Calcutta High Court (Appellete Side)
Smt. Radha Majumder vs Sri Arun Kumar Majumder on 23 March, 2021
42 23.03.2021 FAT 15 of 2015
AN Ct. No. 04
Smt. Radha Majumder
-vs.-
Sri Arun Kumar Majumder
Mr. Pradip Kumar Roy
Ms. Shraboni Sarkar
... for appellant wife
Mr. Debabrata Acharyya
Mr. Sital Samanta
... for respondent husband
The appeal is by the wife against judgment and
decree dated 3rd February, 2012 in Mat. Suit no. 26/2002.
Mr. Roy, learned advocate appears for appellant
and submits, his client was involved in financial
circumstances that prevented her from fully contesting
the suit and thereafter promptly preferring the appeal
from impugned judgment and decree, gone against her in
dissolving the marriage. Since the decree says it was on
contest, his client preferred the appeal. Reported delay
was 986 days, condoned by coordinate Bench on order
dated 21st June, 2018. He submits, his client had stated
in the application for condonation of delay that she had
approached High Court Legal Services Committee and he
had been appointed. Steps were thereafter taken for filing
the appeal.
Referring to impugned judgment he submits, the
allegation of cruelty was erroneously held to have been
proved. Persons named were not produced as witnesses.
Extreme financial hardship had prevented his client from
fully participating at trial but that by itself did not justify
finding in impugned judgment and decree that the
allegation was proved. He relies on following sentence in
impugned judgment.
"The absence of cogent proof of illicit
connection by the respondent is nothing but
a mental cruelty against him by the
respondent as defined u/s. 13(i)(ia) of the
Hindu Marriage Act, 1955."
Fact to be proved was erroneously taken to be allegation
of illicit connection of the husband. His client had not
alleged so in her written statement. There was no
question of her requirement to prove as fact, that which
was not alleged or pleaded by her. He also refers to
paragraphs 28 to 34 in the petition, dealt with by his
client in paragraph 14 of the written statement. Impugned
judgment and decree should be reversed. On query from
Court, he submits, initially Rs. 2500/- per month was
decreed as permanent alimony. The same was
subsequently increased to Rs. 5000/- per month. His
client is receiving the alimony as paid month by month.
Mr. Acharyya, learned advocate appears on
behalf of respondent husband and submits, the suit was
filed in year 2004. Dilatory tactics were adopted by
appellant. His client gave evidence and was cross-
examined. The cross-examination could not shake his
evidence. Such unshaken testimony was corroborated by
the daughter. The daughter is married and living happily
in her matrimonial home. Grave and serious allegations
against his client were made regarding carrying on with
several women, including, his daughter. This part of the
evidence is also corroborated by the daughter. It is
because the daughter took the Box and corroborated
unshaken testimony of the husband, appellant did not
cross-examine her, nor turn up to give evidence and be
cross-examined. In the circumstances, further
corroboration was not required and the Court below
correctly appreciated the evidence to find cruelty inflicted
on his client. His client has allowed appellant to stay in
his flat and is regularly paying her enhanced permanent
alimony. Eighteen years of separation has happened and
there should not now be reversal of impugned judgment
and decree.
He relies on judgments of Supreme Court.
i) Adhyaatmam Bhaamini vs. Jagdish Ambalal
Shah reported in (1997) 9 SCC 471, paragraphs 4 to 6.
He submits, facts were similar where appellant wife (in
that case) had argued in person saying, inter alia, she
suddenly fell ill and was not in a position to attend the
Court. She had made request to one advocate to submit
application for adjournment. The application was not
found in the record. Supreme Court said that there still
remained the question whether there was sufficient
justification for failure on the part of appellant to not
appear before the family Court on subsequent dates. In
this case, absence of appellant before the Court below was
not even backed up by application for adjournment. In
the circumstances, her absence must be seen as omission
to cross-examine her daughter and thereafter tender
herself as witness. That has been the presumption drawn
by the Court below.
ii) G. V. N. Kameswara Rao vs. G. Jabilli
reported in (2002) WBLR (SC) 491 paragraphs 8, 10, 12,
15 and 18. He submits, appellant, on receipt of notice of
the petition for divorce, had made complaint under
section 498A of Indian Penal Code, 1860. This, by itself,
amounts to cruelty as was found on similar facts given in
paragraph 8 of Kameswara Rao (supra). He submits, in
paragraph 18 of the judgment, Supreme Court said as
follows:
"We do not think that this is a case,
where the appellant could be denied relief
by invoking Section 23(1)(a) of the Hindu
Marriage Act. On the other hand, various
incidents brought out in the evidence would
show that the relationship between the
parties was irretrievably broken, and
because of the non-cooperation and the
hostile attitude of the respondent, the
appellant subjected to serious traumatic
experience which can safely be termed as
'cruelty' coming within the purview of
Section 13(1)(ia) of the Hindu Marriage Act.
Therefore, we hold that the appellant is
entitled to the decree for dissolution of
marriage under Section 13(1)(ia) of the
Hindu Marriage Act ... ... ... ."
There should be no interference in appeal but
confirmation of impugned judgment and decree.
We have the situation where appellant obtained
legal aid in preferring the appeal. The application for
condonation of delay, being part of the record, we have
looked at it. She said in the application that she was
seriously ill and in extreme financial crisis, for which she
could not attend the Court for hearing of the case and
was unaware of passing of impugned judgment and
decree. On recovery she approached High Court Legal
Services Committee.
As aforesaid, the coordinate Bench found fit to
accept her causes for the delay and condoned the same.
Legal Services Authority provided her with assistance.
The assistance was to enable her to file the appeal. As
such, we must adjudicate the appeal on the materials that
were there before the Court below.
Respondent's contention that reckless allegation
against him was made by appellant to outsiders did not
find corroboration by outsider witness, since none was
produced by said respondent. Respondent examined
himself and his daughter gave evidence as P.W. 2. Letters
written by him to Councillor, Officer-in-Charge of Sarsuna
Investigating Centre, Superintendent of Police, Secretary
in the Labour Department, Government of West Bengal,
Officer-in-Charge of Thakurpukur Police Station and
marriage invitation card of his daughter's marriage were
tendered as exhibits. The oral evidence was considered.
Our adjudication on facts need necessarily be
confined to allegations made in paragraphs 28 to 34 in
the petition. Allegations are firstly regarding appellant
having taken up a 9.00 A.M. to 9.00 P.M., job to be
independent as alleged by respondent. Consequently, she
became ill. It is respondent's evidence that he put
pressure on appellant to leave the job. Appellant in her
written statement said respondent forced her to work in a
sales office, to earn money to meet family expenses. There
was no corresponding suggestion given to respondent, in
cross-examination. It appears that appellant took up the
job and respondent caused her to leave it. On this count,
we disbelieve appellant.
The next allegation of the husband is of an
incident in July-August of 2003 regarding appellant
visiting respondent's office and informing Committee of
the Housing about, inter alia, him maintaining illicit
relationship with the daughter. There is allegation that
persons of the Housing came to the residence as a
consequence. Appellant in her written statement admits
that on one occasion she went to petitioner's office but, to
meet him. She did not deal with the allegations regarding
her approaching the Housing Committee members and
some people thereafter visiting the residence. The
daughter made corroborating allegation in her evidence-
in-chief. There are some statements in her affidavit-in-
chief, which are hearsay. The parts of her affidavit that
can be attributed to be her evidence is in corroboration of
what her father said in the petition, his affidavit-in-chief
and from the Box, in cross-examination.
Mr. Roy is correct in his submission to say that
the trial Court erroneously found absence of cogent proof
of illicit connection by the husband, as alleged by
appellant, amounting to mental cruelty against him. We
read the sentence in context of the learned judge dealing
with issue no. 2 being - 'is the respondent guilty of
cruelty?' It appears the Court below found, inter alia, as
follows:
"Furthermore the case of the petitioner
is totally corroborated by the testimony of
her married daughter Sikha Mazumdar who
stated on oath against mother/respondent
as per plaint of the petitioner and also
stated that she became ill due to torture by
her mother/respondent and also physically
injured by her mother/respondent."
The Court said, as per quote relied upon by Mr. Roy, on
analysis of the evidence. It does appear that allegation of
illicit relationship or affair was made by appellant against
respondent. In that context, the sentence relied upon by
Mr. Roy tells us that the wife had made reckless allegation
against the husband, amounting to cruelty.
We accept that the judgments relied upon by
Mr. Acharyya are applicable to the facts and
circumstances of the case and are in aid of his client.
In view of above, we are convinced that there is
no scope to interfere with impugned judgment and decree.
The appeal is found to be without any merit and the same
is dismissed.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
