Calcutta High Court (Appellete Side)
Ganesh Ch. Banerjee vs Francy Banerjee on 18 February, 2009
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 Tapan Kumar Dutt
F. A. No. 51 of 2008
Ganesh Ch. Banerjee
Versus
Francy Banerjee
For the Appellant/Petitioner: Mr. Santanu Mukherjee,
Mr. Kaushik Bhattacharya,
For the Respondent/Opposite Party: Dr. Indranil Bhattacharya
Mrs. Sohini Bhattacharya.
Heard on: 20.01.2009.
Judgment on: 18th February, 2009.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a husband in a suit for divorce and is directed against the judgment and decree dated 27th July, 2006, passed by the Additional District Judge, Third Court, Barasat, in Matrimonial Suit No.19/1996 thereby dismissing the suit with the finding that the appellant could not prove the allegations made in the application for divorce.
Being dissatisfied, the husband has come up with the present first appeal.
The appellant before us filed a suit under Section 13 (ia) of the Hindu Marriage Act, 1955 in the Court of learned District Judge, North 24 Parganas at Barasat thereby giving rise to Matrimonial Suit No.1038 of 1995. The said suit was subsequently transferred to the Third Court of Additional District Judge, Barasat, and was renumbered as Matrimonial Suit No. 19 of 1996.
The case made out by the appellant in the petition for divorce may be summed up thus.
a) The parties were married according to Hindu rites and ceremonies on 2nd July, 1988 in the house of the respondent's father at Andool Mouri. After marriage, both the parties lived together as husband and wife in the house of the appellant at 4, Shyam Nagar Road, P.S. Dum Dum. In the said wedlock, a female child was born on 23rd September, 1989 and the said child is in custody of the respondent/wife.
b) From the very first stage after the marriage, the appellant observed that the respondent was arrogant and ill-tempered but the appellant ignored the same with the hope that the respondent would change or mend herself in future. From the very beginning, the respondent had no intention to stay in her matrimonial home and on some pretext or other, she used to leave the matrimonial home without the consent of the appellant and would stay out of her own volition at her father's house for unlimited period against the wishes of the appellant and his other members of the family. It appeared that respondent did not have any mind to come back to her matrimonial home and to lead a conjugal life with her husband. Whenever the appellant or his guardian would go to take her back, she would seldom come and stay at matrimonial home.
c) During her stay at her matrimonial home, the appellant observed that the respondent had some biased ideas about the appellant's old parents and could not tolerate them at all. It appeared that the parents of the appellant were unwanted persons to her. The old ailing mother of the appellant would cook and serve food regularly and the respondent used to threat the appellant that she would not stay in her matrimonial home if anyone would compel her to do the household works. The respondent frequently used to hurl filthy and abusive languages towards the appellant and others members of his family including his parents. The respondent even did not show any courtesy to offer a glass of water to the appellant when needed. The respondent would often terrorize the appellant and his parents with the threat that she would commit suicide if they stood in her way to go to her father's house and for that purpose she would sprinkle kerosene oil on her saree with a matchstick.
d) The appellant on several occasions requested the respondent to refrain from frequently visiting to the house of her father but the respondent paid no heed to such appeal and would stay at her father's house for indefinite point of time.
e) The respondent used to ignore and neglect the appellant as his income was not enough to meet the unending demands of the respondent. The petitioner was a Lower Division Clerk of Education Directorate, Government of West Bengal and during marriage negotiation, the guardian of the appellant did not suppress anything to the parents of the respondent with regard to the appellant's income. The appellant was not a man of her choice at any point of time and she expressed this view impliedly and expressly through her conduct and she did not hesitate to tarnish the prestige of the appellant in the presence of his relations and guests in the house. She used to utter her abusive and filthy languages towards the appellant in the presence of his relatives and guests and stigmatised his manhood.
f) Finally on 7th July, 1994 on the plea of escorting her minor daughter to the school at Dum Dum, she voluntarily left the matrimonial home without the consent of the appellant or his parents. Subsequently, she sought to justify her departure on account of alleged inhuman torture on her daughter by the appellant's younger brother by picturing herself as a paragon of virtue. Since then, the respondent had been living in her paternal home.
g) On 20th August, 1994, the respondent's mother and her married sister invaded the house of the appellant and wanted to take back the school books and other article of the daughter of the parties whom she had already got admitted in K.G. School at Mouri Gram but did not disclose such fact to the appellant who admitted the daughter in a School at Dum Dum in good faith.
h) It is shocking for the appellant that before the birth of the daughter on 23rd August, 1989, nothing was disclosed to the appellant by the respondent and her parents and everything relating to birth of the child was kept in dark before the appellant and her parents. For the reasons best known to them, the child was born in a Nursing Home at Sibpore. Even for performing scissorian operation, no permission was taken from the appellant.
i) The respondent and her father on many occasions came to the working place of the appellant at Writers' Building and at Bikash Bhavan and suppressing the material fact, the respondent pretended innocence and instigated a section of the employees of the said office to tease and exploit the appellant. Accordingly, on 29th June, 1995, the pay-day, the respondent came to Bikash Bhavan and snatched away Rs.1620/- forcibly and illegally from the pay-packet of the petitioner. Due to the instigation of the respondent, the appellant was unable to work in his working place and his relation with his colleagues has become hostile for no fault on his part.
j) Lastly on 31st July, 1995, the next pay-day, in anticipation of further snatching of salary as occurred earlier on 29th June, 1995 the appellant took his old father with him to his office at Bikash Bhavan. At the instigation of the respondent, the father of the appellant was manhandled and driven out. The appellant was threatened with loss of his job and life if he would not pay half of the salary to the respondent although the appellant had no intention to deprive his wife and daughter of maintenance and other amenities within the financial capacity of the appellant. The aforesaid acts on the part of the respondent amounted to cruelty. Hence the suit.
Subsequently, the appellant filed an application for amendment of plaint thereby specifically inserted the ground of desertion also as a ground for divorce.
The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be summarised thus.
a) The respondent is the only child of her parents who were then alive and her father owned a two-storied building at Andul (Mouri). Although the respondent was not fair-complexioned, she was not ugly to anybody and the appellant and his parents, all visited the house of the respondent's father, and they saw, observed and talked to the respondent on several occasions and thus, the respondent as such had also the opportunity to see the appellant and his parents and thereafter, the father of the appellant made final negotiation for marriage. The father of the respondent agreed to offer the appellant's father a sum of Rs.10,000/- with other valuable ornaments, such as, gold necklace, eight pieces of gold churis, bangles, gold ear ring, nose ring, sheet trunk, wood almirah, dinning table, double bed teakwood bed head ,bedding, pillows, bolster, nets, both stainless steel and bell metal utensils, gold rings for both the bridegroom and the bride wrist watch, gold bottom with gold chains, garad dhoti, Panjabi, paijama, suit of Vimal fabrics etc.
b) Before the marriage, the respondent who sat for Madhyamik Annual Examination got back in one subject and it was disclosed to the appellant and his father.
c) Soon after the marriage, the respondent found that her mother-in-law was very superstitious and hostile to the respondent and did not allow her to help her in the kitchen and did not permit her to cook and serve the meal and the respondent was asked to do and was engaged in manual household works. The appellant was not allowed to share the bed with the respondent everyday as the appellant's father openly told the respondent that for maintaining good health, the appellant was required to sleep in a separate room. The respondent was confronted with a dangerous situation soon after going to the house of the appellant when she found that the younger brother of the appellant was addicted to drug and always tried and attempted to treat the respondent as his wife but due to resistance by the respondent, the appellant's brother grew more and more virulent for an opportunity to forcibly molest the respondent who, however, did not yield to such vile proposal.
d) Though the appellant was reported about the conduct of his brother, he did not pay any heed to such complaint. The appellant was found to take some pills from his brother each night and when questioned, the appellant refused to divulge the reason for taking such medicine. Under the advice/order of his father, the appellant was allowed to stay occasionally with the respondent but the appellant did not allow the respondent to bolt the door of the room in the night and after being awaken, the respondent found that the appellant had left the bed of the respondent and his brother was found loitering in the veranda near the open room.
e) Soon after the marriage, the appellant's father asked the respondent to bring a new "Singer sewing machine" to make some provision for livelihood of the respondent as according to him, the income of the appellant was not enough to maintain the respondent.
f) The respondent gradually realized that the appellant's father selected the respondent as her daughter-in-law after finding that the respondent was the only child of her father who had a two-storied building of his own and asked the respondent to go to her paternal house and compelled her to stay there against her will far away from her husband.
g) The appellant's brother, mother and father always abused the respondent and humiliated her as the respondent in spite of being the only child of her parent did not bring regular handsome money month by month from her father.
h) After the conception of the respondent, the appellant, his parents and younger brother decided that as they did not like to take the pre-natal and post-natal responsibility of the respondent after the birth of the child, she should stay with her parents till her delivery and so the appellant himself took the pregnant respondent and left her at the house of her father but unfortunately, though that was early stage of pregnancy, neither the appellant nor his father and mother went to see her condition nor did they render any financial help and all the costs of the birth of the child was borne by the father of the respondent.
i) Six months after the birth of the child, the respondent with her baby was asked to be brought at the house of the appellant's father and the respondent's father was compelled to bear the fare of a taxi car by which the respondent with her child was brought. After the Annaprasan ceremony, the appellant again took the respondent with the child to the house of the respondent's father saying that when the child would grow up they would take them back in the house of the appellant.
j) In the house of the appellant, the respondent was like an uninvited guest always victimized by the father, mother and the younger brother of the appellant and nobody loved her as they expected the property of her father which would ultimately come and they were waiting for the death of the respondent's father. The father of the appellant pressurized the respondent to see that her father transferred his residential house in favour of the appellant without any delay and that if this was not done, the respondent would have to leave her matrimonial house for good.
k) When the minor daughter of the parties was aged between 4/5, on 5th July, 1994 the appellant's brother, aged about 36, finding the child alone took her to his lap and outraged her modesty. When the respondent asked the appellant's brother about incident, he threatened to assault and murder both the respondent and her daughter. The respondent reported the incident to the appellant but he did not take any step as he was always afraid of his brother. In view of the aforesaid fact, the respondent had no other alternative but to leave the house of the husband and take shelter in the house of her father. The suit was, therefore, liable to be dismissed as the appellant was trying to take advantage of his own wrong.
At the time of hearing of the suit the appellant and his brother gave evidence in support of his case while the respondent alone deposed in opposing the prayer.
The learned Trial Judge, as indicated above, by the judgment and decree impugned herein dismissed the suit on the ground that the appellant could not prove the facts alleged in the petition for divorce by corroborative evidence.
Being dissatisfied, the appellant has come up before us with this 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 sufficient amount of evidence has not been adduced by the appellant to prove the allegations made against the wife. Although specific allegations were made against the wife that she used to visit the office of the husband for the purpose of snatching the salary, no office colleague of the appellant came forward to support the case of the appellant. It was also alleged that the wife assaulted the father of the appellant at his office but such fact also could not be proved. It, however, appears that the wife was compelled to go to the office to meet him as he was not sending any maintenance to the wife and the daughter. If a husband forgets to send maintenance to his wife and the daughter and for the purpose of receiving the maintenance the wife comes to see the husband such fact cannot amount to cruelty. The position would have been different if in spite of sending money to the wife she comes to office to humiliate him. In the case before us, the husband has failed to lead evidence showing the he regularly sent money to the wife but in spite of such fact, the wife used to come to his office. We have seen the injunction order dated February 7, 1997 passed by the learned Trial Judge against the wife restraining her from going to the office. Even that order indicates that the husband did not pay any maintenance for one year from February 1996 and the Court advised the wife to take step in accordance with law instead of going to office to collect the maintenance. In the facts of the present case, we are unable to hold that her visit to see her husband in the office to collect maintenance amounted to cruelty as in that case the husband would take advantage of his own wrong.
The learned Trial Judge has found that the husband's allegation that the wife used to misbehave with her parents-in-law cannot be accepted in the absence of those parents-in-law as witnesses. We find that the brother of the appellant although figured as a witness did not say anything about the conduct of the wife against his parents in the house. He merely denied the incident of outraging the modesty of the child of the parties but did not deny the allegation that his brother keeping the door open used to go to sleep in a different room and that he misbehaved with his sister-in-law. As regards the incident of snatching the money of his brother in the office, he admitted that he was not present on such occasions.
The learned Trial Judge, in our opinion, rightly concluded that the husband was totally controlled by his father and had no voice to protest against the unjust order of his father that he should not sleep with his wife in one room for the purpose of keeping "good health". We also do not any find any reason to disbelieve the version of the wife as regards her allegations against her brother- in-law and find that there was just reason for leaving the matrimonial home for want of security.
Before us, we tried to reconcile between the parties. The wife was agreeable to live with her husband if the husband comes to her house of which she is now the absolute owner after the death of her parents. She had also no objection if a rented house is taken for their residence. The husband refused to accept the wife any further. In such circumstance, our endeavour failed.
On consideration of the entire materials on record we are of the opinion that in this case the husband has miserably failed to prove the allegations of cruelty and desertion alleged in the application for divorce and that it is the husband who, by his indifferent conduct and by not protesting against the misconduct of his parents and brother, has compelled the wife to leave the matrimonial home and, thus, he cannot take advantage of his own wrong.
We consequently dismiss the appeal and affirm the judgement and decree passed by the learned Trial Judge. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Tapan Kumar Dutt, J.)