Dr. Samir Adhikari vs Dr. Rama Adhikari (Chakraborty)
2023 Latest Caselaw 1829 Cal

                                                FA 23 of 2015
Item-13.                            CAN 2 of 2014 (old CAN 1807 of 2014)
           20-03-2023

  sg
             Ct. 8
                                             Dr. Samir Adhikari
                                                    Versus
                                       Dr. Rama Adhikari (Chakraborty)

                              Mr. Probal Kumar Mukherjee, Sr. Adv.
                              Mr. Suhrid Sur, Adv.
                                                        ...for the appellant

                              Ms. Priyanka Jana, Adv.
                                                               ...for the respondent

The appeal and the application for additional evidence are

taken up together and disposed of by this common order.

The appeal is arising out of an judgement and decree dated

30th September, 2013 passed by the learned Additional District

Judge, 3rd Court, Hooghly in an application filed under Section 13

of the Hindu Marriage Act, 1955 for dissolution of marriage on

the ground of desertion and cruelty.

Both the parties are doctors by profession. The evidence

shows acrimonious relationship between the parties.

The wife has initiated a proceeding under Section 498A/406

of the Indian Penal Code being Case No. GR-615/2007 IR 36/09

State vs. Samir Adhikari & Ors. The suit for dissolution of

marriage was filed subsequent to the said complaint. In order to

prove cruelty, the appellant has referred and relied upon the

criminal complaint lodged against him and his family members

with false accusations as an act of cruelty. It was contended before

the learned District Judge that the said compliant is false and it

was filed with an ulterior motive in order to humiliate the

appellant and his family members. The learned Trial Judge

refused to rely on the said criminal complaint of the respondent

and did not take cognizance of the fact that the brother of the

respondent is a Police Officer and because of such relationship,

the appellant and his family members have been under threat and

proceedings have been initiated against them on the ground that

filing of a criminal case by itself is not material support inabsence

of any judgment or any record showing that the respondent with

some ill and ulterior motive initiated such criminal case. The

learned Trial Judge, however, noted that a certified copy of the

judgment dated 21st April, 2012 in connection with GR Case No.

615/2007 passed by the learned Judicial Magistrate, Additional

Court, Hooghly was tendered in evidence and marked as Exhibit-

13.

In course of hearing, Mr. Probal Kumar Mukherjee, learned

Senior Counsel has produced the order passed by the learned

Additional and District and Sessions Judge in Criminal Motion

No. 191/2012 wherefrom it appears that the criminal

motion/revision against the order of acquittal was dismissed on

the ground of jurisdiction.

Admittedly, the order of acquittal is not under challenge.

The learned District Judge although had referred to the

judgment of acquittal but did not consider the said order in its true

perspective. The accused persons were acquitted not on the

ground of benefit of doubt or lack of evidence. The criminal

complaint was decided on merits upon consideration of the

evidence of the respondent parties. This judgment has been

completely overlooked.

It appears from the order of the learned Judicial Magistrate

that on 28th May, 2007, a meeting was fixed by DLSA, Barasat, on

the basis of the complaint which was, however, shifted to 19 th

June, 2007 but before any such meeting could be held on 2 nd June,

2007 she lodged the FIR. She has admitted to have filed the said

FIR after she has received summons of MAT Suit No.248/2007.

In the present case, the wife initiated a proceeding under Sections

498A/406 I.P.C. making serious allegations against the appellant

and his family members for which the appellant and his family

members had to undergo trial which, however, ultimately resulted

in their acquittal. In the said proceeding, not only the acquittal has

been recorded, but observations have been made that the

allegations are all serious in nature which from the evidence of the

wife could not be established. The said proceeding has resulted in

mental agony and humiliation of the appellant and his family

members. The appellant and his family members have suffered

mental pain, agony and serious accusation of criminal breach of

trust. It has caused profound and lasting disruption and driven the

appellant to feel deeply hurt and reasonably apprehend that it

would be dangerous for him to live with her. The case made out

by the appellant seeking decree of divorce on the ground of

cruelty, in our view, has been established. The order of acquittal

has attained finality.

In this regard, we may refer to the decision of the Hon'ble

Supreme Court in Rani Narasimha Sastry v. Rani Suneela Rani

reported in (2020) 18 SCC 247. In paragraphs 12 and 13 of the

said judgment, the consequence of acquittal in a proceeding under

Section 498 I.P.C. was considered, vis-à-vis, cruelty. The said

paragraphs read:-

"12. This Court has laid down that averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under section 13 (1)(i-a) of the Act. This Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate has laid down the following in para 7: (SCC p. 339)

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under section 13(1)(1-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of any educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial

home impossible."

13. In the present case, the prosecution is launched by the respondent against the appellant under Section 498-A IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by the respondent under Section 498-A IPC, the High court made the following observation in Para 15:(Rani Narsimha Sastry case, SCC Online Hyd) "15....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty". The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal of his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But, when a person undergoes a trial in which he is acquitted of the allegations of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband. As per the pleadings before us, after parties having been married on 14-8-2005, they lived together only 18 months and, thereafter, they are separately living for more than a decade now." (emphasis supplied)

In view of the aforesaid discussion, it is established that on

the basis of unfounded baseless allegation, the appellant and his

family members had to face trial. The learned Judicial Magistrate

has recorded that the evidence on record does not prove that the

accused person had driven the respondent-wife to commit suicide

and/or has caused any grave injury to life, limb or health whether

mentally or physically. In fact, P.W.-2 and P.W.-3 have not stated

anything regarding breach of trust or appropriation of Stridhan

properties of their daughter.

Filing of false complaint against husband and his family

members under Section 498-A read with Section 406 constitutes

matrimonial cruelty. The respondent seems to have made

unfounded/defamatory allegations against the appellant and his

family members. The situation is of such a nature that the parties

cannot reasonably be expected to live together.

Under such circumstances, we have no hesitation to

conclude that the respondent has treated the petitioner with cruelty

and for which the petitioner/appellant is entitled to get decree of

divorce under Section 13(I-A) of the Hindu Marriage Act, 1955.

We allow the appeal of the appellant granting decree of divorce.

The appeal and the connected application are, thus, disposed

of in the facts of the case without cost.

The department is directed to draw up the decree as

expeditiously as possible.

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