Calcutta High Court (Appellete Side)
Smt. Arpita Chakraborty vs Dr. Amit Chakraborty on 18 April, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 309 of 2005
Smt. Arpita Chakraborty
Versus
Dr. Amit Chakraborty
For the Appellant/Appellant: Mr S.P. Roychowdhury,
Mr Aniruddha Chatterjee,
Mr Manish Roy.
For the Respondent/Opposite Party: Mr Subrata Talukdar,
Ms Arundhuti Das.
Heard on: 25.03.2008 & 01.04.2008.
Judgment on: 18th April, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a wife in a suit for divorce and is directed against the judgment and decree dated 29th July, 2005 passed by the Additional District Judge, Third Court, Barasat, in Matrimonial Suit No.23 of 2002 thereby dismissed the suit for divorce filed by the wife on the ground of desertion and cruelty.
The case made out by the appellant may be summed up thus:
(a) The parties are Hindus, governed by the Dayabhaga School of Hindu Law, and they were married on 4th day of December, 1997 within the jurisdiction of the Trial Court.
(b) After the marriage, initially, they lived together as husband and wife at the address of the respondent at Flat No.HC/3, Ram Krishna Sarani, Baguihati. The appellant became pregnant, but due to physical assault and torture by the husband, the said pregnancy terminated on 22nd July, 1998.
(c) At the time of marriage, valuable gold ornaments, furniture, clothing and household articles valued more or less Rs.1,50,000/- were presented to the wife by her parents and other relatives but all those articles were in the custody of the respondent and the respondent refused to hand over those to the wife on her demand. The appellant was not allowed to use her gold-
made ornaments when she required and those were kept in the locker of the husband's mother and elsewhere.
(d) The respondent, since marriage, demanded undue demand of Rs.1,00,000/- from her old father on the plan of making of house-cum- chamber and as it was beyond their capacity and she refused to meet up the demand, she was tortured, neglected and unnecessarily harassed.
(e) The appellant had to give all her earnings month by month from her service in Life Insurance Corporation of India in favour of the respondent except a very small amount for her travelling expenses for office journey on the pressure of the husband and as per the direction of her mother-in-law. She was mentally tortured when she could not spend any amount for purchasing any articles of her choice and was even unable to spend any amount for her old parents.
(f) Before the marriage, the respondent was suffering from Intestinal Tuberculosis but such material fact was suppressed to the appellant and even after marriage, he was found to take medicine for that syndrome; the appellant was mentally shocked for such suppression of fact.
(g) On many occasions, the respondent advised the appellant to dissolve their marriage-tie on mutual consent as he could not tolerate the appellant and once he disclosed that he would marry one of the sisters-in-law of his maternal uncle.
(h) The respondent used to live with other women, as he was not satisfied with the appellant only. If the appellant would oppose against his bad activities, she became tortured and abused with filthy language. The respondent used to assault the appellant physically when she refused to bring the undue demand from her father and when she refused to give all her earnings month by month to her husband and/or mother-in-law.
(i) Sometimes, the appellant was forced to leave her matrimonial house for fear of her life and safety and take shelter at her father's house for peace. Sometimes, he pressed her to resign from her job and to bring Rs.5,00,000/- from her father by selling his properties.
(j) On many occasions, the respondent would return in the late hours of night and in aggressive mood tortured the appellant mentally and physically and he would tell the story of his new girlfriend. The respondent was not willing to live with the appellant as husband and wife since her miscarriage and he disclosed that he was not willing to be a father.
(k) On 10th April and 11th April, 1999, the appellant was physically assaulted and abused with filthy languages and she was asked to leave her matrimonial house on the threat that otherwise, she would be murdered and ultimately, on 12th April, 1999 she was driven out from her matrimonial house.
(l) Several diaries were lodged at different Police Stations alleging the torture, assault and misbehaviour of the respondent and a police case was started against the respondent in the Lake town Police Station under Sections 498A and 406 of the Indian Penal Code when he finally refused to handover her articles.
The suit was contested by the husband by filing written statement thereby denying the material allegations made in the plaint and the case of the husband may be epitomised thus:
(i) The respondent is an M.B.B.S. Doctor and at the time of marriage, he was a Research Scholar. After the solemnization of the marriage, the appellant insisted on a separate accommodation where only the appellant and the respondent would live as she was not willing to stay with her parents-in-law and brother-in-law.
(ii) Few months after the solemnization of the marriage, when the appellant came to learn that the respondent once suffered from Intestinal Tuberculosis, she started to neglect the respondent and refused to share bed with him. She was rather influenced by her misconceived idea about the disease like Tuberculosis and such idea led her to the belief that she would also be attacked with Tuberculosis, if she shared bed with the respondent.
(iii) The appellant was an arrogant lady. When she was pregnant, the respondent requested her for taking leave from her office but she refused, as a result, the foetus was miscarried in her office. Ultimately, the respondent was compelled to take a rental accommodation at 10, S. K. Dev Road and there, he along with the appellant started living together. After the death of the father of the respondent, the mother became helpless, and she expressed her willingness to stay with the appellant and the respondent and accordingly, the respondent conveyed his mother's desire to the appellant. In reply, the appellant said that if the mother-in-law came to stay she would leave the premises. The respondent, thereafter, on several occasions tried to bring back the appellant but she refused. The respondent still expected that the appellant would realise her fault and would restore the conjugal life with the respondent.
At the time of hearing, apart from the appellant, her father and two other witnesses, namely, Sudipta Roy and Deboprasad Saha gave evidence in support of the case for divorce while the husband himself and six other witnesses appeared on behalf of the husband to oppose the claim of the appellant.
As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein dismissed the said suit by disbelieving the case of the appellant.
Being dissatisfied, the wife has come up with the present first appeal. Mr Roychowdhury, the learned senior counsel appearing on behalf of the wife/appellant took us through the entire deposition and the documentary evidence adduced by the parties and made following threefold submission in support of this appeal:
First, the husband at the time of marriage suppressed the fact that he, was attacked with Tuberculosis, and had been taking medicine even after the marriage. This, according to Mr Roychowdhury, was a material suppression of fact on the part of the husband and amounted to cruelty by compelling his client to live with a patient of Tuberculosis as his wife.
Secondly, it appeared that the wife miscarried on July 22, 1998 while she was in her office and it would appear that her pregnancy was detected in the R.G. Kar Hospital on the very same day and the husband himself was posted in the said Hospital. Mr Roychowdhury tried to convince us that the aforesaid fact lends support to the contention of the wife that due to physical torture upon her the said pregnancy miscarried and that the respondent was not willing to become a father.
Thirdly, the fact that already charges had been framed in the pending criminal proceedings under Section 498A and 406 of the I.P.C. itself shows that the allegation of the wife about demand of money and consequent torture was correct. Mr Roychowdhury contends that the overwhelming evidence adduced on behalf of his client through documentary evidence conclusively proved the allegation of demand of money and the learned Trial Judge erred in law in not appreciating the evidence on record in proper perspective.
Lastly, Mr Roychowdhury contends that the marriage between the parties has broken down irretrievably and as such, it is a fit case for grant of decree of divorce after taking into consideration the entire materials on record.
Mr Talukdar, the learned counsel appearing on behalf of the respondent has opposed the aforesaid contentions put forward by Mr Roychowdhury and has contended that the learned Trial Judge has taken into consideration the entire materials on record and rightly disbelieved the case of the appellant. Mr Talukdar contends that in this case, various impartial witnesses have deposed in favour of his client including the landlady showing that there was no torture upon the wife of any kind as falsely alleged. Mr Talukdar contends that simply because the fact that his client in his childhood suffered from Intestinal Tuberculosis was not disclosed to the wife at the time of marriage cannot amount to cruelty when he was totally cured of that disease at the time of marriage. According to him, the wife was under a misconceived idea that if she lived with her husband she would be attacked with Tuberculosis. Mr Talukdar further submits that the wife made false allegation against the moral character of his client but could not prove such fact and even made false allegation against the mother-in-law about demand of money and taking her entire salary every month after giving her only the money for travelling expenses which has been falsified by her own admission that she used to get salary by cheque and were deposited in her own account. Mr Talukdar points out that the wife by producing her bank account could easily prove the amount of money withdrawn by her from that account every month. Mr Talukdar further submits that no credible evidence has been adduced in support of the allegation of demand of money and mere fact that charges had been framed in the pending criminal case cannot be taken into consideration in this civil proceeding for the purpose to arriving at the conclusion on those allegations. Mr Talukdar further submits that his client has condoned her acts and is willing to take back his wife and for that reason, has filed proceedings for restitution of conjugal right, which is now pending. At any rate, Mr Talukdar continues, the wife cannot take advantage of her own wrong and contends that the marriage has broken down. Mr Talukdar, therefore, prays for dismissal of this appeal.
Therefore, the first question that arises for determination in this appeal is whether due to physical torture by the husband, the pregnancy of the appellant was terminated on July 22, 1998.
It appears from Exhibit-1 that the last menstrual period of the appellant started on June 8, 1998 and it continued for three days. On July 22, 1998, the test on pregnancy answered in positive and on that very day, while she was in her office, the pregnancy miscarried. It is the definite allegation of the wife that due to physical torture inflicted upon her by the husband, the said pregnancy was terminated. It appears from Exhibit-17, a letter dated May 28, 1999, written by the wife to the Officer-in-charge of the local police station that she alleged therein that her pregnancy was terminated due to administration of various medicine by her husband on the pretext of improvement of her health and "forced hard labour such as washing of clothes regularly". In that letter, she never alleged that the pregnancy was terminated due to physical assault of her husband. Long thereafter, on August 22, 2000, when the suit for divorce was filed, she came up with an improved version that due to the physical assault and torture upon her by the husband, she miscarried on July 22, 1998. In the plaint, there is no allegation of administration of medicines or forced labour compelling her to wash clothes regularly which was the cause shown to the police officer in the month of May, 1999. Again, in evidence, she introduced her case of administration of medicine, which was not disclosed in the plaint. Therefore, the ground of administration of medicine by the husband was a case not pleaded in the plaint and at the same time, the allegation of physical torture as the ground of termination of pregnancy is equally false which is made out for the first time in the plaint though not alleged before the police earlier when she left the house of the husband. The wife could not disclose the names of medicines said to have been administered for terminating her pregnancy on the pretext of improvement of her health. Moreover, we find that on the very same day, viz. July 22, 1998, the pregnancy was detected in the R.G. Kar Hospital and thereafter, she attended office. It appears that her last menstrual period commenced on June 8, 1998, which continued for three days, and therefore, the allegation of force labour during her pregnancy e.g. "washing of clothes" is not tenable. We, therefore, find that the wife made deliberate false allegation against her husband on that score.
The next question is whether it has been established from the evidence on record that the husband and his mother used to snatch away the entire salary of the wife every month and would give her only the passage-money for going to the office and coming back to the residence.
The wife has admitted in her cross-examination that she used to get her salary by cheque and the same was deposited in her bank account. She, however, did not produce her statement of account, which could conclusively prove the allegation of the wife. She, for the reason best known to her, decided not to produce such important evidence. If such statement of account was produced, we could easily ascertain the amount she withdrew every month and could verify whether her allegation that the husband and her mother-in-law really took away the entire salary from her giving her only the bus fare for attending the office. For non-production of such evidence, adverse inference should be drawn against her and accordingly, we disbelieve such allegation, which has been specifically denied by her husband. In this connection, the evidence adduced by a friend and a former student of the father of the wife, that while he visited the house of the husband, he heard the demand of the husband to pay the entire salary is not at all believable as the said witness is not at all a resident of that area and that he never visited the house of the husband on any earlier occasion. According to the said witness, he was a friend of Arpita and the younger brother of Amit was his classmate. For the purpose of treatment of his mother as an outdoor patient in R.G. Kar Hospital, he went to the father of the wife for getting the address of Amit and after getting such address, he went to the house of Amit for taking those information. Such fact has been totally denied by the husband. Therefore, the said witness is chance witness and an admitted friend of the wife. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness and if such a person happens to be a relative or friend of a party then he is being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. This gentleman admitted that he had telephone connection but did not take the telephone number of Amit from the father of Arpita. It is expected that before coming to the house, at least he would contact Amit over telephone when according to him, Amit was known to him and he happened to be a classmate of his younger brother. It is absurd to suggest that in spite of the fact that an outsider, who happened to be a former student of his father-in-law, a classmate of the younger brother and a friend of the wife, had come to his residence the husband would demand the entire salary of the wife within his hearing. According to the said witness, Amit, after meeting him, asked him to come afterwards. What happened to the treatment of his mother as outdoor patient in R.G. Kar Hospital has, however, not been disclosed by this witness. We are unable to rely upon the evidence of such a chance witness who happened to be the friend of the wife when the best evidence, the passbook of his bank account for the relevant period has been withheld by the wife.
As regards the allegation that the husband asked the wife to bring Rs.5 lakh after selling the father's property, we find that in paragraph 5 of the plaint, it was merely stated that he asked the wife to bring Rs.1 lakh from her father for the construction of a house-cum-chamber but as the same was beyond the capacity of the father of the wife and as she did not meet such demand, she was harassed and tortured in various ways. In paragraph 11 of the plaint, it has been alleged that the husband sometimes pressed her to resign from the job and to bring Rs.5 lakh from her father by selling his properties. Similarly, in paragraph 7 of the plaint, it was alleged that the husband had the intention of marrying the sister-in-law of his maternal uncle and he suggested to the wife that if she consented to divorce, he would return back all her "stridhan" property which she got at the time of marriage as by marrying the sister-in-law of his maternal uncle, he would get more amount of money. In evidence, however, an improved edition of that story was sought to be established by saying that he demanded Rs.5 lakh from the father of the wife for compensating the loss he suffered by not marrying the sister-in-law of his maternal uncle. The aforesaid allegations are found to be inconsistent with each other. If the husband had greedy eyes only on the earnings of the wife as sought to be projected by the wife, he would not ask her to resign from her job. However, in the letter dated May 14, 1999 (Ext-17), when she had already left her husband, she never alleged that the husband asked her to resign from her job and asked her to bring Rs.5 lakh from her father. In that letter she alleged physical assault by the husband in the presence of her mother and a maidservant on September 12, 1998 but none of them appeared to give evidence. Even the copy of the G.D. dated September 12, 1998 was not exhibited.
It appears from Ext.-19 that Amit was discharged from R.G. Kar Hospital after his treatment of Haemorrhagic Gastritis. There is no dispute that some unpleasant incident occurred on that day immediately after the discharge of the husband from the hospital and shortly after the death of his father, as a result, the wife went back to her father's house and thereafter, the husband took her back in October 3, 2008. However, the exact nature of the incident has not been brought before the Court by the wife. In her letter to the police (Ext-17) she alleged that she was forced to accompany her husband to the rented accommodation in the month of August, 1998 as if she was not willing to leave her parents-in-law. After taking into consideration the entire materials on records, we, however, find substance in the contention of the husband that she did not like to stay with her parents-in-law and insisted on separate accommodation. It appears that the husband yielded to her demand and took separate accommodation in the month of August, 1998. Curiously enough, in this case, although the wife alleged that the mother-in-law demanded the entire salary and never permitted her to use her own ornaments and kept those in her locker, no reason has been assigned why they left the tenanted residence of the ailing father of the husband and took a separate residence. If the husband was really siding with his mother in perpetuating cruelty upon the wife, he would not have left his ailing father within nine months of their marriage. The father of the husband died within a few days of change of residence and soon thereafter, the husband became seriously ill and was hospitalised. At this stage, the mother of the husband after the death of her husband having expressed her desire to stay with her son, the wife again started making unfounded allegations against her husband and his mother and most probably, the incident of September 12, 1998 was the outcome; the husband, however, brought back the wife and ultimately, the mother left India to stay with her younger son who was in Canada. It is, however, established that all the belongings of the wife including ornaments were taken out by her not from the locker of the mother or the rented house of the parents but from the rented house, which was taken by the parties on July 29, 1998. The husband specifically asserted in cross-examination that her mother had no Bank locker and no suggestion to the contrary was given to him nor was any particular of such locker or the Bank where such locker was there was disclosed. Therefore, the wife has made deliberate false statement regarding the allegation of physical torture and demand of money. Her letter written in the month of August, 1998 to her father, (Ext.-2) disclosed that after separating her husband from his parents, she was even not willing to bear any additional financial burden of the new establishment and complained to her father that the husband was not willing to purchase articles necessary for the family and was compelling her to purchase the same by creating pressure on her. If both the spouses are earning, a wife cannot demand that the entire financial burden of the household should be borne by the husband and that she cannot be compelled to part with the money she earns and that those are meant only for her personal enjoyment. Her aforesaid letter gives an impression of her mind as if a husband has no right to seek any financial help from his earning wife. The wife, however, did not disclose the particulars of the articles, which her husband was compelling her to purchase and those, which she purchased with her own money after taking the separate rented accommodation. If those were disclosed, we could verify whether the allegation of the wife was justified. The Hindu Marriage Act, however, does not approve this type of idea and the same even saddles a wife with the responsibility of paying maintenance to her husband who has no sufficient income if the wife has such income. In this case, it is alleged that for the first time in evidence that for taking the new rented accommodation, the elder sister of the appellant paid Rs.25,000/- as the respondent had no money, but the said elder sister for the reason best known to the appellant did not come forward to depose in support of such fact. Even no suggestion was given to the husband in cross-examination that the elder sister of the wife paid any amount to the husband for giving advance to the landlord for taking rented accommodation. From the evidence on record, we are of the opinion that the wife in this case has not only made false allegation of physical torture, administration of harmful medicine for terminating pregnancy and demand of money but her behaviour towards her husband and in-laws was also extreme selfish in nature. Even she did not hesitate to bring the allegation against her husband of infidelity but could not disclose the names of any of his alleged girlfriends nor was any evidence produced apart from her bald statements.
We are not in agreement with Mr Roychowdhury that simply because charges have been framed in the pending criminal case initiated by the wife under Section 498A of the Indian Penal Code we should presume that there is substance in the allegations of the wife about the alleged torture or demand of money.
We now proceed to consider whether suppression of the fact that Amit suffered from Intestinal Tuberculosis at one point of time amounted to cruelty.
Tuberculosis of lungs, which at one point of time was viewed, as a fatal disease is, now-a-days, curable. In the case before us, it is an admitted fact, that in childhood, Amit suffered not from the said disease but he was attacked with Intestinal Tuberculosis and was fully cured as would appear from the fact that he is in Government service. It has not been proved by the wife that he was suffering from the said disease even at the time of marriage. In our opinion, if a person suffered at one point of time from Intestinal Tuberculosis, but is fully relieved of the same at the time of marriage, non-disclosure of such past disease at the time of marriage does not amount to suppression of material fact and in no case, such non-disclosure amounts to cruelty. Only evidence adduced by the wife in this case as regards the illness of the husband is that after the marriage, once he was admitted in hospital for four days as he was suffering from Haemorrhagic Gastritis (immediately after the change of residence and the death of his father) and had done several medical tests in connection with such disease. In this connection, we find substance in the contention of the respondent that the appellant under her wrong impression about Tuberculosis thought that if she stayed with the husband she would be also attacked with Tuberculosis.
The last but not the least question is whether we should grant a decree for divorce notwithstanding the fact that the wife has failed to prove the cruelty alleged simply because according to the learned counsel of the wife the marriage has broken down irretrievably.
After hearing the learned counsel for the parties and after considering the present position of law we are convinced that unless the wife is able to prove existence of any of the grounds mentioned in Section 13 of the Hindu Marriage Act, she cannot be favoured with a decree for divorce merely because it appears from the materials on record that the marriage between the parties has once and for all broken down. It is true that the Supreme Court in some of the cases passed decree for divorce on the aforesaid ground but we cannot lose sight of the fact that the Apex Court in those cases passed such decree for doing complete justice between the parties by taking aid of Article 142 of the Constitution of India. Such power is not available to either the District Court or this Court and as such, there is no scope of exercising such power at this stage. Even in one of its decisions, namely, Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2 Supreme Court Cases page 73, the Supreme Court in paragraph 17 thereof itself pronounced that the fact that the marriage had irretrievably broken down by itself could not be a ground for divorce. We, therefore, find substance in the contention of Mr Talukdar that unless the ground of cruelty alleged by the wife in this case is proved she is not entitled to get a decree for divorce. Moreover, here an application under Section 9 of the Hindu Marriage Act filed by the husband is now pending. We should bear in mind that in this case, the wife is responsible for the separation of the couples and therefore, she cannot take advantage of her own wrong and contend that the marriage has irretrievably broken down.
In the case of Naveen Kohli vs. Neelu Kohli reported in A.I.R. 2006 SC 1675, relied upon by Mr Roychowdhury, the Supreme Court recommended to the Union of India to seriously consider bringing an amendment in Hindu Marriage Act to incorporate irretrievable breakdown of marriage as a ground for grant of divorce but so long the legislature in its wisdom decides to amend the law, there is no scope of granting such relief to the party on that ground alone.
In the case of A. Jayachandra vs. Aneel Kaur reported in A.I.R. 2005 SC 534, the other decision relied upon by Mr Roychowdhury, the Apex Court in exercise of power under Article 142 of the Constitution granted decree for divorce on the ground of irretrievable breakdown of marriage. The following observations of the Apex Court will clarify the position:-
"It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases."
Therefore, the said decision cannot be cited as a precedent before us. We, therefore, are not at all impressed by the last submission of Mr Roychowdhury.
All the points taken by Mr Roychowdhury having failed we find no merit in this appeal and the same is dismissed. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Rudrendra Nath Banerjee, J. )