Calcutta High Court
Sukhendu Bikash Chatterjee vs Smt. Anjali Chatterjee on 21 September, 1995
Equivalent citations: (1995)2CALLT464(HC), I(1996)DMC388
JUDGMENT S.K. Mookherjee, J.
1. The present appeal is at the instance of the husband and is directed against a judgment and decree of dismissal passed by the learned Assistant District Judge, 2nd Court, Howrah, on 15th April, 1988, in Matrimonial Suit No. 16 of 1985.
2. The husband brought the suit for divorce, in the alternative, for judicial separation under Special Marriage Act, on the grounds of wife's cruelty and desertion. The marriage between the parties took place on 20th March, 1978, and, out of the wedlock, a female child was born on 11th June, 1979. There was previously another suit by the husband, which had been dismissed for default on 27th June, 1981 and the present suit was filed on 6th of February, 1985. The desertion allegedly started with effect from 12th of June, 1981. The alleged acts of cruelty consist of mental pressure by wife for extraction of money from the husband and physical and mental pressure by refusing to give proper food to the husband, refusing to perform marital obligations and causing assaults of the husband by the wife's brother; in addition there were allegations of undesirable mixing of the wife with outsiders and hurling abuses with filthy language even within office precincts.
3. The defence, on behalf of the wife, was however, a total denial of all the allegations of the husband with further assertion that the refusal by the husband's elderly step-brother to accommodate him in his house compels the couple, since after the marriage, to live in different rented premises. The desertion according to wife, also was made by the husband on the date as alleged in the plaint and the previous suit allowed to be dismissed for default was motivated to enable the husband to avoid marital liabilities.
4. The learned Trial Judge, upon consideration of the oral and documentary evidence, came to the conclusion that in registering marriage neither any fraud was practised nor any force was exerted, the acts of physical cruelty either by offering of deleterious food by the wife to the husband with consequent illness of the husband or of abuse by the wife in the office premises were against the trend of evidence, the Trial Court also found that there was no convincing evidence about the wife's mixing with undesirable persons.
5. Before this Court Mr. Sarojesh Mukherjee learned Senior Advocate, appearing for the appellant, had placed greater emphasis on the irretrievable breaking down of the matrimonial home and prayed for grant of a decree for divorce. Mr. Ashoke Banerjee, appearing on behalf of the wife, however, argued that there was no material before the Court so as to sustain the above submission of the appellant, on the contrary, according to Mr. Banerjee, the evidence even of the plaintiff's witnesses unequivocally showed that the marriage itself was neither opposed nor could be said to be the result of coercion or fraud; even the allegation of the husband that he was prevented from taking consent of his elder brother to the marriage cannot stand scrutiny in view of the relationship of the husband with his elderly step-brother and the admitted conduct of the parties posterior to the marriage.
6. Upon consideration of the materials on record, both oral and documentary, the reasonings of the learned Trial Judge and the principle as laid down by the Apex Court of our country as regards grant of a decree on the ground of irretrievable breaking up of the matrimonial home in the case of V. Bhagat v. Mrs. D. Bhagat , we are of the view that the findings of the learned Trial Judge, on which the dismissal of the suit is based, do not call for any interference. We fully affirm the reasonings of the learned Trial Judge and we hold further that in the case referred to above it was clearly laid down that the ground of irretrievable breaking of the matrimonial home can be taken recourse to only in exceptional case and the instant case cannot be said to be such an exceptional case. The allegations of the husband not having been established apart from the same being of very feeble nature and speculative. The wife's willingness to go back to the matrimonial home could not be shown to be mala fide or lacking bona fides. In such a situation we are not prepared to grant any decree on the ground of irretrievable breaking up of the matrimonial home.
7. The appeal, therefore, must fail and is dismissed with costs, assessed at 30 g.m.s.
A prayer for stay is made, on behalf of the appellant, and the same is refused as, in our view, the same is not called for.
R. Bhattacharyya, J.
I agree.