Calcutta High Court
Smt. Supriya Chatterjee vs Bibekananda Mukherjee on 27 March, 2001
Equivalent citations: (2001)2CALLT161(HC), 2001(2)CHN111, II(2001)DMC466
Author: A.K. Banerjee
Bench: Altamas Kabir, Ashim Kumar Banerjee
JUDGMENT A.K. Banerjee, J.
1. The appellant Smt. Supriya Chatterjee (hereinafter referred to as Supriya) preferred the Instant appeal from the Judgment and decree dated October 3. 1994 passed in Matrimonial Suit No. 39 of 1993 by Sri A.K. Sadhu, Additional District Judge, Alipore, 24-Parganas(S) against Sri Bibekananda Mukherjee (hereinafter referred to as Bibek), the plaintiff/respondent. Supriya was a resident of Dhanbad. Her brother Amitava was a friend of Bibek. In 1973 Supriya got married. In or about 1982 Supriya came to Calcutta and started residing at YWCA Hostel. Amitava requested Bibek to look after her in Calcutta as she had no other near relation or friend at Calcutta. In 1983 during her stay in Calcutta Supriya got friendly with Bibek. In 1983 Supriya's marriage with first husband was dissolved by a decree of divorce. In 1984 Bibek purchased a flat at Ranikuthi after obtaining loan from HDFC. According to Supriya, Supriya also helped Bibek by granting him financial assistance while purchasing the said flat. Supriya is a cost accountant and is attached to a Government Undertaking. In 1985 Supriya shifted from YWCA Hostel and started residing with her friend at Kalighat upto 1987. During this period on or about June 25, 1986 both Bibek and Supriya decided to marry and accordingly got married under the provisions of Special Marriage Act. However, curiously the said marriage was not disclosed to the friends and relations of both of them. Even after the marriage Supriya stayed with her friend. After obtaining possession of the Ranikuthi flat Supriya started living in the said flat. According to Supriya both Supriya and Bibek started marital life on and from 1st May, 1987 at the said Ranikuthi flat and from then they lived together at the said flat until the period stated hereinafter. However according to Bibek they never lived together and the said marriage was nothing but a paper marriage.
2. On or about November 11, 1987 both of them filed a divorce proceedings by consent. However, the same was dismissed for default as on the date fixed for hearing the parties did not attend the Court According to Supriya, she did not know the date fixed for hearing and according to Bibek Supriya changed her mind and started blackmailing him by demanding a fanciful sum alongwith Ranikuthi flat to be transferred in her name.
3. In December 1990 Bibek executed a power of attorney and executed an agreement for sale in favour of Supriya in respect of Ranikuthi flat. According to Bibek, the said power of attorney and the agreement for sale were signed by Bibek under compulsive circumstances at the instance of Supriya. According to Bibek, he had also executed a will simultaneously bequeathing the Ranikuthi flat in favour of Supriya wherein Supriya had been described as cousin sister of Bibek. According to Bibek, all the three documents were prepared by the Advocate at the instance and at the dictate of Suprlya. The said three documents were signed by Bibek at a time when he was planning to go to Italy after procuring Job there. Bibek also alleged that 2/3 days before he left for Italy Supriya rushed to his Bunsdroni residence and snatched away all papers and documents in connection with the Ranlkuthi flat and other banking documents. From 1990-92 there were series of letters exchanged between Bibek and Supriya. Supriya's letters to Bibek were however not disclosed in the proceedings. From the letters addressed by Bibek to Supriya strange relationship appear between the parties. In all those letters not a single statement had been made by Bibek which could support the story of snatching papers or execution of documents or Will under compulsive circumstances. On the contrary most of those letters are nothing but written instructions to Supriya to do all personal work as also bank work on behalf of Bibek which logically supports the execution of the power of attorney by Bibek involving Supriya. There are as many as 18 letters from Italy and/or from other places from Bibek to Supriya out of which, one or two could depict that Bibek was worried about Supriya or her health. It is curious that those letters did not show any semblance of sentimental attachment between a husband and wife.
More so when they were residing separately because of occupational hazard.
We however, have been deprived of the other version as we could not examine the letters of Supriya to Bibek as those were not tendered in evidence.
4. In 1991 Supriya claims to have worried as no letter was forthcoming from Bibek. She was also worried by receiving a letter addressed to her from Italy and posted from Delhi. In 1992 Supriya lodged missing diary in the local police station and ultimately on November 18, 1992 Supriya sent a lawyer's letter addressed to Bibek with copies, endorsed to his friends, relatives, including his employer. The said letters have been tendered as Ext. A series. In December, 1992 Bibek came back from Italy and revoked the power of attorney as also the agreement for sale and thereafter initiated divorce proceedings in early part of 1993 after sending a notice to Supriya. The suit was filed by Bibek principally on the ground of mental cruelty.
5. According to Bibek, the marriage was a marriage of convenience and there had been an agreement that the said marriage would not be disclosed to any friend or relative and would be dissolved at an early date. Accordingly, the marriage was registered under the Special Marriage Act and thereafter the mutual divorce petition was filed by both the parties. According to Bibek they did not live together at'any point of time. According to Bibek he suffered mental cruelty inter alia on the following grounds :-
(i) Execution of the documents;
(ii) Mistaken relationship stated in the Will;
(iii) Allowing the mutual divorce proceedings to be dismissed for default;
(iv) Lodging missing diary in the local police station;
(v) Initiating proceedings under section 144 of the Criminal Procedure Code restraining Bibek from entering into his flat;
(vi) Sending lawyer's notice to employers, friends, relatives with a threat of civil and criminal proceedings.
6. The learned judge of the Court below rejected the plea of the plaintiff of ground Nos. (i) (ii) and (iii). However, the learned Judge held that the advocate's letter and the criminal proceedings as also the diary caused mental cruelty to the plaintiff and decreed the suit accordingly.
7. Mr. Bldyut Banerjee learned advocate appearing for Supriya, Appellant herein submitted that, since the learned Judge, rejected the other grounds, on the same analogy he should not have decreed the said suit by holding that the advocate's letter and the criminal proceedings caused mental cruelty to Bibek. According to him since for a considerable time she was not getting any letter and/or information from Bibek she lodged a missing diary. The diary was no made exhibit. Hence whether any part of the contents of the said diary had caused any mental cruelty to Blbek or not was not known to Court. According to Mr. Banerjee, plea of the missing diary without going into the contents cannot by itself be termed as mental cruelty. With regard to the advocate's letter Mr. Banerjee also submitted that save and except the last paragraph there was no offensive language used by the learned lawyer. According to him, Supriya instructed her advocate to make a request on her behalf to Blbek as contained in the said letter, but she never Instructed her lawyer to threaten Bibek with civil and criminal proceedings and such part was written in excess of her instruction ?glven to her lawyer. Mr. Banerjee also contended that Suprlya was and is still ready and willing to live with Blbek as husband and wife and spend marital life together. Hence the observation of the learned judge that the marriage had been Irretrievably broken down was not correct. In any event, according to Mr. Banerjee such ground cannot by itself be a ground for divorce. Lastly, he contended that there was no material before the learned judge which could support the prayer for divorce and the suit should not have been decreed.
8. Mr. Shaktinath Mukherjee, learned senior advocate, appearing for Bibek, the respondent above named, submitted that the fact that the marriage was not disclosed to friends and relatives was an admitted fact as the marriage was a paper marriage and the parties accepted such position. According to Mr. Mukherjee, Supriya never used Bibek's surname or described her as "Mrs. Mukherjee" at any point of time. About the letters addressed from Italy Mr. Mukherjee commented that on a sum total of the contents of those 18 letters the relationship of husband and wife was not reflected. At best it can be said to be that they were close to each other. According to him, even after the so called marriage Supriya stayed with her friend. Hence it cannot be said that the parties lived together and spent their marital life during those period. According to Mr. Mukherjee even in Ranikuthi flat Bibek never stayed there although the flat was allowed to be used by Supriya, and these facts would support the respondent's case that there had been no marital relationship between the parties.
9. With regard to mental cruelty Mr. Mukherjee contended that the grounds mentioned in the claim cannot be treated in isolation. If those grounds are taken as a whole, this would amount to mental cruelty and Bibek was entitled to a decree for divorce as was granted by the Court below. Mr. Mukherjee however submitted that the learned judge should have held the other grounds as well, as mental cruelty.
10. According to Mr. Mukherjee, there is no chance of reconciliation between the parties. Hence, the theory of marriage being broken irretrievably should be applied. Mr. Mukherjee, in support of his contention that Bibek is entitled to divorce on the ground of mental cruelty and also on the ground that the marriage has been broken Irretrievably, relied on the following decisions:--
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11. With regard to the ground of mental cruelty it is now a well settled principle of law that mental cruelty is by itself a ground for divorce even if there is no allegation of physical torture. Such proposition has not been disputed by Mr. Banerjee in his usual fairness. Hence we do not wish to deliberate on the said issue.
12. With regard to the other ground that the marriage has been irretrievably broken down, we are constrained to say that such ground by Itself is not a ground for divorce and we respectfully beg to differ with the Division Bench Judgment cited by Mr. Mukherjee reported in 1996 Volume I, Calcutta High Court Notes, Page 210 (Sakhomoy Bag v. Jaya Bag); rather we are in total agreement with the subsequent Judgment of the other Division Bench of this Court (Tapan Kumar v. Jyotsna). In the instant case, there was no iota of evidence that both the parties were not inclined to continue with their marital relationship. Before us the appellant wife expressed her eagerness to continue with the relationship. Hence it cannot be said that the marriage has irretrievably broken down. In any event, if we hold that the ground on which the learned Judge decreed the suit by holding those as not mental cruelty then this ground by itself cannot be a ground for divorce as has been held by the Division Bench of this Court in the case of Tapan Kumar v. Jyotsna (supra).
13. Let us now examine as to whether there had been sufficient material before the Court below to hold that mental cruelty caused had been by the wife to the husband by any of her acts.
(i) Execution of the documents; Three documents had been executed according to the plaintiff. It appears from the letters from Italy that the power of attorney was necessary to do the personal Jobs of Bibek in India. It is also not in dispute that the Supriya by virtue of the said power of Attorney did not do any act detrimental to the Interest of Bibek to benefit herself. Hence, this can not be said to have been obtained by Supriya forcibly and/or against the wish of Bibek. With regard to the agreement for sale it appears from Exhibit "C" that Bibek in his own hand writing had admitted that part of the consideration was paid by Supriya Ext. C was an instruction to a lawyer to prepare the agreement for sale. Hence the same also can not be termed as a document executed under pressure. The third document being the will did not see the light of the day. Supriya also denied the same. Hence the learned Judge of the Court below has rightly held that this ground did not constitute mental cruelty.
(ii) Mistaken relationship stated in the will; since the will did not see light of the day and in absence of any evidence in support of the said ground we also hold that this ground is not available to the plaintiff.
(iii) Allowing the mutual divorce proceedings to be dismissed for default; This is a grey area where despite our efforts we could not find out as to why the parties agreed to such a divorce and later on allowed the proceedings to be dismissed for default, According to Bibek it was agreed that the marriage would be a paper marriage and would be dissolved as early as possible. Such story is totally unbelievable. However, the alleged agreement for dissolution of marriage was not tendered in evidence. Hence the plea of Bibek is not tenable. The other version of the story is that Bibek wanted to save his Bansdroni property and persuaded Supriya to agree to a paper divorce. It is also not .believable in absence of adequate proof. In any event, since the actual reason for mutual divorce is unknown to us it is very difficult to hold that dismissal of the same has caused mental cruelty to Bibek and we reject this plea.
(iv) Lodging police missing diary in the local police station : According to Supriya no information was forthcoming from Bibek and a letter addressed from Italy was posted from Delhi. As such she got upset and without receiving any information about Bibek she lodged a missing diary in the local police station. If we analyse the letters written by Bibek from Italy it would appear that Supriya was faithfully carrying out the works entrusted to her by each of those letters. At least no complaint was made on the part of Bibek in any of those letters. Hence it can be well inferred that Supriya was very much sentimentally attached to Bibek. Hence, it would not be unusual for her to lodge missing diary at the local police station. Moreover, the contents of the said diary are not known to us. Such contents are also not know to Bibek. Hence without going into the contents the very fact of lodging of missing diary cannot be held to be a mental cruelty and we reject such plea of Bibek.
(v) Initiating proceedings under section 144 of the Criminal Procedure Code restraining Bibek from entering into his room; By that time Bibek had come back to Calcutta and was causing disturbance to Supriya. For a lady living alone in a flat, it was not unusual to approach the Court of law for remedy for getting protection under law and such action can not be termed as mental cruelty. Hence we reject this plea also.
(vi) Sending lawyers notice to employers, friends, relatives with a threat to initiate civil and criminal proceedings. From the said letter, except the last part of it, we do not find any statement which can cause mental, cruelty. The last part of the letter is a stereo type clause usually put in a lawyer's notice. Even if, we hold that the threat of civil and criminal proceedings by itself had caused mental cruelty to the plaintiff the degree of cruelty having regard to the other facts and circumstances which have come out on evidence and pleadings does not justify passing of the decree for divorce.
14. Both the parties are well educated and well placed in life. They can not be considered as an ordinary members of the public. Law in our country has given every right to all citizens to protect their interest in accordance with law. If there is threat in an advocate's letter, such threat in isolation with other facts by itself can-not be a ground for which a marital relationship has to be severed as has been done in the instant case. Admittedly Supriya had nobody in Calcutta. From the very beginning she was looked after by Bibek. She was totally dependant on Bibek not only at the initial stage but also thereafter. They both decided to marry and accordingly the marriage took place. It is the case of Bibek that it was agreed that the marriage would not be disclosed to friends and relatives and as such it was not possible for them to stay together at Bansdroni or any where else at the initial stage. After the Ranikuthi flat was purchased and that too with contribution from both sides as will appear from Exhibit "C", it can well be inferred that the said flat was purchased with the understanding that they would be residing there as a married couple. The letters from Italy would show that Bibek was also totally dependant on Supriya while he was abroad and Supriya was following his direction sent from abroad with regard to his personal matters including banking and other official jobs. So it cannot be said that at any point of time, even until the period they were corresponding to each other, the relationship was stale. On the other hand, if we think it from a different angle, we have to hold that from the very beginning there was no ill motive on the part of Supriya. If we have to accept Mr. Mukherjee's contention that there was no husband wife relationship manifested from the said letters we have to hold that Bibek's motives were not above suspicion.
15. Taking a sum total of the situation we can not find that there was any mental cruelty caused to Bibek either by the said advocate's letter or otherwise. If that is so and even if we accept the contention of Mr. Mukherjee that the marriage has irretrievably broken down (although we do not agree with such contention) that ground cannot by itself be a ground for divorce as we have held hereinbefore following the case of Tapan Kumar v. Jyotsna (supra).
16. Hence, we do not find any ground whatsoever which could have prompted the learned judge to pass a decree for divorce. Hence the appeal succeeds. The judgment and decree dated 3rd October, 1994 passed by Shri A.K. Sadhu, Additional District Judge, Alipore, 24-Parganas (S) is set aside.
There will have however be no order as to cost.
A. Kabir, J.
1. I agree.
2. Appeal succeeds