Gauhati High Court
Sri Gokul Bora vs Smti. Dipamoni Bora on 6 January, 2012
Author: A. K. Goel
Bench: A. K. Goel
1
THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Mat. Appeal No.13 of 2010
Appellant :
Sri Gokul Bora,
Son of Sri Paniram Bora,
Kolakhowa Gaon (Kaliachuk),
Charigaon Mouza,
P.S. Jorhat,
District - Jorhat, Assam.
By Advocates :
Mr. A. Thakur, Sr. Advocate.
Mr. J. R. Thakur.
-versus-
Respondent:
Smti. Dipumoni Bora, Daughter of Late Chaniram Saikia, Nowbaisha Gaon (Koch Chuk), Hazari Mouza, P.S. Jorhat, District - Jorhat, Assam.
By Advocate:
None appeared.
BEFORE HON'BLE THE CHIEF JUSTICE MR. A. K. GOEL THE HON'BLE MR. JUSTICE C. R. SARMA Mat. Appl.13 of 2010 Page 1 of 8 2 Date of hearing : 06.01.2012 Date of judgment : 06.01.2012.
JUDGMENT AND ORDER (Oral) (A. K. Goel, CJ.)
1. This appeal has been preferred under Section 28 of the Hindu Marriage Act, 1955, against dismissal of application for divorce under Section 13 of the Act on the ground of cruelty and desertion.
2. Marriage between the parties took place in the year 1999 and in the year 2000 a female child was born. Thereafter, the parties separated and in the year 2001, the wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure. Maintenance amount of Rs.800/- per month was allowed to the wife and the child. The wife also lodged a complaint under Section 498A IPC against the husband.
3. In the year 2007, the husband filed application for divorce alleging that in the year 1999 the wife accompanied by her brother and uncle came to the house of the husband and she was allowed to live as his wife. In the year 2000 a female child was born but, in fact, the marriage took place only after order of maintenance was passed in favour of the wife and the child in Mat. Appl.13 of 2010 Page 2 of 8 3 the year 2001. The wife left the matrimonial home without any valid reason which amounted to desertion and cruelty.
4. The wife contested the petition by stating that she was subjected to harassment by being abused and deprived of food.
She was subjected to physical and mental torture and the husband was trying to avoid his responsibility by seeking divorce.
4. The learned trial Court after considering the pleadings of the parties, framed following issues :-
"Issue No.1 : Is there any cause of action? Issue No.2 : Is the petitioner entitled to get a decree of divorce on the ground of cruelty and desertion?
Issue No.3: Whether the petitioner is entitled to get a decree as prayed for ?
Issue No.4 : To what relief(s) the parties are entitled to?"
5. The evidence led by the husband comprised of his own statement as PW 1 and statement of his mother, Smt. Punada Bora, as PW 2. The said witnesses supported the version in the petition. The wife appeared as her own witness as OPW 1 and her mother Smti. Mat. Appl.13 of 2010 Page 3 of 8 4 Putu Saikia as OPW 3 apart from Smti. Nirumala Dutta and Smti. Minu Dutta as OPW 2 and OPW 4, respectively.
6. The main issue for consideration was issue No.3 as to whether the husband was entitled to decree for divorce. The learned trail Court held that the version of the husband was not acceptable as mere allegation that the wife did not cook food and was reluctant to do household work could not be termed as cruelty. The allegation that the wife assaulted the husband was not reliable. The version that the husband was forced to solemnise the marriage by intimidation was also unreliable. The relevant part of the finding recorded by the learned trail Court is as follows :
"On carefully scrutinising the evidence adduced by both the sides it transpires that that the petitioner alleged that the Opposite Party initially resided with him without solemnizing the marriage. But his contention is not supported by his mother. He alleged that after birth of the child the Opposite Party left his society but from the evidence of PW 2 and DWs it has revealed that the child was born in the parental house of the Opposite Party. The petitioner alleged that the Opposite Party refused to come to his society whereas according to the Opposite Party, Mat. Appl.13 of 2010 Page 4 of 8 5 the petitioner never visited her parental house to see his child. The Opposite Party filed petition under Section 125 Cr.P.C. and when her petition was allowed the petitioner accepted her, took her to his house and solemnised marriage under Special Marriage Act. Again after few months she was ousted from the matrimonial house.
The allegations that the Opposite Party even if accepted that she did not cook food and was reluctant to do household works cannot be termed as cruelty. The petitioner alleged that the wife attempted to assault him by lathi. His mother (PW 2) alleged that the Opposite Party used to assault the petitioner by means of broom. The evidence of petitioner and PW 2 are therefore contradictory. Moreover, when the petitioner denied the initial Social Marriage, it is risky to believe his version.
It transpires from the evidence that the petitioner married the Opposite Party against the will of his parents and without their consent. He alleged that the Opposite Party was kept in his house without marriage. He further alleged that he was forced to solemnise his marriage. He was intimidated by some Mat. Appl.13 of 2010 Page 5 of 8 6 youths. He neither complained the Marriage Officer nor lodged any case against the Opposite Party and her associated youths. Both times he accepted the Opposite Party and lived with her as husband and wife. The allegation of husband therefore appeared to be false.
Learned counsel for the petitioner has submitted that since both the parties are living separately and there is no chance of reunion the marriage has broken. Hence the marriage may be dissolved. Irretrievably broken down marriage is not a ground for divorce and for Hindu Marriage Act. Although the ground has been considered in some cases by Hon'ble Supreme Court and Article 142 of the Constitution. Article 142 can be applied by the High Courts and Supreme Court only in extreme circumstances. The petitioner cannot be allowed to get benefit for his own wrong. He has failed to establish that it was the Opposite Party who subjected him to cruelty or she wilfully deserted him."
7. We have heard Ms. J. R. Thakur, learned counsel appearing for the appellant. None appears for the wife. Mat. Appl.13 of 2010 Page 6 of 8 7
8. Learned counsel for the appellant submits that the version of the husband should have been accepted and the wife should have been held to be guilty of cruelty.
9. We are unable to accept the submission.
10. It is clear that the husband has tried to disown the marriage itself even without disputing that he was father of the child born to the parties. He has also tried to disown his consent to the marriage and taken a plea that he was forced to give consent to the marriage. This stand in trying to disown the wife and the child and also at the same time putting blame on the wife for separation taking the plea that the wife was not cooking food and not doing household works itself speaks volumes about his conduct. No credence could be attached to the version of such a person who has taken a patently false plea of his being forced to marry or being forced to live with his wife. If he had no willingness to live with his wife, he cannot be allowed to shift blame to the wife for the separation and the blame has unmistakably to be placed on him for the separation. Clearly it is attempt to take advantage of his own wrong in seeking divorce on the ground of cruelty when there is no willingness on the part of the husband to continue the marriage, on his own version. It is a case where the husband himself has deserted the wife and the Mat. Appl.13 of 2010 Page 7 of 8 8 child and disowned his responsibility to look after his wife and the child. The trial Court was, thus, fully justified in not allowing the husband to take advantage of his own wrong.
11. We, thus, do not find any ground to interfere with the view taken by the learned trial Court.
12. The appeal is accordingly dismissed.
JUDGE CHIEF JUSTICE
TUC
Mat. Appl.13 of 2010
Page 8 of 8