
respondent left her matrimonial home. In paragraph 14 of the written statement,
the respondent pleaded that "the mother of the Petitioner had illness at the
relevant time but it is not correct to state that she was as much ill as it would be
uncommon for the respondent to come to Midnapore for her appearance in the
ensuing S.S.C. examination". In her evidence on affidavit, the respondent
repeated what she had pleaded in paragraph 14 of the written statement. We
have not found a single question put to the respondent in course of cross-
examination in regard to her mother-in-law's health condition being so serious,
which would require a daughter-in-law of ordinary prudence not to leave her in
such condition. On the contrary, it was the respondent's specific claim that the
appellant and his parents did not wish the respondent to stay at her matrimonial
home.
22. We, therefore, do not see reason to hold that the incidents immediately prior to
and after December 6, 2002 are of such nature so as to attract cruelty of the
respondent towards the appellant.
23. The specific version of the respondent that after December 6, 2002 the appellant
or his parents never met her in her father's house or at the hospital stands
uncontroverted after thorough cross-examination to which she was subjected.
The further circumstance that the child of the parties was born but the
appellant, despite having information of her birth, chose not to return to
Midnapore town to enquire about the well-being of the mother-child duo and also
the very unusual undisputed fact of the appellant not having seen his daughter's
face for all these years, is sufficient indication of cruel conduct on the part of the
appellant himself. We are, thus, unable to accept that based on the case set up
by the appellant in the application under section 13 of the Act, he was entitled to
relief.
24. We have perused the correspondence exchanged by and between the appellant
and the respondent. The appellant wrote a letter dated November 16, 2003 to the
respondent and dispatched the same by registered post with acknowledgement
due. It is quite intriguing that the appellant wished to preserve evidence of the
respondent having received the letter, although at that point of time he may not
have derived knowledge of the FIR giving rise to the ultimate trial. We, however,
propose not to go deep and find out the appellant's intention behind it. The letter
of the respondent dated November 26, 2003 in response to the said letter of the
appellant, however, bears ample testimony of her urge to return to the family of
the appellant with her girl child. It appears on reading such response that the
appellant and his parents were not satisfied with the respondent giving birth to a
girl child and she had questioned the appellant as to why being a man of the
modern age, he could not accept that giving birth to a girl child should not be
seen as a sin. There was no immediate reaction from the side of the appellant
and, thus, we are constrained to hold the view that the letter of the respondent,
which the appellant tendered in evidence, did more harm than good to his cause.
25. Enunciation of the law in paragraph 10 of the decision in A.E.G. Carapeit (supra)
admits of us doubt. We have, however, failed to comprehend as to how the
appellant can press the principle of law laid down in A.E.G. Carapiet (supra) for a
decision in his favour. On material aspects, he did not cross-examine the
respondent and, therefore, the decision is of no aid to him.
26. Insofar as the letters written by the respondent to the appellant's employer are
concerned, we are inclined to observe that it would have been prudent and
proper if the respondent had restrained herself from doing so but that by itself
does not advance the cause of the appellant. We see the letters written by the
respondent as a request to the appellant's employer to any how ensure that the
appellant stays close to the respondent and takes care of his wife and child.
27. Adverting to the aspect of desertion, we are also of the considered view that the
appellant utterly failed to establish his claim by adducing cogent evidence. We
accept Mr. Shrivastava's contention that it was the appellant who deserted the
respondent and not vice versa.
28. The time is now ripe to consider the decisions of the Supreme Court cited by Mr.
Basu.
29. Paragraph 101 of the decision in Samar Ghosh (supra) enumerates illustrative
instances of human behaviour which could be relevant in dealing with cases of
mental cruelty. We are afraid, the guidance provided by the Supreme Court
instead of assisting the appellant goes against him having regard to his conduct
post marriage.
30. The essential elements of animus deserendi are discussed in paragraphs 8 to 10
of the decision in Savitri Pandey (supra). For reasons discussed above, we repeat
that the respondent did not desert the appellant; instead it was the appellant
who could be accused of creating such a situation that the respondent had no
other option but to leave for her paternal home merely 86 days after her
marriage.
31. Paragraph 21 of the decision in V. Bhagat (supra) emphasizes that while
scrutinizing the evidence on record to determine whether ground(s) alleged is/are
made out and in determining the relief to be granted, the circumstance of
irretrievable break down of the marriage can certainly be borne in mind although
it is not a ground by itself for divorce. Despite the position of the marital
relationship between the parties noticed above, we are unable to grant divorce
only on the ground of irretrievable break down of marriage since a high court has
no power in that behalf.
32. The decision in N.G. Dastane (supra) was cited for the proposition that the
standard of proof in civil proceedings is "preponderance of probabilities" and thus
applied, it ought to be held in favour of the appellant that he had sufficiently set
up a case of divorce on the ground of cruelty. As would be evident from the
discussions made herein above, the balance is against the appellant and in
favour of the respondent. We have no doubt in our mind that the degree of
cruelty perpetrated by the appellant on the respondent is much more than what
the respondent may have perpetrated on the appellant.
33. The sheet anchor of Mr. Basu's contention, however, appears to be the judgment
and order dated April 16, 2012 delivered by the relevant magistrate acquitting
the appellant of the charge of commission of offences under sections
498A/406/384/34 of the IPC and section 3 of the Dowry Prohibition Act. The
said judgment was brought on record by presenting an application under Order
XLI Rule 27 of the Code of Civil Procedure.
34. We remind ourselves of Mr. Basu's contention that entangling the appellant and
his parents without just cause in the criminal proceedings was a source of severe
mental cruelty and humiliation in the eyes of the public and only on the ground
of the relevant magistrate acquitting the appellant and his old parents, the
marital tie between the parties ought to be dissolved by a decree as prayed for on
the ground of cruelty having regard to the decisions of coordinate Benches that
have been cited.
35. Let us now ascertain what the facts in the cited decisions were and whether any
law has been laid down therein which would be applicable here.
36. In Nivedita Banerjee (supra), the wife deserted the husband with intention never
to return to her matrimonial home. Also, not only was the husband acquitted of
the charge of torture and demand for dowry, the appeal preferred by the wife was
dismissed. The coordinate Bench recorded a finding that the husband had
suffered immensely for such act of the wife and he was humiliated and his
prestige was lowered in the eyes of the public including his students. In view
thereof, the appeal against the decree for divorce was dismissed.
37. The coordinate Bench in Tarak Nandi (supra) found as a matter of fact that the
wife had withdrawn from the society of the husband without just cause, never
intending to return and that intention to severe relationship was apparent.
38. In Manju Das (supra) too, the wife left the matrimonial home without intimation
and initiated criminal proceedings which ended in the acquittal of the husband.
39. Perusal of the decision in Amitava Das (supra) reveals that on facts, the
allegations of cruelty were held to be proved.
40. Of the four decisions referred to above, all but one has held that if the wife's
allegation of torture and demand for dowry cannot be proved by the prosecution
before the criminal court resulting in acquittal of the husband, per se that could
be considered to be an act of cruelty based on which a decree for divorce could be
passed. There is no quarrel with regard to the proposition laid down therein.
41. However, the facts and circumstances in such decisions of the coordinate
Benches are quite dissimilar to those arising here which we have examined and,
therefore, reliance placed thereon by Mr. Basu is misplaced for the reasons that
follow.
42. It is true that the appellant was acquitted after trial in the criminal proceedings
launched at the instance of the respondent. It is equally true that the judgment
and order dated April 16, 2012 has been carried up in appeal and such appeal is
pending before the Sessions Judge, Paschim Midnapore. Thus, acquittal is yet to
reach finality. We need not await the decision in the criminal appeal since having
regard to the discussions made above, we are unable to persuade ourselves to
agree with the contention of Mr. Basu that the acquittal of the appellant is itself a
ground for decreeing the suit on the ground of cruelty. The evidence on record
which are sufficient to indicate the mindset of the appellant, more particularly
the admission on his part that his love for the respondent was lost immediately
after marriage, incline us to hold that the respondent may have been forced to
launch criminal proceedings against the appellant to somehow force him to take
her and the child back and not for painting a bad picture of him before the
society at large. A husband who leaves his newly wedded wife at her paternal
home and does not return to enquire and take care of his wife, not to speak of
having a look at the new born child till this date (she is fourteen years old by
now), is himself guilty of such cruel conduct that he does not deserve any relief.
The appellant himself cannot take advantage of his disability to ensure a binding
conjugal relationship and we have no other option but to approve the judgment
and decree of the trial court.
43. Accordingly, the appeal fails and stands dismissed. Pending applications, if any,
stand disposed of.
44. Insofar as alimony is concerned, we are of the considered view that a proper
determination of the issue would be required considering the evidence regarding
the respective earnings of the parties at present. We, therefore, grant liberty to
the respondent to approach the trial court for alimony and maintenance for
herself and the child, in accordance with law.
Urgent photostat certified copy of this judgment and order, if applied, may be
furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)
SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)