Calcutta High Court
Jayanta Kumar Laha vs Smt. Kabita Laha on 10 April, 1991
Equivalent citations: II(1991)DMC174
JUDGMENT Monoranjan Mallick, J.
1. This is an appeal against the order dated 22nd March, 1984 passed by additional District Judge third Court, Nadia in matrimonial suit No 21 of 1981, dismissing the plaintiff-appellants suit for divorce under Section 13 of the Hindu Marriage Act.
2. The facts may be briefly as follows :-
The appellant Jayanta Kumar Laha and respondent Kabita Laha were married on 9.5.76 according to Hindu Rites. The respondent wife, according to the plaintiff appellant, could not adjust herself in the house of her husband and began misbehaving with the appellant husband, his parents and younger brother. The appellant is an employee posted at Himachal Pradesh under Government of India. The respondent while staying at Kalyani in the appellant's parents house went to hero father's house at her own will and without consent of her parents-in-law. The respondent was taken to Himachal Pradesh by the husband in February, 1977 where she became pregnant. But the respondent did not want to be a mother and wanted abortion. During her stay at Himachal Pradesh her bechavious was not cordial and she ill-treated the appellant in presence of his colleagues. The respondent was taken back to Kalyani in September 1977 but the respondent's parent took her forcibly to their house. In November, 1977 the respondent gave birth to a male child, but the birth of the issue was not informed to the appellant or his parents. Even Annaprasan ceremony was solemnised in Calcutta without giving any information. The respondent was brought to Kalyani in November, l978 and the plaintiff appellant went to his place of work. But on 14.1.79 the father of the respondent along with some others assaulted his father at Kalyani in his house. and on 22 1.79 at 7.30 a.m. respondent was not found in the house. On that date at 11 am the father of the appellant came to know that the respondent was in the house of one M.K. Dutta, When the father of the petitioner appellant went to that house he was abused filthily and the respondent refused to go back to her husband's house at Kalyani and left for Calcutta. On 2.4.80. the respondent's brother and others came to Kalyani and threatened the appellant's brother and on 7.12.80, 14.12.80, 21.12.80 24.12.80 and 25.12.80 the respondent herself and her brothers along with some antisocial persons assaulted the appellant's parents and younger brother using filthy languages. On 14.12.80 the appellant was also assaulted and was forced to write down a document binding, himself to give maintenance to the respondent. Thereafter the appellant went to bring his wife at the end of March, 1981, but she refused. The appellant, therefore, filed the suit for divorce on the ground of cruelly and desertion.
3. By an amendment of the plaint the appellant introduced new facts alleging that the respondent disclosed to the appellant that the appellant was not her husband according to her choice and she already selected a person as her husband residing at glasgow, that -the name of the gentleman is Bodhisatya Mukherjee and that the respondent did hot like the title "Laha" of the appellant and did not also go to Himachal Pradesh inspite of several letters written to her.
4. The respondent-wife has contested the suit by filing written statement as well as an additional written statement.
5. Her case is as follows ;-
After marriage the respondent found differences in standard culture and outlook in the house of her husband yet she adjusted herself. She denied that she left the Kalyani's house of her parents-in-law according to her sweet will. She also denied that she did not want to be a mother or that she wanted abortion. She also denied that no information was given of her son's birth. But her complaint is that neither her husband nor her parents-in-law took any information at all about the birth of her child. Her case is that as long as she lived with the appellant at Himachal Pradesh, their relationship was cordial but her grievance is that her husband had no say in tile family affairs and the root of all troubles was due to her father-in law who did not like that the respondent should live with her husband at the place of her work. She was not allowed to write letters to her husband during her stay at Kalyani and she was sometimes forced to take excessive food causing physical ailment. She also denied that at any time she, her brother or her father along with any other person assaulted the father-in law, mother-in-law or her husband. Her clear case is that she was driven away by her father-in-law with only cloth and ornaments on her person. Even though she came back on 7.12.80 at Kalyani with her two brothers and some friends of the appellant, the father of the appellant did-not allow her with the child to enter into the house. Her further case is that at the intervention of the local people her husband gave on l4.12.80 a writing for paying her maintenance and taking her to Himachal Pradesh but the appellant did not take her to Himachal Pradesh.
6. The learned Trial Judge on considering the evidence adduced before him by both the parties has held that the allegations of desertion and cruelty made by the husband-appellant is not believed and that it was the plaintiff husband who neglected his wife and son all along in obeying the father. So, he has dismissed the plaintiff appellant's suit on the ground that the plaintiff appellant has no cause of action and he is not entitled to get a decree for divorce on the ground of desertion and cruelty. Being aggrieved the husband has preferred this appeal. It is contented that the learned Trial Judge misinterpreted the evidence of record and as thus erred in dismissing the suit, that there being admitted physical separation and the intention to bring cohabitation permanently to an end which would appear from the evidence of the plaintiff's witness, the learned Judge ought to have decreed the suit on the ground of desertion, that in view of clear evidence on record of the intention on the part of the respondent to break up the matrimonial relation the learned Judge ought to have allowed the prayer of the appellant for a decree of divorce on the ground of desertion and judged on the basis of the evidence of record and the totality of the circumstance of the case, the learned Trial Judge should have decreed the suit on the ground of cruelty.
7. It is also urged that the evidence clearly discloses that there has been irretrievable breakdown of marriage and relying on the decision of the Supreme Court and followed by division bench of our High Court in 89 CWn 1173 the learned Trial Judge ought to have decreed the plaintiff suit of divorce.
8. The respondent wife has contested the appeal. It is urged that the evidence disclosed would clearly reveal that the respondent was all along eager to live with the appellant as husband and wife and it was only due to the machination of the father-in-law the respondent was prevented from enjoying the marital life. It is also urged that the evidence would also clearly reveal that there was no fact of cruelty on the part of the respondent justifying the decree of divorce on the ground of cruelty. It is also denied that the marriage between the parties has broken down irretrievably.
9. The first point for decision is whether the plaintiff appellant has succeeded in proving that the respondent-wife is guilty of desertion. It is the case of the appellant that the respondent on 22.1.79 without letting his parents know of her intention left the Kalyani house of the appellant's parents and since then inspite of repeated requests of the appellant has refused to come to live with the appellant as husband and wife and since then the physical separation between the parties and the conduct of the respondent would clearly reveal that she has expressed her definite intention to bring cohabitation permanently to an end. The respondent has clearly denied the above assertions of the appellant. It is her positive case that she is all along willing to live with the appellant are as husband and wife, that it is her father-in-law who was putting all sorts of hurdles in the path of their peaceful marital life, that her husband had no voice in the family and even though she is very eager to enjoy the marital life with the husband, she was driven away from the Kalyani house on 22nd January, 1979 and had to take shelter in the house of Colonel M.K. Dutta and with their help she was taken to her father's house, that she along with her son, second brother and brother-in-law came to Kalyani to came to reside on coming to know that her husband had come from Himachal Pradesh but her father-in-law did not at first allow her entry that then at the persuation of some neighbours, she her son and brother -were allowed to enter but her brother-in-law was not allowed, that the next Sunday was fixed for talks of compromise in presence of her husband and she had to return to Calcutta on 7.12.80, that on 14.12.80 he went to her father-in-law's house in the morning, but her husband did not like her entry at first on the ground that on the previous week she had insulted her father, that after long persuation she was allowed to enter and some local people were called and in their presence her husband wrote a document in which he agreed to take her to the place of service failing which to pay her maintenance at the rate of Rs. 500/- per month, that even thereafter she was not taken to Himachal Pradesh even though her husband intimated her brothers on 21.12.80 that on 26.12.80 her would take her to his place of work.
10. On behalf of appellant a difference story was sought to be made out as regard what happened at Kalyani on 7.12.80. Their case is that on 7.12.80 the respondent brought 300 and 400 anti social people and assaulted the appellant's father and on 14.12.80 the respondent also forced her to write the letter Ext. 6 undertaking to take the respondent to Himachal Pradesh or to pay maintenance. It is also their case ..that over that incident some criminal cases had to be filed against several persons including some of the witnesses examined on behalf of respondent in support of her story.
11. On considering the evidence of the father and the mother of the appellant on the one side and the evidence of the respondent and of D.W.1 Shyamal Bhowmik, D.W. 2 Bibha Dutta the wife of Shri M.K. Dutta and D.W. 3 Nirmal Narayan Basu. We are of the view that it is difficult to believe that on 22.1.79 the respondent of her own accord left the matrimonial home with intention to sever all connection with the husband or with the family of the husband. Admittedly on 22.1.79 she was found in the house of Shri M.K. Dutta where according to the evidence of D.W.2 Bibha Dutta the respondent Kabita came to their house at 7 or 7.30 A.M. and prayed for shelter, alleging that she was driven away by her father-in-law. Her further evidence is that Nirmal Laha the father of the appellant was called by Sri M.K. Dutta and ultimately Kabita was sent to her father house by his son, the youngest son of Nirmal Dutta and the nephew of one Bimalendu Pal. Both Nirmalendu Laha, the father of the appellant and his wife admitted that on 22.1.79 Kabita was found in the morning in the house of Shri M.K. Dutta. If Kabita voluntarily left of the father-in-law's with the intention to sever all connection the family of the appellant, it is not probable that she would take the shelter in the house of M.K. Dutta after leaving the father-in-law's house. Therefore, her story that on 22.1.79 she was driven away from the house of her father-in-law appears to be probable.
12. Even the incident that took place 7.12.80 and 14.12.80 would show that on both the dates Kabita came with her son to the house of Nirmalendu Laha, the father of the appellant of Kalyani. The appellant has in his evidence stated that on 21.12.80, 24.12.80 and 25.12.80 the respondent came to their Kalyani to threaten him and his parents along with others. If the respondent had the intention to sever all marital connection, with her husband by voluntarily leaving the Kalyani house of her father-in-law on 22.1.79, it is not at all probable that she would come to the house of her father-in-law again on 7.12.80, 14.12.80, 21.12.80 24.12.80 and 25.12.80.
13. It is also disclosed from his evidence that even during pendency of suit sometime in May/June, 1981 the respondent went to Himachal Pradesh and her case is that she stayed in the house of the Boss of the appellant one night together. This allegation is, however, denied by the appellant. But appellant had to admit that the respondent had gone to Himachal Pradesh even in June 1981.
14. Therefore, in our view the facts and circumstances do not show that the respondent had any animus deserandi, that is, the intention to desert the matrimonial home. The evidence clearly reveals that even after 21.1.79 the respondent tried to live with her husband. The letter Ext, 6 which the appellant claims to have been forcibly taken from him also shows that Kabita wanted to live with her husband at Himachal Pradesh. In the written statement she also prayed for restitution of congugal rights.
15. Her clear case is that she was prevented to persue her marital life because of very unusual attitude taken by her father-in-law.
16. In view of the above we are of the view that the learned Trial Judge was justified in holding that the appellant-husband has failed to prove the case of divorce on the ground of desertion.
17. Now to the ground of cruelty.
In the petition for divorce the appellant catalogued the following acts of cruelty to justify his prayer for divorce on the ground of cruelty.
(1) After marriage the Respondent used to go her father's house according to her sweet will and on 29.8.76 her relations came to Kalyani and the respondent abused the appellant's parents with filthy languages and left the house with her relations.
(2) After being pregnant at Himachal Pradesh the respondent did not want to be mother and insisted her husband to have the baby destroyed in the womb.
(3) At Himachal Pradesh she used to give bad name to the appellant and his relations in presence of office colleagues and did many other sorts of ill-treatment.
(4) In November, 1977 she gave birth to male child, but did not inform the appellant and his relatives about the birth of the child and also secretly performed the Annaprasan ceremony as her father's house. .
(5) After returning to Himachal Pradesh in July 1978 she again started giving bad names to the petitioner and his relatives and the appellant brought her back to Kalyani in his father's house in November 1978.
(6) On 22.1.79 the respondent was not found in the house at about 7.30 A.M. and at about 11 A.M. the petitioner's father was called by one M.K. Dutta and on going there he found the respondent who started abusing him with filthy languages and refused to go back to her husband's house and ultimately left for Calcutta.
(7) On 7.12.80, 14.12.80, 21.12.80, 24.12.80 and 25.12.80 the respondent and her brothers along with some anti socials came to Kalyani and assaulted the appellant's parents and brother and hurled filthy abuses.
(8) On 14.12.80 the respondent and her brothers assaulted the petitioners at his house and forced the petitioner to write a statement to the effect that the appellant, inter alia, would be bound to give her maintenance.
(9) The respondent since after her marriage ill-behaved with the petitioner and his family members and treated them with severe cruelty and as such the appellant is entitled to get the divorce.
18. By amending the plaint a few new allegations of cruelty have been incorporated as follows :
(1) At the time of solemnisation of marriage the respondent did not put the garland in the neck of her husband and did not allow the appellant to place "sindur" on the forhead.
(2) She treated his parent very badly.
(3) She expressed that she had selected her own husband who was at Glasgow and his name was Bodhisatwa Mukherjee and practically marriage was celebrated with him.
(4) She uttered abusing language at the time of mating and expressed that she did not wish to be the mother.
(5) She used abusing language because she was a graduate and as the appellant was not a graduate and her insulting and pinching remarks caused mental agony to the appellant.
(6) She never did household work or cooked any food or did any other work during the period of married life.
19. The respondent has denied all these allegations made in the petition as well as in the amendment petition in the written statement and additional written statement filed. Her case is that she all along wanted to live with her husband and his family members peacefully, but the father of the appellant did not want her to live with the appellant at her husband's place of work at Himachal Pradesh and subjected her various acts of torture, that on 22.1-79 she was driven out from Kalyani house and had to take shelter in the house of a neighbour Mr. M.K. Dutta from where she was sent to her father's house and thereafter all her attempts to resume the marital relations with her husband failed and that the appellant having no voice in-the family obeyed all the unreasonable attitude of his father and that it is not the appellant but the respondent who was neglected or and tortured in her matrimonial house and was ultimately driven out and she had leaving all her ornaments and other articles in the Kalyani house of her parents-in-law.
20. In order to prove the ground 6f divorce on the ground of cruelty the appellant's main evidence is that of himself and his father (PW 8) and mother (PW 1) and an office colleague Jagjit Singh (PW 4). PW5 Sailendra's evidence has no value whatsoever. PW 6 Suchitra is a witness to the appellant's version of the incident that took place on 7.12.80 and on 14.12.80 and PW 7 Sukumar seeks to prove the version of the -appellant as regards the incident dated 22.1.79. In order to prove the appellant's charges that the respondent treated the appellant with cruelty the evidence of PW 6 and PW 7 who were also ex-office colleagues of the father of the appellant even though inspire no confidence has no adequate bearing and relavance to the said charge.
21. The evidence of PW 4 Jagjit Singh is also in our opinion does not appear to be believable. The appellant's case is that the respondent used to hurl abuses to him in presence of office colleagues. But he does not mention the name of Jagjit as the person before whom she hurled such abuses. But Jagjit Singh says that he heard the respondent hurling abuses to the appellant and saw him doing household chores. He appears to have heard the abuses and seen the incident from outside his quarter. He has not stated that the appellant was aware that he had either heard or seen such incident. Then how could the appellant know that Jagjit saw such incident ? In order to give evidence in this suit the witness resided in the house of the appellant at Kalyani and he being very interested witness his evidence does not appear to be believable. However, even if the said story was true, it was a stray incident from which the-ground of cruelty cannot be proved.
22. We have also carefully considered the evidence of the mother and father of the petitioner. We are of the view that both the parents specially the father of the appellant wanted to project very exaggerated and highly improbable story to help the appellant to obtain divorce. The parents in the evidence make some allegations which even the appellant did not make any whisper. They have introduced a story that the respondent declared to the appellant that the child conceived by her was not that of her husband of Bodhisatwa. The witnesses who can make such blatant lies not taken in the main petition or even in amendment petition cannot be held to be at all trustworthy.
23. In the cross-examination the mother of the appellant has conceded that prior to 7th December 1978 when her son or daughter-in-law resided at Kalyani, there was no trouble whatsoever between them and regarding the relationship of the parties at Himachal Pradesh she did not have any personal knowledge.
24. Even the evidence adduced by the appellant clearly reveals that after the birth of the son he did not keep any information of the respondent and his son as long as she stayed at her father's house nor did he send her anything as maintenance. He has conceded that the relations of the respondent had taken her to Himachal Pradesh after the child birth and he did not take any steps to bring them to his place of work. As regards the incident dated 22.1.79 we have already observed that the version of the respondent that on that date the parent of the appellant drove her away is more believable. On considering the evidence of the witness on both sides regarding the incident dated 7.12.80 and 14.12.80 we are of the view that the appellant's version of the story is highly exaggerated and the incident on those dates as related to the respondent are far more believable. On considering the whole evidence adduced by the parties we have reason to hold it was the respondent who was not treated well at her parent-in-law's house and of the appellant and his parents did not treat the respondent well and the parents ultimately forced the respondent to leave the Kalyani house with her wearing apparels only.
25. We are aware that legal cruelty includs acts comprising physical and mental cruelty. But in Jyotish v. Meera reported in AIR 1974 Cal 266 it has been observed that whether acts amount to cruelty should be determined from the whole facts and circumstances of the case including culture, temperament, status in life, state of health, daily life and other facts of the parties. If we have to go by the evidence of the mother of the appellant the relations between the parties cannot but be held to be reasonable wear and tear of the normal married life. Since 7.12.80 the appellant did not take any step to bring the Respondent to his house and the incident since 7.12.80 as alleged by the appellant and his witnesses suffer from such exaggeration that no Court of law should believe such wild allegations that the Respondent herself and with the help of her brothers and 259 to 300 anti socials assaulted the parents and the brother of the appellant. The witnesses for the Respondent have given completely different version that on 7.12.80 the father of the appellant did not even allow the Respondent to enter inside the house and she was found entreataining him to give her entry. The incident of 14.12.80 on which the appellant claims to have been forced by the Respondent to writ the document Ext. 6 has also a different version from the witnesses of the Respondent who are all neighbours of the appellant and the appellant in his cross-examination has admitted that they had good relation wish their neighbours. There is, therefore, no reason as to why they would tell lie that the appellant on being requested by them agreed to take the Respondent to Himachal Pradesh or to pay her maintenance at the rate of 500/- per month.
26. The appellant appears to have avoided the company of the Respondent and other staying with the Respondent at Himachal Pradesh for a few months brought her to Kalyani, therefore, the conduct of the Respondent could not raise reasonable apprehension in the mind of the appellant that it would not be possible for the appellant to live with the Respondent as husband and wife.
27. The learned Advocate for the Respondent has drawn our attention to some letters in which the Respondent is alleged to have made wild and baseless remarks against the character of the appellant and relying on two Calcutta High Court decisions of Harendra -Nath v. Suprova and Santana Banerjee v. Sachindra Nath Banerjee it has been submitted that such wild allegations against the character of the appellant amount to mental cruelty and justify the decree fur divorce on the ground of cruelty. In Harendra Nath's case the division bench found that the wife in the previous maintenance petition .and in the written statement hurled unfounded allegations of adultry against the husband which amounted legal cruelty. In Santana Banerjee's case also the division bench found that the wife had been making persistently disparaging, derogatory and ugly remarks against the husband which was all false. So the ground of divorce of the ground of cruelty was found to be substantiated.
28. But the comments which the wife appears to have made in her letters to the husband as well as in the written statement are that the appellant had no voice in the family, that he was a man of weak character and had been obeying the dactats of his father etc. We are of the view that the bone of connection of the Respondent before the Court is that as her husband had no voice and was a spineless fellow she had been tortured in the house of her parents-in-law. In our view the above allegations cannot he held to be wild allegations. The facts and circumstances disclose that there are some truth in it. On the contrary, the appellant's parents have also doubted the parentage of the child born out of the wedlock on the supposed statement of the Respondent that the appellant was not the father of the baby. Therefore, the submission of the learned Advocate that the Respondent subjected her to mental cruelty by letters and by the averments in the written statement because they cannot be held wild baseless allegation against the husband.
29. The learned Advocate for the appellant has also urged that the parties are living separate since 22.1.79. that is, for more than 12 years, that in a letter dated 3.2.81 Ext. 3(a) the wife herself advised the husband to file the suit for divorce and, therefore the marriage has broken down irretrievably. He has relied on the Supreme Court decision of Saroj Rani v. Sudarshan Chadda which has been relied on by our High Court in Debiprosad Datta v. Surabhi Datta reported in 89 CWN 1172 that when the Court finds that marriage has broken down irretrievably the Court should grant divorce. There is no doubt that irretrievable break down of marriage is not by itself any ground for divorce under the Hindu Marriage Act. In both the Supreme Court and High Court decision, the ground for divorce was proved and the Court on being satisfied about the ground have also observed that when there has been irretrievable break down of marriage the decree of divorce passed by the Trial Court should be confirmed.
30. In this case the appellant has failed to prove any of the grounds for divorce. Therefore, we cannot consider the question as to whether the marriage has been broken down irretrievably or not to grant the appellant the decree for divorce.
31. In the result that appeal is dismissed with costs bearing fee being assessed at Rs. 200/-.