Calcutta High Court (Appellete Side)
Swapan Kumar Chatterjee vs Sandhya Chatterjee 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. 109 of 2005
Swapan Kumar Chatterjee
Versus
Sandhya Chatterjee
For the Appellant/Petitioner: Mr. Santu Chakraborty,
Ms. Sanghamitra Nandi.
For the Respondent/Opposite Party: Mr. Chittaranjan Chakraborty,
Ms. Rina Banerjee,
Mr. Parvez Alam.
Heard on: 15.01.2009.
Judgment on: 18th February, 2009.
Bhaskar Bhattacharya, J.:
This First Appeal is at the instance of a husband in a suit for divorce on the ground of cruelty and desertion and is preferred against the judgment and decree dated 21st February, 2005, passed by the learned Additional District Judge, Eleventh Court, Alipore, in Matrimonial Suit No.29 of 2002 thereby dismissing the suit.
Being dissatisfied, the husband has come up with the present first appeal.
The appellant before us filed in the Court of learned District Judge, Alipore, a matrimonial suit, being Matrimonial Suit No.104 of 1992 under the provision of Section 27(1)(b) & (d) of Special Marriage Act, 1954, for divorce. The said suit was subsequently transferred to the Court of Additional District Judge, Eleventh Court, Alipore, and was re-numbered as Matrimonial Suit No. 29 of 2002.
The case made by the appellant may be summed up thus.
(a) The parties were married on 18th November, 1974, before the marriage officer at Deshapran Sasmal Road under the Special Marriage Act and subsequently, there was a social function in the house of the respondent's elder sister on 7th March, 1977. The marriage was duly consummated and a son was born in the said wedlock on 19th April, 1984.
(b) From the very day of coming to the matrimonial home, the respondent began to find fault with the appellant and his other family-members in every affairs and developed the habit of running away to her paternal residence at 3, Sarsuna Main Road off and on and staying there for two and three days and then coming back.
(c) At every step, the respondent used to give the appellant bad name by saying publicly that he was in illicit connection with some or other women and thereby humiliated the appellant in the presence of others and at the same time, on such false allegation, she refused to share bed with the appellant and did not allow the appellant to get in touch with her, particularly, after the birth of the child.
(d) In the year 1985, the respondent proposed to open a cloth-shop, at her paternal residence at 3, Sarsuna Main Road and asked for financial help from the appellant and the appellant readily agreed. With his own money, the appellant opened a cloth shop at 3, Sarsuna Main Road in the name of the respondent. The telephone which was installed in his residence was shifted to her said shop and he also took a loan of Rs.10, 000/- from State Bank of India, Bakultala Branch and duly repaid the said amount. Although the respondent started earning huge amount from the said business, she did not pay back a single farthing to the appellant.
(e) It was initially decided that the respondent would run the said shop room in the forenoon and in the afternoon, the appellant after returning from his office will look after the shop. But at the evil advice of her elder sister, the respondent disallowed the appellant to run the said shop at all on the false and baseless allegation that if he was allowed to sit in the said shop, he would develop illicit affinity towards the female customers and the business would suffer substantial loss. The main object of the respondent was to deprive the appellant of his money invested in the said business.
(f) During the last 2/3 years the appellant had raised and constructed a one- storied building by removing the old dilapidated Kancha structure and took huge amount of loan from different concerns including his employer, namely, the Calcutta Port Trust. From 1st September, 1989, on the plea of pressure of work in the shop, the respondent began to go out of the matrimonial home for her shop early in the morning with her son and returned after 9 p.m. at night and used to take her meal in her paternal residence without caring either to cook any food for the appellant or making any arrangement in that regard. As a result, the appellant could not take any meal for 2/3 days and ultimately, he started taking meal with his mother who used to cook food for herself.
(g) During her absence from the house, the respondent kept her room under lock and key and although the appellant asked the respondent not to take the son to the said shop, she turned a deaf ear to the said request, as a result, once the said infant son escaped a fatal accident in front of the shop. Again on 25th January, 1992, the said son had fallen into burning oil in the paternal house of the respondent when she was in the shop.
(h) The respondent started sleeping separately in separate bed and room denying access to the appellant since 1st September, 1989, and for all practical purpose deserted the appellant.
(i) Whenever any girl or woman would talk with the appellant, she would become furious and started abusing the appellant. On 2nd December, 1991, a local girl named Sipra Gayen came in the morning to the appellant's house for getting instruction to fill up the application form for employment by taking necessary instruction in the presence of the respondent and mother. When the said girl was returning home from tuition she was mercilessly assaulted by the respondent, her sister on public road near Bakultala more. Some local people even abused the appellant for such act on the part of the respondent and her sister as the appellant called for explanation from respondent for such assault she became furious and started assaulting him with blows and fists as the mother of the appellant approached to save him, the respondent also assaulted her mother-in-law by the fists and blows. The suit was, therefore, should be decreed on the ground of desertion and cruelty. By further amendment, the appellant incorporated the fact that during the pendency of the suit, on 17th March, 1996, the respondent with the help of local anti-social people physically assaulted the appellant and a criminal case has been started against the respondent under Sections 341, 448, 114 and 323 of the Indian Penal Code and the same was pending.
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 summed up thus.
(a) The appellant had some inherent weakness towards female folk, as a result, the appellant used to mix with one Anita Basak and one Sipra Gayen indecently. When the respondent protested against such mixing, it became the eyesore of the appellant. As the respondent was not in a position to run the business, she welcomed her husband to help her in the matter of running the business. When both the parties were residing in the same premises it appeared that appellant had grudge against the respondent's elder sister as because she also protested against the indecent mixing of the appellant with various girls.
(b) The respondent had no knowledge whether the appellant took any amount of loan from different concerns for building the house. It was further denied that the appellant had been repaying the said loan with great hardship.
(c) The respondent after marriage was always living at her matrimonial home. It was true that respondent was occupying one room where she was living with her son as she was neglected by her husband. It was denied that the parties had no physical connection and according to the respondent, even after institution of the suit, the appellant had cohabitated with the respondent in the room where the respondent and her son was living. Even, at the time of filing of the written statement, the parties had physical connection as husband and wife. It was denied that the respondent ever assaulted Sipra Gayen as falsely alleged in the plaint. It was also false that at the instance of the respondent, the appellant was assaulted. The appellant started a false case under various sections of the Indian Penal Code and as such the suit was liable to be dismissed.
At the time of hearing of the suit, the appellant himself, one Anita Nath, Sirajul Haque and Ramprasad Mukherjee deposed in support of the plaint case while the respondent herself and one Archana Roy, a neighbour of the respondent, deposed in opposing the application.
As indicated earlier the learned Trial Judge by the judgment and decree impugned herein has dismissed the suit on the ground that the plaintiff had failed to prove the allegation of cruelty made in the plaint.
Being dissatisfied, the husband has come up with the present first appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find that the allegations of the husband against the wife are threefold. First, she has denied the husband of her company and even refused to cook food and look after the daily necessities of the family and used to go to her paternal house off and on without taking permission from the husband and such behaviour amounted to cruelty. Secondly, she stooped so low that during the pendency of the suit, she inflicted serious physical injury to the husband by engaging the local goon, named, Gupi, for which a criminal case is pending. Apart from those allegations, according to the husband, the wife has occupied almost the entire house constructed by the husband by staying in one room and keeping the other portion under lock and key and for that reason, the husband has been compelled to leave his own house and take shelter in his elder sister's house. Thirdly, the wife had the habit of suspecting illicit relation of the husband with the ladies whoever had even talked to him and on the basis of such suspicion, the wife and her elder sister, did not permit him to look after the business of sale of sarees opened by the wife with full financial support of the husband as most of the customers of the said business are ladies. On the basis of such false suspicion, the wife had mercilessly beaten a neighbour who came to the husband seeking assistance for filling up an application form for applying for a job. For such act on the part of the wife, according to the husband, he was humiliated in the eye of the local people.
The wife, on the other hand, has opposed all the aforesaid allegations and asserted that the husband had the habit of keeping illicit relations with other ladies and for that reason, he has left his house so that he can freely continue with such affairs. It is, however, denied that the husband was assaulted by engaging any local antisocial element or that she ever inflicted any physical torture upon the husband or any other lady as alleged in the application for divorce.
In support of his allegations, the husband has examined himself, one Anita Nath and one Sirajul Haque, the alleged witnesses to the assault by Gupi upon him and Ramprasad Mukherjee, a constable of the police station, who merely proved the lodging of general diaries by the husband against the wife and others on different dates without having any personal knowledge of the incidents.
We first propose to deal with the evidence adduced by Anita Nath and Sirajul Haque, the two alleged eyewitnesses to the assault upon the appellant.
Anita Nath is a spinster and a neighbour of the appellant. According to her, she witnessed the incident when Gupi and "some others" assaulted the appellant physically and she "heard" that such assault was at the instance of the respondent. According to this witness, after the said incident the appellant left the house. It is, therefore, clear from her version in examination-in-chief, that she did not see the respondent to participate in the incident but she heard that the respondent made such arrangement of assault. She has not disclosed who told her that the respondent engaged Gupi. In cross-examination, at the very outset, she admitted that "she looked the appellant as a specific look as if he is intimate to her". She, however, denied the suggestion that she visited North India with the appellant in the year 1998. She admitted that she was aware of the fact that a criminal case was pending over the said incident but she did not make any statement before the police nor did she depose in the criminal case.
Sirajul Haque, claiming to be a resident of the locality, stated in examination-in-chief that on March16, 1996, he saw that Gupi and "another" were assaulting the appellant and from "enquiry" he learnt that the respondent arranged for such assault. The person from whom such enquiry was made, however, was not disclosed. According to him, seven or eight months after the incident, he had occasion to see the appellant at Bakultala and at that time, he volunteered before the appellant to depose in any future cases which might arise out of the incident and gave his address to him. In cross-examination, he stated that in the year 1996, he used to do private tuitions in that area where the incident occurred. His student used to reside at a walking distance of 4-5 minutes from the place of incident. On the next day of cross-examination, he improved his earlier version by stating that at the time of assault, the respondent was encouraging Gupi by asking him to "assault further". We are, however, unable to accept the said improved version because of the fact that if he had seen the respondent to be present at the time of incident and to encourage Gupi to assault the appellant further, he would not say in examination-in-chief on the earlier day that on enquiry, he learnt that the respondent engaged Gupi. Moreover, Anita Nath, the P.W.-2, another witness of the incident, never mentioned the name of the respondent to be present at the time of incident and to encourage Gupi at the time of assault and said that she "heard" that the respondent was the person at whose instance the assault had taken place. The P.W.-1 stated that Gupi and "others" participated in the assault of the appellant while the P.W.-2 said Gupi and "another" were engaged in assaulting the appellant. The P.W.-2 stated that at the time of incident, many persons assembled there but as that was a dark night he could not identify any of the persons assembled there. He, like the P.W.-1, admitted that he never made statement before the police although he was an eyewitness to the incident nor did he depose in the criminal case. He further admitted that he could not say the name of the lane or the street or the road where the assault had taken place although he claimed to be a resident of that area and also could not tell the duration of the incident. He even did not mention that the incident occurred in the house of the appellant which is the case of the appellant and the P.W.-2.
The appellant, appearing as P.W.-1 in his examination-in-chief stated that on March 16, 1996, the respondent and her sister brought certain gundas in their "houses" and as per their instruction, those gundas assaulted him and his mother and after such incident he went to the hospital and lodged complaint before the police. None of the witnesses, viz. P.W.-2 or the P.W.-3 stated that Gupi and "others" or "another" (they differed on the number of assailant) assaulted the mother of the appellant in addition to the appellant. No hospital- papers showing any injury of the appellant was also marked as Exhibit. Even the mother of the appellant was not examined although the appellant stated in his evidence that he would examine his mother.
From the aforesaid materials on record we are unable to place any credence on the evidence given by the witnesses for the appellant regarding the incident of assault on the appellant and his mother by Gupi and his associates or associate on March 16, 1996.
The appellant further alleged that the respondent had assaulted one Sipra, a daughter of his colleague by suspecting illicit connection with the appellant but no corroborative evidence was adduced on behalf of the appellant for proving such fact. Similarly, he also referred to another incident of assault at the instance of respondent by "Beluni" but such allegation was also not proved by production of any other witness, particularly, the mother of the appellant who was also the victim of the assault.
As regards, the allegation of neglect on the part of the wife in the domestic duties, in our opinion, when the husband has permitted her to run a business of selling saree on fulltime basis, he cannot expect that his wife will be in a position to devote so much of time which an ordinary housewife can dedicate towards her family. Similarly, he cannot have any grievance if she used to take the young child with her to her shop. It is not the case of the husband that he arranged for separate nurse for looking after the child. It appears from the record that the main grievance of the husband is that although he financially helped the wife in starting the business, the wife did not pay back the money he invested therein. The husband was a fulltime employee of the Kolkata Port Trust and thus, he could not directly involve himself in the said business and it was the wife who used to look after the business. According to the husband, there was mutual understanding between them that after coming back from office, he would look after the business in the evening but the wife did not keep such promise and did not permit the husband to look after the business even in the evening under the suspicious notion that the husband had an inherent weakness for the female folk and as most of the customers were female, for the weakness of the husband towards the customers, the business would suffer. Such act on the part of the wife, according to the appellant, amounted to cruelty.
In our opinion, if a wife after accepting money from the husband commences the business with her own labour and industry and is unable to pay back such money for pecuniary stringency, such inability on her part cannot be described as cruelty. Similarly, even if we assume that the business was running well and in spite of such fact, she deliberately did not return the money, such act is definitely an immoral one on the part of the wife but for not returning a paltry amount of Rs.10,000/- given gratuitously by the husband, the wife cannot face the consequence of divorce on the ground of cruelty.
On the other hand, the wife being the admitted owner of the business, if does not permit her husband to look after the same on her bona fide belief that his participation in the business will result in loss, such fact cannot come within the purview of cruelty within the meaning of Section 13 of the Hindu Marriage Act particularly when the husband is a regular employee of the Kolkata Port Trust. Position would have been different, if the husband on the assurance of the wife to take him as a partner in the business gives a substantial amount at the cost of his own livelihood and the wife betrays such confidence. In those circumstances, in a given case, such treacherous act on the part of the wife may amount to cruelty. Since such is not the case here before us, we refrain from making further discussion on subject.
Mr. Chakarborty, the learned advocate for the appellant, as a last resort, tried to convince us that as the parties are living separately for a long time, we should grant the decree for divorce on the ground that the marriage has broken down irretrievably. We are not impressed by such submission because mere irretrievable breakdown of marriage is no ground for divorce till this day. We are conscious that the Apex Court in some of the cases in exercise of its power under Article 142 of the Constitution of India for doing complete justice between the parties granted divorce on such ground but such power cannot be exercised at our instance. Moreover, it appears from the record that the husband has failed to prove the facts, which according to him, were the causes of leaving his own house. In such circumstances, he cannot take the advantage of his own wrong. It appears that the husband himself has filed criminal cases against his wife without just reason and the allegations could not be proved before us but the wife has not filed any counter-criminal case.
It is true that the wife has also made allegations against the husband regarding his moral character which she could not prove by leading sufficient amount of evidence. If for not leading adequate evidence, the plaintiff's suit simply fails, the defendant's inability to prove her defence version by sufficient amount of evidence cannot lead to a decree against the defendant. We can, in a matrimonial suit, grant decree in favour of the plaintiff for unfounded allegations in the written statement only if we find that such allegations made in the written statements regarding moral character of the plaintiff are found to be false and baseless and are really "disproved" from the materials on record. We, from the materials on record, are unable to come to the conclusion that the allegations against the husband regarding his moral character have been disproved.
In this case, the wife does not want divorce and wants to stay with the husband. The only child of the parties, we are told, has just come out as a bright successful engineer and joined service and is posted in Jammu and Kashmir. We expect that the parties will forget and forgive each other and turn over a new leaf and will see that for their past attitude against each other, the future of their successful son is in no way blemished. The parties are at least successful in the sense that they have brought up a bright child and presented an able citizen to this country. A tree, it is needless to mention, is known by the fruit it bears. We do not want to destroy the tree which has offered a talented inhabitant to our nation.
The appeal is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Tapan Kumar Dutt, J.)