Calcutta High Court (Appellete Side)
Smt. Uma Biswas vs Sri Ram Narayan Biswas on 3 April, 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. 153 of 1991
Smt. Uma Biswas
Versus
Sri Ram Narayan Biswas
For the Appellant/Petitioner: Mr Pinaki Ranjan Mitra,
Mr Alok Roy Chowdhury.
For the Respondent/Opposite Party: Mr Dipankar Ghosh,
Mr Rudradeb Chowdhury.
Heard on: 06.03.2008.
Judgment on: 3rd April, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a wife in a suit for divorce on the ground of desertion and cruelty and is directed against the judgment and decree dated 18th September, 1989 passed by the Additional District Judge, 1st Court, Burdwan in Matrimonial Suit No.78 of 1985 thereby passing a decree for divorce.
The husband-respondent filed the aforesaid suit for divorce and the case made out by the respondent may be summed up thus:
(a) The parties were married in the month of December 1982 according to the Hindu rites and ceremonies and thereafter they live as husband and wife.
(b) The appellant, from the very beginning, never adjusted herself with the family environment of the respondent and very often, on some pretext or other, picked up quarrel with the respondent and his old parents and other members of the family, and used to leave the matrimonial home and come to her father's residence at Bongaon.
(c) In spite of protest made by the respondent, the appellant became turbulent and used to abuse the respondent and his family members with filthy language and sometimes, used to inflict bodily injury on the respondent and even attempted to kill the respondent by tightly grasping his testicles.
(d) In view of such abnormal behaviour of the appellant, it was not possible for the respondent to live with her as the appellant attempted to dishonour and malign the honour, prestige and reputation of the respondent and his family members by taking recourse to false and malicious allegations before the police and the office master of the respondent.
(e) The appellant deserted the respondent and left the matrimonial home at Kalna in May 1984 with all her ornaments and clothings behind the back and the knowledge of the respondent without his consent. Hence the suit.
The suit was contested by the appellant by filing written statement thereby denying the material allegations made in the application for divorce and her defence may be summarised thus:
(i) After marriage, the appellant wanted to live with her husband at Durgapur but the respondent refused on some pretext or the other. The respondent is an employee of the Central Government of India and had all along a quarter in Durgapur and at the time of marriage negotiation, the respondent gave out to the parents of the appellant that he had no quarter and he used to live in some other's quarter. However, after marriage, it was gradually revealed that the respondent had quarter since the inception of his service and had a concubine named C (we are not mentioning the full name), who was kept in that quarter and for that reason, the respondent refused to live with the appellant at Durgapur.
(ii) The appellant was left at Kalna and the respondent used to come to Kalna only once in a month for a night. It was undesirable and unbearable for the newly married appellant and her warm desire to lead conjugal life with the respondent did not materialise.
(iii) The parents, brothers and sisters of the respondent knew about the said concubine but they remained silent. They also did not behave properly with the appellant and it was impossible for the appellant to live at Kalna without her husband.
(iv) The appellant, however, somehow got the address of the respondent at Durgapur and all of a sudden, one day went there and found the said C living in the quarter.
(v) The respondent, having seen the appellant, burst into rage, abused her with filthy language and tried to drive her out. The appellant patiently remained there for some days but thereafter, the appellant was forced to come back to Kalna.
(vi) The appellant tried her best to rectify the respondent with love and service but failed. All the allegations in the application for divorce including the act of physical and mental cruelty pleaded therein were false.
(vii) The respondent for the marriage demanded a dowry of Rs.15,000/- and ornaments of 10 Bharis of gold and other valuable things from the father of the appellant and the father of the appellant fulfilled the said demand and the marriage was solemnized but after the marriage, the respondent falsely alleged that he agreed to marry the appellant on consideration that the father of the appellant would bear the full responsibility of the marriage of the elder sister of the respondent. The respondent, after 2/3 months of his marriage, insisted on complying with such illegal demand of taking responsibility of the marriage of his sister when the parents of the respondent supported him and they all made the relationship bitter and cloudy with the parents of the appellant. The respondent sometimes threatened the appellant that he would break the marital relationship if her father did not take the responsibility of the marriage of his elder sister.
(viii) The articles, which she got from her father at the time of marriage, were being damaged and the respondent and his parents did not allow the appellant to get back her articles and therefore, she was compelled to pray for search warrant in the Court of the S.D.J.M. at Bongaon to recover her own articles given by her father. The suit being a false one should be dismissed.
At the time of hearing of the suit, the husband and six other witnesses including two doctors gave evidence while the wife alone deposed in support of her defence.
The learned Trial Judge on consideration of the materials on record concluded that the wife was guilty of cruelty and consequently, decreed the suit.
Being dissatisfied, the wife has come up with the present first appeal. After hearing the learned counsel for the parties and after going through the materials on record, we agree with the learned Trial Judge that it is difficult to believe that the wife tried to kill the husband by squeezing his testicles. The two doctors' evidence, in this connection, has not proved any injury on the testicles of the husband when he was treated by them. The doctors merely stated that the husband alleged the incident before them, and on that basis, they prescribed medicine. The doctors themselves did not find any inflammation on the testicles of the husband.
We are however of the view that in this case the decree for divorce should be affirmed on the ground of mental cruelty inflicted by the wife, first, by making false allegation against the husband of keeping concubine and secondly, by initiation of false criminal case against the husband alleging physical assault.
So far the allegation in the written statement that the husband used to live with a concubine named C in his quarter at Durgapur is concerned, it is rightly pointed out by the learned Trial Judge that the same is a baseless one. As indicated in the judgement impugned, there were two bedrooms in the official quarter of the husband. According to her, all of a sudden, she along with her parents went to Durgapur without giving any information and found a woman named C in the quarter. The said lady remained there for the next fifteen to twenty days and thereafter, the husband shifted her to a rented house. It is the definite case of the wife that she stayed with the husband in the one of the rooms and the other room was occupied by her parents on the night of arrival. The husband has disputed the said fact and he has produced a letter to show that the wife before coming to Durgapur, in writing informed him that they were coming. The letter written by the father of the wife marked Exbt.-1(a) falsifies the claim of the wife that without giving any intimation they went to Durgapur and detected the presence of the concubine. No reasonable person will believe that in spite of the knowledge that the parents-in-law with the wife would be coming to stay with him, any person will keep his concubine in the quarter. If there are only two rooms in the said quarter, and the one was occupied by the husband and the wife and the other one was occupied by the parents of the wife, the story made out by the wife that the said concubine lived there for about next three weeks was a preposterous one. In answer to the question put to the wife whether she had written any letter to the father during her stay at Durgapur, she answered in the negative. In support of her claim that a concubine named C was staying in the quarter at Durgapur, she produced a letter alleged to have been written by one Rabin Mondal, the brother of the said concubine. According to her, she was acquainted with the handwriting of Rabin Mondal as she had found him writing something in that quarter. The husband in his evidence has flatly denied that he knew any person named Rabin Mondal. He has also denied the existence of any lady named C. she also could not disclose the name of the landlord in whose house C was shifted by her husband. No other person has supported her version. Even her parents did not depose to support her false plea. Therefore, the plea of existence of a concubine is proved to be a false one. The inland letter marked Exbt.-A2 was written by one Rabin Mondal to her sister and the address on the envelope appeared to be the address of the husband. The husband denied having received such letter. The date of writing of the letter appears to be March 25, 1983. The postal stamp on the front side of the letter is torn. The postal stamp on the reverse side shows that it was dated "28.5.86". In the said letter, there is no reference of name of C. It appears that such letter was written by one Rabin Mondal to his married sister. In our view, no importance should be given to such letter when the existence of Rabin Mondal is not proved. No endeavour has been made on behalf of the appellant to prove the existence of Rabin Modal of 40, Bazar Para Lane, Salkia, Howrah, the alleged address of the sender as appearing from the said inland letter.
Secondly, in her written statement, she alleged that as the husband came to her house to kill her she filed a criminal case against her husband. No suggestion has been given to the husband that he ever tried to kill her. Even in her examination-in-chief, not a single sentence has been uttered as regards that incident. In cross-examination, she admitted that a criminal case was started against the husband on the charge of assault. No statement of fact about the said incident has been narrated by the wife. Even no other witness has come forward to support the said incident. Knowing fully well that the husband is a Central Government employee, if a wife deliberately indicts the husband of false criminal charge, it manifests the intent of the wife that she did not intend to restore the relation between them.
We, therefore, find that the learned Trial Court rightly passed a decree on the ground of cruelty of the wife for making baseless allegations of gross immoral character and at the same time, for filing a false criminal case alleging assault.
After taking into consideration the fact that this Court, in the past, fixed the amount of alimony pendente lite at the rate of Rs.1500/- a month in the year 1999, we grant a decree of permanent alimony to the wife by directing the husband to pay a sum of Rs.2 lakh at a time. The amount be paid within a month from today by Bank Draft in the name of the wife.
The appeal is, thus, disposed of with the aforesaid direction. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Rudrendra Nath Banerjee, J. )