Chiranjib Bag vs Smt. Suchandra Bag
2021 Latest Caselaw 1828 Cal

                   IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                              APPELLATE SIDE

Present:

The Hon'ble JUSTICE ARINDAM SINHA
     And
The Hon'ble JUSTICE SUVRA GHOSH


                              F.A. 134 OF 2016

                                   WITH

             I.A. NO. CAN 1 OF 2017 (OLD CAN 3609 OF 2017)

                                Chiranjib Bag

                                   Versus

                             Smt. Suchandra Bag

      For the Appellant :            Mr. S.T. Mina, Adv.
                                     Mr. Amajit De, Adv.
                                     Mr. Pratick Sardar, Adv.,



      For the Respondent:            Mr. Dipak Kr. Mookerjee, Adv.

     Heard on            :           02nd March, 2021

     Judgment on         :           10th March, 2021


SUVRA GHOSH, J. :-

1. This is a tragic story of a woman who is eager to fulfil her dreams of a

happy and peaceful married life despite denial and refusal by her

husband.

2. The respondent is the wife of the appellant by virtue of marriage

solemnised as per Hindu rites and customs on 10-08-2009. Disputes and

differences cropped up between the parties which led the appellant/

husband to file a suit praying for decree of divorce under section 13(i) (a)

of the Hindu Marriage Act, 1955 before the Learned Additional District

Judge, Fast Track Court, Durgapur. The contention of the

appellant/husband in the said petition was that the respondent

misbehaved with the appellant and his family members and also

developed extra marital relationship with many persons. She turned a

deaf ear to the request of her husband to lead a moral life and cooperate

with him in maintaining cordial relation. It was further alleged that the

respondent insisted that the appellant should stay separately from his

family and refused to lead a conjugal life with the appellant, besides

torturing him physically and mentally. The respondent left the

appellant's house voluntarily in January, 2011 and was residing in her

parental home since then. Several efforts of the appellant to bring her

back failed and there was no scope for reconciliation between the parties

which compelled the appellant to file suit for divorce on the grounds of

adultery, cruelty and desertion.

3. The respondent/wife contested the suit by filing written statement

wherein she denied the contention of the appellant and stated that the

appellant married her after obtaining a decree of divorce against his first

wife Rina Bag alias Manna on 02-02-2009. She also averred that the

appellant was a primary school teacher under the State Government,

posted at Harishpur near Purbasthali in district Burdwan which was far

away from his residence at Durgapur which he visited every weekend.

The appellant and his family members were unhappy with the gold

ornaments, furniture, utensils and cash of Rs. 1, 60,000/- given by the

widowed mother of the respondent during their marriage and demanded

further cash and other valuables from her. The inability of the

respondent's mother to meet the said demand resulted in subjecting the

respondent to physical and mental cruelty by the appellant and his

family. The appellant also insisted on staying in the respondent's

parental home as "Ghar Jamai". The respondent further stated that the

appellant was incapable of leading conjugal life whereas she had no

medical problem at all. The respondent was taken to her parental home

by the appellant on 03-06-2010 and left there, never to be allowed in her

matrimonial home again. The respondent has been receiving interim

maintenance to the tune of Rs. 3,000/- per month from the appellant by

virtue of an order granted by the Learned Judicial Magistrate, Second

Court, Durgapur in Miscellaneous Case No. 186 of 2011. The respondent

is ready and willing to reconcile with the appellant and lead a peaceful

marital life with him. She prayed for dismissal of the suit.

4. Upon taking evidence of the parties and considering the entire material on

record, the learned trial court, by judgment impugned, dismissed the suit

on contest.

5. Being aggrieved by such dismissal, the appellant has come up before this

court in appeal, praying for a decree of divorce in his favour.

6. Learned counsel for the appellant has submitted that he does not intend

to press the grounds of adultery and desertion and shall confine his

argument to the ground of cruelty.

7. At the outset, it has been pointed out on behalf of the appellant that

though the respondent filed a proceeding praying for maintenance, she

did not approach the court for restitution of conjugal rights which

indicates that she has no intention of resuming marital life. Referring to

the averment of the respondent in her written statement as well as her

evidence before the learned trial court, learned counsel has submitted

that the allegations of demand of dowry and cruelty thrust upon the

appellant are out and out false and the allegation of the respondent with

regard to sexual incapability of the appellant amounts to mental cruelty.

The allegations made out against the appellant by the respondent are

baseless, false and fabricated. In support of his contention, the appellant

has placed reliance upon the authority in Smt. Santana Banerjee v/s.

Sachindra Nath Banerjee reported in AIR 1990 CAL 367 and

Amarendranath Sannyal v/s. Krishna Sannyal reported in (1993) 1 CHN

213.

8. Learned counsel appearing on behalf of the respondent/wife has

supported the impugned judgment and has submitted that the

respondent was driven out of her matrimonial home by the appellant and

his family members and was constrained to stay in her parental home.

Several false allegations have been made against the respondent by the

appellant who refused to accept her when she returned to her

matrimonial home. The respondent is ready and willing to reunite with

her husband and has also not taken any coercive step against him despite

being subjected to cruelty and being deprived of marital life. Learned

Counsel has referred to a decision of a coordinate bench of this court in

Suparna Dalui v/s. Bidhan Mondal reported in 2016 (5) CHN (CAL) 429.

9. We have considered the submissions made on behalf of the parties as

well as material placed on record.

10. Admittedly the parties were married as per Hindu rites and customs on

10-08-2009 and led a marital life together for some time. Other admitted

facts are that the respondent's sister is married to the appellant's brother

and reside separately from the rest of the family. Also, the appellant

married the respondent after obtaining a decree of divorce against his first

wife Rina.

11. As envisaged in section 13(i) (a) of the Act of 1955, marriage under this

Act can be dissolved by a decree of divorce on a petition presented by

either the husband or the wife on the ground that "the other party has,

after the solemnisation of the marriage, treated the petitioner with

cruelty". The term "cruelty" takes within its sweep any act which may

cause physical, mental or other violation and should be something more

than ordinary wear and tear of a marriage.

12. In the instant case, the appellant has urged that he was subjected to

physical and mental cruelty by the respondent who refused to cooperate

with him in his conjugal life and was unwilling to live in her matrimonial

home. He has also stated that the statement of the respondent in her

written statement as well as evidence before the learned trial court

amounts to mental cruelty. Such statement of the respondent in her

written statement is set out:

"That the statement of the petition made in paragraph

No. 4 is false and denied by the respondent. It is the

actual fact the petitioner is unable for intercourse

properly with his wife his behaves like an animal".

The statement refers to paragraph 4 of the petition filed by the appellant

which is reproduced below.

"That the respondent in the absence of the

petitioner grew up extra marital relationship with

many persons which the petitioner came to know

from the month of August, 2010."

13. It is evident that the statement made by the respondent is in retaliation

to the allegation thrust upon her by the appellant. The appellant has

taken the pain to place reliance upon the authority in Smt. Santana

Banerjee (supra) wherein it has been observed by a coordinate bench of

this court that disparaging remarks about the husband and false

allegations affecting his peace and honour must be construed to be acts of

cruelty. The authority in Amarendranath Sannyal (supra) also says any

imputation against the character of a spouse which is unfounded and

baseless and on mere suspicion would amount to mental cruelty.

14. In the case in hand, it was the appellant who filed the suit for divorce on

a vague allegation of cruelty which was neither explained, nor elaborated.

It was the appellant who went to the extent of assassinating the

character, morality and sexual capability of the respondent. If this is not

cruelty, then what it is? It was only in reply to the allegations thrust

upon her that the respondent tried to place her case before the court. In

other words, the cruel and impolite gesture of the appellant was retaliated

to by the respondent in a manner best suited to her. Therefore the

authorities referred to by the appellant do not come to his aid in the

present case.

15. Per contra, the attitude of the appellant and his comments touching the

chastity and womanhood of the respondent are glaring examples of

torture/cruelty meted out upon her.

16. The appellant has pointed out that the respondent did not take any step

for restitution of conjugal rights which indicates that she has no intention

of returning to the appellant. It is a fact that no case praying for

restitution of conjugal rights has been filed by the respondent. But at the

same time the respondent was/is all throughout ready and willing to

reconcile with the appellant and return to her matrimonial home. In fact,

the respondent attempted to resume her marital life by going to the

appellant's house on 24-11-2013 but was driven away therefrom by the

appellant as admitted by him in his evidence. The appellant has very

clearly stated that he is not willing to lead a conjugal life with the

respondent. The appellant's father who adduced evidence before the

learned trial court has also stated that he does not want the appellant to

live with the respondent. Therefore it is crystal clear that despite all

efforts by the respondent to return to her matrimonial home and resume

conjugal life with the appellant, she was not accepted by the appellant

and his family and was compelled to return to her parental home. Merely

because the respondent did not formally pray for restitution of conjugal

rights before a court of law, under no stretch of imagination can it be

inferred that she had no intention of resuming conjugal life with the

appellant.

17. Allegation of cruelty has not been substantiated by cogent evidence and

even if it is held that there were certain differences between the couple,

the definition of cruelty cannot be stretched to such an extent as to

include such petty disputes and differences which are part and parcel of a

normal married life. While trying to make out a case of cruelty against

the respondent, the appellant has exposed his cruel and impolite attitude

towards his wife which seriously affects the dignity and honour of a

woman.

18. Upon consideration of the entire material on record, we are left with no

alternative but to come to the conclusion that the appellant has miserably

failed to prove his case and there is no illegality or irregularity in the

judgment impugned that calls for inference by this court.

19. In the result, the appeal fails.

20. F.A. 134 of 2016 is dismissed.

21. Connected application being I.A. No. CAN 1 of 2017 (OLD CAN 3609 OF

2017) is disposed of.

22. Judgment dated 17-09-2015 passed by Learned Additional District

Judge, Fast Track Court, Durgapur, Burdwan in Matrimonial Suit No.

217 of 2011 is affirmed.

23. There will however be no order as to costs.

24. A copy of this judgment be sent to the learned trial court for information

and necessary action.

25. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

(Arindam Sinha, J.)

(Suvra Ghosh, J.)