Malay Banerjee vs Antara Banerjee (Chattaraj)
2021 Latest Caselaw 2305 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. 379 of 2013
                                   With
            I.A. No. CAN 1 of 2013 (Old CAN 11287 of 2013)


                              Malay Banerjee

                                  Versus

                       Antara Banerjee (Chattaraj)

      For the Appellant :           Mr. Probal Kr. Mukherjee, Sr. Adv.
                                    Mr. Sagnik Chatterjee, Adv.



      Heard on           :          16th March, 2021
     Judgment on         :           24th March, 2021


SUVRA GHOSH, J. :-

1. The present appeal which is directed against judgment dated 29-07-2013

  passed by the Learned Additional District Judge, First Court, Purulia in

  Matrimonial Suit No. 115 of 2007 is accompanied by an application under

  order 41 Rule 27 of the Code of Civil Procedure for production of

  additional evidence. A coordinate Bench, vide order dated 12-03-2014,

  directed that the application be heard along with the appeal.

2. Notice of appeal has been attempted to be served and was returned with
                                         2



   a postal endorsement "refused".       In this regard it shall be useful to

   reproduce order dated 24-02-2021:-

                         "Mr. Chatterjee, learned advocate appears on behalf

                         of applicant.       He submits, the application is for

                         production of additional evidence.           There was

                         direction earlier made by a coordinate Bench on 12th

                         March, 2014 for the application to come up for

                         hearing along with the appeal. He submits, notice

                         of appeal has been served and all formalities

                         complied with. Respondent goes unrepresented.

We find a note, laid by the section

before Registrar (Administration), saying, vide memo

dated 7th April, 2015 notice of appeal was issued

upon sole respondent by speed post with

acknowledgment due but the same has been

returned with postal endorsement on the envelope

as "refuse".

Affidavit-of-service in compliance with

direction made by another coordinate Bench on 7th

December, 2020 is filed. The affidavit contains

postal article addressed to respondent bearing

endorsement "refused".

3. We are convinced that the respondent is not interested in contesting the

appeal. The appeal is taken up for hearing and disposal.

4. The appellant intends to place on record certain documents as additional

evidence and submits that though copies of the said documents were

produced before the learned trial court, the originals thereof could not be

produced as evidence as they were misplaced and were traced out only

after judgment was pronounced. The petition is not opposed and

documents relied upon by the petitioner shall, in our considered view,

assist the court in pronouncing judgment. As such, the documents be

taken as additional evidence in the appeal.

5. The appellant who is the husband of the respondent filed a matrimonial

suit being no. 115 of 2007 before the learned trial court wherein he stated

that his marriage with the respondent was negotiated through an

advertisement in the newspaper and the parties were married on 17-02-

2003 according to Hindu rites and customs. Though the respondent was

cordially accepted in her matrimonial home, she started behaving

abnormally, used abusive language towards the appellant and his family,

threw away articles, spoilt food and even instigated the appellant to commit

suicide. The appellant is an unemployed graduate who worked as a

contractor and was humiliated by his wife on his income. The respondent

also insisted on his remaining as a "Ghar Jamai" in her parental home.

The appellant further contended that on 21-07-2004 the respondent left

her matrimonial home with her belongings following which the appellant

filed a divorce suit against her. The respondent, as a counterblast, filed a

criminal case against the appellant and his family members under section

498A/34 of the Indian Penal Code wherein the appellant and his family

members were acquitted by the court on 02-02-2006. Thereafter the

appellant also withdrew the matrimonial suit on request of the respondent

who agreed to lead a matrimonial life with him. In the mean time, the aged

parents of the appellant shifted to their younger son's house in Kolkata

and started residing there permanently. The family members of the

appellant resided separately and were well established and there was no

question of their interference in the matrimonial life of the parties. Further

averment of the appellant was that in the 3rd week of July, 2007 the

respondent resumed mental torture upon the appellant and threatened to

lodge complaint against him. On 29-09-2007 when the appellant was

alone in his house, the respondent and her father accompanied by

outsiders came to his house and assaulted him mercilessly. The

neighbours who came to his rescue were also abused and insulted. The

respondent lodged a vague complaint before the police on the same night

which was enquired into by the police who found no substance therein and

released the appellant on execution of PR bond. The appellant alleged that

the respondent meted out physical and mental torture upon him for which

he was constrained to stay at Mayur Hotel from 14-09-2007 to 16-09-

2007. A mass petition was also submitted by the neighbours before the

police on 29-09-2007 against the respondent. The appellant was admitted

to the hospital and remained there for three days on account of assault by

the respondent and her father. According to the appellant, the relationship

between the parties having been irretrievably broken down, there was no

chance of reconciliation, for which he prayed for a decree of dissolution of

marriage.

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

she denied all the material allegations of the appellant and stated that her

father gave dowry in cash and kind during her marriage on demand of the

petitioner and she led a happy conjugal life with the petitioner in her

matrimonial home, also with other members of the petitioner's family.

About 7-8 days prior to 21-07-2004, the appellant started inflicting

physical and mental torture upon her and she was rescued from the

clutches of the appellant by her father on 21-07-2004. Following

matrimonial suit filed by the appellant and criminal case lodged by the

respondent, the parties decided to resume conjugal life and both the cases

were disposed of on compromise. The appellant took the respondent to his

house on 15-07-2007 where they resided together till 29-09-2007. The

respondent further contended that on 29-09-2007 she visited her parents

on account of her mother's illness and as the appellant did not come to

fetch her from her parental home as decided earlier, she went to the

appellant's house accompanied by her father at about 11:00 P.M. She

found the main entrance of the house bolted from inside and on calling the

appellant for considerable period, he opened the door and started abusing

and assaulting the respondent and her father. His neighbours also arrived

and took sides with the appellant. The respondent and her father were

saved on arrival of the police at about 11:30 P.M. All present there went to

the police station and the respondent and her parents lodged written

complaint against the appellant and others. The appellant was released

from the police station on execution of PR bond. The respondent

submitted that she was ready and willing to reunite with the appellant and

prayed for dismissal of the suit.

7. Upon considering the submissions on behalf of the parties as well as the

evidence on record, the learned trial court, by the judgment impugned,

dismissed the suit. Being aggrieved by the said judgment, the appellant/

husband has come up before this court in appeal.

8. It is submitted by learned counsel appearing for the appellant that the

appellant was subjected to cruelty by the respondent who was unwilling to

lead a conjugal life with him and subjected even his aged parents to

cruelty. The appellant was hospitalised due to severe assault by the

respondent and his father and such fact has been corroborated by

neighbours of the appellant who filed a mass petition before the police on

protest against the behaviour and attitude of the respondent.

9. Record reveals that the parties were married on 17-02-2003 and led a

conjugal life together till 21-07-2004 when the respondent left for her

parental home. It is not disputed that an earlier divorce suit filed by the

appellant was disposed of due to settlement between the parties and a

criminal complaint lodged by the respondent under section 498A/34 of the

Indian Penal Code was also disposed of, the appellant and his family

members being acquitted of the charges therein. The parties resumed

marital life and stayed together till 29-09-2007.

10. The appellant has alleged that the respondent again started showing her

true colours from the 3rd week of July, 2007 and meted out physical and

mental torture upon him. The appellant has relied upon cash bills issued

by Hotel Mayur in his name to impress upon the court that he was

compelled to take refuge in the hotel from 14-09-2007 to 16-09-2007 due

to ill behaviour of the respondent. The said bills demonstrate that the

appellant resided in the hotel from 14-09-2007 to 16-09-2007 but it

cannot be inferred therefrom that such stay of the appellant had any

nexus with disturbance in his family life. There is also no corroborative

evidence which explains the reason for the appellant's stay in the hotel for

three days in particular when it is evident that he remained in his house

prior to and after the said dates. These documents are not of much

assistance to the appellant in the appeal.

11. An incident of 29-09-2007 has been highlighted. The appellant has

claimed that on the said date the respondent and her father went to his

house and brutally assaulted him. He has also stated that the

neighbours who came to his rescue were also abused and insulted. It is

also the respondent's version that she along with her father went to her

matrimonial home on that date at about 11:00 P.M. The version may be

different, but it is clear that the respondent and her father visited the

house of the appellant in the night of 29-09-2007. Though each party

claims to have been assaulted by the other; there is no contemporaneous

medical document in support of the respondent's allegations. On the

other hand, medical documents, filed by the appellant suggest that he

sustained injuries and was hospitalised from 30-09-2007 to 01-10-2007.

Such documents lend support to the appellant's case and it can be

inferred that the appellant sustained injuries on the relevant night. A

mass petition filed by the local people before the police on the same date

also speaks of physical and mental torture upon the appellant on 29-09-

2007 by the respondent and her father. The petition is a protest by the

local people against insult and humiliation suffered by them at the

instance of the respondent and her father. Admittedly police had to

intervene and both the parties were called to the police station. The

appellant was released on execution of PR bond.

12. It is evident from the evidence on record - both oral and documentary,

that the appellant was subjected to cruelty, both physical and mental by

the respondent for which he was constrained to file the suit for divorce.

The neighbours have also unanimously supported the contention of the

appellant and had in fact assembled at the appellant's house on hearing

harsh and abusive language thrust upon the appellant by the respondent.

Jhulan Bhattacharjee who appears to be one of such neighbours stated in

his evidence as PW-5 before the learned trial court that the appellant was

lying near the drain after being assaulted on the relevant night and was

taken to the hospital on 30-09-2007.

13. The appellant's case remains uncontroverted as the respondent has not

bothered to contest the appeal despite service of notice.

14. Upon consideration of the entire evidence on record, we have no

hesitation to hold that the appellant has succeeded in substantiating his

allegation of being subjected to physical and mental torture by the

respondent and is therefore entitled to get the decree as prayed for.

15. F.A. 379 of 2013 is accordingly allowed.

16. Judgment dated 29-07-2013 passed by the Learned Additional District

Judge, First Court, Purulia in Matrimonial Suit No. 115 of 2007 is hereby

set aside.

17. The appellant do get a decree for dissolution of marriage solemnised with

the respondent on 17-02-2003 with effect from the date of decree.

18. Connected application being I.A. no. CAN 1 of 2013 (Old Can 11287 of

2013) is also disposed of.

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

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

and necessary action.

21. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties expeditiously on compliance with usual

formalities.

(Arindam Sinha, J.)

(Suvra Ghosh, J.)