Calcutta High Court
Asit Kumar Das vs Smt. Kalpana Das on 14 March, 2007
Equivalent citations: AIR2007CAL160, AIR 2007 CALCUTTA 160, 2007 (4) ALL LJ NOC 716, 2007 (3) AJHAR (NOC) 980 (CAL), 2007 A I H C (NOC) 408 (CAL), (2007) MATLR 721
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta, Sanjib Banerjee
JUDGMENT Kalyan Jyoti Sengupta, J.
1. This was an appeal against a decree of a dismissal of the suit for dissolution of marriage on the ground of desertion and cruelty, the appellant/plaintiff brought this matrimonial action before the learned trial Judge on the facts, stated in short, hereunder.
2. The appellant and respondent were married in accordance with Hindu rites and ceremonies on 9th March, 1989 and they have only one issue out of this marriage. The respondent wife has treated the plaintiff/appellant with mental and physical cruelty. The particulars of such alleged acts of cruelty are summarized hereunder.
3. The brothers of the wife are wealthy and prosperous and they have their business of building materials. As such, she being proud of the wealth of her brothers and their affluence ridiculed the appellant/ petitioner and further undermined him, The husband is mentally tortured with the insulting utterances of the wife that he is incapable of maintaining the wife property as he is a man of small means. The wife wants to lead and, in fact, leads extravagant life and in order to maintain her life of high standard she squeezes out money from the appellant/plaintiff. It is absolutely impossible for the plaintiff/appellant, being a police constable, to meet her monetary demand. She abuses the appellant with vulgar words. She has developed acquaintance with and has access to the local leaders of a political party. She has forcibly driven away the plaintiff/appellant and his brothers and sisters and their old mother from the first floor of his own ancestral house. She has occupied the entire first floor and has founded a party office for running political activities. With the help of the workers of the ruling political party she has been able to establish her unholy clout and influence so much so that the appellant/plaintiff was assaulted physically and compelled to leave the house. His mother was assaulted at her instigation by the workers of the ruling political party and as the mother could not withstand the assault she died of shock. The petitioner has been compelled to live elsewhere because of the physical assault inflicted by the workers of the political party at the instigation and instance of the respondent wife. Thus, the desertion is continuing from January, 1991.
4. In the written statement the wife respondent has denied the allegations of the acts of cruelty and desertion. It is alleged in the written statement that there has been no desertion on her part, rather she has been assaulted in the matrimonial house. It is the husband who actually left and deserted her. No case of desertion could be made out in the plaint and the acts of cruelty mentioned in the plaint are not good enough to justify the reliefs claimed.
5. In the written statement the wife alleged specifically that the plaintiff used to lead a very objectionable life with another lady. Although he was posted at Chinsurah but in the name of special job, urgent job etc. he used to spend nights outside so that he could live with another woman. This fact was known to many and in spite of sincere effort of the respondent she could not mend the ways of her husband. There was chaos many a time. Well-wishers' advice also did not work. Later the petitioner was transferred to Sonarpur but he did not take his family there. On the other hand, he threatened to kill her if she would press to go there.
6. On the basis of the aforesaid pleadings the following issues were framed:
(1) Is the suit maintainable in its present form ?
(2) Has the respondent treated the petitioner with cruelty both mental and physical as alleged ? (3) Has the respondent deserted the petitioner as alleged ?
(4) Is the petitioner entitled to get a decree as prayed for ?
(5) To what relief, if any, is the petitioner entitled to ?
7. The appellant/plaintiff in order to prove his case to get a decree examined himself as witness. He also brought other four witnesses. The defendant/respondent examined herself to resist the case of the appellant.
8. Mr. S.P. Roy Chowdhury, learned Senior Counsel appearing for the appellant, seriously criticized the judgment of the learned trial Judge. He contended that learned trial Judge had not read and appreciated the evidence adduced by the appellant at all and he should have come to the conclusion that the allegations of desertion and cruelty had been established with the standard of preponderance of probability. It had been proved with cogent evidence that the husband was compelled to leave his own house because of the illegal acts and conduct of the wife. He further submitted that the meaning and concept of the desertion is not that the wife should desert the matrimonial house physically all the time. If the husband is compelled to leave his own house and effectively prevented from leading their conjugal life, this can also be termed as a desertion. He further contended that it is proved by the husband that the wife respondent inflicted mental torture with abusive language and criticism of the petitioner's financial inability. Moreover, she, despite objection of all the members of his family, had allowed outsiders to set up an office for political activities in their own house and thereby compelled each and every one of the members of the plaintiffs family, including unmarried brothers and sisters, to leave the first floor and compelled them to live elsewhere. The plaintiff/appellant, because of the fear of being assaulted, could not come back to his own house. She has developed a strong clout and influence by joining the ruling political party. The administration, because of her influence and clout in the ruling political party, did not come forward to help the petitioner.
9. Nowadays it has become a stark reality that the ruling political party dictates the administration and the persons who are having influence and clout in the ruling party can do whatever they like. This has exactly happened in this case here. The learned trial Judge totally overlooked this aspect of the matter and failed to appreciate this.
10. He further submitted that in the written statement it had been specifically alleged that the appellant/plaintiff had been leading extra-marital life with another woman. But these allegations were not attempted to be proved by the wife respondent. As such, these unfounded allegations of adultery by a spouse against the other were good enough for granting a divorce decree treating this to be the act of mental cruelty. In support of his submission he cited the following decisions, reported in AIR 1987 Cal 134, AIR 1989 Cal 120, 1996 (2) CHN 46, 2004 (Vol. 2) WBLR (Cal) 668, 1999 (1) CHN 53 and AIR 1975 SC 1534.
11. Learned Counsel for the respondent wife contended that the decree for dismissal of the suit did not call for any interference. The learned trial Judge considering the pleadings of both the parties and upon appreciation of evidence came to the right conclusion. He contended that no prima facie case of act of cruelty or desertion had been made out in the plaint, not to speak of proving the same. The allegations made in the petition just constitute the complaint of natural marital quarrel between the spouses. The complaint could not be termed to be a cruelty. The allegation of setting up of a branch office of political party on the first floor of the house was absolutely false. The wife had freedom and every right to be associated with any lawful organization. This right is constitutional one and there is nothing wrong in this. As far as desertion is concerned, he contended, that it was absurd to suggest on the given allegations in the plaint, that any case of desertion had been made out, because the wife respondent was residing at the matrimonial house and she had not deserted rather the husband was avoiding her company. She had been residing at her matrimonial house with a physically handicapped boy hoping that her husband would come back to resume conjugal life. There was no animus deserendi meaning thereby that there was no intention to desert her husband. Such case had not been made out at all and the learned Judge had correctly found the same. As far as the allegations made in the written statement of adultery or the question of morality of the husband were concerned, the same had been made casually and in fact the husband did not make any complaint before the learned Court below nor any prayer had been made for granting relief on the basis of the aforesaid allegations. Since the allegations were made casually no issue was framed as such the wife made no attempt to prove the same. Merely because the allegations are made in the written statement the Court ought not to react to the submission made from the Bar. He further submitted that the relief has to be obtained on the basis of the case made out in the plaint and proof thereof and no relief can be granted taking advantage of the lacunae in the written statement. In support of his submission he relied on the following decisions reported in AIR 1989 HP 29. AIR 1988 Delhi 107. 1 (2001) DMC 679 SC, (1996) 98 CWN 115 and (1999) 1 DMC 415 (DB) : AIR 1999 AP 1.
12. We have heard learned Counsel and read the pleadings of both the parties and the evidence as well. We are of the view that the learned Judge has correctly found that the plaintiff/appellant has failed to make out the case of cruelty and desertion and consequently to prove the same. We think learned Counsel for the respondent is right that there is no question of desertion in this case, as the wife has been staying in the matrimonial house along with her 16 year old handicapped boy. It is quite normal that the wife will make reasonable and legitimate demand for some cosmetic goods and other essential items which are normally used by ladies. The husband is employed in the Government service. Demand of the wife for cosmetics and such other articles per se is not an act of cruelty. A husband need not be perturbed or disturbed by this demand. The mind of the husband should not be so weak to be shocked with this demand unless the same becomes extremely nagging and the same is made a serious issue by the wife to pick up quarrel all the time with abusive language. Everyone and anyone can demand from any person for anything but that does not mean that such demand has to be met or if it is not met one should be disturbed. The allegations of the husband that the wife's words about her brother's wealth, prosperity in their business are not acts cruelty in any way. There is no harm in talking of one's prosperity to another and to such reference of admiration of prosperity, one should not react adversely. The manifestation of such adverse reaction towards a word of praise is itself a kind of jealousness. Moreover, from the evidence we do not find that the petitioner tried even to prove such a case for taking such statement as being an act of cruelty.
13. We find some contradiction and inconsistency in the case made out. If the wife's brothers are prosperous and rich and if the relationship between sisters and brothers does not appear to be bad or sour then she would not have lived in the matrimonial home and she should have deserted the matrimonial home and gone back to her father's house to stay with her wealthy brothers to share comfort and luxury. The husband with the help of another witness has tried to say that his wife has driven out his brothers and sisters and even himself from the first floor and occupied in its entirety to convert the same to an office of a political party. We think that this is not a believable story and we do not find any wrong in analysis and appreciation of the evidence by the learned trial Judge. The findings and appreciation are not absurd and quite compatible with the evidence adduced by the petitioner. It is a settled position of law that the first Appellate Court will not reappreciate evidence and substitute its own finding in place and stead of the trial court unless the appreciation and analysis appear to be absurd and not compatible with the evidence adduced by the parties. In this case we do not find either. We are unable to accept the submission of Mr. Roy Chowdhury that political activity of wife without any intention of abandoning conjugal life, would tantamount to cruelty. The house belongs to the husband and other co-owners, it is for them to take control of the same lawfully and it is hardly believable that the wife could take possession of the entire first floor with the help of the outsiders. The legal action taken by the husband in this regard failed in the Civil Court. No criminal action was taken by the husband.
14. Mr. Roy Chowdhury further submits that it has become the order of the day and regular feature that leaders and workers of a ruling political party are interfering in the domestic life and a member of family having nexus with and clout in the ruling political party is dangerously harmful for peaceful living of the family. We do not find any foundation of this submission either in the plaint or in evidence. This submission has no basis and it has no foundation as this case has not been made out in the plaint or in the evidence. The act of cruelty thus is not proved as correctly decided by the learned Court below. As far as desertion is concerned, as rightly pointed out by learned Counsel for the respondent here, no case of desertion is made out. It is true that one of the elements of desertion is physical separation but it is not all. The plaintiff has to prove that there is element of animus deserendi and animus revertendi meaning thereby that the wife had or has intention to desert and/or separate herself both physically and mentally without the consent and permission of another spouse and, further has no intention to come back and resume conjugal life. In this case the plaintiff has not been able to make out such case in the plaint. It is an admitted position that the wife is staying in the matrimonial house and husband is roaming around leaving his wife and he has not tried to come back to his wife or to look after the physically handicapped boy. Therefore, the case of desertion has net been made out nor it is proved.
15. Thus, we do not find any reason to interfere with the findings of the learned Court below.
16. As far as the act of cruelty by making unfounded allegations of adultery against the husband is concerned we find from the judgment of the learned Court below as well as the records that no issue was framed nor any argument was advanced on this point. It is recorded by the learned trial Judge that this case has not been pressed.
17. However, in the memorandum of appeal we find that the case has been put forward. We have examined the written statement and found that there are allegations of adultery made by the wife in the written statement against her husband. Learned Counsel for the respondent says that mere allegations in the written statement are not the foundation of the plaintiff's case of cruelty. We think his submission is right. A particular statement whether it is made in the pleading or otherwise per se is not a ground for granting relief. One has to complain that such a statement has seriously affected his mind and his mind is so pained and shocked that it had become unbearable for him to live with her any longer. One may excuse such a statement or accept mercifully or sportingly, and one may not. If no complaint is made either in the pleading or otherwise then presumption is that either such a statement has been ignored or condoned or has been taken casually. The wife has not asked for any relief on the ground of adultery. She might have stated merely with a desperate mind having found her husband's conduct of desertion. We find in support of our observation, a Division Bench judgment of Andhra Pradesh High Court in case of Naval Kishore Somani v. Poonam Somani reported in AIR 1999 AP 1 (DB). In paragraph 13 Their Lordships have addressed a statement of law in the manner as follows:
...We are of the view that the mere fact that the allegations taken in defence are not proved will not amount to saying that the allegations are wild, baseless, false or like. The essential ingredient in such case to constitute 'mental cruelty" is that the allegations levelled must be false, wild, baseless and scandalous. All these ingredients must co-exist. In paragraph 14 it is stated as follows:
In our view a fact which is not proved does not necessarily mean that it is a false one. We may refer to the provisions of Section 3 of the Evidence Act. Section 3 of the Evidence Act gives definitions of various words and expressions. The expression 'proved' is followed by the definition of the expression 'disproved'. This is followed by the definition of 'not proved'. A fact is said 'not proved' when it is neither proved nor disproved. On the other hand, a fact is said to be disproved when, after considering matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. The word 'disproved' is akin to word 'false'. What is 'disproved' is normally said to be a false thing. It will thus be seen that fact not proved is not necessarily a fact disproved, a fact which is not proved may be true or may be false. A doubt lingers about its truth. Merely because it is not proved, one may not jump to the conclusion that it is disproved. A fact is disproved normally by the person, who claims that an alleged fact is not true. For disproving a fact the burden is always on the person, who alleges that the fact is not true. What we wish to emphasize is that the ratio of the cases relied upon by the learned Counsel for the petitioner/appellant is only to this effect that allegations made in the written statement, though they are subsequent to the filing of the petition, if they are false and baseless then only the petitioner can claim that such false and baseless allegations have caused 'mental cruelty' to him. Merely because they are not proved it cannot be said that they amount to causing of 'mental cruelty'. In fact in Paras Ram v. Kamlesh AIR 1982 P & H 60, the Punjab and Haryana High Court observed:
However a mere allegation by way of a defence in the written statement irrespective of its falsity or otherwise, is not in the same category unless of course, such an issue is specifically put to trial and the firm finding arrived at whether the allegation was false or substantiated.
This observation has been approved by this Court in Lalitha Kumari's case (supra). In Paras Ram's case (supra), the Punjab and Haryana High Court has further observed:
It is manifest that in order to succeed on this ground, the petitioner must establish the falsity of such an allegation.
At another place the Court said:
Unless the truth or falsity of such allegation made in the written statement is put to trial in the manner aforesaid and it is established one way or the other no legal consequences can flow therefrom for the purpose of Section 13(1)(ia) of the Act.
We respectfully adopt the ratio laid down by Their Lordships.
18. According to us the question of proof arises only when there is a pleading and/or complaint. The court will take into consideration a case of this nature only when such an allegation is challenged by the person affected and is not proved by the person making such allegation. After the written statement having been filed the plaintiff/appellant did not make any issue before the learned Trial Judge by amending the plaint. So, how could the wife prove adultery? For the first time the husband has made an issue here. Of course, it is not the law that he cannot do so in appellate stage, but then we cannot decide the same unless the plaint is amended so that the wife gets a chance to respond to such case which was omitted to be made out. The allegations made in the written statement in our view are of course serious and if these are not substantiated can constitute an act of cruelty. It has been held as such in a number of decisions cited by Mr. Roy Chowdhury which are quoted above. Those decisions at the present are not applicable, Unless specific case is made out by the husband denying allegations of adultery made in the written statement, it is not necessary for the wife to substantiate and justify that such allegations. We feel husband is not so late in raising the issue that the Court will ignore the same.
19. We think that justice will subserve if this matter is remanded to be decided afresh on the particular issue as to whether the allegations made by the wife in paragraph 16 of the written statement amount to mental cruelty. If it is established that the allegations are unfounded and amount to cruelty, the husband is entitled to get relief. We, therefore, without interfering with the other findings of the learned trial Judge, send back the matter for the decision on that particular issue and this shall be done in the event the husband takes appropriate steps for amendment of the plaint raising this plea specifically and giving opportunity to the wife to deal with same by filing additional written statement. If such step for amendment is not taken by the appellant within a fortnight from the date of receipt of the lower Court records by the learned Court below, then nothing is to be done and in that case this order of remand will stand recalled. If such step is taken then the issue shall be decided by the learned trial Judge within a period of two months from the date of allowing amendment of the plaint without granting any adjournment.
20. Thus, the appeal is disposed of with the aforesaid order.
Sanjib Banerjee, J.
21. I agree.