Gauhati High Court
Sri Ghana Kanta Kataki vs Smti. Aruna Borah on 22 April, 2025
Page No.# 1/33
GAHC010097642019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Mat.App./22/2019
SRI GHANA KANTA KATAKI
S/O- LATE PADMA KANTA KATAKI, R/O- VILL.- PUTH KHATI SAIKIA
CHUBURI, P.O. AND P.S. DEKARGAON, MOUZA- HOLESWAR, DIST.-
SONITPUR.
VERSUS
SMTI. ARUNA BORAH
W/O- SRI GHANA KANTA KATAKI, R/O- USHA APARTMENT, FLAT NO. 3FE,
MURHATETELI, NEAR RUPAK HOTEL, P.O. AND P.S. TEZPUR, MOUZA-
BHAIRABPAD, DIST- SONITPUR, ASSAM.
Advocate for the appellant :- Mr. D.C.K. Hazarika.
Advocate for the respondent :- Mr. G. Choudhury.
Date of Hearing :- 03.04.2025.
Date of Judgment & Order :- 22.04.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGEMENT & ORDER (CAV)
Heard Mr. D.C.K. Hazarika, learned counsel for the appellant and Mr. G.
Page No.# 2/33
Choudhury, learned counsel for the respondent.
2. In this appeal, under Section 28 of the Hindu Marriage Act, 1955, the
appellant has put to challenge the correctness or otherwise of the Judgment
and Decree, dated 11.03.2019, passed by the learned Additional District Judge
(FTC), Sonitpur ('trial court', for short), in Title Suit (M) No. 47/2016.
3. It is to be noted here that vide impugned Judgment and Decree, dated
11.03.2019, the learned trial court had dismissed the suit filed by the present
appellant for dissolving his marriage with the respondent herein by way of a
decree of divorce.
Background Facts:-
4. The background facts, leading to filing of the present appeal, are adumbrated herein below:-
"The marriage between the appellant and respondent was solemnized on
05.05.1986, as per Hindu rites and rituals at Barthekerabari village of Howajan of Lakhimpur district, Assam. After the marriage, both of them lived together as husband and wife in the marital home till 1988 and out of their wedlock a female child was born on 21.04.1989.
After the birth of the daughter, marital discord surfaced between them and the respondent herein started behaving towards the appellant in a cruel and inhuman manner and shown her unwillingness to continue her conjugal life. She used to suspect on the character of the appellant and also compelled the appellant to follow her direction on each and every matter and also threatened him of committing suicide. The mental torture meted out to him had reached the culminating point in the year 1998 and thereby, compelled him to live separately from the respondent.
Page No.# 3/33 The respondent also lodged several false and baseless complaints with the police against the appellant, being GR Case No. 1143/1998, under Sections 494/498(A) of the IPC and GR Case No. 590/2000, under Sections 498(A)/323/506 of the IPC and in both the cases he was discharged on compromise. The respondent had used to take financial benefits from him, but, did not want to join in the conjugal life and also keep their daughter away from him.
Being left with no other options, he preferred a petition under Sections 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent herein and the same was registered as T.S.(D) No. 48/2002. Thereafter, the respondent contested said proceeding. In the meantime, the appellant was transferred to Allahabad and therefore, he had withdrawn the divorce proceeding, on being asked by the respondent to join the conjugal life on 22.05.2008.
Thereafter, in the year 2007, she shifted to her self-acquired residential flat at Usha Apartment with all the household goods such as TV set, Tape recorder, Almirah, Refrigerator, Inverter, Gas Stove, Furniture, etc. Even after withdrawal of the aforesaid divorce suit, the respondent instead of living in the matrimonial home continued to live in her self- acquired residential flat at Usha Apartment.
Thereafter, the respondent though not lived with the appellant, there are many instances of enjoying the matrimonial life by the respondent by condoning the unintentional act of the appellant, which amounts to cruelty as she pleaded by filing her written statement in the earlier divorce proceeding. The appellant was in his service at Allahabad till the year 2010, and at that time his daughter was pursuing her studies in Assam Page No.# 4/33 Engineering College, Guwahati under the financial assistance of the appellant.
After returning from Allahabad in the year 2010, the appellant joined as Branch Manager of UCO Bank, at Helem Branch, Sonitpur and thereafter, at Rangapara Branch and he used to attend his office by staying in rented houses at Helem and Rangapara. And despite his request, the respondent refused to join the conjugal life with him. During that period, on few occasions, he had gone to the residential flat of the respondent and she even didn't allow his daughter to talk with him and used to caution her not to come in front of him. In that way, he suffered mental torture. But, with a hope for better future he continued with the same.
Thereafter, in the year 2012, he retired from his service. Thereafter, he booked a new residential flat at Nameri Housing Complex, Block-A situated at Mission Chariali, Sonitpur. However, since 2015, the respondent herein had stopped all communication with the appellant and let him suffer physically, economically and mentally and she also derived the retirement benefit of him. It is also stated that she was serving as Associate Professor of THB College, Jumuguri Hat and she has been drawing more than Rs.1,25,000/ and she had acquired residential flat at Usha Apartment and residential plot at Mission Chariali and Kusumtala, Jamuguri Hat and she captured all the bank balance of the appellant and since 2015, she has been neglecting the appellant with some false and baseless allegation and refusing to keep any matrimonial relationship with the respondent and now he attains 64 years of age and suffering from various deceases and undergoing treatment for the same since 2010 and Page No.# 5/33 there is no one in the house to look after him since 2012 and despite his request, she refused to join the matrimonial home. Thereafter, the appellant lodged one FIR with Tezpur Police Station on 12.01.2015, on the basis of which police registered one GD Entry No. 567, dated 12.01.2015.
It is the pleaded case of the appellant that except money she has no interest with him and thereafter, he had sent one notice to her on 20.04.2015, to join the matrimonial home. Thereafter, she clearly refused to continue her conjugal life with the appellant. And he is suffering from difficulties of his eye and undergone surgery of the same and now he is facing hardship with only Rs. 28,000/- as pension.
Being left with no other option, he instituted the Title Suit (M) 47/2016, before the learned Additional District Judge, FTC, Sonitpur. The respondent herein on receipt of notice entered appearance and contested the suit by filing a written statement stating that the petition is not maintainable and it is barred by principle of res-judicata and there is no cause of action and there is deliberate suppression and concealment of the fact and that the appellant himself started living separately from the respondent as he had a love affair with a lady, namely, Chenimai Borah of village - Chutiam, under Jamugurihat P.S. and she is the elder sister of Smti Abanti Borah, who was being kept in their house to take care of the minor daughter and because of the said illegal affair, on several occasions the appellant picked up quarrel with her and also she was physically assaulted by him.
Thereafter, on 11.06.1997, the appellant had returned back to the company of the respondent by giving assurance in writing before the then Superintendent of Police, Sonitpur, Tezpur that he will not repeat such Page No.# 6/33 offence in future and the GR cases were compromised in terms and conditions made in the compromise petition dated 21.07.2001, signed by both of them.
But, the appellant has deliberately failed to comply with the said terms and conditions and after he was discharged, he married to Smti. Chenimai Borah at Kamakhya Temple, Guwahati on 11.03.1998, during the subsistence of his marriage with the respondent and a male baby was also born to them on 04.02.1999, at Jamugurihat, out of illegal and void marriage wedlock between the petitioner and his second/illegal wife Smti. Chenimai Borah.
Though the appellant herein filed one divorce petition, he voluntarily withdrawn the same and thereafter, the respondent herein shifted to Usha Apartment, Murhateteli with her minor daughter on 23.01.2007. It is also stated that while the divorce proceeding, No. TS(D) No. 48/2002, was pending before the learned trial court, as the electricity line of the residential house of the respondent at Dekargaon was disconnected by the appellant herein just before few days before HSLC Examination of her daughter.
After, withdrawal of the divorce proceeding on 22.05.2008, the appellant visited the Usha Apartment after 4 days from the date of withdrawal and stayed with her at night and used to do the same at least twice in a week. And that the allegation of taking the household goods including TV set, Tape recorder, Almirah, Refrigerator, Inverter, Gas Stove, and Furniture etc. are false and she has taken with her the only properties, which she acquired by herself.
Page No.# 7/33 It is the pleaded case of the respondent that bringing such type of allegation by the appellant against her is nothing but to obtain a decree of divorce on false ground of 'cruelty' and 'desertion', as he has been pressurized by his second wife Smti. Chenimai Borah and his illegitimate son, Sri Pranjal Kataki, who had passed the Higher Secondary Final Examination in Arts in the year 2016. And he tried to mislead the court with false, baseless and concocted grounds so that he can spend his conjugal life with his second wife and his illegitimate son.
It is also stated that as she used to attend her college from her residence at Usha Apartment and she has to go to her college at about 07:30 a.m. and arrives at her flat in between 05:00 p.m. to 06:00 p.m. every day. Therefore, the fact of absence at the residence of the respondent may be correct and that the bank balance of her in SBI, Mission Chariali Branch is Rs. 3819/- only.
Further pleaded case of the respondent is that she never refused to conjugal life with the appellant and in her reply to the notice sent through her Advocate Smti. Mitali Kalita, dated 21.05.2015. And perhaps, the appellant had not gone through the said reply properly, for which he had not elaborately responds about the contents made in the said reply.
Further case of the respondent is that the appellant also used to send messages to her to the effect that he has love and affection towards her. And the appellant herein had failed to prove the ground of 'cruelty' and 'desertion' which are not satisfactory, genuine and also believable."
Therefore, it is contended to allow the appeal by setting aside the Judgment and Decree dated 11.03.2019, passed by the learned Additional Page No.# 8/33 District Judge (FTC), Sonitpur ('trial court', for short), in Title Suit (M) No. 47/2016."
5. Upon the aforesaid pleadings, the learned trial court had framed following issues :-
a) Whether there is any cause of action for the suit?
b) Whether the respondent, after solemnization of marriage, treated the petitioner with cruelty?
c) Whether the respondent deserted the petitioner on many occasion, without any reasonable excuses? and
d) To what relief/ reliefs the parties are entitled?
5.1. Thereafter, hearing learned counsel for both the parties, the learned trial court had decided the issue No. (a) in affirmative and discussed both the issue Nos. (b) & (c) together and decided the same in negative against the appellant herein and in respect of issue No. (d), the learned trial court had directed the appellant to pay a sum of Rs. 5,000/- being the cost of the proceeding to the respondent herein.
Grounds:-
6. Being aggrieved, the appellant herein preferred this appeal on the following grounds:-
(i) That, the learned trial court had committed grave error in dismissing the suit and it has taken into consideration the statement recorded under Section 164 of the Cr.P.C. in the G.R. Case, which was marked as Exhibit No. A(i), which was later on compromised by the parties in the year 2001;
(ii) That, the learned trial court had failed to take into consideration the Page No.# 9/33 pleadings of the parties and the evidence on records in its true perspective and from the same it is evident that the respondent has deserted the appellant for a continuous period of more than two years immediately preceding the date of presentation of the petition seeking divorce which is a good ground covered under Section 13(1) (i-b) of the Hindu Marriage Act, 1955;
(iii) That the learned trial court has misconceived the facts asserted by the appellant, which shows that the respondent had humiliated him in every sphere of life causing mental cruelty;
(iv) That, the learned trial court has also failed to consider the evidence of PW-3 in its proper perspective;
(v) That, the learned trial court has failed to consider the deposition of the appellant, which demonstrate that the respondent had not given concern for the public image of the appellant on many occasions by putting him in a situation of embarrassment leading to humiliation which is a good ground for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955;
(vi) That, the learned trial court had failed to consider the fact that the respondent herein, having deserted the appellant had caused mental cruelty to him;
(vii) That, the learned trial court has failed to consider the fact that due to conduct of the respondent it has become impossible for the appellant to continue with the marital life, more so when they were in an unhappy relationship from the very beginning of their married life; and Page No.# 10/33
(viii) That, the learned trial court ought to have allowed the petition on the ground of Section 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 and therefore, it is contended to set it aside by allowing the present appeal.
Submissions:-
7. Mr. Hazarika, learned counsel for the appellant submits that out of the four issues, the learned trial court had decided issue No. (a) in affirmative, but, the learned trial court had failed to consider the fact that prior to 2015, the respondent herein had deserted the appellant and the same has been clearly stated in the paragraph Nos. 21 & 22 and that there is no cohabitation between the parties and both are residing separately and the husband resides in his paternal home and the wife is residing at Murhateteli in Usha Apartment. Mr. Hazarika further submits that the appellant herein had issued one legal notice to the respondent and in her reply the respondent denied in no un-certain terms that she will not live with the appellant and thus, the appellant has succeeded in establishing the factum of 'desertion' by the respondent.
7.1. Mr. Hazarika also submits that the appellant has also succeeded in establishing 'metal cruelty' subjected to him by the respondent herein, from various conduct of the respondent. Mr. Hazarika further submits that the trial court had relied upon the statement of the respondent, so recorded under Section 164 of the Cr.P.C. which is not at all permissible and under such circumstances, the impugned judgment and decree is liable to be set aside.
7.2. Mr. Hazarika has referred following case laws in support of his submission :-
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(i) Bipin Chandra Jaisinghbai Shah vs. Prabhavati, reported in AIR 1957 Supreme Court 176 and
(ii) Savitry Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73.
8. On the other hand, Mr. Choudhury, learned counsel for the respondent, has supported the impugned judgment and decree, so passed by the learned trial court. Mr. Choudhury further submits that the learned trial court, in paragraph No. 12 of the judgment had rightly relied upon the statement of the respondent recorded under Section 164 of the Cr.P.C. Mr. Choudhury also submits that the appellant has failed to prove his case and he himself used to reside separately and that he has a second wife and also one son out of said illegal wedlock and under such circumstances, it is not possible for the respondent to live with the appellant. Mr. Choudhury further submits that the allegation of desertion and cruelty are totally false and on such count, he has contended to uphold the impugned judgment and decree.
8.1. Mr. Choudhury has also referred following case laws in support of his submission:-
(i) Devender Govind Ram Ravin vs. Rekha, in MAT.APP. (F.C.) No. 146/2019.
Discussion and Finding:-
9. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal as well as the grounds mentioned therein and also perused the impugned judgment and decree, dated 11.03.2019, passed by the learned trial Court, in Title Suit (M) No. 47/2016, and Page No.# 12/33 also gone through the case laws referred by learned counsel for the parties.
10. It appears that the appellant had filed the divorce proceeding under Sections 13(1)(i-a) & 13(1)(i-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent. Section 13(1)(i-a) deals with 'cruelty' which is a ground for divorce under the Hindu Marriage Act. And Section 13 (1) (i-b) deals with 'desertion' which is one of the grounds for dissolution of marriage.
11. Before a discussion is directed into the points so raised by learned Advocates of both sides, this Court deemed it necessary to understand the purport and meaning of 'desertion' and 'cruelty' so as to decide the issues raised in this appeal with greater precision.
11.1. While dealing with the issue of 'desertion' in the case of Lachman vs. Meena AIR, reported in 196 SC 40, Hon'ble Supreme Court has interpreted that 'desertion' in its very essence means the intentional permanent abandonment by one spouse or the other without that other's consent and without reasonable or just cause or justification. It was also held to include willful neglect of one of the parties towards the other in a marriage. This, therefore, means that one of the parties, who intentionally ignores and willfully does not take care of the other party or neglects to fulfill the needs of the other party being fully aware of the fact that such neglect would prove to be negative for that other party is termed to have committed desertion. Further, the Explanation so appended, makes it clear that the burden of proof of the fact of desertion lies on the petitioner, that is, the petitioner has to prove that the respondent is guilty of desertion. For proving of desertion the Courts insist upon corroborative evidence which although is not a rule of law absolutely but still unless the absence of Page No.# 13/33 such evidence is accounted to for the Court's satisfaction the court prefers production of such corroborative evidence.
11.2. In the case of Savitri Pandey vs. Prem Chandra Pandey, reported in 14 (2002) 2 SCC 73, Hon'ble Supreme Court has elaborated and shed light on the concept of desertion in the following words.
"Desertion in order to seek divorce under the Act means the deliberate permanent forsaking and abandonment by one spouse of the other without that other's consent and without reasonable and just reason. In other words, it is an absolute repudiation of the obligations of marriage; it is not the withdrawal from a place, but from a state of things. Desertion cannot be made out by a single act but, it is a continuous course of conduct."
11.3. Again Hon'ble Supreme Court, in the case of Smt. Rohini Kumari vs. Narendra Singh, reported in MANU/SC/0484/1971, while discussing the ground of 'desertion' for judicial separation has held as under:-
"...The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of "constructive desertion" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be Page No.# 14/33 that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who, with the same intention compels his wife by his conduct to leave him.
In Lachman Utamchand Kirpalani vs. Meena alias Mota, this court had occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to the earlier decision in Bipin Chander Jaisinghbhai Shah vs. Prabhawati, in which all the English decisions as also the statement contained in authoritative text books were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e.(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:
'In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to be regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule Page No.# 15/33 of law that desertion terminates by reason of the conduct of the deserted spouse.'"
12. It is also to be noted here that while dealing with 'cruelty' as a ground for divorce, Hon'ble Supreme Court in the case of Shobha Rani vs. Madhukar Reddi, reported in (1988) 1 SCC 105, held as under :
"Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and 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 the Court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of 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."
xxx xxx xxx
8. Human emotions do not run on dotted lines. Every person has a different level of tolerance and sensitivity and certain allegations of cruelty levelled by one spouse may cause mental cruelty to his/her spouse and the same very allegations in some other case may not be considered of that magnitude to cause cruelty of such Page No.# 16/33 nature. Each case is dependent upon various factors; social, economic, family background, upbringing, education, etc. However, one thing which can be considered universal in all situations is that no spouse can tolerate his/her spouse having illicit relations or extra marital relations."
12.1. In the case of Naveen Kohli vs. Neelu Kohli, reported in (2006) 4 SCC 558, Hon'ble Supreme Court has held as under:-
"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 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 Page No.# 17/33 leading to constant disturbance of mental peace of the other party.
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."
12.2. In the case of Dr. (Mrs.) Malathi Ravi vs. Dr. B.V. Ravi, reported in (2014) 7 SCC 640, Hon'ble Supreme Court noted all the relevant cases which dealt with the issue of mental cruelty and observed as under :-
"29. Before we proceed to deal with the issue of mental cruelty, it is appropriate to state how the said concept has been viewed by this Court. In Vinita Saxena vs. Pankaj Pandit [(2006) 3 SCC 778], while dealing with the issue of mental cruelty, the Court held as follows:-
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31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
xxx xxx xxx
35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
30. In Samar Ghosh vs. Jaya Ghosh, [(2007) 4 SCC 511] this Court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Court itself has observed that they are illustrative and not exhaustive. We think it appropriate to Page No.# 19/33 reproduce some of the illustrations: (SCC pp. 546-47, para 101)
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
xxx xxx xxx
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
xxx xxx xxx
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The Page No.# 20/33 ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
xxx xxx xxx
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
31. In the said case the Court has also observed thus:
Samar Ghosh case [(2007) 4 SCC 511]
99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
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100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances....
32. In Vishwanath Agrawal vs. Sarla Vishwanath Agrawal (2012) 7 SCC 288, while dealing with mental cruelty, it has been opined thus:
22. The expression "cruelty has an inseparable nexus with human conduct ‟ or human behavior. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
33. In the said case, analyzing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows:
54. ... In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty.
Page No.# 22/33 Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicized in the newspapers that he was a womanizer and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.
34. In U. Sree vs. U. Srinivas, reported in (2013) 2 SCC 114 , the Court, taking note of the deposition of the husband that the wife had consistently ill-treated him inasmuch as she had shown her immense dislike towards his "sadhna" in music and had exhibited total indifference to him, observed as follows:
23. ... It has graphically been demonstrated that she had not shown the slightest concern for the public image of her husband on many an occasion by putting him in a situation of embarrassment leading to humiliation. She has made wild allegations about the conspiracy in the family of her husband to get him remarried for the greed of dowry and there is no iota of evidence on record to substantiate the same. This, in fact, is an aspersion not only on the character of the husband but also a maladroit effort to malign the reputation of the family.
35. In K. Srinivas Rao vs. D.A. Deepa, reported in [(2013) 5 SCC 226, while dealing with the instances of mental cruelty, the Court opined that to the illustrations given in Samar Ghosh [(2007) 4 SCC 511] certain other illustrations could be added. We think it seemly to reproduce the observations:
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16. ... Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
13. Thus, having understood the meaning and import of words 'desertion' and 'cruelty' now an endeavour will be made to whether the appellant herein succeeded in establishing the two elements i.e. absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end.
13.1. It is a fact that the respondent herein is living in Usha Apartment and the appellant herein is living at Dekargaon with his second wife, namely Smti Chenimai Borah, and admittedly, he has one son from the said wed-lock, namely, Sri Pranjal Kataki who passed the Higher Secondary Final Examination in Arts in the year 2016, the factum of which is not disputed by the appellant herein, rather he admitted the same. Under such circumstances, it cannot be expected from a woman, having self esteem, to live with her husband who has a second wife living with him, as held by Hon'ble Supreme Court in the case of Shobha Rani(supra) that one thing which can be considered universal in all situations is that no spouse can tolerate his/her spouse having illicit relations or extra marital relations.
13.2. The respondent herein living separately at Usha Apartment, Murhateteli, Page No.# 24/33 Tezpur. She has been serving as Associate Professor in THB College, Jamugurihat. Admittedly, the appellant herein used to visit the Usha Apartment off and on. Mr. Chaudhury, the learned counsel for the appellant submits that the respondent herein has no animus deserendi to bring the cohabitation to an end. Further, Mr. Chaudhury submits that on the day of hearing also the appellant was hospitalized on account of his illness and he is being looked after by the respondent. The conduct of the respondent, thus, totally negates the contention of the appellant with regards to absolute repudiation of the obligations of marriage by the respondent. Notably, this submission of Mr. Chaudhury is not controverted by the learned counsel for the appellant. Thus, from the conduct of the respondent, it cannot be inferred that she has the animus deserendi to bring the cohabitation permanently to an end.
13.3. Mr. Choudhury also submits if anything is there then the appellant himself is responsible for the same. Without reasonable and just reason it cannot be expected from a women of Indian setting, to leave the matrimonial home. An Associate Professor of a College cannot be expected to live with her husband who has a second wife with him and also has children from said wed-lock.
13.4. Though, a contention is being made by learned counsel for the appellant that the respondent in her reply to the notice of the learned counsel for the appellant, namely, Smti. Kabita Sharma, dated 20.04.2015, yet such contention is categorically denied by the respondent that she never refused to conjugal life with the appellant in her reply to the notice sent by Advocate, Smti. Mitali Kalita.
13.5. Thus, the appellant herein has failed to establish that there is absence of consent and absence of conduct reasonably causing the respondent to form his or her intention to bring cohabitation to an end.
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14. That, in respect of the ground of 'cruelty', the record of the learned trial court reveals that allegation is being leveled that after the birth of the daughter, marital discord, between the appellant and respondent had surfaced and the respondent herein started behaving towards the appellant in a cruel and inhuman manner. It is also being alleged that the respondent had shown her unwillingness to continue conjugal life with the appellant. Further, it appears that she used to suspect the character of the appellant and also compelled the appellant to follow her direction on each and every matter and she even threatened to committing suicide.
14.1. It is also stated that he was subjected to mental torture and in the year 1998, the same was so intensified that thereby he was compelled to live separately from the respondent. It is also being alleged that the respondent had lodged several false and baseless complaints with the police against the appellant, being GR Case No. 1143/1998, under Sections 494/498(A) of the IPC and GR Case No. 590/2000, under Sections 498(A)/323/506 of the IPC and in both the cases he was discharged on compromise. She also used to take financial benefits from him, but, did not want to join in the conjugal life and also keep their daughter away from him. And this compelled him to file a divorce proceeding being T.S.(D) No. 48/2002, under Sections 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955, but, he had withdrawn the divorce proceeding, on being asked by the respondent to join the conjugal life on 22.05.2008.
14.2. Allegation is also being made that in the year 2007, the respondent had shifted to her self-acquired residential flat at Usha Apartment with all the household goods such as TV set, Tape recorder, Almirah, Refrigerator, Inverter, Gas Stove, and Furniture etc. and even after withdrawal of the aforesaid divorce suit, the respondent instead had continued to live in her self-acquired residential Page No.# 26/33 flat at Usha Apartment.
14.3. Further, the allegations leveled in her written statement in the earlier proceeding, amounts to cruelty, inspite of presence of many instances of enjoying the matrimonial life by the respondent by condoning the unintentional act of the appellant. His daughter had pursued studies at Assam Engineering College, Guwahati with his financial assistance, but she was not allowed to meet him and she was being told by the respondent that he would rape her if she went to meet him. In that way, he was subjected to mental torture.
14.4. It is also being alleged that he was transferred to Allahabad in the year 2008 and he returned from there in the year 2010 and joined as Branch Manager of UCO Bank, at Helem Branch, Sonitpur and thereafter, at Rangapara Branch and he used to attend his office by staying in rented houses at Helem and Rangapara. And despite his request, the respondent refused to join the conjugal life with him. Further allegation is that in the year 2012, he retired from his service and since 2015, the respondent herein had stopped all communication with the appellant and let him suffer physically, economically and mentally and she also derived the retirement benefit of him and she had captured his plot of land at Kusumtala, Jamuguri Hat and captured all the bank balance and since 2015, she has been neglecting the appellant with some false and baseless allegation and refusing to keep any matrimonial relationship with the respondent.
14.5. Further, allegations are being leveled that now he attains 64 years and he is suffering from various ailments and undergoing treatment for the same since 2010, and there is none in his house to look after him since 2012 and despite his request, the respondent had refused to join conjugal life. It is also being alleged that except money the respondent has no interest with him and Page No.# 27/33 though he had sent one notice to her on 20.04.2015, to join the conjugal life, she clearly refused the same. He is suffering from difficulties of his eye and undergone surgery of the same and with his meager amount of pension @ Rs. 28,000/- per month, he is facing hardship.
14.6. There is no doubt that as held in the case of K. Srinivas Rao (supra) making unfounded, indecent defamatory allegations against the spouse in the pleadings, filing of repeated false complaints amount to causing 'mental cruelty' to the other spouse. But, in the case in hand there was no scope for ascertaining the veracity of the allegations made in the GR Case No. 1143/1998, under Sections 494/498(A) of the IPC and GR Case No. 590/2000, under Sections 498(A)/323/506 of the IPC, lodged by the respondent against the appellant as the same were disposed of on compromise. On such count, it cannot be said that the cases were false and mala-fide.
14.7. Further, in respect of the allegation that his daughter was being told by the respondent that he would rape her if she goes to meet him, yet, to establish such a contention, the appellant had not examined his daughter as witness. Therefore, such allegations remained unfounded.
14.8. Again taking all the household goods such as TV set, Tape recorder, Almirah, Refrigerator, Inverter, Gas Stove, and Furniture etc. to the residential flat at Usha Apartment by the respondent herein also could not be established in view of the categorical contention of the respondent that the said articles were of self acquired property of her.
14.9. As discussed in the foregoing para, there is no evidence to suggest that the respondent had shown her unwillingness to continue conjugal life with the appellant. The appellant, who is hospitalized on account of ailment, is being Page No.# 28/33 looked after by the respondent in hospital. And if anyone is to be blamed for living the respondent separately, then it is the appellant, who, by his own conduct got married for the second time with one Smti. Chenimai Borah and giving birth of a child namely, Sri Pranjal Kataki.
14.10. It is well settled that amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. And the same has to be determined on whole facts of the case and the matrimonial relations between the spouses. It is also well settled that 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 reasonably expected to live with the other spouse. It must be something more serious than 'ordinary wear and tear of married life'. There must be sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
14.11. In the case in hand the conduct of the respondent, so complained of, is not of such nature, so as to term the same as 'grave and weighty'. Rather, the same at best can be termed as ordinary wear and tear of married life. Under the given facts and circumstances, the acts complained of by the appellant here in, cannot be termed as 'cruelty' of such standard so as to satisfy the requirement of Section 13(1) (i-b) of the Hindu Marriage Act.
15. A careful perusal of the impugned judgment and decree, dated 11.03.2019, reveals that the learned trial court had dealt with the issue Nos. (b) and (c), by Page No.# 29/33 relying upon the decision of this Court in the case of Anju Saha vs. Gobinda Saha, reported in 2014 (4) GLT 25, where it was held that the fact of 'cruelty' are to be inferred from the chain of facts presented by the petitioner by pleadings and oral evidences and the petitioner alleged that the respondent used to threaten him to commit suicide and the respondent stopped her daughter to go near him by alleging that he will commit rape upon her and that the respondent pretending to lead a normal married life, grabbed all the retirement benefits of the petitioner and that the respondent also do not allow him to go to the house where she resides and always refer to the alleged relationship of the petitioner with Smti Chenimai Borah, though the criminal cases were compromised long back.
15.1. The learned trial court had also considered the evidence of PW-4, the builder, from whom the petitioner/appellant and the respondent has booked a flat, whose evidence reveals that the flat was booked in the name of Ghana Kanta Kataki and Smti Aruna Borah and Rs. 4,00,000/- was paid on 10.02.2015, for the same. PW-4 had exhibited the money receipt as Exhibit No. 4 and he had issued the certificate on 07.05.2015, as per request of the petitioner/appellant.
15.2. The learned trial court had also held that the petitioner/appellant himself in cross-examination had admitted that Smti Chenimai Borah is his wife and her child is his and it is necessary to consider all those materials on record as to why the present suit for divorce has been filed and the respondent had stated that the flat at Usha Apartment, Mission Chariali was small and therefore, they agreed to purchase a bigger flat and the petitioner/appellant proposed to sell the house of Dekargaon and she never asked the appellant not to come to her residence and from the documents (Exhibit No. 4) it would presume that till Page No.# 30/33 the date of 10th February, 2015 both the appellant and the respondent were meeting and deposited part of money in respect of booking of a new flat.
15.3. Thereafter, the learned trial Court went on to observe that the appellant herein had sent a legal notice to the respondent on 20.04.2015, (Exhibit No.
23), and that what had happened between 10.02.2015 to 20.04.2015, is to be looked into. The learned trial court further held that the fact of retaining passport by the respondent found no mention in Exhibit No. 23 and thereafter, the petitioner had mentioned what happened between the petitioner and the respondent from 10.02.2015 to 20.04.2015.
15.4. Thereafter, the learned trial Court has held that the cruelty meted out to the appellant are mental cruelty and the same has been argued by the counsel for the petitioner/appellant and the respondent at all-time refers to the relationship of the petitioner/appellant with Chenimai Borah. But, the respondent failed to prove the same and that the respondent in her written statement said that in the reply to the Advocate notice, she never refused the conjugal life between her and the appellant and the respondent also stated that the second wife of the appellant has been pressurizing him so that the marriage with the respondent is severed. And as the legal notice and the suit is a sudden development for the respondent, it is possible that she will refer to the erstwhile developments took place between them and that the second marriage and giving birth to a son by the second wife of the appellant are admitted fact and naturally, a legally married wife will refer to these facts, when out of a sudden she is entangled with a legal proceeding.
15.5. The learned trial Court further went on to observe that the appellant in cross-examination admitted that he sometime goes to Usha Apartment and Page No.# 31/33 whenever he visit he finds the respondent therein and after his retirement he used to visit his wife, during daytime, afternoon and sometime he used to stay there. And while he was undergoing treatment in Tezpur Medical College Hospital, from 17.11.2015 to 25.02.2016, there the name of the respondent is mentioned as guardian of him and the presence of the respondent during treatment of him does not reflect any conduct on the part of the respondent and the same cannot cause in the mind of him a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.
15.6. Further, the learned trial Court had observed that PW2 has also testified that since last two years, both the petitioner/appellant and the respondent meeting each other. Thereafter, the learned trial Court had arrived at the finding that there is no evidence to show that immediately preceding of presentation of the petition, the petitioner was deserted by the respondent for a period of not less than two years. Thereafter, decided both the issues in negative against the petitioner.
16. Having examined the finding, so arrived at by the learned trial court and also considering the evidence adduced by five witnesses, so examined by the appellant herein and also the evidence of the respondent, this Court is of the view that the learned trial court has not committed any illegality or infirmity in arriving at the finding of the issue Nos. (b) and (c).
17. Thus, having considered the submissions of learned counsel for both the parties, in the light of the pleadings of the parties and the evidence brought on record, this Court is of the view that the submissions, so advanced by Mr. Hazarika, learned counsel for the appellant could not mandate acceptance of this Court, as because the required condition for establishing the factum of desertion i.e. separation and intention or animus do desert could not be proved Page No.# 32/33 by the appellant herein because he himself admitted having visited the Usha Apartment, where the respondent has been living.
18. Under such facts and circumstances, the learned trial court has rightly arrived at the finding that the appellant herein could not establish the factum of 'desertion' and also 'mental cruelty'. Though Mr. Hazarika, the learned counsel for the appellant submits that the appellant has succeeded in establishing the 'desertion' and also 'mental cruelty' yet, in view of the facts and circumstances on the record and also in view of the evidence so brought on record, this Court is unable to accord concurrence to the same.
19. It is well settled in the case of Ram Prasad vs. State of Maharastra, reported in (1999) 5 SCC 30, that any statement recorded by the Judicial Magistrate under Section 164 Cr.P.C. can be relied upon for the purpose of either corroborating the testimonies made by a witness under Section 157 of the Evidence Act or contradicting a witness as provided in Section 155 of the said Act. That being so, no fault can be found with the learned trial court in relying upon the statement recorded under Section 164 Cr.P.C. in the criminal case lodged by the respondent against appellant, to lend corroboration to her evidence during trial.
20. It is to be noted here that as held by Hon'ble Supreme Court in the case of Arun Kumar Yadav vs. State of Uttar Pradesh, reported in (2013) 14 SCC 127, that it is always open to the court to examine whether the person seeking divorce "is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief." On such examination if it is so found that the person is taking advantage of his or her own wrong or disability it is open to the court to refuse to grant relief.
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21. I have carefully gone through the decisions referred by Mr. Hazarika, learned counsel for the appellant in Bipin Chandra Jaisinghbai Shah (supra) and in view of the discussion and finding recorded herein above, this Court is of the view that the said decisions would not come into his aid rather the same strengthened the case of the respondent. It was held that in a suit for divorce on the ground of 'desertion' the burden is on the plaintiff to prove that the deserting spouse has been in desertion throughout the statutory period.
22. I have also gone through the decisions referred by Mr. Choudhury, learned counsel for the respondent and I find that the same has supported the submission so advanced by him. However, in view of the discussion and finding recorded herein above, this Court is of the view that details discussion of the aforesaid decisions is not necessary.
23. In the result, I find no merit in this appeal and therefore, the same stands dismissed. The parties have to bear their own costs.
JUDGE Comparing Assistant