Calcutta High Court (Appellete Side)
Smt. Mukul Ray vs Sri Samar Bijoy Roy on 18 February, 2021
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Arindam Sinha
FAT 638 of 2015
Smt. Mukul Ray
Vs.
Sri Samar Bijoy Roy
For appellant/wife : Mr. Kushal Paul, Adv.
For respondent/husband : Mr. Partha Sarathi Bhattacharya, sr. Adv.
Mr. Raju Bhattacharya, Adv.
Mr. Arunava Maity, Adv.
Mr. T.J. Mondal, Adv.
Heard on : 5th April, 2019, 12th March, 2020 and 11th February,
2021.
Judgment on : 18th February, 2021.
Arindam Sinha, J.: In view of difference of opinion in the Division Bench there
was assignment of the appeal to this Bench for third view. Mr. Paul, learned
advocate appeared on behalf of appellant/wife while Mr. Bhattacharya, learned
senior advocate appeared on behalf of respondent/husband. Upon hearing them it
transpired, trial Court did not find in favour of respondent/husband as had proved
existence of grounds under clauses (ia) and (ib) in sub-section(1) of section 13,
Hindu Marriage Act, 1955. However, decree for divorce was granted on finding of
irretrievable break down of marriage. Hence, appeal by the wife.
Judgment of Supreme Court in Satish Sitole vs. Smt. Ganga reported in
(2008) 7 SCC 734 as well as AIR 2008 SC 3093 were considered by trial Court and
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both learned Judges in the Division Bench. Learned presiding Judge said, on
consideration of judgments of Supreme Court in Vishnu Dutt Sharma versus
Manju Sharma reported in (2009) 6 SCC 379 and Darshan Gupta versus Radhika
Gupta reported in (2013) 9 SCC 1, irretrievable breakdown is not a good ground to
grant divorce in a contested action. So, the legal premise for granting divorce by trial
Judge, was incorrect. Learned presiding Judge went on to say, on considering Satish
Sitole (supra), continuance of a marriage on irretrievable breakdown would amount
to cruelty. On facts, learned presiding Judge found there is evidence to suggest that
since year 2001, respondent husband had been requesting appellant wife to be
physically proximate with him, but she repeatedly denied him amounting to
sufficient mental torture, entitling the husband to obtain divorce. Judgment of
learned presiding Judge was that trial Judge had come to correct conclusion for
granting divorce but attributed wrong legal reasons in support of it.
Learned second Judge agreed with interpretation of learned presiding Judge
that Supreme Court in Satish Sitole (supra) had said, continuance of marriage
irretrievably broken down could itself amount to cruelty. Said learned Judge found,
apart from a bald statement, the husband failed to prove that the wife refused to co-
habit with him. Said learned Judge went on to find, the wife was all along ready and
willing to stay with the husband and continue with the marital tie. She is eager to be
united with her husband.
Mr. Paul, drew attention to cross-examination of the husband. He relied on
the following:
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"Only for four times we have cohabited. I have accepted this aspect of
life. It is not a fact that we are in the habit of regular cohabitation or that I have
full satisfaction in cohabitation of my life."
.........
"Yes it is a fact that w.e.f. 30.08.2000 till 08.10.2000 I and my wife
went on a tour programme with the help of Loknath Travel Agency at Delhi,
Agra, Rajasthan and Gujarat."
........
"It is not a fact that I with full satisfaction with my conjugal life with my
wife in a regular manner."
He then drew attention to paragraph 11 in Evidence on Affidavit of the husband,
reproduced below: -
"That due to obnoxious attitude of the O. P. my life became miserable
and I became isolated from my friends and relatives and staying in separate
place, separate mess in the same house."
Meaningful reading of above evidence and the pleading would cause conclusion or
inference that his client was always ready and willing to cohabit with her husband.
Mr. Paul submitted there should be view taken concurrent with that of learned
second Judge.
Mr. Bhattacharya, relied on judgment of Supreme Court in Manish Goel vs. Rohini
Goel reported in (2010) 4 SCC 393. He submitted, said Court had granted decree of
divorce to put quietus to all litigations between the parties and to save them from
further agony, as also evident from several earlier decisions referred therein. He
submitted, there should be view taken concurring with that of learned presiding
Judge.
View to be taken must be upon appreciation on a question of fact, whether regular
co-habitation or co-habitation had been denied by appellant/wife to
respondent/husband. That is the only question because there is no supplementary
question, arising from judgment of the Division Bench, regarding cruelty attending
upon denial.
Paragraph 3 from the plaint is reproduced below:-
"3. That since the date of marriage O.P. resides in the house of the
petitioner as husband and wife. Since the date of marriage till today as per
desire of the petitioner and usual force and eggerness O.P. involved in sexual-
inter-course for only four days, though not upto the satisfaction."
Above was also asserted by respondent husband by affidavit in chief. This assertion
could not be shaken in cross-examination, other than obtaining admission, relied
upon by Mr. Paul, of having gone on a trip.
Appellant wife affirmed her Evidence on Affidavit on 1 st April, 2015. In it she
said, inter alia, as follows:-
"I am the defendant of this suit. Plaintiff is my husband. Since my
marriage till filing of this suit and till the date of receiving the summons at the
above suit I and the plaintiff both lived together as husband and wife with
regular co-habitation with full satisfaction of the couple. Our matrimonial life
was full of joy, jubilant and full and events of the perfect couple. I always
behave properly with plaintiff which a normal wife under all circumstances to
her husband. I did never make anything that have caused any mental pain,
agony or cruelty in the mind of the plaintiff or any member of the family."
It is noticed that the assertion of regular co-habitation was general, in as much as
no specific mention was made of the trip taken together in year 2000 to Delhi, Agra,
Rajasthan and Gujarat. As such there is preponderance of probability that there
was no further co-habitation, as alleged by husband.
Above inference, however, should not be taken to be result of deliberate omission
by appellant, resulting in denial of marriage right of respondent. This because
appellant's letter dated 29th July, 2001, written to respondent, was exhibited by
respondent, through appellant in cross-examination. Relevant deposition in this
regard, of the cross-examination, is reproduced below:-
"This letter dated 29.07.2001 do not belong to me. It does not
have my signature even. He might have used someone for preparation of
this letter.
(Cross-examination is deferred on the prayer of plaintiff)
.......to be continued
Dictated & Corrected
by me
Additional District Judge Additional District Judge
1st Court, Raiganj, Uttar Dinajpur 1st Court, Raiganj, Uttar Dinajpur
22.05.2015 22.05.2015
(Cross-examination of OPW-1 Mukul Roy resumed on
01.07.2015)
The letter marked x for identification belongs to me and I admit
this letter dated 29.07.2001 (volunteers) it is marked Ext.C."
The letter is written in Bengali. By the last paragraph appellant says to respondent
that whenever there is quarrel he says; why are you still there when I have no
connection or adjustment with you? She answers the question by posing one. She
asks him; do you know why?
This Bench is convinced appellant loves respondent. There cannot be a finding that
she caused him cruelty by not co-habiting with him. It is respondent who does not
have answer to her question. Manish Goel (supra) was exercise of power by
Supreme Court under article 142 in the Constitution of India. Even otherwise it is
inapplicable on the finding of fact.
There must be and is concurrence with view taken by learned second Judge.
The appeal is allowed on direction already made in regard thereto.
(Arindam Sinha, J.)
