Calcutta High Court (Appellete Side)
Smt. Sumita Gupta vs Sri Kisholay Gupta on 21 January, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
F.A. No. 164 of 2005
SMT. SUMITA GUPTA
VS.
SRI KISHOLAY GUPTA
BEFORE:
The Hon'ble Mr. Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Mr. Justice SHUKLA KABIR (SINHA)
For Appellant : Mr. Sabyasachi Bhattacharyya, Adv.
Mr. Chandrodoy Roy, Adv.
For Respondent : Mr. Malay Dhar, Adv.
Mr. Arindam Sen, Adv.
Heard on : 11.01.2011.
Judgment on : 21.01.2011.
PINAKI CHANDRA GHOSE, J.: At the instance of wife in a suit for divorce the First
Appeal is directed against the judgment and decree dated 22nd December, 2004 passed by the Additional District Judge Second Court Hooghly, in Matrimonial Suit No. 421 of 1997 and the suit was decreed granting a decree of divorce on the ground of cruelty.
Being aggrieved and dissatisfied with the said judgment and decree dated 22nd December, 2004 this appeal has been filed.
The respondent appeared before us is the plaintiff in the suit and filed a suit before the Court of District Judge, Hooghly.
The facts pleaded in the plaint by the respondent are summarized as follows :
The parties in the suit were married according to Hindu Rites and Customs on 11th August, 1995 and had been residing as husband and wife. After 2-3 days from the day of 'Fulosajjya' the wife tried to pursue the husband so that she can stay in the house of her mother 2 on the plea of sitting in the examination of Masters Degree. The husband and his family members allowed the wife to stay at the house of her mother. After some days the husband was pressurised by the wife to stay with her at the house of her mother as their domesticated son-in-
law. The husband tried to pursue the wife on the ground that the parents of the husband are fully dependent upon him and ultimately he did not agree to such proposition. Hence, differences of opinion stood in their relation.
However, on 26th June, 1996 a child was born out of their wed-log.
The wife and her mother used to threaten the petitioner that they will entangle the husband and his family members for a false criminal case and will harass them. Ultimately on 17th November, 1996 the wife voluntarily and willfully left the house of the husband along with the child and with her all belongings.
On number of occasions the respondent tried to bring her back at his residence at Baidyabati but wife refused on number of occasions along with her mother and used harsh languages. The letter of the Advocate was also addressed to the wife which was replied by her lawyer on 24th November, 1997 when she categorically refused to stay with the husband. The husband and wife resided together till 17th November, 1996 at Baidyabati. Hence, the suit has been filed by the husband alleging that the aforesaid conduct by the wife amounted to cruelty.
The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent/appellant herein may be summarized as follows :
The wife categorically stated that she and her mother deemed and considered it to be derogatory to their prestige and family status, if the petitioner claims to live there as "Gharjamai". Moreover, at the wife's paternal house there is only one habitable living room where the wife's widow mother lives. Therefore, it is stated that the entire story made by the husband are false. 3
It is further stated that actually the case of desertion is not by the wife but by the husband himself. It is stated that the real fact is that it is the husband who took his wife and their son from Baidyabati to Calcutta, kept them at petitioner's mother-in-law's house and passed that night in that house and on the next morning fled away from that house deserting his wife and son. Inspite of request the husband never came again to take back his wife and son. The allegation of mental and physical cruelty was denied by the wife. On the contrary, it is stated that large dowry presentations like Colour T.V., V.C.P., Box Tape Recorder, Mixy, Cot, Bedding, Dressing Table, Dining Table, Almirah, gold button, ring and one Wrist Watch etc. were sent to the house of the husband's father at Baidyabati.
It is further stated that the parents and married sister of the husband caused mental and physical torture upon the respondent at her in-law's house. They used to abuse her mother in filthy language. The allegations have also been made that during the respondent's pregnancy the members of the husband's family did not take full medical care for her. On the other hand, they sent the wife to her paternal's house and her mother had to spend Rs.13000/- for delivering the child after cesarean operation in a Nursing Home.
It is further stated that the respondent's mother had to take steps when the baby of the couple was suffering from pneumonia and she had to spend Rs.11,000/-. The husband used to send only Rs.200/- for their maintenance.
The following issues were raised in the said suit :
1. Is the suit maintainable in its present form and prayer?
2. Has the respondent-wife inflicted mental torture upon the petitioner-
husband as alleged?
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3. Has the respondent-wife willfully withdrawn herself from the society of the petitioner-husband and deserted him as alleged?
4. Is the petitioner-husband entitled to get a decree of divorce against the respondent-wife as prayed for?
5. What other relief or reliefs is the petitioner entitled to?
6. Has this Court of Jurisdiction to try this suit?
At the time of hearing the husband Sri Kisholay Gupta, Smt. Sumita Gupta, Smt. Swapna Gupta and Sri Asit Kumar Sengupta appeared and deposed on behalf of the husband. The wife and her mother Susama Gupta also deposed denying the claim of the plaintiff/respondent herein before the learned Trial Court.
The learned Trial Court after analyzing the adduced evidence came to the conclusion that the act of the wife amounted to cruelty. It is specifically dealt with the learned Trial Court which is reproduced hereunder :
"It has reflected in the evidence on record that the respondent/wife instigated her husband to live separately with his parents. Being the only son of his parents, who are dependant upon him, the proposal of the respondent/wife was not acceptable to him. The evidence further divulges that the respondent/wife instigated him to live separately or to live as a domesticated son-in-law in her father's house. Inability to keep the request/demand of separate living or living as a domesticated son-in-law no doubt create pressure upon the husband which is also an act of cruelty".
From the counsellor's report the Court also came to the conclusion that Exbt. 1 the above cited report clearly transpires that the respondent/wife ill-treated to one Manashi Dutta, counsellor at the time of counselling the problem. This itself supports the contention of the P.W. 1/husband that the behaviour of the respondent/wife was rude and cruel-some. We find much substance in the argument of the learned lawyer of the petitioner that if the respondent/wife can behave in such a aggressive and insulting manner with Manashi Dutta, who is an unknown to 5 the respondent/wife or not related with the husband, it is easy for her to treat with the husband and his inmates with cruelty.
It appears from the evidence on record that parties have been residing separately from 17th November, 1996 for about 8 (eight) years at the time of decree was passed and by passage of time they are residing almost 14 (fourteen) years separately. The Court also came to the conclusion after analyzing the evidence that the husband/petitioner tried to take her back several times and sending Advocate's letter requested her to come back and to stay with him. But all those were in vain.
On the basis of such fact and the evidence, the Court came to the conclusion that the husband/petitioner the respondent herein, had succeeded in establishing the ground of cruelty and desertion against the respondent/wife. Hence, the Court passed the said decree.
The following decisions are cited at the Bar :
1. Manisha Tyagi v. Deepak Kumar reported in AIR 2010 SC 1042;
2. Shobha Rani vs. Madhukar Reddi reported in (1988) 1 SCC 105;
3. V. Bhagat vs. D. Bhagat reported in (1994) 1 SCC 337 : (1994 AIR SCW
45);
4. Debal Kumar Bakshi vs. Bithi Bakshi @ Bhattacharya reported in 2010 (1) C.H.N. Page 1;
5. Sri Asit Baran Bhattacharya vs. Smt. Gouri Bhattacharya reported in C.L.J. 2008 (2) 313;
6. Naveen Kohli vs. Neelu Kohli reported in AIR 2006 SC 1675;
7. Sheldon v. Sheldon reported in 1966 (2) ALL ER 257 (CA) 6
8. Lachman Utamchand Kirpalani vs. Meena reported in AIR 1957 SC 176;
9. Gananth Pattnaik vs. State of Orissa, reported in 2000 (2) SCC 619;
10. Parveen Mehta vs. Inderjit Mehta reported in 2002 (5) SCC 706;
11. Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250;
12. Sandhya Rani vs. Kalyanram Narayanan reported in 1994 Supp 2 SCC 588;
13. Naveen Kohli Vs. Neelu Kohli (Supra);
14. Durga Prasanna Tripathy Vs. Arundhati Tripathy reported in 2005 (7) SCC 353;
We have noticed that the following decisions of the Hon'ble Supreme Court dealt with the concept of cruelty :
In the case of Manisha Tyagi v. Deepak Kumar (supra) the Hon'ble Supreme Court after considering a decision of the Supreme Court in the case of N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 : AIR 1975 SC 1534 wherein the concept of cruelty has been stated as under:-
"The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent."
After dealing with the said decision the Hon'ble Supreme Court in Manisha Tyagi's case (supra) held as follows:
"24. This is no longer the required standard. Now it would be sufficient ot show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a 7 reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."
In the case of Shobha Rani vs. Madhukar Reddi (surpa) wherein the Apex Court on the concept of cruelty has been stated as under :-
"The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature o f the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill- treatment."
In the case of V. Bhagat vs. D. Bhagat (supra), the Apex Court on the concept of mental cruelty observed by the Hon'ble Supreme Court as follows :-
"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not 8 possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
In the case of Debal Kumar Bakshi (supra), it appears in the said decision, the Hon'ble Division Bench of this High Court found that on the basis of the false complaint was made before the police officer against the husband and his octogenarian mother, a duty is cast upon the respondent and her brother to explain what was the allegation made against those persons particularly when they did not disclose the actual allegations leveled against the husband and his mother. The Court also found that baseless allegation has been made by the wife for which the husband and his mother called at the police station would amounts to mental cruelty.
It further appears that at the instance of the wife, the Nagarik Committee intervened in the matter and compelled the husband to pay a sum of Rs. 800/- a month exclusively to the wife. Such intervention was made by the Nagarik Committee on the allegation of the wife and subsequently they found that the allegations were baseless. The wife in her evidence deposed that she did not know one of the signatory Debraj Banerjee who is one of the members of the Nagarik Committee. Apart from that, the husband was compelled to write that his wife was innocent in the presence of huge members of the persons of the locality. From the facts it appears that when first respondent compelled to write such document at the instigation of the wife and the third instant of against the husband is when the wife deliberately made false allegation against him for 9 removal of her ornaments from the bank locker. On the basis of such instances the Court came to the conclusion that the aforesaid facts definitely constitutes cruelty with the meaning of section 13 of the Hindu Marriage Act and afford ground of divorce.
In the case of Sri Asit Baran Bhattacharya (supra) the Division Bench of this High Court held that unfounded allegation of unchastely against the other spouse, no doubt, amounts to cruelty and enables the wronged one to get decree for divorce.
In the case of Naveen Kohli (surpa) the Supreme Court held that the conduct complained of should be grave and weighty. The principle of law as had been laid down in the several decisions of the Supreme Court dealt in the decisions which are reproduced hereunder:-
"In the case of Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasin-khan, reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill- treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty".
"In the case of Shoba Rani v. Madhukar Reddi, reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must be begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, 10 is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouses. There may, however, be cases where the conduct complained of itself is band enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or willful ill- treatment.
In the case of Sheldon (supra) the Court went on to observe as under:-
"It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents.
Lord Denning said in Sheldon v. Sheldon [1966] 2 ALL ER 257 (CA) 'the categories of cruelty are not closed'. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavious, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty"
In the case of Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73 the Hon'ble Apex Court stated that mental cruelty is the conduct of other spouse which causes 11 mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and his to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.
In the case of Lachman Utamchand Kirpalani (supra) the Supreme Court held for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there for attracting the offence of desertion i.e. (1) the factum of separation and (2) The intention to bring cohabitation permanently to an end (animus deserendi) for holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference, that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expressing of intention, both anterior and subsequent to the actual acts of separation.
In the case of Gananth Pattnaik (supra) the Hon'ble Apex Court observed as follows:-
"The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behavious may amount to cruelty and harassment in a given case."
In the case of Parveen Mehta(supra) the 'cruelty' has been defined by the Supreme Court as under :-
"Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling writ one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a 12 matter of inference to be drawn from the facts and circumstances of the case. Feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to conduct of the other."
In the case of Chetan Dass(supra) the Hon'ble Supreme Court observed as follows:-
"Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to the governed by statute framed. Keeping in view such norms and charged social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of 'irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case."
In the case of Sandhya Rani(supra) the Supreme Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.
After analyzing the decisions cited before us the Supreme Court in Naveen Kohli Vs. Neelu Kohli (Supra) observed as follows: -
"66. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner-spouse cannot be 13 reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life.". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress,, to entitle the complaining-spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
67. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day to day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
68. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to be certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes 14 cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."
In the case of Durga Prasanna Tripathy (supra) the Hon'ble Supreme Court held as follows:-
"16. This is a most unfortunate case where both the parties could not carry on their marital ties beyond a period of 7 months of their marriage. The marriage between the parties took place on 5-3-1991 and it is the specific case of the appellant that the respondent deserted him on 22-10-1991 and never again returned to her matrimonial home. Today the position is that the parties have been living separately for almost 14 years which means that there is an irretrievable breakdown of marriage and that because of such breakdown of marriage, the marriage between the parties has been rendered a complete dead wood. Learned counsel for the appellant argued that no useful purpose will be served by keeping such a marriage alive on paper, which would only aggravate the agony of the parties. Therefore, we would pray that in the fitness of things and in the interest of justice, the marriage between the parties is forthwith terminated by a decree of divorce. We have perused the orders passed by the Family Court and also of the High Court. Both the Family Court as well as the High Court made efforts to bring about a reconciliation/rapprochement between the parties. The Family Court in this regard gave a clear finding that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the insistence of the respondent to remain separately from her in-laws. It was totally an impracticable solution.
21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant and the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does 15 not implicate the appellant for dowry harassment though the respondent6 in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27-3-1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him for more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies here stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an afterthought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce".
After hearing the learned counsel for the parties and after going through the materials on record we find that the learned Trial Judge has granted decree on the ground of cruelty and desertion. The point of desertion has been conceded before us by the learned counsel appearing 16 on behalf of the appellant. We find that the Court after considering the materials on record and after analyzing the evidence came to the conclusion that the husband has been able to prove his case. The Trial Court held that the evidence further reflects that the husband tried to take her back on several occasions but in vain. Hence, the learned Trial Court held that the petitioner has succeeded in establishing the ground of cruelty and desertion against the respondent. We do not have any doubt in our mind on the basis of the materials placed before us and we find from the evidence that the conduct on the part of wife comes within the meaning of cruelty as enumerated in the several decisions of the Court we have discussed hereinabove.
We, therefore, do not find any reason to disturb the aforesaid decree for divorce granted by the learned Trial Judge. The appeal is thus dismissed and we affirm the decree for divorce.
The question of permanent alimony if applied by the wife before the learned Trial Court that will be decided by the learned Trial Court after giving a chance of being heard to the husband.
Before we part we must state that we have also tried for reconciliation between the parties which has also failed.
There will be no order as to costs.
Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(PINAKI CHANDRA GHOSE, J.) I agree.
(SHUKLA KABIR (SINHA), J.) 17