Calcutta High Court
Broja Kishore Ghosh vs Krishna Ghosh on 21 April, 1988
Equivalent citations: AIR1989CAL327, AIR 1989 CALCUTTA 327, (1988) 24 REPORTS 313, (1988) 2 DMC 301, (1988) 2 CURCC 188, (1988) MATLR 240
JUDGMENT Ajit Kumar Nayak, J.
1. This appeal is at the instance of Brojo Kishore Ghosh against his wife the respondent Smt. Krishna Ghosh who obtained a decree for divorce on 19-3-84 in matrimonial suit No. 58 of 1980 in the Court of 14th Additional District Judge, Alipore, 24 Parganas on the ground of cruelty under Section 27(1)(d),Special Marriage Act, 1954. The appellant/opposite party Brojo Kishore Ghosh and the respondent-petitioner Smt. Krishna Ghosh, both citizens of India, were married in Calcutta under the Special Marriage Act, 1954 on 16th Mar., 1971. It was an intercaste marriage. The wife, respondent before marriage was a brahmin while the husband, appellant was a non-brahmin. The appellant was a close neighbour and tenant in a premises by the side of the residence of the petitioner-respondent at 9/3, Krishna Mullick Lane, P.S. Uhadanga. In or about the year 1970, the parties became known to each other, developed intimacy between them, which resulted in such marriage allegedly according to the persuasion of the appellant-husband. Apprehending non-acceptance in the family, the petitioner-respondent did not disclose the fact of her marriage to her parents or members of her family till she left her father's house at the instance of the appellant-husbandstealthily and without the knowledge of anybody on 18-3-72 and went to reside in her husband's elder sister's house at 7, Rabindranath Tagore Road, P.S. Cossipore, District 24 Parganas, where they lived as husband and wife for the first time and the marriage was consummated. Being persuaded by the appellant, the respondent-wife made a statement at Ultadanga Police Station that she had left her father's house out of her own accord and that she wanted to live with her husband. About a month after that the appellant rented a house nearby at 11, Rabindra Nath Tagore Road, P.S. Cossipore, and the parties began their family life thereon from 15th April, 1972. The respondent-wife left the house of her parents with a high hope that she would live a very happy married life with the appellant for which she severed all connections with her parents. But, she became disillusioned within a week or so after coming to rented accommodation at 11, Rabindra Nath Tagore Road, P.S. Cossipore, when she found her husband extremely addicted to drinks and she was subjected to cruelty both physical and mental. Almost every night the appellant would come home heavily drunk and without any rhyme and reason would abuse the respondent with filthy language and when protested by her would assault her mercilessly. Initially, the respondent-wife tolerated all this cruel behaviour expecting that the appellant would come round and would behave normally but as the days passed by it increased all the more not showing any sign of abatement. The appellant constantly suspected the chastity of his wife and reproached her, causing thereby terrible mental anguish and pain which told upon the health of the respondent. As months passed by, the respondent was subjected to further physical and mental torture in aggravated form in the shape of denial of food and confinement in the house under lock and key and merciless physical assault on her body. The respondent in the meantime contacted her mother in her house narrating her tales of woe to her who advised her to live with the appellant after adjustment and with tolerance. Things, however, did not improve in any way and the plight of the respondent-wife became more miserable and this was witnessed by even Ashini Mandal, a man of the locality of the parents of the respondent who was sent on several occasions by her mother and found her confined to the rented room under lock and key. Ultimately, the respondent was driven away from her matrimonial home on 14-7-77 by the appellant and she had not other alternative but to take shelter at the house of her parents. But there even the respondent could not escape the wrath of the appellant who visited her there on 21-7-77 and beat her mercilessly which was informed to the Police. While living in the house of her mother the respondent secured a job as Stenographer at 16, Ganesh Chandra Avenue to meet her own expenses and the appellant coming to know of that began visiting the office and abusing her in presence of office colleagues with a view to see that she was out of her employment and bring her down in the estimation of her colleagues, h was alleged that the appellant-husband left no stone unturned to harass the respondent-wife by engaging anti-social people and on 18-1-80, one Prabir Roy, a notorious man and a friend of the appellant visited the respondent in her mother's house and brought out a dagger to assull the respondent when she could save her life by running away to the roof of the building and a diary was lodged at Ultadanga Police Station over this incident on 19-1-80. The respondent thereafter made this application for dissolution of her marriage with the appellant/opposite party.
2. The appellant/opposite party contested the suit filing a written statement admitting the solemnization of the marriage between the parties but denying emphatically that he was ever addicted to alcohol or that the respondent was subjected to the catalogue of cruel behaviour as alleged by her. He also firmly denied the different incidents of assault and misbehaviour allegedly meted out to the respondent on different dates in her mother's house or in her office as alleged by her. It was asserted by the appellant that the respondent had left the matrimonial home without any reasonable cause and excuse. The learned Additional Judge framed the following issues for determination : --
1. Is the suit maintainable?
2. Was the petitioner treated with cruelty by the respondent?
3. Is the petitioner entitled to the decree for divorce?
4. To what relief, if any, is the petitioner entitled?
3. The learned Court below passed a decree for dissolution of marriage on the ground of cruelty under Section 27(1)(d), Special Marriage Act. It is against this decree for dissolution that the appellant-husband has preferred appeal before this Court.
4. In view of the respective contentions of the parties and issues framed on the same the entire canvas of controversy as pointed out by the learned Court below, or for that matter, the crux of the controversy centres round the question of cruel behaviour or the allegation of cruelty made by the respondent-wife as has been indicated and found by the learned Court below on the basis of physical assaults committed on the respondent-wife on numerous occasions, abusive words used by him to the respondent-wife, conduct and character of the appellant-husband being addicted to drinks and ultimately the respondent being driven out of the matrimonial home in 1977.
5. It may be stated at the very outset that the marriage between the parties undispuledly was solemnised under the Special Marriage Act on 16-3-71. A certificate of marriage has also been produced in support of such marriage. The position is also admitted that before the marriage the respondent-wife and the appellant-husband were residing as close neighbours developing intimacy between them which ultimately culminated in their marriage under Special Marriage Act. According to the respondent-wife solemnisation of such intercaste marriage, however, was not disclosed to her parents, as it would be not to their liking, being members of an orthodox brahmin family. This fact though not traversed at the time of trial was not completely relied upon or believed by the learned Court below as it was of the view and found on evidence that another sister of the respondent-wife had also gone through similar such inter caste marriage. The learned Court below also rightly disbelived the contention and evidence of the respondent-wife that the pre-marital intimate relationship between the parties was not to the knowledge of her parents, in view of the specific evidence of P.W. 2, the mother of the respondent-wife stating categorically that there were occasional quarrels between them centering round the mixing and the companionship of her daughter with the appellant-husband. So, however much the respondent-wife might 117 to conceal the prior intimacy between the parties attempting to show thereby that their marriage itself was a unilateral transaction on the part of the appellant-husband, fact remains, as it also transpires from her own pleading that she was not forced or coerced to enter into such matrimonial relationship. In otherwords the evidence of the respondent-wife that the appellant suffered her to marry him by coercion and holding out threat to her runs counter to her case made out in para 2 of her petition stating "as next door neighbours, they became known to each other which gradually turned to intimacy between the parties. The respondent proposed to marry the petitioner and persuaded her by sweet and persuasive words" and the parties thereby solemnised such marriage with the high hopes of a happy married life. It is also an undisputed fact that the respondent-wife did not go in for her matrimonial home leaving the place of her parents immediately after her marriage. But the respondent-wife cannot be believed when she stated in her evidence that she was compelled to go to her matrimonial home much against her will and that too under threat and coercion as there is not a whisper to that effect in her petition itself. On the contrary we have the clear impression from the recital in para 5 of her petition that she left her father's house, with her husband, for her matrimonial home out of her own accord and even look away her ration card with her and further making a statement to that effect at Ultadanga Police Station. By no stretch of imagination, one can believe as the respondent-wife wants us to do that in spile of developing intimacy and a moral relaiionship between the parties and the marriage following therefrom as a logical and natural outcome of the same, the respondent would be compelled by the other party cither to enter into such marriage or to go for matrimonial home by compulsion or coercion or by holding out threat to her in the manner as stated by her. Again it is too much for us to believe as the respondent, P.W. 1 stated in evidence that she gave full instruction to that effect to her lawyer and provided all the materials at the time the petition was drafted. It is in evidence that she did not disclose anything to her parents that the appellant was compelling her to go for the matrimonial home and did not lodge any information to that effect at the policestation. On the contrary we have already seen that she left her father's house voluntarily and made a statement to that effect at the local Police Station. It is simply unbelievable that an educated girl as she was at the relevant time, she could be compelled to marry against her will or to go in for the matrimonial home as alleged by her.
6. Next we come to the question whether the respondent has since the solemnisation of her marriage been treated by the appellant with cruelty or cruel behaviourso as to entitle her to obtain a decree of divorce under Section 27(1)(d). Special Marriage Act. The concept of cruelly and the kind or degree of cruelly necessary to amount to a matrimonial offence has not been defined by any of the statutes in our country relating to marriage and divorce though it has been sought to be described by enumerating some instances of cruel behaviour in the Dissolution of Muslim Marriage Act, 1939. Nor the same was defined in the Matrimonial Causes Act, 1950, or in earlier enactment in England and the difficulty to have comprehensive or exhaustive definition covering all cases has been emphasized in a number of decisions.
7. The courts in India have accepted and adopted some of the principles and conditions enunciated in cases decided on this subject in England. The expression though difficult to define has been sought to convey "conduct of such character as to have caused danger to life, limb or health (bodily or menially) or as opined in the case Russel v. Russel, (1897) AC 395, as to give rise to a reasonable apprehension to such danger". The noted aulhor Rayden on Divorce 12th edition at page 1133, in Note 10, has given his views regarding the proper test and approach to cruelly as "the conduct of such a grave and weighty nature as to make cohabitation virtually impossible. The conduct complained of must be serious. It must be much higher Ehan the ordinary wear and tear of married life. It is the effect of conduct rat her than its nature which is of paramount importance in assessing a charge of cruelly. To obtain a matrimonial order on the ground of cruelly it must be proved that the partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure."
8. It has been observed in para 1269 of Vol. 13 of Halsbury's Laws of England, 4th Ed. that in considering the question of cruelly entire matrimonial relationship should be taken into consideration and this is much more important when the cruelty consists not of violent acts but of injuries, reproaches complaints and accusations. A Court of law can base a judgment and decree of divorce on a single act of cruelly, as has been held in Barker v. Barker, (1949) 1 All ER 247, if that act comes within the legal meaning of cruelty as given in Russel v. Russel (supra) or any such act which gives rise to a reasonable apprehension of injury as has been held in Robins v. Robins, 1960(3) All ER 66.
9. The Supreme Court, however, held in its very important ruling in N. C. Dastanc v. S. Dastane, that in our country what the Court must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English Law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him or her to live with the respondent. It was further observed in that case that cruelty generally does not consist of a single isolated act but consists in most cases of a series of acts spread over a period of time. Cruelty according to Mysore decision reported in AIR 1968 Mys 115, Sidda Gangiah v. Lakshmiamma, is not necessarily restricted to physical violence only but may extend to behaviour which may cause menial pain or injury to mind as well. It may be physical or mental. The concept takes an interesting turn and the scope becomes wider when we examine the question of mental cruelty.
10. What acts would constitute mental cruelly depend upon the circumstances of each case e.g. environment, status in society, education, cultural development, local customs, social condition, physical and mental conditions of the parties. Each case depends upon a variety of facts and circumstances. Reference may be made among a host of decisions to one of our Court reported in ATR 1978 Cal 87, Bijoli Chowdhury v. Sukomal Chowdhury. In fact, there is unanimity of judicial opinion that to constitute cruelty the conduct complained of should be "grave and weighty" so as to make cohabitation virtually unendurable. It must be something more serious than "ordinary wear and tear of the married life" as Lord Asquith observed in Buchler v. Buchler, (1947) I All ER 319. Again the conduct complained of "must be such that no reasonable person would tolerate it or consider that the complainant shall be called upon to endure it. Before conduct can be called cruel, it must touch a certain pitch of severity."
11. The entire case of the respondent-wife hinges upon her allegation of cruelty and the proof of the same. The burden of proof undoubtedly lies upon the petitioner-respondent-wife and she must show that the appellant-husband treated her with cruelty. The standard of proof required is a preponderance of probability and not "beyond all reasonable doubts" as in the criminal proceedings. The first step in this process is to fix the probabilities. The second is to weigh them, though the two may very often mix up and intermingle. The impossible thereby is eliminated at the earliest and improbable at the next.
12. Coming to the facts of the instant case we find that in original petition allegation of cruelty has been made in a very vague and general way by the respondent-wife against her husband-appellant. The case made out therein is that within a week of her coming to her matrimonial home on 15-4-72, she found to her surprise, the husband-appellant addicted to drinks and returning home very late almost every night and abusing the respondent-wife without ryhme and reason; and on her protest subjecting her to merciless physical assault and abuse questioning even her chastity and ultimately she was driven out of the matrimonial home on 14-7-77. Not a single specific case of such cruel behaviour with reference to the particular date or timing has been made out in the original petition during her entire period of stay in her husband's house i.e. from 15-4-72 to 14-7-77. The original unameded petition mentions asingle caseof cruel behaviour that of beating her by the appellant on 21-7-77 and that too, only after she had left her husband's house and came to live with her parents for which police were informed Both P.Ws. 1 and 2 the respondent-wife and her mot her stated otherwise in their evidence citing it as a case of strangulation rather than beating. Strangely enough no police diary or any documentary evidence has been produced to prove that the occurrence happened at all, despite the case in petition that police were also informed with regard to the same incident.
13. By amendment of the original petition about a year and half after filing of the original petition the respondent-wife enumerated several specific instances of cruel behaviour allegedly meted out to her by her husband. The appellant-husband refuted and denied specifically all the instances of such cruel behaviour in his written statement excepting one single case of her alleged wrongful i confinement by the appellant in the tenanted house at R. N. Tagore Road, Cossipore. Before we begin, considering the ganuineness or otherwise of such instances of cruel behaviour, we may note that want of specific denial of a single such allegation by the appellant by filing an additional written statement does not amount to an admission in the context of the facts and circumstances of the entire case of the respondent-wife. It is true Order VIII, Rule 5, C.P.C., lays down that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted; provided however the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The provisions of Rule 5, Order VIII thus vests discretion in the Court to require any fact so admitted to be proved otherwise than by such admission. Reference has been made in this connection by the learned Advocate for the respondent to the rulings and AIR 1985 Delhi 76 and it has been urged on the strength of such authority that for want of specific denial in such case the Court should act on the averment and the admission made in the petition. We have already seen that barring a single instance all the allegations and averments of cruelty by the respondent-wife as made out in her petition have been specifically denied in the written statement. In view of the general and special denial by the appellant of all such cases of cruel behaviour alleged in the original unamended petition, the Court as a rule of prudence should require that such single instance as averred in the belated amended petition should also be corroborated by independent evidence. Court can no doubt act upon the admission of the parties in the pleadings or otherwise. The party is entitled to apply to the Court under Rule 6, Order 12, C.P.C., at any stage of a suit for judgment or order upon such admissions of facts made in the pleading and otherwise and Court can make an order on the same as may seem just. Without quarrelling over this proposition of law, we may observe that the Court is equally vested with the discretion to ask for independent corroboration of a fact not specifically denied in thepleadings by the other party. In view of the peculiar nature of the facts and circumstances of this case as distinguished from the facts of the cases referred to, we feel the need of independent corroboration of such averment as made in the petition of the respondent-wife. To lend support to our view, we may refer to the Division Bench decision of this Court reported in 74 Cal WN 760, Smt. Amuka Gupta v. K. Arunakar Gupta. The ratio of the decision in that case is that "an Indian Court of Divorce while dealing with the petition for divorce under Clauses (b) and (d), desertion and cruelty respectively of Section 27, Special Marriage Act, must be satisfied on pleadings and the evidence that the alleged matrimonial offence, which is a ground of divorce, has been proved by a preponderance of probability, inferable from the proved facts and circumstances of the case". It has been held therein that the corroboration of the petitioner's evidence (including the varied statements made in a petition and treated as evidence under Sub-section (2), Section 32, Special Marriage Act) as regards cruelty is probably not required as an absolute rule of law; but the Court in practice requires it unless the absence of corroborating witnesses can be satisfactorily accounted for. Similar such view has also been expressed regarding the proof of matrimonial offence in the Supreme Court decision in Dastane v. Dastane (supra) referred to earlier.
14. In assessing and weighing the probabilities in the instant case we should bear in mind that the parties are well educated and that prior to their marriage, they had developed intimate relationship as close neighbours which was not unknown to the parents of the respondents. It is also an undisputed fact as also appearing from evidence on record that the appellant is a responsible employee in the Entry Tax Dept., Finance Branch, Government of West Bengal. In view of the intimate relationship between the parties either before or after marriage and as close neighbours, the respondent-wife so long she was living in the house of her parents is expected very much to know the conduct and character of the appellant. Both P.Ws. 2 and 3 the mother and brother-in-law of the respondent-wife have not stated anything to show that the appellant ever indulged in drinks or was addicted to alcohol. P.W. 2 the mother of the respondent had no good impression about the conduct of the appellant, because he used to keep company of her daughter for which there were occasional quarrels. She had only two occasions to go to the matrimonial home of her daughter, the respondent while they were living in the tenanted house after marriage. This is her clear and categorical evidence that on no occasion she found the appellant misbehaving with her daughter, in their house. She exchanged a few words with the appellant at that time and found her daughter doing her domestic charges. There can be no earthly reason why she would entertain or cherish any grievance or grudge against the appellant simply because of the inter caste marriage of her daughter as her younger daughter admittedly has also undergone such form of marriage with P.W. 3 Ashim Mondal.
15. The respondent-wife in her zeal to prove her ease of cruelty staled in her evidence that her husband-appellant started behaving cruelly with her even while they were living at the house of her husband's elder sister at Sinthi. We have already seen that the respondent-wife left her parents house voluntarily out of her own accord with a ration card and made a statement at the local police station to that effect. It is in her petition that she left her home with high hopes of a peaceful and prosperous married life. There is not a whisper in her petition that her husband started misbehaving with her even at the house of her husband's elder sister where they stayed together for about a month from 10-3-72 till 154-1972. Admittedly their marriage was consummated there. As such one cannot certainly accept such statement of cruel behaviour as stated by her to be correct without straining one's sense of credulity beyond measure. In other words it is not expected that the newly weds coming to live together under the same roof for the first time would behave cruely as alleged by her. Admittedly the respondent-wife stayed in the house of her husband in the tenanted house for about five years. Her case as made out in the petition as well as in evidence is a tale of woe, physical torture and deprivation but we do not find any single information either to police or to any other authority to rescue her from such miserable plight or bondage. We do not find a single letter written by her to her parents or to any of her relations complaining about the alleged inhuman torture or wrongful confinement under lock and key. According to her own statement many people of the locality where she lived witnessed the occurrences relating to such treatment by the appellant but none of them was examined to corroborate her on this vital and material particular. It is true corroboration, though not required as an absolute rule of law, is, as a matter of prudence and practice insisted on, unless its absence can be satisfactorily accounted for. It seems highly unlikely that the respondent wife living in a tenanted house for about 5 years in a particular locality with neighbours all around allegedly witnessing such occurrences of cruel behaviour including wrongful confinement under lock and key would remain dumb and mute spectators without intervening or attempting to help the respondent to escape from such miserable existence as staled by her. No good reason has been given for non-examination of any of such neighbours to corroborate the respondent-wife on this material and relevant question of physical cruelly. As such we can draw an adverse presumption against the respondent-wife for non-examination of such material witnesses as according to her the acts of cruel behaviour were committed in their presence. Reference may be made in this connection to ruling , Sankar Prosad v. Madhuri. In that case similar such adverse presumption was drawn against the appellant-husband for non-examination of certain members of his family who were described as witnesses to the alleged act of cruelly. It is true, P.W. 3 Ashim Mandal the sister's husband of the respondent-wife was examined to prove her case of wrongful confinement in the tenanted house but his evidence does not inspire our confidence at all. His evidence is that he came to have speaking terms with the appellant Brojokishore Babu since 1978. He further stated that the appellant was on visiting terms with the inmates of the house of the respondent from 1975. His acquaintaneewith the appellant seems to have begun since 1978 when he married the sister of respondent. He found the respondent on his visit locked in a room and found marks of injury on her body. His whole evidence appears to be a bundle of inconsistency and improbability. The case made out in her original petition is that she went to live with her husband in matrimonial homein March 1972. The doors of the house of her parents became closed to her for ever and she was lost to the family. A contradictory case is made out in her amended petition stating that she began visiting her mother within three months after she left her parent's house narrating to her mother her sad experiences and cruel behaviour she was subjected to by her husband. It seems improbable, however that she was allegedly advised by her mother, that she should bear with all these ignominious physical torture and deprivation for such a long period without informing anybody else or seeking redress from any quarters. Her ease of merciless , beating at the hand of the appellant on 21-7-77 as made out in the petition has been contradicted by the evidence of P.Ws. 1 and 2 both stating that the respondent tried to strangulate her and there is no whisper about beating in their evidence. Similarly, the averment in the amended petition, para 140 that she was subjected to humiliation and abusive language in presence of her office colleagues by the appellant has not been corroborated by any independent witness or office colleague of the respondent, and for this we can draw the adverse presumption against her. So also the alleged incident of 18-1-86 by Prahir Roy for which a diary was lodged at Ultadanga Police Station, was neither called for nor corroborated by the best piece of evidence that is the police diary or by any independent witness.
16. It is true that the appellant in his evidence has denied all the allegations of cruel behaviour to his wife-respondent but it seems to be naive when he states that he does not know the reason why the respondent-wife deserted him. He admitted that he had lo come back late at night for reasons of prolonged and exacting nature of his duties as his duty hours lasted for even 12 hours and he had to work at night at times. But he stoutly denied that he ever came back home being drunk or intoxicated. He also admitted that he has taken back the gold ornaments under receipt which were given to her and which belonged to his mother. He also stated that at one point of time they tried to get mutual divorce but nothing concrete is there on record to show that any such attempt was made.
17. From the facts and circumstances of the case, the written statement filed by the appellant and his evidence we do not find anything concrete, any aspersion imputing any motive or any reason for which the respondent-wife will bring a case falsely against the appellant. The husband-appellant has no grievance against his wife," It is also true, marriage among the Hindus is looked upon more as a sacrament than as a contract and some amount of sanctity is still attached to the institution of marriage despite the modern wastern ideas and social outlook. In that view of the matter it seems beyond one's comprehension as to why a Hindu wife unless hard pressed would be disposed to seek separation from her husband. As has been already stated we get no sufficient explanation from materials on record to this effect at least from the side of the appellant but then there may be many ifs and buts in between of which we may not be aware of as not forthcoming before us. But, simply because the appellant-husband has not assigned any particular reason as to why the respondent wife has left him, we cannot go on guessing about such reasons and jump to the conclusion that the respondent-wife had no other option but to leave, her husband's place as she was subjected to systematic physical torture or that she was driven out from the matrimonial home as it is the case of the respondent-wife. Undoubtedly, this is a circumstance which deserves serious consideration. But, single such circumstance in the absence of other positive materials touching the main accusation of the petitioner-wife can be of no avail to her. Therefore, in view of the preponderance of probabilities based on the facts and circumstances as discussed above, we are not inclined to hold that the respondent-wife as petitioner has succeeded in proving her case of cruelty or cruel behaviour on the part of the appellant on which her claim for dissolution of marriage is grounded under Section 27(1)(d), Special Marriage Act.
18. We are, therefore, not inclined to accept the findings arrived at by the learned trial Judge in granting a decree of dissolution of marriage in favour of the respondent-wife. The result is the appeal succeeds and the same is allowed The judgment and decree passed by the 14th Additional District Judge, Alipore in the aforesaid suit are hereby set aside.
A.M. Bhattacharjee, J.
19. I have had the advantage of going through the well-considered judgment prepared by my learned brother Nayak, J., and I agree with him that the appeal must be allowed. The impugned judgment and decree granting divorce must be set aside and the petition filed by the wife-respondent for dissolution of marriage must be dismissed.
20. Nayak, J. has overturned the judgment and decree under appeal largely on a consideration of the merits of the evidence and the process of reasoning has my full concurrence. We are not unmindful of the well-known rule that where a case turns mainly on questions of facts and credibility of witnesses, the Appellate Court should be slow in interfering with findings based on evidence of witnesses whom the trial court could see and hear and the appellant in assailing such finding shoulders a heavy burden. But where, as here, the Appellate Court is concerned, not so much with the credibility of the witness induced by his "demeanour" or the "manner" of answers, but on the weight of the evidence and the inherent probability of the story told, the trial court, as pointed out by Sir Madhavan Nair in the decision of the Privy Council in St. Virappa v. Periakaruppan AIR 1945 PC 35 at p. 37 "is in no better position than the Court of Appeal in discovering the truth" and the Appellate Court is in no less a position to reassess and reweigh the evidence. It is true that the Appellate Court, while looking at the printed records, should bear it in mind that not having the opportunity of seeing the witnesses, it should not lightly reject the trial court's finding as to the reliability of the witnesses, though in a given case the Appellate Court can reverse such findings of the trial, Court, if the materials on record warrant the same. As observed by the Supreme Court in Radha Prasad v. Gajadhar , when important considerations bearing on the question of acceptability of the case have not been duly taken into account or properly weighed by the trial court and such consideration including the question of probability of the story given by the witnesses clearly indicates that the view taken by the trial Judge is erroneous, the Court of Appeal is in as good a position as the trial court to come to its own finding and to reverse the findings of the trial court to the contrary. As Nayak, J. has amply demonstrated, what little weight can be attached to the evidence adduced on behalf of the wife-respondent and how improbable the story unfolded by her appears to be. The decree of the trial court must therefore be set aside.
21. It may be that, the allegations of the wife-respondent being as they are, even though those allegations are not found to have been proved, the marriage, to borrow from the Supreme Court decision in Saroj v. Sudarshan. , has broken down for whatever be the reasons and the parties can no longer live together as husband and wife and that "if such is the situation, it is better to close the chapter". It is true that the felt necessities of our changing society require that there should be no insistence on the maintenance of a marriage which has broken down and a marriage in which the parties cannot live together should be dissolved. The introduction of Section 13B in the Hindu Marriage Act by the Amendment Act of 1976 providing for divorce by mutual consent appears to be in response to such felt necessities. But unless breakdown of marriage is made in law a ground for dissolution of marriage, a breakdown of marriage in fact, however serious, cannot be ground for granting divorce. It appears that even in Kautilya's Artha Sastra, such a ground for dissolution of marriage was permissible --"Paraspara Dwesat Moksha". But our modern Legislature has not, as yet, been able to come up to that end, therefore, unless the parties mutually agree under Section 13B, or any of the grounds as specified in Section 13 is made out, a marriage, even though utterly broken down in fact, cannot be broken in law through Court. It may be that it would be sheer cruelty to maintain and not to dissolve a marriage which has irretrievably broken down and to keep the parties tied in matrimony. But under Section 13(1)(ia), what empowers a Court to dissolve a marriage is not cruelty imposed by the continuance of the marriage, but the petitioner-spouse treating the other spouse with cruelly.