Calcutta High Court (Appellete Side)
Sri Samir Kumar Sadhukhan vs Smt. Anjana Sadhu Khan on 20 August, 2014
Author: Sudip Ahluwalia
Bench: Sudip Ahluwalia
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Tapan Kumar Dutt,
& The Hon'ble Justice Sudip Ahluwalia
F.A No. 227 of 2012
Sri Samir Kumar Sadhukhan
Vs.
Smt. Anjana Sadhu Khan
For the Appellant : Mr. S.K. Humayun Reza
For the Respondent : Mr. Gopal Chandra Ghosh
Heard On : 3.2.14, 6.2.14, 14.2.14, 28.2.14,
4.4.14, 3.2.14, 20.6.14
Judgment On : 20.8.14
Sudip Ahluwalia, J. :
1. This Appeal is directed against the Judgment passed by the Ld. Additional District Judge, 3rd Court, Barasat on 17.08.2012 in Matrimonial Suit No. 4 of 2006 of his Court.
2. Vide the impugned Judgment the Ld. Court below had dismissed the aforesaid suit being a Petition filed by the Appellant/husband under Section 13(1)(a) of the Hindu Marriage Act, in which he had prayed for dissolution of his marriage with the Respondent/wife on the grounds of alleged physical and mental cruelty. The appellant's case was that his marriage with the respondent was solemnized as per Hindu rites and customs on 24.01.1992, and was duly consummated. A male child, namely, Souvik was born out of the said Wedlock on 17.11.1994. But according to the petitioner, throughout the period between the dates of marriage and eventual separation of the parties almost 14 years later in November, 2004, the respondent wife misbehaved with him, and subjected him to mental as well as physical cruelty in various ways. It may be summed up that the Appellant/Petitioner claims to have been subjected to cruelty by the respondent wife who often refused to share bed with him whenever the parties resided together. But more often she used to leave her matrimonial house and stay in her parental house.
3. It is also alleged that the petitioner who is in Government Service was posted in various districts of West Bengal after his marriage, but the respondent wife for the major part of such outstation postings did not stay in her matrimonial house in those stations, and even otherwise refused to perform the usual house-hold chores whenever she did remain in any of her matrimonial houses. It is also alleged that after the respondent's father was detected as suffering from Cancer in 1998, she neglected to perform her matrimonial duties, but all the same made the Petitioner/husband to get engaged in her father's treatment.
4. Further according to the petitioner, he was also made to accompany her ailing father for treatment to Mumbai even though the respondent's own elder brother who is a well- placed and influential person did not render any helping hand for such treatment, but kept himself pre-occupied in a matrimonial dispute with his wife, and ultimately managed to have his marriage dissolved. Throughout this period, the respondent wife is also alleged to have remained on her brother's side and inflicted cruelty upon the Petitioner/ husband by misbehavior, refusal to live in her matrimonial house, as well as by willfully poisoning their minor son against his father, i.e, the petitioner.
5. The further case of the petitioner is that the respondent also suffered from "Compulsive Obsessive Disorder," which required constant medication and expensive treatment. But after her father's death, and only after dissolution of her brother's marriage with his own wife, she was made to return to her matrimonial house, since her brother then started considering her as an unnecessary burden upon himself. The respondent therefore shifted to her matrimonial house which at the relevant time happened to be in the Government Residential Estate at Salt Lake, Kolkata, after the petitioner had been transferred back to the city. But even after such return to her matrimonial house the respondent wife allegedly continued to misbehave with the petitioner, and subjected him to tremendous mental and physical cruelty again by refusing to share his bed, apart from frequently leaving her matrimonial house without any information, and refused to take her medicines for the "Compulsive Obsessive Disorder"
for which she had been undergoing expensive treatment, and instead insisted upon the Petitioner to take those medicines by claiming that it was he who suffered from some mental disease.
6. During this period on account of such erratic behaviour on the part of the respondent wife the petitioner even approached an NGO by the name of "SOPAN" for the purposes of resolution of the nagging problems in their matrimonial life. But here also due to the recalcitrant and non-co-operative attitude of the respondent, no gainful results could be achieved. Ultimately on 07.11.2004 according to the petitioner, he was physically manhandled by the respondent wife and their minor son, both of whom had all along had been forcibly extracting money from him, and again in pursuance of such monetary demand they assaulted him up in the middle of the night. Thereafter on the following day the petitioner left his aforesaid Official Quarters at Salt Lake and went back his ancestral home in village "Masat" after reporting the incident to the local Police Station.
7. He thereafter filed the Suit in the Ld. Court below praying for dissolution of his marriage after asserting that he did not condone the acts of cruelty allegedly committed by the respondent wife.
8. The respondent contested the suit by filing her Written Statement in which she denied all the material allegations made against her by the petitioner. She specifically denied that she had subjected him to any kind of mental or physical cruelty as claimed. On the other hand, the specific contention of the respondent/wife is that it was the petitioner himself who was to blame for the sorry state of affairs in their matrimonial life. Her further specific contention is that the petitioner is an extremely miserly person who never provided the bare minimum expenses to run the family in a healthy way. According to the respondent, the petitioner's concern all along used to be to only save money and calculate all the time how much amount he would ultimately have accumulated at the time of his retirement from service. A number of other allegations imputing various acts of cruelty on the part of the petitioner husband have been also made by the respondent in her Written Statement, and she has therefore prayed for dismissal of the Suit.
9. From the substance of the petitioner's allegations as mentioned above, it is clear that he filed the suit seeking dissolution of his marriage with the respondent by imputing various acts of physical and mental cruelty to her firstly to a large extent when she allegedly avoided residing in her matrimonial house for prolonged periods of time apart from refusing to share bed with the petitioner, and also by way of compelling the petitioner to abandon his own Official Flat and seek refuge elsewhere by way of manhandling him with the help of their minor son in the night of 07.11.2004.
10. Clearly, therefore, for deciding whether the petitioner is actually entitled to seek dissolution of his marriage or not, the moot question for careful scrutiny by the Court would be how far he was able to establish his allegations of cruelty against the respondent wife.
11. The Ld. Trial Court from its side however, did not frame any specific issues concerning the alleged acts of cruelty set out in the petitioner's application. On the other hand, Five (5) Issues of a rather general nature were framed in the suit, which are as follows:-
"1. Is the suit maintainable in its present form?
2. Has the petitioner any cause of action to file the suit?
3. Are the petitioner and the respondent legally married husband and wife?
4. Is the petitioner entitled to get decree as prayed for?
5. To what other relief or reliefs, if any, petitioner is entitled?
12. It is thus clear on a bare perusal of the aforesaid Issues that there was little endeavor to raise any specific question pertaining to the allegedly cruel acts imputed to the respondent wife, which actually ought to have been the material points to be carefully considered and determined in coming to the ultimate factual findings. In fact, the Issue no. 3 as framed by the Ld. Court above is out and out unnecessary and redundant since both the contesting parties themselves claim being legally married to each other. So, it is not clear what might have been in the mind of the Ld. Trial Court while framing a question whether the petitioner and respondent are legally married husband and wife. The Ld. Trial Court then proceeded with its trial after recording the evidence led on behalf of both sides.
13. It is further seen from the impugned Judgment that the first three (3) issues have been summarily decided in just Six to Seven sentences by holding that the Trial Court is of the opinion that the suit is Maintainable in his present form, and there is a cause of action to the file the same, while there is no dispute with regard to the Issue no. 3, on account of which all these issues were decided in favour of the petitioner.
14. The approach thus adopted by the Trial Court would therefore appear to be rather perfunctory at the outset. We nevertheless at this stage would prefer to consider the overall merits of the impugned Judgment by taking into account the rest of the observations and deductions contained therein.
15. After thus recording its brief findings in relation to the first three Issues, the Ld. Trial Court proceeded to consider the Issue no. 4 in detail after observing it as, "the most vital issue and the fate of the present suit is completely dependent on this issue".
16. To this end the Ld. Trial Judge has put on record somewhat detailed observations of the evidence adduced from both sides, firstly through the depositions of the Five (5) witnesses examined from the petitioner's side and then the remaining Two (2) from the respondent's side, besides those of the actual contesting parties, i.e., the petitioner Sri Samir Kumar Sadhu Khan, and the respondent wife Smt. Anjana Sadhu Khan themselves, who had deposed as PW 1 and DW 1 respectively.
17. It is however noteworthy that while considering the deposition of the Petitioner as PW1, the Ld. Trial Judge chose not to refer to any specific statement made by the petitioner husband himself in his Affidavit in chief, but instead proceeded to straight away consider the statements transpiring from his cross-examination. Of course some of the statements made by the other witnesses examined from the petitioner's side have found mention in discussing the Issue No. 4. Nevertheless, the omission to refer to the actual the positive statements of the petitioner as PW 1 in support of his case is surely somewhat unusual.
18. At any rate, the Ld. Trial Judge in the impugned Judgment summarized what he could gather from the material on record from the petitioners side as follows :-
"After hearing the Ld. Advocate for the petitioner the submissions on behalf of the petitioner based on the evidence by both the sides may be summarized as follows:
1. The allegation of taking dowry of gold ornaments and cash amounting to Rs. 50,000/- without proof is nothing but cruelty on husband.
2. From November, 2002 to January, 2004, the respondent refused to go to the Government flat for a single day which was situated just 2 k.m. away from father's house.
3. PW 4 stated during his cross examination that after filing of this suit the respondent went to office of the petitioner several times and created chaos which is nothing but extreme cruelly.
4. The petitioner accompanied the father of the respondent at the time of his treatment at Mumbai but denying such generous help at the crucial time accusing the petitioner of accepting money for such service is nothing but cruelty.
5. Leaving the house of the petitioner intentionally without performing the Shradh Ceremony of the elder brother of the petitioner is nothing but extreme cruelty.
6. Complaining about medical negligence without explaining the particulars of the disease suffered by the respondent is a false allegation.
7. Complaining about not having full belly meal and performing of domestic duty with inhuman torture by the inmates of the joint family of the petitioner is also a false allegation.
8. In the cross examination DW 1 admitted that she had received money after the absence of the petitioner from Falguni Abasan on 07.11.2005 but stated that she was left uncared. This proves her cruel mentality.
9. Long staying in parents' house without consent of husband is nothing but cruelty.
10. Several attempts by the respondent not to surrender the Govt. flat to the appropriate authority is nothing but an attempt to disturb the service career of the petitioner.
11. Admission of DW 2 taking house rent from the petitioner for his stay at the house of his father-in-law supports the case of the petitioner. Interference of mother and brother in the married life of the respondent also caused to the petitioner.
The other submission made by the Ld. Advocate for the petitioner are not taken into consideration since the same are not based on the material evidence on record.
The Ld. Advocate for the petitioner has relied upon a decision reported in AIR 1994 Andhra Pradesh 92 wherein it has been held that cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel.
Frequent desertion itself is sufficient to attract the provisions of the Hindu Marriage Act.
Ld. Advocate for the petitioner has also relied upon a decision reported in AIR 2001 Orissa 84 and submitted that he is not actually banking upon the doctrine of irretrievable break down of marriage but he is banking upon the present situation in the relationship of petitioner and respondent which is suffering from incompatibility and mismatching and there is no scope for resumption of their conjugal life."
19. Thereafter the Ld. Trial Judge likewise went on to summarize his observations regarding the respondent's case as follows:
"After hearing the Ld. Advocate for the respondent the submissions on behalf of the respondent may be summarized as follows:
1. The address of the respondent stated in the cause title is very much important. The said address is the address of the quarters of the petitioner and admittedly the respondent and their son were living there even at the time of institution of the present suit.
2. The statements made in paragraph 5 of the plaint shows the mind of petitioner. The fulfillment of minimum requirements of a wife stated in such a fashion, as the petitioner has rendered grace to the respondent by fulfilling such requirements.
3. The statements made in paragraph nos. 5 to 9 are false and self-contradictory.
4. The admission of the petitioner during his cross examination on 21.02.2009 that he did not send any money to the respondent and his son, shows how much miser the petitioner was.
5. The respondent was compelled to stay at her paternal house at Salt Lake for some considerable period due to her father's illness, her elder brother's helpless condition, proper care as well as treatment during pregnancy of the respondent and also for her son's treatment. Such compulsion to stay at her paternal house is not so serious which causes cruelty upon the petitioner.
6. Even if there was any cruelty caused by the respondent the same was condoned by the petitioner as it appears from the pleading of paragraph 15 of the petition wherein it is stated that the respondent came back to the petitioner on 18.01.2004
7. It appears from the pleading and evidence that the petitioner himself committed the wrong by ill-
treating the respondent and now he is taking advantage of the strained relationship between the petitioner and the respondent. A man cannot take advantage of his own wrong.
8. The enquiry made by the petitioner to know as to whether there was any examination of the son at the time of funeral ceremony of the elder brother of the petitioner, shows his suspicious mind.
9. The petitioner was/is all along reluctant not only about the care of the respondent but also about the care of his son who has been suffering from ophthalmic disease.
10. The conduct of the petitioner with regard to non- payment of electricity and telephone bill of the quarters of the petitioner and ultimately prayer for disconnection of the same to create deep trouble upon the respondent and his son is nothing but the glaring example of inhuman behavior of the petitioner.
20. Before proceeding to consider the final decision arrived at by the Ld. Trial Court on the basis of the evidence of all eyewitnesses including the contesting parties which came on record, it would be worthwhile considering the observations of the Trial Court in relation to the reliability the statements. As regards P.W. 2, the observation of the Ld. Trial Court is -
"In my opinion the evidence of PW 2 Sri Tapas Kumar Nandy being the husband of the sister of the respondent is not reliable........"
21. The Ld. Judge however while taking note of the gist of the statements given by PW 3 Dr. Dhananjoy Sadhukhan, an uncle of the petitioner, and PW 4 Sri Amit Kumar Dan, who happens to be the petitioner's colleague, has not recorded any observation whether favourable or otherwise regarding the reliability of these witnesses. Nevertheless, the Ld. Trial Judge has placed great reliance on the statements of the last two witnesses namely, PW 5 Rina Sadhukhan, who happens to be the wife of the petitioner's brother, and PW 6 Shivnarayan Mazumder, a resident of village Mashat who otherwise happens to be an acquaintance/neighbour of the petitioner. In the concluding portion of the impugned Judgment, the Ld. Trial Court has noted -
"The evidence on behalf of the petitioner, particularly the evidence of PW 5 and PW 6 are to be relied upon since the respondent could not produce any contrary evidence against the evidences of PW 5 and 6." (Paper Book - P.
178).
22. Elsewhere, the Ld. Trial Judge has separately noted-
"The statements made by the PW 5 could not be demolished by the respondent at the time of her cross-examination." (P. 166).
23. In relation to the statements of the respondent's supporting witnesses, the Ld. Trial Judge has similarly not made any observation regarding the reliability or otherwise of PW 2 Sri Goutam Garai's deposition. Of course, it has been noted that this witness happens to be the respondent's own elder brother. In relation to DW 3 Smt. Swapna Nandy who again is the own sister of the respondent, the Ld. Trial Judge has noted that she basically deposed to falsify the evidence of her own husband i.e., PW 2 Tapas Kumar Nandy who had earlier deposed to support the petitioner's case. In a nutshell therefore, it may be concluded that the Ld. Trial Judge was not inclined to place any great reliance on the depositions of those of the witnesses who are intimately related to the contesting parties, since they were considered to be rather interested witnesses, except in case of PW 5 in whose case the observation was that her statements could not be demolished by the respondent during her cross-examination.
24. We have already seen the summaries of certain facts which were noted by the Ld. Trial Judge from the stand point of both the contesting sides. At the same time however, the Ld. Trial Court has also explicitly refrained from making any observation regarding the petitioner's allegations that he observed after the beginning of 2004 that the respondent's mental condition had deteriorated very badly after which it was detected that she was suffering from "Compulsive Obsessive Disorder", which needed constant medication, and that after she was allegedly sent back to her matrimonial house by her brother when he considered that she had become a big burden due to the expensive medical treatment involved, that the respondent blatantly refused to take medicines and insisted that the petitioners take those medicines as according to her, it was he who was actually suffering from some mental disease. But these specific allegations as made in Paragraphs 16 and 17 of the original Application themselves do certainly indicate a clear case of inflicting mental cruelty upon the petitioner husband, in case the same were to be true.
25. The Ld. Trial Court however refrained from accepting these allegations of the petitioner by recording its observations as follows -
" ... Complaining about medical negligence without explaining the particulars of the disease suffered by the respondent is a false allegation"; and, " ... The other submissions of the Ld. Advocate for the respondent with regard to the allegation of "compulsive obsessive disorder" of the respondent and "Psychopathic disorder" of the petitioner are not taken into consideration since neither of the parties has brought proper evidence with regard to such allegations."
26. It would be interesting to note that the overall assessment of the Trial Court regarding the own alleged misconducts imputed to the petitioner himself is not very adverse. The Ld. Judge has categorically observed -
"The Only allegation established against the on the basis of his admission in cross examination, is that he was miser but the other allegations could not be proved by the respondent".
27. We may now take into account the detailed observations of the Ld. Trial Court in the last several paragraphs of the impugned Judgment, which go to reveal what conclusions the were arrived at, and why the Court was ultimatly inclined to dismiss the petitioner's claim. The relevant observations of the Trial Court happen to be -
"After hearing the Ld. Advocates for both the sides and after going through the materials on record it appears that there was lack of compatibility of both the parties from the initial stage of their marriage. The respondent was all along more interested with regard to the affairs of her paternal family but she was not interested to lead a happy conjugal life with the petitioner. It is very much natural that whenever a lady starts her married life, she should take at least some responsibilities with regard to her husband and her matrimonial home. In such situation any precondition, that the respondent should be released as and when there would be necessary in her paternal family, is very difficult to be maintained. In this present case it appears that the respondent was allowed to stay on all occasions as when her presence in her paternal house was required. The respondent fulfilled her duties thoroughly when her father was ill. On that occasion the petitioner himself advised her to attend her ailing father. Apart from that the petitioner himself accompanied his father-in-law at Bombay as there was no other relative to accompany the father of the respondent. It appears that the respondent fulfilled all her responsibilities with regard to her paternal family for a period of more than ten years from the date of her marriage. Even after the death of the father of the respondent and the solution of the matrimonial dispute of her elder brother, the respondent did not show any interest to live with the petitioner in spite of the fact that her husband was then settled at Salt Lake and her son was admitted in a school at Salt Lake.
The role of the family members of the respondent's paternal family is not very much appreciable. They were all along conscious about their own interest but they never thought that there would be every chance of severance of the relationship between the petitioner and the respondent if the respondent stayed most of the time at her paternal house and continuously involved in carrying out her duty as per the precondition at the time of marriage. Even as per advice of the 'SOPAN' also the respondent went to the quarters of the petitioner with her unwillingness.
The evidence on behalf of the petitioner, particularly the evidence of PW 5 and PW 6 are to be relied upon since the respondent could not produce any contrary evidence against the evidences of PW 5 and PW 6. In his evidence, DW 2 denied the facts of threatening stated by the PW 3. The DW 2 also denied the facts of avoiding any discussion with PW 4 with regard to matrimonial disputes between the petitioner and the respondent. The evidence of PW 3 and PW 4 are to some extent beyond pleading. The Ld. Advocate for the respondent submits that the evidence beyond pleading should not be taken into consideration in view of the decision reported in 2010 (1) ICC (Punjab & Haryana)
47. In my view through there are some deviations from the pleading in the evidence of PW 3 and PW 4 but the evidence on behalf of the petitioner, as a whole establishes a clear view the respondent all along neglected her conjugal life due to the precondition of her marriage to fulfill the necessity of her paternal family. Such act, no doubt, amounts to mental cruelty towards the petitioner. In this context the Ld. Advocate for the petitioner has relied upon the decision reported in AIR 1994 Andhra Pradesh
92. The respondent put several allegations against the petitioner in the written statement including some specific allegations that (i) the petitioner demanded money at the time of marriage, (ii) the petitioner took Rs. 10,000/- per week to accompany the ailing father of the respondent at Mumbai for his treatment, (iii) the petitioner stayed at the ground floor of the house of his father-in-law without any rent and (iv) the petitioner raised a claim to transfer the ground floor in his favour. The respondent could not prove any of such allegations. On the other hand, DW 2 admitted that he issued a rent receipt in favour of the petitioner. Such unfounded allegations cannot be treated as quibbles, trifling difference and quarrel. In my view the decision referred by the Ld. Advocate for the respondent reported in AIR 2007 Rajasthan 157 is not applicable in this present case. Those unfounded allegations against the petitioner caused mental cruelty towards him.
The only allegation established against the petitioner on the basis of his admission in cross examination, is that he was miser but the other allegations could not be proved by the respondent.
The Ld. Advocate for the respondent has submitted that in view of the decision reported in 2009(4) ICC (Cal) 80 the non-attendance by the respondent and the son in the funeral ceremony of the elder brother of the petitioner does not cause any mental cruelty towards the petitioner but in my view the same is not an isolated incident. The respondent was careful with regard to the prestige and dignity of her matrimonial home.
The ultimate submission of the Ld. Advocate for the respondent has a greater weight age. According to him, even if there was any sort of cruelty the same was condoned by the petitioners from the material evidence on record that the organization namely, 'SOPAN' took up the matter at the instance of petitioner and the respondent, in spite of her unwillingness, was somehow agreed to go with the petitioner. In this way the petitioner made his effort for bringing back the respondent to his quarters and the respondent returned on 24.11.2004. Such fact shows that he condoned the previous act of cruelty shown by the respondent. In this context the Ld. Advocate for the respondent has referred to the decision reported in AIR 2011 SC
114. In view of the aforesaid decision it can be observed that the petitioner condoned the earlier acts of the respondent and started living at his Salt Lake quarters. Thus there was no reason for any further commotion. There is no evidence that the respondent caused any further cruelty towards the petitioner in the Salt Lake quarters. In such situation, the sudden departure of the petitioner leaving also his ailing son has got no meaning. It is also unfortunate that the petitioner who became successful in bringing back his wife and son could not be successful in building up a happy family. Since there is no evidence in favour of the petitioner to establish that there was any sufficient reason of his sudden departure, the decision reported in 2009(4) ICC (Cal) 56 referred by the Ld. Advocate for the respondent is also applicable in this present case.
It is submission of the Ld. Advocate for the petitioner that due to a long term bitter relationship and due to lack compatibility and mismatching practically there is no chance for resumption of the conjugal life of the petitioner and the respondent. The Ld. Advocate for the respondent has submitted that such situation cannot be accepted as a ground of divorce. In this context the Ld. Advocate for the respondent refers to the decision reported in 2009(1) CHN
491. AIR 2001 SC 1709, AIR 2011 (SC) 1637 and 2011 (3) CWN (SC) 134. All those decisions speak that irretrievable break down of marriage cannot be accepted as a ground of divorce. In the facts and circumstances as stated above, the petitioner is not entitled to get a decree of divorce.
Accordingly, Issue No. 4 is decided against the petitioner."
28. It therefore becomes clear that first of all the Ld. Trial Judge after carefully considering the petitioner's evidence was over-all satisfied that the respondent had all along neglected her conjugal life to fulfil the necessities of her parental family which did amount to mental cruelty to the petitioner as is clear from the observations -
"In my view through there are some deviations from the pleading in the evidence of PW 3 and PW 4 but the evidence on behalf of the petitioner, as a whole establishes a clear view the respondent all along neglected her conjugal life due to the precondition of her marriage to fulfill the necessity of her paternal family. Such act, no doubt, amounts to mental cruelty towards the petitioner."
29. But in spite of being satisfied that the respondent wife with her conduct had all along inflicted mental cruelty upon the petitioner, the Trial Court was still inclined to dismiss the petition as in its view, the aforesaid acts of cruelty imputed found to have been committed by the respondent in the past stood condoned once the petitioner readmitted her into his matrimonial house. Thereafter according to the Ld. Trial Court the petitioner failed to lead any evidence whatsoever to support his claim that even after lastly returning to her matrimonial house the respondent inflicted physical or mental cruelty upon the petitioner. Our observations to this effect are support by the relevant extracts in the impugned judgment which are -
"In view of the aforesaid decision it can be observed that the petitioner condoned the earlier acts of the respondent and started living at this Salt Lake quarters. Thus there was no reason for any further commotion. There is no evidence that the respondent caused any further cruelty towards the petitioner in the Salt Lake quarters. In such situation, the sudden departure of the petitioner leaving also his ailing son has got no meaning. It is also unfortunate that the petitioner who became successful in bringing back his wife and son could not be successful in building up a happy family. Since there is no evidence in favour of the petitioner to establish that there was any sufficient reason of his sudden departure, the decision reported in 2009(4) ICC (Cal) 56 referred by the Ld. Advocate for the respondent is also applicable in this present case."
30. However, we are of the view that there can be no "Absolute condonation" of any acts of cruelty by the suffering spouse in a marriage, even assuming that he or she may have in the interest of protecting the marriage chosen to refrain from seeking its dissolution straight away. But, if after any such mutual reconciliation happens between the parties, and the offending spouse thereafter again goes back to the old acts of commission and omission constituting mental or physical cruelty, it cannot be said that the past cruel conduct over a very long period of time becomes altogether irrelevant. It needs to be remembered that petitioner's specific case is that he was contemplating to take steps legally even earlier, sensing which respondent's uncle assured him that she would return to his Flat after the Puja of 2003. But even such assurance was not honoured which constrained the petitioner to approach the NGO "SOPAN" for resolution of the problem, but here also all the efforts ultimately failed due to negative and nonchalant attitude of the respondent and her family members. However she returned to the Petitioner's Flat on 18-1-2004 only after dissolution of her brother's marriage with his own wife, since by then her brother had started considering her as an unnecessary burden upon himself because of the huge Medical expenses required for her treatment on account of her "Compulsive Obsessive Disorder". But even thereafter she continued to treat the petitioner with cruelty, till he himself left the place on 8.11.2005, after having been allegedly assaulted and manhandled by her and their minor son on the previous night. All these facts were stated unequivocally by the petitioner in Paras 13 to 18 of his Affidavit of examination-in-chief, but the Ld. Trial Judge does not appear to have gone through the same at all.
31. As such, the approach of the Ld. Trial Court in summarily discarding the petitioner's allegations of subsequent cruelty outright as being not supported by any evidence whatsoever would appear to be inappropriate. We have already noted earlier that while considering the evidence given by the petitioner himself as PW1, the Ld. Trial Judge has chosen not to refer to any statement whatsoever given by the petitioner in his Examination-in-chief, but had instead proceeded to straight-away considering the worth of his statements transpiring from his cross-examination alone. However a perusal of the evidence actually given by the petitioner, particularly in Para 18 of his Affidavit-in-chief as PW 1 filed in the Ld. Trial Court on 20.03.2008, it is seen that he has specifically stated -
"That situation turned grave as it became simply impossible for me to reside under the same roof as on certain occasions the respondent and the minor son mercilessly manhandled me in the dead night and for such reason I had to pass sleepless night by the result of which I suffered great mental pain and my physical state became alarmingly critical. To put pressure the respondent gave out threats to the effect that in the event he failed to dance to her tune she would not think twice to implicate me and my near relations in criminal case. On 7.11.2005 the situation went out of control as the respondent and the minor son became violent and suddenly started beating me in order to fetch lump some money at the instigation of the brother and mother of the respondent and forcefully detained me until I could be able to get me free. To avoid any such untoward situation I out of fear had to leave my own house and at present residing at my paternal house at Hooghly on and from 8.11.2005 and since then I has been discharging my duties towards the respondent and minor son. I beg to state that at the time of leaving my own house I lodged complaint with Bidhan Nagar Police Station stating the reason of my taking such decision ...."
32. Furthermore, it has also transpired from Para 42 of the self-same Affidavit-in-chief that the petitioner had filed a number of original documents for being Exhibited in support of his case. These include several letters written by him to the NGO 'SOPAN', which were sought to be serially exhibited, apart from copies of certain separate complaints dated 18.05.2005 and 08.11.2005 lodged by him in the Bidhan Nagar P.S which were similarly sought to be exhibited from his side. We have also scrutinized the Exhibits File of the Lower Court which forms of the part of the LCR, and find that only a few of original documents filed on behalf of the petitioner were admitted into evidence on waiver of formal proof by the other side, but the several other documents concerning the parties, interaction with 'SOPAN', as also the complaints lodged by the petitioner in the Police Station particularly describing the incident on 07.11.2005 which allegedly forced him to leave his official quarters, were not taken into evidence. The list of those documents as spelt out by the petitioner in his Statements in Para 42 of his Affidavit-in-Chief happens to be -
a. One letter dated 6.5.2001 issued by Samir Kumar Sadhukhan to the Secretary, Education Department (School Education), Bikash Bhavan, Kolkata-91 with due received seal of the recipient along with two other letters dated 19.6.2001 in reply to the letter dated 6.5.2001. the said three letters may collectively be marked as Exhibit-1 (series).
b. Six letters dated 11.11.2003, 27.7.2004, 2.11.2004, 8.11.2004, 22.3.2005 & 6.5.2005 issued by Samir Kumar Sadhukhan in favour of The Chairman, Sopan, Purta Bhawan (3rd floor), Kolkata0 91 with due received seal of the recipient. The said six letters may be collectively marked as Exhibit-2 (series).
c. Eight medical papers such as prescriptions, Hospital outpatient ticket, Psychological Profile, medical report, etc. of various dates in the name of Anjana Sadhukhan & Samir Kumar Sadhukhan which may be collectively marked as Exhibit- 3 (series).
d. One letter dated Nil issued by Samir Kumar Sadhukhan in favour of Sri Gautam Garai along with courier receipt dated 4.12.2004 the said letter and the courier receipt dated 4.12.2004 may be collectively marked as Exhibit-4 (series).e. One letter dated 10.1.2005 issued by Kazi Samiullah, Advocate in favour of Smt. Usha Garai & Sri Gautam Garai along with postal receipt and A/D card. The said letter along with postal receipt and A/D card may be collectively marked as Exhibit-5 (series).
f. One letter dated 28.2.2005 issued by Smt. Usha Garai & Sri Gautam Garai in favour of Mr. Kazi Samiullah, Advocate along with envelope may be collectively marked as Exhibit-6 (series).
g. Three complaints dated 18.5.2005 & 8.11.2005 written by Samir Kumar Sadhukhan to The Officer in Charge, Bidhan Nagar Police Station (South) with G.D. E. Nos. The three complaints may collectively marked as Exhibit-7 (series).
33. It is strange that in spite of existence of so many specific statements relating to the alleged acts of cruelty as contained in Para 18 of the Affidavit-in-chief which have already been reproduced earlier, the Ld. Trial Court went on to observe that there was no evidence that the respondent caused any further cruelty towards the petitioner after the parties started living in the Salt Lake quarters.
34. We therefore have no hesitation in holding that the Ld. Trial Court, which did not make reference to even a single statement transpiring in the petitioner's evidence-in-chief in the impugned Judgment, would appear to have failed to even cursorily glance over the relevant specific statements, apart from the documents actually filed, which were also sought to be led into evidence by the petitioner. Such omission would appear to be even more glaring considering that the Ld. Trial Judge was himself satisfied that the petitioner husband was clearly subjected to mental cruelty on account of being consistently neglected by the respondent in her conjugal life in order to fulfil the necessities of her parental family, which conclusion has already been taken note of in Paragraph 28 earlier. Thereafter the sweeping observation that such acts of cruelty stood condoned by the petitioner after the parties restarted living in the Salt Lake quarters, and that there was no evidence whatsoever that the respondent caused any further cruelty towards him in those quarters, or that the petitioner's sudden departure from the premises without any evidence to support that he had any sufficient reason for doing so 'has got no meaning', and the consequent dismissal of the divorce petition without taking note of the specific statements in this regard contained in Para-18 of the Affidavit-in-chief would appear to be grossly unfair towards him. It goes without saying that had the Ld. Trial Judge been mindful of the statements contained in Paras 18 and 42 of the Petitioner's Affidavit-in-chief, he could have had no scope to remark so cryptically that there was no evidence on record regarding the allegations of cruelty after the parties restarted living in the petitioners Salt Lake quarters. On the contrary, the approach would have been to question how the various documents mentioned in Para 42 of the Affidavit-in-chief were so ignored. But scrutiny of the LCR reveals that the petitioner's Affidavit-in-chief was initially filed on 20.03.2008 while his examination was commenced on the next date i.e., 20.05.2008 on which date he mentioned about having filed the various documents including Twelve (12) letters from his side. But his brief examination-in-chief was deferred and resumed on 26.06.2008, on which date only two documents, being a Postal A/D Card and a Postal Initially Receipt simpliciter were Exhibited. Such glaring omission in not tendering the number of documents mentioned in the Affidavit-in-chief even for the purpose of bare identification, would clearly appear to be a manifest mistake of the concerned pleader, and not the petitioner himself, the fate of whose claim virtually depended upon admission of the same. But the various documents referred to in Para-42 of the Affidavit-in-chief, even assuming that for some reason had not been taken into evidence, were nevertheless also not rejected or held to be inadmissible in terms of order XIII Rule 3 of the CPC, nor even returned to the petitioner in terms of order XIII Rule 7. Even now those continue to form a part of the Exhibits File in the original LCR. Such palpable omissions do clearly indicate the casual manner in which evidence was taken by the concerned Trial Judge presiding over the Court at least on 26.06.2008.
35. In the given facts and circumstances therefore, we are inclined to grant a limited opportunity to the petitioner to formally lead into evidence the original documents from his side which are otherwise already on record after having been tendered along with his Affidavit-in-chief on 20.03.2008. This limited opportunity of leading the relevant documents into evidence shall have to be availed of promptly. The respondent wife shall likewise be at liberty to cross-examine the petitioner or any other witness to be examined from his side only for the purpose of proving his documents. In addition the respondent- wife shall also be at a liberty to lead any additional documentary evidence from her own side within the ambit of her pleadings, in response to the petitioner's documents. We expect the Ld. Trial Court to complete this exercise of admitting the additional documentary evidence from both sides within a period of three months after receipt of the LCR without granting any unnecessary adjournment to either side. After completion of such additional evidence the Ld. Trial Court shall proceed to decide the suit afresh after deleting the original Issue No. 3 and framing an additional issue to the effect -
"Whether the Respondent treated the petitioner with any cruelty during the course of their matrimonial life?"
35. With the above observations the impugned judgment passed by the Ld. Trial Court is set aside and the matter accordingly remanded back with the above directions.
A copy of this Judgment be sent to the Ld. Trial Court expeditiously along with the LCR. Urgent Photostat Certified copies of the Judgment, if applied for, be supplied to the parties expeditiously, after compliance of all formalities.
(Sudip Ahluwalia, J.) I agree.
(Tapan Kumar Dutt, J.)