Ashim Nandi v. Rina Bepari

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHEKHAR B. SARAF HON'BLE JUSTICE KESANG DOMA BHUTIA FA/1/2019 ASHIM NANDI ... APPELLANT Vs.

RINA BEPARI ... RESPONDENT For the Appellant : Ms. Anjili Nag For the Respondent : Mr. Arul Prasanth Heard on : March 24, 2022 Judgment on : March 25, 2022 KESANG DOMA BHUTIA, J.

1.

The present appeal arises out of Matrimonial Suit No. 13 of 2017 filed by the appellant, Ashim Nandi, for dissolution of his marriage on the ground of cruelty and desertion against his wife, the present OP. 2.

It is his case that his marriage with the opposite party is a love marriage and their marriage was solemnized as per Hindu rites and custom at Kali Mandir, Garacharma, Port Blair on 25th April, 2004. After marriage they lived together as husband and wife in different

places in the Island till 18.03.2009 and they were blessed with a son on 01.08.2007.

3.

It has been alleged that the opposite party has developed an illicit relation with one Murgasan which became the cause of their matrimonial discord. She started abusing and insulting him in filthy language and refused to perform her duty as a Hindu married wife. She withdrew herself from the society of the husband on and from 18.03.2009. She has lodged several complaints against him before different authorities on different dates. She has also filed a divorce suit being No. 67/2010 which was dismissed for default on 20.12.2010.

4.

He has also alleged that his parents were also not spared by the opposite party, who illegally barged into their house on 05.07.2011 and abused them in filthy language and also physically assaulted them. He tried to settle their differences but failed. He alleged that they have been living separately since 18.03.2009 and there is no scope of reconciliation. Therefore, he has sought dissolution of their marital tie.

5.

On the other hand, it has been alleged by the respondent that she was the one who was subjected to torture in the hands of her in-laws who used to abuse and taunt her by saying that she managed to marry their son by practicing black magic. That she was subjected to both mental and physical torture by the appellant and had to take the help of police and also filed a case under Domestic Violence Act. When she

was unable to tolerate the torture, she was compelled to file a divorce suit on the ground of cruelty in the year 2010. Subsequently, on assurance given by the appellant to resume peaceful conjugal life, she withdrew both the suits, that is, divorce suit and domestic violence case against the appellant and they spent two days in Sampat Lodge in the month of April 2011. Thus, she has prayed for dismissal of the suit.

6.

The learned Additional District Judge/Family Court, Port Blair, Andaman & Nicobar Islands after taking into consideration both oral and documentary evidence adduced by the parties have come to the finding that appellant-plaintiff has failed to prove cruelty as well as desertion because the wife-respondent expressed her desire to return back to matrimonial home and resume her matrimonial ties with the appellant and thereby dismissed the suit on 20th December, 2018. 7.

Being aggrieved by such order of dismissal the plaintiff has preferred the present appeal.

8.

Now, let us see whether the learned court below is justified in dismissing the matrimonial suit filed by the appellant. 9.

The plaintiff-appellant has sought dissolution of his marriage with the opposite party on the ground of cruelty and desertion under section 13 (i) (a) and 13 (i) (b) of the Hindu Marriage Act, 1955. In Ravi Kumar Vs. Julmi Devi reported in (2010) 4 SCC 476, the Hon'ble Supreme Court has been pleased to hold "cruelty as a concept defies definition. It can be judged after taking into account all facts and

circumstance of the case and cannot be determined by a fixed rigid formula. It means absence of mutual respect and understanding. It can be violence, some attitude or even mere silence". 10.

Therefore, this court is of view that each case has to be decided on its own facts and circumstances. In the present case the parties have brought acrimonious allegation of cruelty against each other. However, it has been admitted by the respondent that she filed divorce suit being Mat. Suit No.67 of 2010 against the husband on the ground of cruelty and also a case under Domestic Violence Act and later she withdrew the same. Learned counsel for the Appellant by citing decision of the Hon'ble Suprem Court in K. Srinivas vs K. Sunita (Civil Appeal No.1213 of 2006) has contended that filing false cases against the husband is sufficient to constitute matrimonial cruelty. 11.

The appellant has examined one Ashok Kumar as PW2 who in his evidence stated that in the year 2008 he was working as Mechanic in the MES at Brichgunj and used to live in the official quarter at Brichgunj. That appellant and his wife the respondent were his neighbours and used to reside in the adjacent quarter. 12.

He has stated that respondent deliberately used to quarrel with the appellant-plaintiff in petty issues and used to abuse the appellant in filthy language in his presence. The respondent used to leave the matrimonial home and remain away for few days. Very often the neighbours residing in the adjacent quarters used to intervene and with them also she would misbehave.

13.

He has also stated that sometime the respondent used to visit their office and used to utter offensive language imputing stigma on the character of the appellant in front of his colleagues. He further stated that the respondent left the matrimonial home (the official quarter) on 18.03.2009.

14.

During his cross-examination, he denied the suggestion put by the respondent's lawyer that he was never a neighbour of the parties to the suit in the year 2008 and he is not aware about their personal matter. He has categorically denied that statement given by him in para 3, 4 and 5 of his evidence in chief on affidavit are false. He has stated that he works in the same department where Ashim the appellant was/is posted. He has candidly stated that he cannot give specific dates of quarrel between the parties during their stay in the official quarter in Brichgunj. Thus, this Court does not find any adverse materials in the cross-examination of this witness to disbelieve what he has stated in his evidence in chief. 15.

Ram Sawroop as PW 3, another colleague and neighbor of the Appellant too in his evidence in chief has stated that he is a LDC in MES, Brichgunj. He was the immediate neighbour of the appellant in the year 2008. He has stated that there used to be to quarrels between the appellant-plaintiff on petty issues at the instance of the respondent. In such quarrels, the respondent used to abuse the appellant in filthy language in his presence. Very often the neighbours

residing in the adjacent quarter used to intervene to pacify the couple but respondent used to misbehave with them.

16.

Like P.W.2 he has also stated that at times the respondent used to visit their office and used to utter offensive language imputing stigma on the character of the appellant in front of his colleagues. That respondent left the matrimonial home (the official quarter) on 18.03.2009.

17.

During cross examination he has stated that he and his wife used to go the house of Ashim to intervene and to restore peace between the couple. However, he could not state the exact reason of dispute between the couple and as to who used to start the quarrel. He has also denied the statement which he has given in para 4, 5 and 6 of his chief to be false. Thus, nothing has come in his cross to discredit what he has stated in his chief.

18.

Thus, from the evidence of PW2 and PW3, the colleagues and erstwhile neighbours of the appellant, prima facie it is seen that Appellant was insulted in presence of his colleagues by the respondent by uttering offensive language imputing stigma on the character of the petitioner. That frequently there used to be quarrels and most of the time the neighbours had to intervene to pacify them. 19.

Learned counsel for the Appellant referred to Joydeep Majumdar vs Bharati Jaiswal Majumdar (S.C.Civil Appeal Nos 3786-3787 0f 2020) and contended that wife making defamatory statements before the colleagues of the husband and neighbours amounts to mental

cruelty and cannot be termed as normal wear and tear of matrimonial relationship.

20.

It is worthy to mention here that for reasons best known to both the parties to this appeal, both have given contradictory and inconsistent evidence in respect to their professions. The appellant has alleged that he is a private teacher, but at the same time he has stated he used to reside at Brichgunj MES quarter. While the respondent has alleged in her divorce petition the appellant to be a private tutor, but she in her written objection filed against the divorce petition has stated that appellant is a chowkidar in MES, Brichgunj. From the evidence of PW2 and PW 3 it is evident that appellant is an employee of MES, Brichgunj. Though such issue may not appear to be relevant for deciding the present Appeal, but it may become material, if any suit is filed for claiming maintenance or alimony in future. 21.

Be that as it may, the appellant has brought allegation of desertion against the respondent. That in view of provision of Section 13 (i) (b) of the Hindu Marriage Act, 1955 the party seeking divorce on the ground of desertion has to prove that he/she has been deserted for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce. The desertion by the other party to the marriage should be without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage. It is the

case of the appellant that the respondent has deserted him without reasonable cause since 18.03.2009.

22.

The Appellant in his evidence has categorically stated that he and the respondent are living separately since 18.03.2009. Such case stands corroborated by PW2 and PW3 who too have stated the respondent left her matrimonial home on 18.03.2009. The respondent in paragraph 4 of the plaint of Mat. Suit No. 67 of 2010 filed by her application has admitted she and defendant lived together as husband and wife till 26.03.2009 in various place of North, Middle and South Andaman District.

23.

The filing of divorce suit in the year 2010 by the respondent indicates that she too wanted break the matrimonial tie with the appellant. However, she in her written objection as well as in her evidence has stated that after dismissal of divorce suit filed by her and withdrawal of domestic violence case against the appellant she reconciled with the appellant and resumed their relationship by spending two days in Sampat Lodge in the month of April, 2011.

24.

If this Court is to believe that there was reconciliation between the parties sometime in the April, 2011 as contended by the respondent then it is not known why the appellant has filed present divorce case against her on April 07, 2011. The apart, Exhibit 6 shows the mother of the appellant had lodged a complaint against the respondent for abusing her physically and verbally in her house on 05.04.2011. It further discloses that respondent had gone to her in laws house on

that day enquiring the whereabouts of the appellant. Exhibit 4 shows after institution of the divorce suit by the appellant the respondent has resorted to different acts to harass the appellant by bringing police personnel for assaulting the appellant and his father. Exhibit 5 shows on a complaint by the appellant the police have started case under Section 454 and 380 IPC against the respondent for entering into the house of the appellant at Bhatubasti and for removing ration card, gas book, ATM cards Identity cards and bank pass book etc. on 07.07.2011.

25.

Such incidents prima facie prove that the respondent has falsely setup a case of resumption of their matrimonial ties in the month of April, 2011 only for the purpose of defeating the case of desertion brought against her by her husband. If she really wanted to keep her matrimonial tie with the appellant then she could have filed a suit for restitution of conjugal right which she has failed to do. In fact, the husband has filed the suit two years after their separation. 26.

From the above facts it is seen that the parties to the present appeal are living separately since 18.03.2009. The filing of divorce suit by the wife being No. 67 of 2010 proves that she too wanted to bring cohabitation permanently to an end. From the evidence of the independent witnesses PW2 and PW3, it appears that the respondent had left the matrimonial home voluntarily on 18.03.2009. From such conduct of the wife, it can be safely inferred that she has no intention to return back to her matrimonial home though she in her evidence

stated that she wants to resume her conjugal life with appellant. That apart, materials on record shows the parties are living separately for more than 13 years and have crossed the point of no return. The marriage between the parties is completely dead and continuance of such marriage would itself amount to cruelty. 27.

Therefore, taking into consideration the above facts this Court holds that the husband has been able to prove not only the case of desertion, but also cruelty against the wife and is entitled to get a decree of divorce. It appears the learned court below has failed to appreciate the evidence of the witnesses properly and the fact the parties are living separately for more than a decade and simply relying on Savitri Pandey vs Prem Chandra Pandey reported in AIR 2002 SC 591 held the husband petitioner has failed to prove cruelty just because the husband had failed to prove that conduct of the respondent wife is likely to cause danger to the life of husband. The Learned court below appears to have taken the mere stray statement of the wife that she wants to return back to her matrimonial home to be gospel truth and held that there is no desertion on the part of the wife by ignoring the earlier divorce case filed by the wife which was dismissed for default and not withdrawn as alleged by the wife and admission made by the wife about filing Domestic Violence Case against the husband.

28.

Therefore, the judgement and decree passed by the learned Court below is hereby set aside. It is hereby ordered that the marriage

between the appellant and respondent solemnized as per Hindu rites and custom on 24.04. 2004 stands dissolved on the ground of cruelty and desertion from this day. The Appellant/ Petitioner is entitled to get a decree of divorce.

29.

Accordingly, F.A.001 of 2019 is hereby allowed. 30.

Connected application, if any, stands disposed of. 31.

There will be no order as to cost.

32.

Parties shall be entitled to act on the basis of a server copy of this Judgement and Order placed on official website of this Court. 33.

Urgent Xerox certified photocopies of this judgement, if applied for, be given to the parties upon compliance of the requisite formalities. (Kesang Doma Bhutia, J.) 34.

I agree (Shekhar B. Saraf, J.)