Sg vs Ct. 8
2023 Latest Caselaw 431 Cal

                                                  FA 14 of 2016
Item-25.
           16-01-2023
                                       Anita Malkhandy nee Goswami
  sg                                               Versus
             Ct. 8
                                             Susanta Malkhandy


                              Mr. Subrata Bhattacharya, Adv.
                              Mr. Indranuj Dutta, Adv.
                              Mr. Surojit Ghosh Dostidar, Adv.
                                                           ...for the appellant

                              Mr. Abhijit Basu, Adv.
                              Sk. Md. Masud, Adv.
                                                            ...for the respondent

The Court: The appeal is arising out of a judgment and

decree dated 15th May, 2015 in a suit filed by the appellant for

dissolution of marriage on the ground of cruelty.

We have heard the learned Counsel for the parties. We have

also read the pleadings and the evidence adduced by the parties

before the learned Trial Court. The principal ground for divorce

appears to be the ill-treatment and abuse the appellant faced in her

matrimonial home, during her stay from 24 th November, 2008 till

1st August, 2009 when she finally left the matrimonial home

presumably on being asked to leave the said home at the instance

of her husband and her mother-in-law.

The Trial Court has extensively dealt with the evidence. The

evidence would show that the principal accusation is against the

mother-in-law. The mother-in-law is a widow. She needs to be

looked after by her son. The wife does not wish to live with her

mother-in-law. The evidence on record would show that she was

given her rightful place in the matrimonial home by the husband.

Isolated incidence of exchange of words are not sufficient to

constitute cruelty as in a matrimonial relationship it is not unusual

that there may be instances of heated exchange of words. Unless

the situation is of such an egregious nature and unbearable, it

would not constitute cruelty.

Although cruelty may not depend upon any particular period

or number of incidents of cruel treatment or continuous course of

conduct and it depends upon intensity, gravity and stigmatic

impact of it when meted out even once as observed in Vijay

Kumar Ramchandra Bhate vs. Nella Vijay Kumar Bhate

reported at 2003(6) SCC 334 it clearly excludes "mere trivial

irritations, quarrels, normal wear and tear of the married life

which happens in day to day life" as held in Samar Ghosh vs.

Jaya Ghosh reported in 2007(4) SCC 511. Cruelty must be

inferred from the whole facts and atmosphere disclosed by the

evidence.

In Kaslefsky v. Kaslefsky reported in 1950(2) All ER 398 at

403 Denning LJ (as he then was) sounded a note of caution in

considering matters cases involving allegation of cruelty in His

Lordship's inimitable style:

"if the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled."

This piece of prudent warning has been noticed with approval in Dastane v. Dastane;(1975) 2 SCC 326, by the Supreme Court of India and has been followed in other cases, namely, J.L. Nanda v. Veena Nanda; (1983) 2 DMC 135 (DB) (Del).

The diary written by the wife which forms part of evidence

would show that the husband has taken due care of his wife and even all three of them used to visit different places together. We also could not find from evidence of any abominable behaviour of husband or his mother, which may constitute cruelty. In fact, her story of being compelled to leave her matrimonial home is belied by the evidence as it is proved that on 31st July, 2009 husband left for Dalsingh Sarai for company work in the evening. He was not present at Asansol on 1st August, 2009. This evidence read with other evidence on record would show that the appellant has failed to establish cruelty as a ground for dissolution of marriage. In fact, the husband is ready and willing to lead a happy conjugal life.

The learned Trial Court on correct appreciation of law as

laid down in the case of Samar Ghosh (supra) has held that the

case of cruelty is not proved.

We concur with the said findings of the trial court. The

appeal stands dismissed. However, there shall be no order as to

costs.

   (Uday Kumar, J.)                             (Soumen Sen, J.)