Smt. Madhumita Bhowmick vs Sri Somnath Bhoumick
2022 Latest Caselaw 1993 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE SOUMEN SEN
              &
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                                FA 95 of 2017
                                     With
                           I.A. No. CAN 3 of 2018
                        (Old No. CAN 6683 of 2018)
                                     With
                           I.A. No. CAN 4 of 2020

                        Smt. Madhumita Bhowmick
                                   Vs.
                          Sri Somnath Bhoumick

For the Appellant             :     Mr. Supratick Syamal
                                    Mr. Rajarshi Mitra
                                    Mr. Anirban Tribedi

For the Respondent            :     Mr. Farhan Ghaffar

                              :     Ms. Susmita Chakraborty


Heard on                      :     31.03.2022

Judgment on                   :     13.04.2022


Ajoy Kumar Mukherjee, J. :

1. Present First appeal has arisen out of judgment and decree passed by

Additional District Judge, 6th Court Alipore, South 24 parganas in Mat Suit No.

31/2010. By the impugned judgment learned Trial Court was pleased to pass a

decree of judicial separation on the ground of cruelty.

2. Petitioner's/ husband's case in a nutshell is that petitioner was married

with the opposite party according to Hindu rites and custom on 9th July, 2008

and said marriage was an arranged marriage. Both the parties after marriage

started residing together as husband and wife at the matrimonial home of the

respondent, though no issue was born due to such wed-lock.

3. It is alleged that the respondent is reluctant to do house-hold works and

she used to pre-occupy herself without caring for the petitioner or his parents

and she used to persist petitioner to live in a separate accommodation, leaving

the parents of the petitioner. Moreover the respondent is ill tempered and used

to misbehave with the petitioner and her parents and she also used to show

disrespect to her in laws in every possible way. The respondent is also

suspicious and used to check the mobile phone of the petitioner everyday as to

whether the petitioner is keeping in touch with any women. The marriage

between the parties did not work out at all as the respondent inflicted immense

cruelty to the petitioner and made his life horrible. Respondent finally left her

matrimonial home with her belongings and ornament on 23.05.2009 and since

then she has been living separately.

4. During the pendency of the suit petitioner by way of amendment of plaint

incorporated that after receiving summon of the instant suit, the respondent

started threatening over telephone. Respondent came to the father's house of

the petitioner and therefore she made a chaos and threatened the petitioner

and his family members to face dire consequences, if the petitioner would not

agree to take separate accommodation elsewhere. Thereafter in the month of

September, 2013 at about 9 a.m., respondent suddenly came at her

matrimonial home and started to cry loudly and also abused petitioner and all

other family members, after giving an ultimatum for making separate

arrangement for her stay with the petitioner elsewhere, except her matrimonial

home. The respondent also made complaint before legal aid authority, where

the petitioner was advised by the said authority to take his wife by arranging a

separate accommodation, but the authority concerned did not appreciate that

the suit for divorce is pending between the parties. Accordingly petitioner

prayed for dissolution of the marriage on the ground of cruelty.

5. The respondent/wife contested the suit by fling written statement and

denied all material allegations made in the plaint and put the petitioner to

strict proof thereof. Respondent denies and disputes that she is hot tempered

or that she used to misbehave with the petitioner or with his parents or that

she used to show disrespect to her in-laws. She also denied that she is

suspicious or used to check mobile phone of the petitioner or that she inflicted

any kind of cruelty upon the petitioner. The respondent states that all her

personal ornaments still lying at her matrimonial home. In fact the respondent

went to her parental house at Nabadwip to see her ailing mother and intended

to stay there for few days to attend her mother and she went there with the

consent and approval of the petitioner and at that time the relationship

between the parties was good and petitioner expressed that after few days he

will be going to Nabadwip to bring her back to the matrimonial home.

Subsequently petitioner avoided to come Nabadwip in some pretext or other

and suddenly she was shocked to receive the summon of the matrimonial suit.

She submitted that plaintiff has no cause of action to file the suit and prayed

for dismissal of the suit. By way of additional written statement she has also

denied all allegations levelled against her in paragraph 6 (i) and 6 (ii) of the

plaint.

6. On the basis of the pleading Trial Court framed 6 issues out of which

issue No. 3 relates to allegation regarding treating the petitioner with cruelty

and issue No. 4 relates to the question of desertion by the respondent.

Petitioner/husband only deposed in the suit as PW1 and he has filed and

proved G.D. slip dated 04.09.2010, written complaint dated 04.09.2010, G.D.

No. 118 dated 02.11.2009, G.D. dated 28.12.2009, written complaint dated

28.12.2009, which are marked as Exhibit 1 to 4 and petitioner also filed an

original letter along with envelope written by respondent addressed to the

petitioner which is dated 17.06.2009 and marked as Exhibit 5. On the contrary

respondent /wife deposed as DW1 and no document was filed on her behalf.

7. Learned Trial Court after considering the pleading and the evidence

adduced by both the parties, came to the finding that the allegation that the

respondent was reluctant to do household work or she left for her job at 9 a.m.

and used to return home at 8 p.m. does not amount to cruelty as cruelty is to

be grave and weighty to make the petitioner impossible to live together without

harming himself and also because petitioner opted to marry respondent with

full knowledge that she will work during the office hour. Moreover, asking

separate accommodation or non-attendance in the household work are not

proved as no other witness corroborated said allegations. Not only that demand

for separate accommodation or reluctance to do household works cannot come

under the definition of "cruelty" and in this context he relied upon a case

Bhavna Sharma (Smt.) v. Devendra Kumar Sharma, reported in AIR 2007

Raj 157.

8. Learned Trial Court further held that if respondent earlier approached

before District Legal Service Authority (DLSA), it also does not amount to

"cruelty". Moreover petitioner did not bring on record any witness to prove that

any undue pressure was created on him to take his wife in a separate

accommodation. Petitioner did not examine his parents or any other family

member to prove that petitioner or his family members suffered any mental

cruelty due to filing application before DLSA by the respondent wife . As

regards alleged occurrence in June 2012 and September 2013, trial court held

that in the additional written statement, respondent denied such allegation and

no witness or family member of petitioner was examined to prove the said

occurrence, though family members of the petitioner resided in a joint family

and they are the best witness whom the petitioner has withheld. Accordingly

learned Trial Court observed, if the respondent visited the matrimonial home in

September, 2013 and June 2012, it does not constitute "cruelty" unless

misbehaviour is proved by corroboration.

9. To answer the issue as to whether respondent deserted the petitioner

without any excuse, Trial Court held that desertion on the part of the

respondent/wife was not proved and on the contrary it appears that wife made

several attempts to live together and respondent took defence that she left the

matrimonial home on 23.05.2009 after taking consent and permission from the

petitioner to see her ailing mother. Moreover dissolution of marriage on the

ground of desertion has been filed without waiting minimum mandatory period

of two years time after separation. Furthermore, petitioner admitted in his

cross-examination that he never went to the respondent after 23.05.2009 to

bring her back. Accordingly petitioner has miserably failed to prove that

respondent has wilfully deserted the petitioner without any lawful excuse.

10. However relying upon the letter written by the respondent on 17.06.2009

and which is marked as Exhibit 6, Trial Court observed that respondent has

admitted the contents of the letter and also her signature in cross-examination.

In the said letter respondent admitted that she misbehaved with the petitioner

day after day and disrespected him and she further admitted in that letter that

she inflicted injury to the petitioner emotionally and she repented and she

intended to rejoin with the petitioner. She further admitted through Exhibit 6

that she suspected the petitioner. Learned Trial Court further held that though

an admission is not conclusive proof but rebuttable and is to be rebutted

thorough evidence. Accordingly the allegation levelled by petitioner that

respondent misbehaved/disrespected the petitioner for which he suffered

mental pain, has been proved by way of admission. Respondent also admitted

that petitioner took required care to make her happy during the trip to Goa

after marriage. Accordingly Trial Court concluded that such act of

disrespect/misbehaviour whether intentional or unintentional is immaterial

but fact remains that such admitted act amounts to mental cruelty and mental

pain. However, learned Trial Court found that there are wrong from both sides

and both sides are at fault and for which instead of granting decree of divorce,

he moulded relief to judicial separation and also granted permanent alimony

under section 25 of the Hindu Marriage Act.

11. Being aggrieved and dissatisfied with the aforesaid judgment and decree

dated 22.04.2016 wife/respondent/appellant preferred this appeal on the

ground that learned court below erred in law holding that husband/petitioner

could prove the allegation of cruelty on the ground that respondent admitted

in the letter which is marked as Exhibit 6, that she misbehaved with the

petitioner and she had shown disrespect and/or suspected the petitioner

without considering that the admission made in the letter is no admission in

the eye of law. Learned Trial Court ought to have taken into consideration the

contents and purport of the letter in its entirety. Learned court below failed to

consider in granting the decree of judicial separation in favour of petitioner

husband without considering that the petitioner did not comply with the

learned court's order in paying maintenance and litigation cost to the

respondent wife and such non payment amounts to wrong done by the

petitioner, which disentitles the petitioner from getting any relief. Learned Trial

Court did not consider that the petitioner/husband at no point of time took

any endeavour to resume the matrimonial tie. The letter dated 17th June, 2009,

which is marked as Exhibit 6 is written only after 25 days of separation by the

respondent, praying for forgiveness with a hope that the petitioner/husband

will resume the matrimonial tie and learned Trial Court erred in law in holding

on the basis of said letter that the admitted act of respondent amounts to

cruelty and mental pain towards the petitioner. Practically petitioner has no

cause of action to file the case.

12. We have heard learned counsel for both the parties. The letter dated 17th

June, 2009 which is marked as Exhibit 6 has got no connection with the

alleged occurrence which allegedly took place in June 2012 or September, 2013

and learned Trial Court rightly held that said alleged occurrence has not been

proved in the absence of corroboration by the family members, who could have

been the best witness to support the alleged occurrence relating to cruelty. We

also find nothing to interfere with the observation made by the Trial Court in

coming to a finding that as because it was an arranged marriage and petitioner

opted to marry respondent with the knowledge that she is a working lady then

the allegation that respondent was reluctant to do household work and

remained in office from 9 a.m. to 8 p.m. must not amount to cruelty. Even

going to parents' house off and on by the respondent also does not amount to

cruelty. There is nothing to interfere with the observation made by the Trial

Court that asking for separate accommodation in order to reside separately or

to make an approach before DLSA for a practical solution in order to restore

their matrimonial tie, can by no stretch of imitation stand as a ground for

dissolution of marriage on the ground of cruelty.

13. However, from paragraph 6 of the plaint it appears that petitioner has

alleged that respondent is hot tempered and used to misbehave with the

petitioner and his parents and she used to show disrespect to her in-laws in

every possible way she could do. In the said paragraph it is further alleged that

the respondent is suspicious and that the marriage between the parties did not

work out as respondent inflicted immense cruelty on the petitioner/husband

and made his life horrible. From the lower court record it appears that the

letter which is marked as Exhibit 6, the respondent admitted by writing "ami

tomar sathe onek durbabohar korechi", (I misbehaved with you in various

ways) "tomake aghat dia katha bolechi" (I spoke with you in such a way that

you were hurt) "ami tomar sathe diner por din kharap babohar korechi,

osomman korechi"(As such I misbehaved with you for day after day and

insulted you). "Tomar moner vitorta ami khoto bikhoto kore diachi", (I badly

hurt your sentiment and emotions) "ami nijer ojante diner por din amader

somporko ta kharap kore diachi", (Gradually I spoiled our relationship) "amar

kharp babohare diner por din amar kach theke nijeke dure soria felecho"( As a

result of my misbehaviour you took yourself to a long distance from me, day by

day). "Amader ai durotto mene nite na pere ami bokar moto tomake sondeho

kore felechi"(I could not accept this and hence I suspected you like a fool).

"Ajke ami amar vul sompurno rupe bujhte perechi" (Today I have come to

understand my fault completely). "Age Jodi partam tahole ami tomake ato

kosto ditam na ba nijeo ato kosto petam na" (if I could understand it before,

then I would not give you so much pain and I too would not be so unhappy).

14. According to section 58 of the Evidence Act no fact requires to be proved

in any suit, which parties to the suit agreed on admission at the time of

hearing. Accordingly in the present case learned Trial Court committed no

mistake in relying upon such admission under petitioner's own hand writing

and to reach a conclusion that respondent admittedly misbehaved and

disrespected the petitioner for which he suffered mental pain, which amounts

to cruelty and also treated petitioner with cruelty in suspecting petitioner

without having any cogent reason. Learned Trial Court also committed no

mistake in granting decree of judicial separation instead of decree of divorce

because the decree of judicial separation passed in certain cases instead of

passing decree of divorce under section 13-A of the Hindu Marriage Act with

the hope of adjustment and reconciliation. Here in the present case admittedly

the marriage continued only for about 10 months and the evidence as adduced

by the parties go to show that the respondent/wife has made several attempts

for restoration of matrimonial tie, when she repented for her previous

behaviour and for which learned Trial Court was justified in keeping open the

chance of reconciliation instead of dissolving marriage by applying section 13-A

of the Hindu Marriage Act and awarding permanent alimony to the

wife/respondent. In this context it is to be mentioned that the Trial Court

though in the last paragraph of his judgment observed that respondent wife is

entitled for permanent alimony till she lives separately under section 25 of

Hindu Marriage Act but inadvertently in the operative part of the judgment said

maintenance is written as "pendente lite alimony" instead of "permanent

alimony". Only said inadvertent mistake in ordering portion is corrected by this

judgment.

15. FA 95 of 2017 is thus dismissed.

There will be no order as to costs .

Urgent photostat certified copy of this judgment, if applied for, be supplied to

the parties upon compliance with all requisite formalities.

Let the copy of the order be send to the Trial Court through learned Registrar

(L&OM).

I agree


(Soumen Sen, J.)                            (Ajoy Kumar Mukherjee, J.)