Smt. Jharna Roy vs Sri Sudipta Roy & Anr
2023 Latest Caselaw 4037 Cal

03.07.2023
 SL No.1
Court No.8
    (gc)


                          FAT 378 of 2018
                           CAN 6 of 2023

                          Smt. Jharna Roy
                                 Vs.
                       Sri Sudipta Roy & Anr.


                                 Mr. Siddhartha Banerjee,
                                 Ms. Soni Ojha,
                                 Ms. Sonia Nandi,
                                               ... for the Appellant.
                                 Mr. Pradip Kr. Dutta,
                                 Mr. Sandip Ghosh,
                                 Mr. Debayan Ghosh,
                                        ...for the Respondent No.1.

The matter has appeared in the list today in

order to ascertain whether application for mutual

divorce has been filed by the parties before the

learned District Judge, Alipore and if so, if it has

been disposed of by the learned District Judge, in

the meantime.

However, during the pendency of this appeal

instead of filing an application the

respondent/husband has filed the instant

application for modification or variation of the order

dated 1st May, 2023. The appellant however, was

agreeable to file an application for mutual divorce.

On 1st May, 2023 on consideration of the DNA

report we invited the parties to express their views

and in response the learned Counsel for the parties

had agreed to file an application for mutual divorce

before the learned District Judge, Alipore within two

weeks from date that is 1st May, 2023. Both the

parties had admitted that the marriage has

irretrievably broken and is completely unworkable.

Now with a view to resile from the views expressed

by the respondent no.1 an application has been filed

on 15th May, 2023 on a specious plea that the

applicant had never consented for mutual divorce

and a prayer for modification has been made in this

application.

The applicant by filing this application wanted

to resile from the submission made on behalf of him

that applicant is also inclined to file an application

for mutual divorce.

We distinctively remember that the date when

the order was passed the willingness of the

applicant to file an application for mutual divorce

was expressly conveyed to Mr. Sandip Ghosh

learned Advocate representing the respondent

no.1/applicant and it was on the basis of such

instruction Mr. Ghosh has made such submission.

However, choice was given to the parties to file an

application for mutual divorce as the

appellant/respondent no.1 had realized that the

allegation of adultery is clearly disproved by the

DNA report and this might have an adverse

consequence on the merits of the appeal.

Accordingly, we propose to decide the appeal

on merits.

It was the positive case of the husband that

he never had any physical relation with the wife and

the child was born not by his loin but due to his

wife's adulterous relationship with the respondent

No.2. Initially, the wife had refused the DNA test,

the reason being that she did not want her privacy

to be used injudiciously and invaded at the whims

of the respondent no.1. She has all throughout

contended and maintained a stand that marriage

was consummated and they had conjugal

relationship and the child was born within the

wedlock.

In the appeal, the wife has all throughout

contended that they are the biological parents of the

child, however, this time she agreed to have the

DNA test conducted at the instance of the husband.

In an application filed by the husband being

CAN 829 of 2020 on 10th February, 2020, a

Coordinate Bench passed the following order:-

"The first respondent in this appeal has prayed for an order for conduct of a medical test through DNA profiling to ascertain the paternity of Sweta Roy claimed by the appellant to have been born to the parties through the wedlock. The respondent has throughout alleged before the court below and us that the child is not his but is fathered by Satadal Singha, the proforma respondent herein.

The learned judge of the court below in the judgement and decree under appeal dated 30th April 2018 had held the appellant-wife guilty of adultery. He had also declared that Sweta was not the child of the respondent. It is on record that the appellant had at the proceedings before the trial court refused to undergo the DNA test. Now she is willing.

It may not follow from the proof of adultery that the issue born out of marriage is not that of the husband. It may be the case that adultery is proved, but still the paternity of the child belongs to the husband. In some cases adultery may result in a child being born outside the wedlock.

Mr Datta, learned counsel appearing for the respondent-husband, is very firm in his submission that his client is not the father of the child, and that Sweta should not be allowed to use his name. He refuses to maintain her.

Mr Banerjee, learned counsel for the appellant, argues that the learned judge made an error in his finding with regard to paternity.

We are of the opinion that for complete adjudication of the disputes between the parties, this application (CAN No.829 of 2020) by the appellant should be allowed. Learned counsel for the parties agree that the DNA test report would be accepted by them without asking for any further expert probe into the correctness of the report.

In those circumstances, we direct the Secretary to the Health Department, Government of West Bengal to cause any competent officer subordinate to him to nominate a specially equipped State hospital

for conduct of the paternity test of the child, Sweta Roy, through the DNA profiling technology. The child, Sweta, and the parties to this appeal - Smt. Jharna Roy, Sri Sudipta Roy and Sri Satadal Singha - would have to submit to the test and render all cooperation in its conduct. The nominated hospital will have to submit a report in this court by 20th March 2020. The obligation to take steps in the matter would be in the appellant. Copies of the report before its filing in court should be circulated to the above persons, except Sweta, who undergo the test." (emphasis supplied) The paternity test report of the child was

ultimately filed on 13th March, 2023. The

observations of Dr. Kshitij Chandel, Scientist 'B'

(Biology), Director, C.F.S.L., Kolkata are recorded in

the order dated 13th March, 2023, which reads:-

1. The genetic profile of Ms. Jharna Roy

(Source of Exhibit B: Blood Sample) is

consistent as the biological mother of Ms.

Sweta Roy (Source of Exhibit A: Blood

Sample).

2. The genetic profile of Mr. Sudipta Kumar

Roy (Source of Exhibit C: Blood Sample) is

consistent as the biological father of Ms.

Sweta Roy (Source of Exhibit A: Blood

Sample).

3. Mr. Satadal Singha (Source of Exhibit D:

Blood Sample) is not the biological father

of Ms. Sweta Roy (Source of Exhibit A:

Blood Sample).

On 1st May, 2023, in presence of the parties,

we recorded the submission of Mr. Sandip Ghosh,

Advocate for the respondent No.1 that since the

marriage has irretrievably broken down, an

application for mutual divorce may be filed before

the learned District Judge, Alipore. As stated above

an application has now been filed for recalling of the

order to the extent that the respondent No.1 did not

agree to file an application for mutual divorce.

The appellant/wife before the learned Trial

Court had all throughout denied allegation of

adultery and specifically contended that the plaintiff

is the biological father.

The allegation of the husband was that after

the marriage there had been no physical relation

between the parties and the respondent no.1 resided

in the matrimonial home only for 12 days. It was

alleged that the appellant was involved in a

relationship with the respondent no.2. In the

evening of 28th May, 2023, both the defendants

came to the house of the plaintiff and during such

visit the respondent no.2 cautioned the plaintiff not

to create any disturbance. On 4th June, 2003 it was

alleged that the brother of the plaintiff namely

Mithu had seen the respondent no.1 and 2 in a

compromising position. Thereafter, on 5th June,

2023 the respondent no.1 left the house and did not

return thereafter.

The plaintiff in his evidence had stated that

on 4th June, 2003 when he was not in the house his

younger brother Mithu accidentally discovered

through the window that the respondent no.1 and

the respondent no.2 were involved in sexual

intercourse. The plaintiff during cross-examination

has stated that the appellant was in love

relationship with her sister's husband Satadal the

defendant no.2 and after his brother found them in

a compromising position she left the matrimonial

home on the very next day, that is, 5th June, 2003.

The plaintiff alleged that Satadal informed the

plaintiff that on 2nd April, 2004 the appellant/wife

would give birth to a child and forced him to go to

the hospital to sign few documents. On 4th April,

2004 the appellant gave birth to a female child.

It was alleged that at that time the appellant

informed the plaintiff that Satadal is the father of

the child. Thereafter, the appellant filed a false

criminal case under Section 498A/406/120B of the

IPC and also a Misc. Case no.34/206 under Section

125 of the Cr.P.C. against the plaintiff in order to

harass the plaintiff.

The plaintiff in his cross-examination has also

stated "our marriage has not been consumed at all

as no cohabitation made at any time".

The plaintiff further reiterated that he never

had any physical relationship with his wife and he

disowned the child.

The appellant in support of her contention

and to prove the falsity of the claim of adultery had

produced three witnesses. She herself was examined

as DW1, the respondent no.2 Satadal was examined

as DW2 and her brother Rajesh as DW3. The

appellant in his evidence has stated that the

plaintiff was not intended to lead conjugal life with

the respondent and he had no love and affection for

her. The plaintiff and his family members claimed

dowry of Rs.1,00,000/- (One Lakh only) and it was

duly paid. In spite of acceding to such demand the

plaintiff and her in-laws continued to torture the

appellant mentally and physically. She was shocked

by the cruel act and rude behavior of her husband

on the day of Boubhat ceremony at the husband's

place. She alleged that her husband was jealous

about Satadal and he fabricated false stories against

him. She also made allegation against brother of the

plaintiff Mithu. She has categorically stated that

Mithu had bad intention and motive. Mithu wanted

to have an illicit relationship with her and being

refused by her Mithu raise false allegation against

her about adultery. She claimed that the plaintiff is

the biological father of the child. She referred to two

letters dated 4th December, 2004 and 18th

December, 2004 in which such issue was

addressed. She denied the allegation of adultery.

She alleged that from the hospital she was

brought to the matrimonial house but due to torture

she had to live her matrimonial home. She alleged

that in December, 2004 she made a complain to the

"Kolkata Nagarika Sanmelon" and on the basis of a

conciliation arrived at between them she returned to

her matrimonial home on 30th January, 2005 but

again she was physically and mentally tortured as a

result whereof she left for her paternal house on

22nd February, 2005.

The learned Single Judge on the basis of

preponderance of probability that the wife deserted

the plaintiff without reasonable excuse and she also

refused to have sexual relationship during her brief

stay at matrimonial house. Such refusal of coitus by

the wife is a cruelty. Moreover, long desertion

refusing conjugal life to husband is also cruelty.

Evidence of Mithu with regard to adulterous

relationship of the appellant with her Jamaibabu,

defendant no.2 is established as his evidence has

not been shaken by cross-examination. The learned

Trial Court proceeds on the basis that refusal to

undergo DNA test coupled with the evidence of PW2

and materials showing non-consumption of

marriage for which the appellant is responsible, the

plaintiff is entitled to decree and the marriage

between the parties was accordingly dissolved on

15th January, 2023.

This decree is under challenge.

On a reading of the impugned judgment it

appears that the refusal of the wife to undergo DNA

test had heavily weighed against the appellant. The

other findings are greatly influenced by the act of

refusal of the wife to accede to the request for DNA

test. The learned Trial Court has taken exception to

such refusal and thereby accepted the allegation of

the husband that the child was born as a result of

her adulterous life with the defendant no.2 which

could be evident from DNA test. The presumption of

adultery was accepted in view of refusal to undergo

DNA test and the evidence of PW2.

Now there is a change in circumstances.

We have reproduced the finding with regard to

DNA profile of the child which clearly establish that

the plaintiff is the biological father of the child. If

these facts were known to the learned Single Judge

we are sure that the learned Single Judge would not

have blindly accepted the evidence of PW2. PW1 has

clearly stated that he did not witness any such

physical act. The appellant has all throughout

contended that she was framed by PW2 as she did

not accede to his carnal desire and to his lascivious

wink. She was not staying alone in the house. She

was in her matrimonial home. She is not familiar

with the surroundings. She was not having a

comfortable stay at her matrimonial home and there

must be some reason for her to leave the

matrimonial home. It is the duty of her husband

and his family members to ensure her happiness as

she was put to a different environment.

The evidence clearly shows that the plaintiff

was suspicious about her conduct and he did not

accept her as a wife. However, during the brief

period of stay it is now proved that they had

physical relationship and the marriage was

consummated. It was a positive case of the plaintiff

that he never had any physical relationship with his

wife and he has not the biological father of the child.

The plaintiff approached the Trial Court for DNA test

in order to prove adultery. It is possible that even if

the paternity is proved still the case of adultery can

be established. In the instant case, the sole basis of

adultery is the birth of the child.

It is not unusual for the husband of the sister

of the wife to visit his sister-in-law. Nothing

objectionable could be demonstrated in the said

relationship excepting the evidence of PW2 who

claimed to have witnessed an act of sexual

intercourse of the appellant with her Jamaibabu.

PW2 claimed to have seen it through the window.

The appellant had clearly denied it. The court has to

consider the vulnerability of the appellant who had

left her parents and decided to stay at the

matrimonial home with the expectation of a blissful

married life and compelled to leave the place ue to

accusation of adultery. She had made a positive

allegation against PW2.

She has all throughout contended that the

marriage was consummated and the plaintiff is the

biological father. This fact is now established in the

appeal.

It is well settled that false allegation of

adultery (Kakoli Das vs. Ashis Das; AIR 2004 Cal

176) unchastity and casting aspirations on

character (See. Vijoy Kumar Bhate vs.

Nilavijoykumar Bhate; AIR 2003 SC 2462:

2003(6) SCC 334) would constitute a cruelty.

Lack of respect, faith and understanding

causing pain and disrepute to the other partner

amounts to cruelty. Normally proof of adultery is

circumstantial. Evidence of adultery must be clear

and cogent both as to inclination, opportunity and

conduct so as to lead to the irresistible conclusion

that the offence has been committed. Merely

because Satadal may have visited once or twice

cannot raise a presumption that adultery was

committed. Moreover, Satadal is a family relation of

the appellant and is not unusual for a Jamaibabu to

visit his sister-in-law. Adultery is a very serious

allegation. The appreciation of offence in such cases

must be careful and proper. Causing aspersion

against a woman is a very serious thing and unless

there is cogent evidence beyond any doubt such a

finding should not be recorded. The appellant

expects his wife to stay with him with the false

allegation of adultery and unchastity. In fact, such

unjustified allegation is a sufficient reason for not

staying with the plaintiff/husband. It cannot be said

to be a willful neglect on the part of the wife in

referring to stay at the matrimonial home. The

attempt of character assassination, stigmatization,

infidelity and unchastity if not prove would furnish

a ground for divorce as it amounts to cruelty.

In view of the aforesaid and more particularly

having regard to the DNA test report we are of the

view that the wife is entitled to a decree on the

ground of cruelty.

The judgment of the learned Trial Court is

accordingly set aside.

The learned Counsel for the appellant has

submitted that in view of such abominable conduct

of the respondent no.1 the appellant is not willing to

stay with the husband and has prayed for a decree

of divorce being passed in her favour as the facts

clearly reveal that the appellant was subjected to

humiliation, disrepute and character assassination.

In fact, the respondent no.1 had also prayed for

divorce. While we are of the view that the plaintiff

has failed to prove his case and the matrimonial suit

ought to have been dismissed, however, having

regard to the aforesaid facts, we decree the suit in

favour of the wife on accepting the prayer for

dissolution of marriage on the ground of cruelty. In

fact as observed earlier the plaintiff also agreed to

file an application for mutual divorce.

In view of the aforesaid we allow the appeal

and declare that the marriage between the parties

took place on 15th January, 2003 is dissolved by a

decree of divorce with effect from this date i.e. 3rd

July, 2023. The appellant shall deposit any

additional court fees if payable for the relief granted

in favour of the appellant within two weeks from the

date of assessment by the stamp reporter.

We award cost of Rs.1,00,000/- (Rupees One

Lakh only) for the humiliation caused to the wife. In

the event the said cost is not paid within four weeks

from date the appellant shall be at liberty to execute

this order as a decree of the court.

The appellant would be at liberty to initiate

appropriate proceeding for permanent alimony and

any other remedies that are available to the

appellant under the law and in accordance with law.

The marriage between the parties stand

dissolved on and from this date.

The department shall draw up the decree as

expeditiously as possible.

After the decree is drawn up LCR shall be

returned to the appropriate Court.

CAN 6 of 2023 is disposed of.

FAT 378 of 2018 is allowed.

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