Calcutta High Court
Madan Mohan Manna vs Smt. Chitra Manna on 24 January, 1992
Equivalent citations: AIR1993CAL33, (1992)2CALLT46(HC), AIR 1993 CALCUTTA 33, (1994) 1 CIVILCOURTC 146, (1992) 2 CALLT 46, (1992) 2 DMC 386, (1993) 2 HINDULR 38, (1994) MATLR 18, (1993) 1 CIVLJ 868, (1993) 2 CURCC 659, (1994) 1 CURLJ(CCR) 485
ORDER L.M. Ghosh, J.
1. The petitioner, Madan Mohan Manna, filed an application under Section 13 of the Hindu Marriage Act, 1955 for a decree against the respondent/wife annulling the marriage and such other reliefs. The suit was contested by the respondent/ wife, Chitra Manna. The Learned trial judge dismissed the suit.
2. This appeal has been preferred against that judgment of dismissal.
3. Admittedly, the marriage between the parties took place on 12-3-80, according to Hindu rites and customs. It is also not disputed that the parties resided together in the matrimonial home for about seven days. According to the petitioner, after that, the respondent's father took her away with her ornaments and other articles. The petitioner further alleged that on diverse dates, he made attempts to bring back the wife, but all these attempts became futile as the respondent refused to come to the matrimonial home. On 7-7-80, the petitioner sent a registered letter through advocate, calling upon the respondent to come back within seven days. In the petition itself, it is admitted that in the reply dated 16-7-80, the respondent referred to an application before the Gram Panchayat for redress. After all that, the petitioner filed Matrimonial Suit No. 85 of 1980 for restitution of conjugal right. The respondent filed a written statement in that suit. The petitioner made grievance that in that written statement, the respondent made false allegations and gave bad name against the petitioner, involving one Malina Patra. The petitioner then gave an account why and under what circumstances he was residing in the same house with Malina, who was described as the wife of the cousin of the petitioner. According to the petitioner, the allegations caused mental shock to the petitioner and it would not be possible to live with the respondent any more. So, the petitioner submitted, he withdrew the Matrimonial Suit No. 85 of 1980 and filed the present suit.
4. In the written statement filed by the respondent, she denied that the petitioner or Renu Bera or Nemai Patra ever went to bring her back. In paragraph 17 of the written statement, the respondent reiterated that the petitioner was living in adultery with a married woman, Smt. Malina Patra. Then there were allegations that the respondent herself was mentally and physically tortured by her husband and the said Malina Patra. In paragraph 23(c) of the written statement, once again it is mentioned that from the very, first day of the respondent's stay at the place of the petitioner, she (the respondent) came to know that the petitioner was living in adultery with Malina Patra. According to the respondent, she was sent back to her poor father's house within a week after marriage. With reference to the previous Matrimonial Suit, the respondent pointed out in the written statement that after an order was passed against the petitioner for payment at the rate of Rs. 100/- per month, that suit was withdrawn in order to avoid payment.
5. These, in short, were the respective cases of the parties.
6. Mr. Dutta, the Ld. Advocate, has appeared for the appellant/husband. Before this Court, nobody appeared to argue the case on behalf of the respondent. So the matter was heard ex parte.
7. The suit of the husband is essentially based on the ground of cruelty. Mr. Dutta, the learned advocate for the appellant/husband, has also tried to make out a ground of desertion. We propose to dispose of that submission at the very first instance. We are of the view that the ground of desertion is not tenable, in view of the fact that two years have not elapsed after the said date of desertion, even if it be assumed that the respondent/ wife had desserted. Admittedly, the marriage took place on 12-3-80. It is also admitted that the parties resided together for seven days. The suit was filed on 25-9-81. Therefore, apart from the question whether the wife was guilty of desertion, there remains the patent fact that after the said date, two years have not passed. Section 13(1)(ib) of the Hindu Marriage Act, 1955 postulates that there must be desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. We are not going into the question whether there was animus deserendi on the part of the wife, because apart from the factual aspect, patently the ground of desertion is not available, as the petition is premature. Mr. Dutta has argued that the time of two years has expired after the filing of the suit. We are of the firm view that the time spent after the filing of the suit cannot be considered for computing the period of desertion. Plainly, after the filing of the suit, there cannot be any question of desertion by the wife, because the petitioner wants to sever marital ties and is not willing to accept the wife. Therefore, the time subsequent to the filing of the suit cannot go against the wife, for when the husband refuses to accept the wife, there cannot be any question of desertion by the wife herself. Mr. Dutta has referred to Section 14 of the Act to show that the period stipulated therein is not the mandatory period and a suit may be deemed to have been filed on the date the matter is heard and thus the short period before the suit can be made up by the lapse of time after the suit. By analogy Mr. Dutta wants this Court to accept that the time prescribed in Section 13 is not the inflexible unit. We at once observe that the analogy is not apt. Presentation of an application and the ground for divorce are not the same thing. In certain cases if the application is filed before time and if the period spent after the suit be considered, time limit for presentation may be relaxed or not, depending upon the circumstances of each case. But ignoring time factor for presentation of application is one thing and creation of offence is another thing. The offence of desertion is complete only after the period of two years is spent. By taking the time after the suit for consideration, a new offence cannot be created. If the offence is not complete, the ground also vanishes. So the ground of desertion cannot be pressed under any circumstances.
8. The other ground suggested faintly is the ground that the wife herself is guilty of illicit relationship with another. That ground has been abandoned. In fact, though the ground was not spelt out in the petition, that was sought to be developed during the evidence, but never satisfactorily established. The petitioner, during his deposition, sug-
gested that the wife was involved with another boy. That stray suggestion must be an afterthought. Only PW-2, Renu Bara, comes to bolster up the case of the petitioner in that regard. She has said that she saw the respondent roaming about with one young man once in Ramrajtala and on another occasion in Mullick Fatak. Even if the statement of PW-2 be true, from that alone the character of the respondent cannot be impeached. PW-2 has expressed that she does not even know if that, young man is a relation of the respondent or not. This ground of immoral character of the wife is an afterthought and not established finally.
9. So we are confined to the ground of cruelty only.
10. We may note an outstanding feature of the case that the parties lived together only for a period of seven days. Apparently, one cannot visualise any serious cruelty on the part of the wife during that short period. There is some suggestion that the respondent/wife behaved in a peculiar manner during the days she lived in her matrimonial home. But these are very vague and cannot be said to constitute cruelty, even if established. PW-1 has said merely that during her stay for seven days' she behaved in an abnormal manner towards the petitioner and towards the other members of the family. One cannot be held guilty of cruelty on these vague suggestions. There allegations are not even substantiated.
11. The real grievance of the petitioner is that the respondent made some allegations in the written statement in the earlier suit involving the petitioner and one Malina Patra. It is not disputed that the respondent made some allegations in the written statement involving the petitioner and Malina. If there is no basis for such allegations, undoubtedly it would amount to cruelty. Even during trial, the respondent sticks to her earlier stand and admits that in the ealier suit she made specific allegation about her hus- band's illicit connection with Malina. As already observed, if there be any basis for the allegations, the same would constitute cruelty. But if there be some objective factors on the basis of which the respondent made the allegations, she would not be guilty of cruelty. It would be cruelty if reckless and baseless aspersions are made, but it would not be cruelty if there be some grounds for making the allegations. Even if the allegations are not substantiated, but if we find that there was some basis for suspicion in her mind, then we would firmly pronounce that such allegations would not be cruelty. If indeed the petitioner had some illicit relationship with Malina, the respondent cannot be stopped from uttering that. A despot does not countenance even uttering the truth as to cruel acts done by him, but law never contemplates a situation where a genuine grievance cannot be altered by a person. That is the one situation. There might be yet another situation where some objective factors are available on the basis of which a person makes some allegations bona fide although such allegati ins may not be ultimately established. In short, if some allegations are made bona fide on the 'basis' of some objective factors, whether the allegations are true or not, a person cannot be said to be guilty of cruelty for such statement. Indeed it would be cruelty to the wife if she cannot ventilate her genuine grievance. Now coming to the facts of this case, it has to be noticed that Malina was residing in the same house with the petitioner. Whether there was some illicit relationship or not with Malina, the respondent had a ground to make grievance of the situation which was not normal. The position becomes worse if Malina is not related to the petitioner. According to the petitioner, Malina is the widow of his cousin. The cousin is dead. We, however, got in evidence that Malina is in no way related to the petitioner. The petitioner has expressed his inability to give the name of his paternal aunt and her husband (Pishima and Pisha-mashay). If indeed Malina's husband was the cousin of the petitioner, the petitioner would know the name of the parents of that cousin. This proves that Malina in fact is not at all related to the petitioner. So a lady, not related to the petitioner, was residing under the same roof with him and that cannot be accepted in good spirit by the wife. Moreover, we get that the petitioner was anxious to conceal the fact that Malina was not related to him. In such a situation, the respondent could reasonably have some apprehension in her mind about the relationship between the two. Even if there was nothing illicit between the two, the apprehension and suspicion of the respondent cannot be said to be without just cause. The respondent cannot be said to have made reckless and baseless statements. At any rate, her conduct cannot be mala fide.
12. We further get that at the very outset, the respondent sought a solution of the same by referring it to the Panchayat. The respondent, in her evidence, has referred to that. PW-2, Diwakar Dutta Gupta, the Pradhan of Gram Panchayat, affirms that on 7-7-80, the respondent made an application alleging that she was not allowed to live with her husband. One Daulat Ali enquired into the matter and submitted this report, which has been marked Ext. A. Mr. Ali has not been examined and so strictly speaking, Ext. A is not admissible. But the fact remains that the respondent referred the matter to the Gram Panchayat. That the respondent had referred to the Gram Panchayat is in a way admitted by the petitioner. In the petition itself, it is adverted to that in her reply dated 16-7-80 the respondent had said that she made an application before the Gram Panchayat. So, we get that the respondent had in fact sought a redress from the Gram Panchayat. She had lived with the husband for seven days only. We have referred to the circumstances after the marriage. The respondent felt that she had a genuine grievance and she had approached the Gram Panchayat. Even during her evidence, the respondent has firmly answered that she is willing to live with the husband if Malina is removed from that house. All through", the conduct of the respondent is consistent. Even then we cannot pronounce that in making the allegations, she acted mala fide.
13. Then it is sought to be made out in the petition and during evidence also as if the father of the respondent took her away without any notice and without consent. But actually the father did not come to take the respondent without notice and without an occasion. PW-1 himself, during his cross examination, had admitted that his father-in-law came to his house on the 7th day of the marriage to take both himself and his wife to his house for 'Astamangala'. Therefore, it was wrong to suggest in the beginning that the father of the respondent-took her away clandestinely. The father came in connection with an occasion and the petitioner himself was intended to be taken in connection with the ceremony.
14. In that context, the evidence to show that the petitioner intended to take back the respondent to his house has got to be evaluated. According to the petitioner in the petition, the petitioner first tried to bring the respondent on 23-3-80. Next he sent one Renu Bera to bring the respondent on 14-5-80. Last, he sent his nephew, Nimai Patra, as alleged, on 5-7-80. That is also the account given by the petitioner in his deposition. 2, Renu Bera, comes to support the petitioner, but the sequence of events given by her is different. According to her, Madan Babu first tried to bring back his wife after she left, but the respondent did not return. Then Madan Babu had sent his nephew to bring the respondent, but the respondent did not come. And she claims, thereafter she herself went to bring the respondent back but the latter did not return with her. Therefore, her narration is patently different; according to the petitioner, this PW-2 was first sent to bring back the respondent, and then Nimai Patra was sent; but according to PW-2, Nimai went to bring the respondent and then she herself was sent. She appears to be a most casual witness and no reliance can be placed on her. Sometimes it happens that one forgets the sequence of things, but here, the witness has given a rather long narration as to what had happened preceding her movement. In her cross examination she states that before she went, Nimai had informed her that he had been insulted by the relations of the respondent. The case propounded by the petitioner that efforts were made to bring back the respondent cannot be accepted on this kind of evidence, specially when we remember the background that the respondent's father did not take her back claedestinely but came to take both the petitioner and the respondent on the occasion of Astamangala. It is detected that the petitioner is coming out with a distorted version whereas the respondent is all along consistent.
15. One more factor is to be taken into consideration and it is that the petitioner withdrew the previous suit after maintenance allowance at the rate of Rs. 100/- per month was awarded in favour of the respondent. Not only there was such order, the petitioner himself admits that he paid at that rate for some months. The suggestion on behalf of the defence was that the petitioner withdrew the case for avoiding the payment of maintenance.
16. Last of all, we can take note of the attitudes of the parties. In his cross examination, the petitioner has firmly stated that he is not willing to take back his wife at this stage. But the respondent herself has answered clearly that she is willing to live with the husband if Malina is removed from that house. This approach of the respondent has already been referred to, but we make reference to that again so that the approach of both sides can be appreciated. After all these discussion, it is demonstrated that the wife's stand is quite consistent and can even be called rational. Whether or not the petitioner had any illicit relationship with Malina, the respondent has genuine ground of apprehension that all was not well. She could not be compelled to live in the same house under the same roof with another woman not related to the husband. If she was so compelled, that itself would have amounted to cruelty. Tt is not a case where some relief is sought for by the respondent on the ground of cruelty. But not accepting cruelty cannot amount to cruelty on the part of the wife. The conduct of the respondent cannot be judged by importing the concept of a reasonable man as known to the law of negligence for judging matrimonial relations (Dastane v. Dastane, ). Whether Malina's presence in that house should have caused a reasonable apprehension in the mind of the respondent, is not to be judged by the standard of a perfectly reasonable man, but in the special context of the relationship of husband and wife and the ordinary susceptibilities of the parties in such surrounding. We reiterate that the respondent had good ground for apprehension that there was some unusual relationship between the petitioner and Malina, though in fact, the relationship might actually be free from blemishes. As pointed out by the Supreme Court in Dastane v. Dastane supra, proof beyond reasonable doubt of any fact is not the standard of proof required in matrimonial cases; the test to apply is whether on a preponderance of probabilities, the relevant fact is proved. The respondent's apprehension had some objective basis. If on that basis she makes statement as to what she believes to be true, then she cannot be called guilty of cruelty.
17. We are of view that the ground of cruelty is not proved.
18. Mr. Dutta, the learned advocate, has next argued that irrespective of the grounds, there should be a decree for dissolution of the marriage as the marriage itself has broken down irretrievably. We find that very often this argument is advanced. We think that the arguments advanced that the marriage is to be annulled simply because a party has asked for, on the ground that the marriage has become irretrievable, are based on some misconceptions. Decisions are cited, but we feel that they are not always appreciated in their proper sense. Mr. Dutta has relied upon the case of Smt. Saroj Rani v. Sudarshan Kumar, for the proposition that if the marriage has broken down and the parties can no longer live together as husband and wife, it is better to close the chapter. We think that this decision has been misapplied, as it does not lay down any proposition that whenever a party seeks dissolution of marriage, he can get it on the ground that the marriage has broken down. In Saroj Rani's case the facts were different. In a petition by the wife for restitution of conjugal right, a consent decree was passed granting the relief. There was no cohabitation for a period of one year and the husband filed a petition for decree of divorce. The wife pleaded that after the decree was passed, there was cohabitation for two days, and thereafter the husband turned her out. The. Court disbelieved the evidence. The trial Court did not grant relief, but the High Court passed a decree for divorce. In appeal before the Supreme Court, the wife sought to assail the decree on the ground that the husband wanted the wife to have a decree for restitution of conjugal right by some kind of a trap and then not to cohabit with her and thereafter obtain a decree for divorce. Thus the original decree for restitution of conjugal right was itself assailed. It was clear that there was no collusion between the parties. Against such background, the Supreme Court made the observation that when the marriage had broken down, it was better to close the chapter. The facts of that case are completely different from the facts of our case, as under Section (1A) of Section 13 of the Hindu Marriage Act, either party can ask for dissolution of marriage on the ground that there Has been no restitution of conjugal rights between the parlies for a period of one year or upwards after the passing of a decree for restitution of conjugal rights. In such circumstances, it can be well held that the marriage has broken down. Moreover, under the statute itself, a decree for dissolution of marriage can be passed. Such is not the position here. Then again, Mr. Dutta has referred to the Andhra Pradesh decision . There, the petitioner approached the High Court for relief after delay of nearly 10 years, after he came to know that the first respondent was living in adultery with the second respondent. Adultery was proved. The petitioner himself had married another woman and got five male children and three female children by her. So there was enormous lapse of time and one party was living in adultery and the other had re-married. In such circumstances, their Lordships observed that it was a case where the parties buried the marriage long ago. Such is not our case. The charge of adultery against the wife was not even mooted out in the petition and not proved. The wife is still willing to join the matrimonial home, if Malina be not there. We canftot say at once that the marriage has broken down. More-
over, the petitioner cannot take advantage of his own wrong. Here if the petitioner is granted a decree simply for his asking, it would be allowing to take advantage of his own wrong, in view of the objective situation referred to by us. If a person is allowed to file a suit solely according to his whims and caprice and get a decree only on the ground that the marriage has broken down because of his attitude, then the whole of the Hindu Marriage Act would become otios. The institution of marriage itself would be imperilled. The observations of Denning, L. J. in Kaslefsky v. Kaslefsky ((1950) 2 All ER 398 at page 403) are quoted in Dastane v. Dastane in paragraph 50 of the decision. The observations run like this; "If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility to temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled". Those observation were made in connection with cruelty, but the result would be same if the Court grants decree simply because a party has filed petition; the whole institution of marriage itself would be seriously shaken if such liberty is given to a person.
19. We feel that as the petitioner has not been able to prove the grounds of desertion and cruelty, he cannot ask for any relief. The learned trial Court has rightly dismissed the suit and we uphold his judgment and decree.
20. The appeal is dismissed. The judgment decree of the Learned Trial Court are hereby affirmed. We make no order for cost of this appeal.
Amarabha Sengupta, J.
21. I agree.
22. Appeal dismissed.