Calcutta High Court
Barnali Sen vs Debasish Sen on 9 October, 2001
Equivalent citations: (2002)1CALLT21(HC), 2002(1)CHN526, I(2002)DMC579
Author: A. Kabir
Bench: Altamas Kabir
JUDGMENT A. Kabir, J.
1. The respondent husband filed an application before the learned District Judge, Alipore, South 24 Parganas, under Section 13(1)(1a) of the Hindu Marriage Act, 1955, for dissolution of his marriage with the appellant herein and the same was numbered as Matrimonial Suit No. 1022 of 1996. The suit was subsequently renumbered as Matrimonial Suit No. 55 of 1996 and was heard by the learned Additional District Judge, 7th Court, Alipore, who by his Judgment and decree dated 21st June, 2000, allowed the suit on contest and passed a decree of divorce dissolving the marriage between the parties.
2. The present appeal has been filed by the defendant wife against the said Judgment and decree of the trial Court.
3. The case as made out in the plaint is that the respondent was married to the appellant according to Hindu rites on 11th February, 1985. After the marriage, the parties initially resided at 2B Bhim Ghosh Lane, Calcutta -700 006, and, thereafter, shifted to a rented house at 6/2D, Umakanta Sen Lane, P.S. Chitpore, Calcutta-700 040. A girl child, Debapriya, was born to the couple on 5th July, 1988.
4. It was also the case of the respondent that his sister's daughter was staying with the family of the appellant to enable her to prosecute her studies at the Baghbazar Multipurpose School as it was difficult for her to attend school from her parents' residence at Kanchrapara. The appellant resented the said arrangement and ill-treated the respondent's said niece and behaved badly with her. From the very beginning of the marriage, the appellant also appeared to be indifferent towards the respondent and his widowed, mother, sister and niece and was not conscious of her duties as a dutiful wife and daughter-in-law. After her marriage the appellant frequently visited her parents' home and neglected her family in her matrimonial home and took little Interest in house-hold affairs. She did not care to assist the respondent's mother and sister in running the affairs of the family and even after the birth of her daughter, she often went out leaving the child, who was barely six months old at that time, at home.
5. It is also the plaint case that the appellant used to mix with boys of ill repute in the locality and whenever the respondent protested the appellant would flare up and say that she was not a maid servant in the family and she required some form of recreation in life. The appellant subsequently developed an unusual intimacy with a young man named Burki Saha of Umakanta Sen Lane and the respondent came to learn from friends, neighbours and relations about the appellant's deep attachment with the said Burki Saha. The appellant stayed out till even 9 to 10 p.m. and was seen with Burkl Saha in restaurants, cinema halls and at Dum Dum New Market. Northern Avenue and other places. The respondent and his family members were put to great embarrassment and had to suffer social disrepute. The respondent tried his best to persuade the appellant to give up her wayward way of life in order to prevent social scandal, but he failed to make any impression on her. Things reached such a state that in the first week of October, 1992, some of Burkl Saha's family members came to the house of the respondent and complained that the appellant was spoiling Burkl and threatened to take steps against the appellant unless she stopped seeing Burki. Such complaint and threats in the presence of several neighbours caused great embarrassment to the respondent and his family members but the appellant refused to mend her ways and ultimately on 20th October, 1992, she left her matrimonial home with her daughter and belongings and began to stay with her mother.
6. Unable to face local scandal and filthy remarks from the local boys and neighbours, the respondent shifted to his unfinished flat at 23/C, Wards Institution Street in January, 1994, and although the appellant had left her matrimonial home, he used to regularly send money to the appellant for her maintenance and the maintenance of their daughter.
7. In January, 1994, the parents of the appellant came and met the respondent and asked him to forgive the appellant and to give her a chance to mend her ways and to live the life of a decent and dutiful wife. Without condoning the past behaviour of the appellant, the respondent agreed to give the appellant a chance to mend her ways and parents of the appellant accordingly brought her to the respondent's new flat at 23/C, Wards Institution Street on or about 26th January, 1994.
8. The appellant, however, did not change her ways and within a short time picked up acquaintance with another young man named Biswajit Dutta of 63, Asutosh Mukherjee Road, Calcutta-700025, having a small business known as "Friends Stores" at Bhawanipore. The respondent came to learn that she developed an intimacy with the said Biswajit Dutta during her regular routine of bringing their daughter from school. It is the specific case of the respondent that the appellant was found in Biswajit's company in various places. Inspite of his best efforts the respondent could not make the appellant change her life style. The appellant went out every afternoon and came back late at night so that the respondent was deprived of her company when he returned from office and the daughter was neglected and was also deprived of her mother's attention.
9. All these acts of the appellant caused server mental affliction to the respondent, but things came to a head when in July, 1995, the appellant allegedly tried to suffocate the respondent with a pillow. In order to avoid humiliation, the respondent did not tell anybody about such incident nor did he lodge any complaint with the police.
10. Ultimately, on or about 5th August, 1995, the appellant left her matrimonial home without her daughter who was subsequently taken away by the appellant's father in March, 1996. There was no cohabitation between the respondent and the appellant since August, 1995.
11. In view of the said acts of cruelty on the part of the appellant, which was not condoned by the respondent, the respondent filed the application for dissolution of his marriage tie with the appellant and for custody of their minor daughter, Debapriya Sen.
12. The appellant entered appearance in the suit and contested the same by filing her written statement wherein she denied the case as made out in the plaint. According to the appellant, soon after her marriage she was subjected to both physical and mental torture and after her first conception she had a miscarriage for which she had to undergo an abortion.
13. According to the appellant, she tried to maintain a cordial relationship with all the members of the respondent's family, but on one pretext or the other, the respondent would pick up a quarrel with the appellant on the basis of false and baseless allegations. The appellant never did anything to lower the prestige of the respondent and was always ready and willing to live with the respondent as a dutiful wife.
14. According to the appellant, on 20th August, 1995, the appellant came to her father's house for undergoing a hysterectomy operation which was performed by one Dr. Paresh Sen who had been recommended by the respondent. The appellant returned home on 3rd September, 1995, and after prolonged treatment she left for the appellant's flat at Wards Institution Street along with her daughter. The respondent, however, became furious and on the next day took her and left her at her brother's house at Jodhpur Park along with her daughter then aged about four years. As the respondent did not come to take her back, she went back to her parents' home and began to reside there with her daughter.
15. According to the appellant, she tried to settle the matter with the help of family members and friends, but the respondent remained adamant and decided to the the suit for divorce for reasons best known to him.
16. The appellant denied having developed intimacy with any of the persons named in the respondent's application and her relationship with persons of the locality was purely on a neighbourly basis and nothing more. She never had any bad intention and all the allegations made against her were false and fabricated.
17. It was appellant's specific case that she cohabited with the respondent till 19th August, 1995, but that after her hysterectomy operation she became physically handicapped and was unable to satisfy her husband physically which was one of the main reasons why he fabricated stories in order to get rid of her. It was prayed by her that the suit filed by the respondent be dismissed.
18. On such pleadings the learned Trial Court framed the following Issues for deciding the suit, namely,
1. Is the matrimonial suit maintainable both on the point of fact and law ?
2. Has the petitioner any cause of action to file the suit ?
3. Is the respondent guilty of acts and conduct which amount to mental and physical cruelty upon the petitioner ?
4. Was the respondent guilty of adultery ?
5. Did the respondent desert her husband more than two years back prior to the presentation of plaint ?
6. Is the petitioner entitled to a decree of divorce as prayed for 7
7. To what other relief or, reliefs, if any, is the petitioner entitled ?
19. The respondent examined himself and three other witnesses to prove the plaint case; while the appellant examined herself and one Dr. Paresh Nath Sen, who had operated on her, in her defence.
20. In his examination in chief the respondent reiterated the plaint case that the appellant led an immoral life and while residing at her matrimonial house at Umakanta Sen Lane she became intimate with one Burki Saha and he even saw her with the said Burki Saha at a restaurant named Nandini at the crossing of Northern Avenue and Raja Menindra Road. On another occasion he claimed to have seen them coming out from Netra Cinema Hall near Dum Dum Market at about 9 p.m. On other occasions he claimed to have been the appellant and Burki Saha coming out from Northern Avenue Park and in a rickshaw near Dum Dum New Market.
21. The respondent also deposed about Burki Sana's family members coming to his house in the month of October, 1992, and complaining of the appellants relationship with Burki Saha, causing severe humiliation and embarrassment to the respondent and the other members of his family and particularly his widowed mother.
22. The respondent also deposed about the manner in which the appellant neglected him and their daughter and did not take any interest in household affair and the manner in which she became involved with one Biswajit Dutta after she was brought back by her parents to the respondent's flat at 23C, Wards Institution Street, Calcutta - 700006. He categorically mentioned that he had personally seen them together at Shyamal Resteurant and had also received information from friends and colleagues that the appellant was going around with Biswajit Dutta to cinema halls and restaurants.
23. The respondent stated that the appellant left his house on 5th August, 1995, and he had not cohabited with the appellant after the month of August, 1995, and he did not condone her conduct.
24. The respondent's evidence in his examination-in chief remained unshaken in cross-examination.
25. One Gayaram Patra was examined as P.W.2. He claimed to be an visiting terms with the respondent and his family members and he deposed that he had seen the appellant coming out of Nandini Restaurant with a young man on several occasions. In cross-examination he stated that he could identity Burki Saha but he also stated that he was not in a position to specify the dates on which he saw the appellant and Burki Saha in the aforesaid restaurant.
26. P.W. 3 is one Biswanath Sarkar who claimed to be a college friend of the respondent. He also claimed to be on visiting terms with the respondent and his family members and claimed to have seen the appellant with Biswajlt Dutta near Hazra Coffee House (near Basusree Cinema) and also entering the said cinema hall.
27. P.W.4 is the respondent's mother and she deposed of the manner in which the appellant took no interest in domestic affairs and stayed out of the house till late at night. She even deposed about the appellant's acquaintance with Burki Saha. She spoke of the manner in which Burki Saha's mother and sister came to their house and threatened her because of the appellant's intimacy with Burki Saha and the way she and her family members would be teased and humiliated by the local people who spoke ill of the appellant. P.W. 4 reiterated the respondent's case that the appellant did not alter her ways even after they shifted to their new flat at Manicktala.
28. In cross-examination she indicated that relations between the respondent and the appellant were not happy and that she had no sympathy for the appellant. She admitted that she had not visited the nursing home when the appellant gave birth to her daughter arid that she had not also visited the appellant when she underwent operation on two occasions. In her cross-examination she also stated that neighbours and Burki Saha's family members came to her and cautioned her of the alppellant's intimacy with Burki Saha. She also mentioned that on several occasions she saw the appellant throwing letters to some person outside the house.
29. In her evidence the appellant denied all the allegations made by the respondent and his witnesses. She stated that after her marriage, which was a negotiated marriage, to the respondent, she was brought by the respondent to premises No. 2. Bhim Ghosh Lane, Calcutta-700 006, where she, her husband and her mother-in-law resided. After about two years they shifted to 6/2D, Umakanta Sen Lane, Palkpara. Thereafter, after about another two years her sister-in-law (nanad) and her daughter came to stay at aforesaid premises. The appellant stated that her sister-
in-law got her daughter admitted in a school and started living in their house permanently in joint mess with the appellant and her family members.
30. The appellant stated that many local people used to came the house to meet the respondent in connection with Calcutta Corporation matters. She categorically stated that she did not know Burki Saha nor did she have any acquaintance with the local people who came to see the respondent. The appellant denied that she had any love affair with any person named Burki Saha.
31. The appellant also deposed that Dr. Paresh Nath Sen was her gynaecologist and she had given birth to her daughter in his nursing home on 5th July, 1988.
32. According to the appellant, she had cordial relations with the respondent and his family members and was always willing to go back to the respondent. However, after the appellant conceived for the third time, she developed certain gynaecological problems and had to undergo two operations and since then the respondent became less attracted to her. The appellant stated that after her operation she had frequent bleeding and pain and she was unable to satisfy the respondent's sexual demand and this is when the trouble began. The appellant stated that after the hysterectomy was performed on her by Dr. Sen she spent several days in his nursing home but no one came to visit her from her in laws' house. The appellant stated that the aforesaid operation changed her normal life and as she was thereafter unable to satisfy the respondent's sexual desires, he filed the suit for dissolution of marriage on the basis of false and fabricated stories.
33. The appellant categorically denied having knowledge of Biswajit Dutta also.
34. In cross-examination, the appellant mentioned that her medical problems started in 1991 and since then trouble cropped up between the respondent and herself. She stated that she last had intercourse with the respondent in 1995.
35. D.W.2, Dr. Paresh Nath Sen, deposed that he had medically terminated the appellant's pregnancy on one occasion because of continuous miscarriages and an appendicities operation was also performed on the appellant soon thereafter. He also stated that he had delivered the appellant's daughter by a Caesarean operation in 1988. He also stated that the appellant had come to him in 1994 complaining of pain in her abdomen and bleeding.
36. On consideration of the evidence adduced by the parties the learned trial Court, upon holding that in a matrimonial suit cruelty was not required to be proved to the hilt but that the preponderance of probability was sufficient to prove the existence of cruelty, decreed the suit and passed a decree of divorce in favour of the respondent herein. The question of custody of the daughter was left for decision in the event a separate application was filed by either of the parties in that regard.
37. As indicated hereinbefore, this appeal is directed against the said judgment and decree dated 21st June, 2000, passed by the learned Additional District Judge, 7th Court, Alipore, decreeing the suit and dissolving the marriage tie between the parties.
38. Appearing for the appellant, Mr. Narayan Chahdra Ghosh, learned advocate, submitted that all the allegations in the plaint were false and had been fabricated by the plaintiff/respondent for making out a case of cruelty for the purpose of obtaining a decree of divorce. Mr. Ghosh submitted that the appellant neither knew nor had any acquaintance with anyone either by the name of Burki Saha or by the name of Biswajit Dutta. Mr. Ghosh urged that the very nature of the allegations would indicate that they had been fabricated as they were all vague and without specifics. Apart from making vague allegations regarding the appellant's alleged intimacy with Burki Saha, and, thereafter, Biswajit Dutta, no dates had been mentioned and the source of information was also kept indefinite. Office colleagues referred to as such source of information have not been examined, nor were persons who are alleged to have made phone calls examined on behalf of the respondent. The evidence of P.Ws. 2 and 3 would show that they had been tutored and had come to depose on behalf of the respondent to help him as a friend.
39. Mr. Ghosh submitted that the main reason for the suit was the appellant's inability to satisfy the respondent's sexual appetite after her series of miscarriages and operations, ending with the removal of her uterus, which left her weak and in constant pain. Mr. Ghosh submitted that the very fact that according to the respondent the appellant did not have sexual intercourse with him after the month of August, 1995, indicated that she had intercourse with him till the month of August, 1995, which indicated that the respondent had. In any event, condoned any thing that the appellant may have done prior to the month of August, 1995, when she is said to have left her matrimonial home.
40. In support of his submissions Mr. Ghosh referred to the judgment of the Hon'ble Supreme Court in R. Balasubramanian v. Vijayalakshmi Balasubramanian, reported in AIR 1999 SC 2070, which was also a suit for divorce under Section 13(1-a) of the Hindu Marriage Act, 1955. In the said case the husband had brought the suit for divorce on the ground of cruelty, alleging that the respondent wife had after her marriage behaved in an erratic fashion and had even threatened to commit suicide. The husband further alleged that the wife had sexual intercourse with other people and that at the time of celebration of their tenth wedding anniversary he was surprised to learn about his wife's third pregnancy.
41. Upon holding that the very fact that the parties had celebrated their tenth anniversary together showed that both were living together and the husband had condoned the cruelty of the wife, the Hon'ble Supreme Court upheld the decision of the High Court rejecting the appellant's prayer for divorce.
42. Reference was also made to a single Bench decision of the Allahabad High Court in the case of Sadan Singh v. Resham, , wherein a similar view was expressed and it was held that in respect of the allegations made by the wife of an illicit relationship between her husband and his sister-in-law, such allegation must be deemed to have been condoned by subsequent cohabitation.
43. Mr. Ghosh then referred to a single Bench decision of the Himachal Pradesh High Court in the case of Parvati v. Shiv Ram, , wherein it, was observed that pleadings in regard to desertion and cruelly have to be specific in nature as indicated in Rule 5 of the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. It was also observed that a heavy burden lies upon the petitioner who seeks divorce on the ground of desertion. The offence of desertion must be proved beyond any reasonable doubt. It was observed that the same principle would also apply when acts of cruelty were alleged.
44. Mr. Ghosh lastly referred to a Bench decision of the Himachal Pradesh High Court in the case of Madhu Sood v. Anil Kumar Sood, , wherein a decree for dissolution of marriage on the petition filed by the husband was refused on the ground that the evidence showed that the wife was prepared to live with her husband in her matrimonial home and that all her efforts to reconcile the matter failed from the side of her husband. It was also observed that there was nothing to show that the marriage was dead both emotionally and practically.
45. Mr. Ghosh also referred to a passage from Deoki Nandan's "Hindu Law--Marriage and Divorce" where the learned author referred to the celebrated Judgment of the Hon'ble Supreme Court in the case of N. G. Dastane v. S. Dastane, , wherein it was, inter alia, observed by Chandrachud J. speaking for the Court, that condonation means forgiveness of the matrimonial offence and the restoration of the offending spouse to the same position as he/she occupied before the offence was committed. To constitute condonation there must be, therefor, two things: Forgiveness and Restoration ............ Cruelty generally does not consist of a isolated act but consists of in most cases of a series of acts spread over a period of time. Evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.
46. Mr. Ghosh urged that it was on record that the parties had cohabited till the month of August, 1995, when the appellant went to her parents' house for the purpose of her hysterectomy operation, which clearly indicated that all the allegations made by the respondent prior to such date had, in any event, been duly condoned by the respondent husband. Mr, Ghosh submitted that the learned Court below had misconstrued the law in relation to the facts disclosed and had erroneously decreed the suit in favour of the respondent husband.
47. Appearing for the respondent husband, Mr. Shyama Prasanna Roychowdhury, learned Advocate, submitted that the learned trial Court had rightly decreed the suit on the basis of the evidence on record. Mr. Roychowdhury urged that proof of adultery or Illicit relationship could very seldom be established by direct evidence and that.iti such matters the Court will have to take into consideration the circumstances disclosed in the evidence which were available to the party who was alleged to have committed marital deception. Mr. Roychowdhury submitted that the evidence showed that the appellant had developed an unusual intimacy firstly with one, Burki Saha, and, thereafter, with one, Biswajtt Dutta. Mr. Roychowdhury urged that the two incidents had taken place at two different places at two different points of time, which lent substances to the respondent's case of marital infidelity on the part of the appellant. In support of his aforesaid submissions, Mr. Roychowdhury also referred to the case of Dr. N.G. Dastane (supra) which had been referred to on behalf of the appellant, wherein the Supreme Court, held that the belief regarding the existence of a fact may be found on a balance of probabilities. Proof beyond reasonable doubt is proof by higher standard which generally governs criminal trials or trials involving enquiry into Issues of quasi-criminal nature. A criminal trial Involves the liberty of the subject which may not be taken away on a preponderance of probabilities. The Hon'ble Supreme Court, however, observed further that it would be wrong to impose such considerations in trials of a purely civil nature,
48. Mr. Roychowdhury submitted that in the aforesaid case the question of condonation had also been gone into and it was observed that in order to constitute condonation one would have to consider two aspects of the matter involving forgiveness and restoration. Mr. Roychowdhury submitted that in the instant case neither of the said two factors were available to the appellant since the respondent had not condoned the wayward behaviour of the appellant and had made repeated attempts to bring about some kind of normalcy in the marital relationship between him and the appellant.
49. Mr. Roychowdhury next referred to another decision of the Hon'ble Supreme Court in the case of V. Bhagat v. D. Bhagat, , wherein the expression "cruelty" was explained to mean that it must be of such nature that the parties could not be reasonably expected to live together, in the facts of the said case the Hon'ble Supreme Court dissolved the marriage on the ground of mental cruelty and in view of the irretrievable breakdown of the marriage in the peculiar circumstances of the case.
50. The next case referred to by Mr. Roychowdhury is that of the Hon'ble Supreme Court in Sneh Prabha v. Revinder Kumar , wherein in an appeal against an order confirming a decree of restitution of conjugal rights, the Court after efforts of conciliation had failed, granted a divorce on the ground that the marriage of the parties had broken down irretrievably and there were no chances of the respondent and wife living together.
51. Reference was also made to several decisions of this Court in (1) Ratnamayee Das v. Bikash Das (1991 CWN 871, (2) Sukhomoy Bag v. Jaya Bag [1996 (1) CHN 2101, (3) Archna Bag v. Madan Mohan Bag [2001(1) CHN 16] and 4) Santana Banerjee v. Sachindra Nath Banerjee [AIR 1990 Cal. 3671 wherein the aforesaid view were generally followed. In the last of the said four cases, a Division Bench of this Court observed that the law was well-settled that cohabitation at times and/or living together in an attempt to repair the fissures in the relationship of husband and wife by themselves may not amount to condonation. The offended spouse must accept the offending partner with a spirit of forgiveness and by wiping off the unpleasant memories, start the conjugal life as if on a clean slate.
52. Mr. Roychowdhury urged that from the evidence adduced on behalf of the respondent it was well-established that the appellant was not time true to her marital vows and she did not rectify herself despite concerted attempts on the respondent's part.
53. Mr. Roychowdhury urged that, although, no specific date may have been mentioned by the plaintiffs witnesses in relation to the allegations made with regard to the appellant's mixing with Burki Sana and Biswajit Dutta, the said evidence indicated that the appellant was moving around with the said two persons and was frequenting (sic) restaurants, cinema halls and other places in their company.
54. Mr. Roychowdhury submitted that it was Highly significant that none of the appellant's relations, including her parents and her brother, had come to depose in her favour or to deny the allegations made by the respondent.
65. Mr. Roychowdhury urged that applying the principles enunciated in Dr. N.G. Dastane's case (supra), and, inasmuch as the preponderance of possibilities lay heavily in favour of the respondent's case, the learned trial Court has rightly decreed the suit and no interference was at all called for by this Court in the instant case.
56. From the evidence adduced on behalf of the respective parties it is quite clear, as observed by the learned trial Court, that the appellant was not leading an unblemished life. Even if the evidence of P.Ws. 1, 2 and 3 is treated with circumspection, there is no reason to disbelieve P.W.4, an elderly lady, who quite candidly stated that at the time of her oral testimony she had no sympathy for her daughter-in-law. She too deposed of how Burki Saha's mother and sister came to her house and threatened her and other members of her family about the appellant's relationship with Burki Sana which compelled them to shift to the respondent's unfinished flat at Manicktala. She also stated that even after the family shifted to Manicktala from Paikpara, the appellant did not change her ways and continued to roam outside the house.
57. The evidence of P.W.4 completely supports the case of the respondent, and, on the other hand, it is highly significant that none of the appellant's family members came to depose or support the appellant's case. Such conduct is hardly expected from the family members of an Individual whose married life was at stake in the suit, unless they had wilfully chosen to stay aloof which casts a shadow over the simplistic defence taken on behalf of the appellant that the respondent had filed the suit for divorce as she was unable to satisfy his sexual appetite after her repeated operations, including removal of her uterus, which left her in continuous pain.
58. The general view adopted by the Supreme Court and the High Courts is that cruelty against a spouse must be specifically pleaded and such acts of cruelty should be discernible from the evidence adduced, the standard of proof being of a lesser degree than a criminal trial.
59. In our view, the preponderance of events which appears from the evidence adduced by the parties clearly supports the case of mental cruelty made on behalf of the respondent husband who appears to have been compelled to file the suit for divorce after a series of incidents where the marital fidelity of the appellant came to be questioned and the marital ties came under severe strain. In our view, the circumstances were sufficient to establish mental cruelty suffered by the respondent on account of the actions of the appellant.
60. During the hearing of the appeal, we had tried to bring about a reconciliation between the parties, but our attempts proved unsuccessful as although the appellant agreed to go back to her matrimonial home, the respondent was not agreeable and insisted that the decree of divorce granted by the trial Court should be allowed to remain.
61. Having regard to the view taken by us, we see no reason to interfere with the judgment and decree of the learned trial Court and the appeal is accordingly dismissed, but without any order as to costs.
All interim orders are vacated.
If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied expeditiously, subject to compliance with all the required formalities.
G.C. De, J.
62. I agree.