Ml-19. Panchu Gopal Saha vs Ct. 8 Juthika Saha
2023 Latest Caselaw 3081 Cal

                                               FAT 65 of 2014
 Item-
         01-05-2023
ML-19.                                       Panchu Gopal Saha
                                                    Versus
           Ct. 8                                Juthika Saha
  sg


                          Mr. Ashok Sadhukhan, Adv.
                          Mr. Anirban Ghosh, Adv.
                          Mr. Indranil Ghosh, Adv.
                                                         ...for the appellant

                          Mr. Rafikul Islam Sardar, Adv.
                                                      ...for the respondent

The appeal is arising out of a judgment and decree dated

21st September, 2013 passed by the learned Additional District

Judge at Hooghly, in connection with an application under

Section 13(1)(i-a) of the Hindu Marriage Act, praying for decree

of divorce. The suit was filed for divorce on the ground of

cruelty. The plaintiff is the husband and the husband is the

appellant before us.

The trial court dismissed the suit as the husband had failed

to prove cruelty. The plaintiff alleged that the marriage lasted for

almost a year, during which time, the wife conceived and gave

birth to a female child. The husband and the family members

were not allowed to meet the child. They made five several

attempts to meet the child and convinced the wife to come back

to the matrimonial home, but the plaintiff failed. The respondent

in the meantime, filed an application under Section 498A of the

Indian Penal Code with a view to humiliate the husband and his

family members. It is stated that during her stay in the

matrimonial home, she did not take care of his elderly parents

and was mis-behaving with the in-laws and other family

members of the husband.

The wife contested the suit. In her written statement, she

has alleged that she was constantly humiliated and subjected to

mental and physical cruelty. The wife could not meet the

demand for dowry for which, she was driven out of her

matrimonial home. The brother-in-law of the plaintiff has

assaulted her. It was specifically alleged that during her

pregnancy, her brother-in-law, sister-in-law and mother-in-law

assaulted her and threatened her with dire consequences. She has

also alleged that her brother-in-law made an attempt to embrace

the respondent and also tried to outrage the modesty and in spite

of such protest and brining such fact to the notice of her mother-

in-law and the other family members, no step was taken against

him. She has alleged that on 17th Bhadra, 1415 B.S. around 10

p.m., she was driven out from the matrimonial home without any

belongings.

The trial court framed four issues. The plaintiff in the

evidence has stated that the wife has inflicted physical and

mental torture on husband. However, curiously, he did not

produce the father, mother or even his sister in support of such

conduct. He produced his brother-in-law, who was himself an

accused in a section 498A proceeding initiated against him.

Hurling of abusive language was towards him, mother and sister-

in-law. One would have expected his mother or father or sister to

appear and depose in his favour of such allegation of mental

cruelty. I fact it was specifically alleged by her that her mother

was assaulted on 14th April, 2008 by the wife in presence of the

elder sister of the petitioner. He has disclosed this fact in the

affidavit in chief but it had transpired in evidence that the only

person who could have corroborated such statement is the elder

sister who did not come forward and depose. The other

allegation is that the wife used to humiliate the petitioner by

reason of his employment as a bus conductor. However, there

was no such evidence on record suggesting that within the period

of one year any such dimming statement was made by the wife

to the husband.

The learned counsel realizing that the husband failed to

prove cruelty has relied upon the decision in the case of Shri

Rakesh Raman vs. Smt. Kavita Civil Appeal No. 2012 of 2013

decided on 26th April, 2023 and has argued that having regard to

the fact that there has been a long period of continuous

separation, which may come to conclude that the matrimonial

bond is beyond repair and such circumstance would construed

cruelty which would be available to either of the parties.

We are unable to accept the said submission. The husband

in fact in the year 2011 during his cross-examination has agreed

to take back the wife but did not inform the court the date on

which he is agreeable to take back the wife. The wife in the

written statement has categorically stated that she wanted to

return to her matrimonial home and lead a happy conjugal life.

Pendency of the criminal proceeding could not have been a bar

to reunite and resumption of the relationship could have put to

an end to the proceeding under section 498A IPC. The husband

did not take any step for reconciliation or show his inclination

that he expressed during his cross-examination with regard to

resumption of conjugal relationship. The wife was all throughout

agreeable to it. Moreover, they have a child and there is no

evidence on record to show that the appellant had taken at all

any care to visit the child or to claim for visitation right, if it is

accepted that he was denied any access. The evidence that he

went with his mother to see the child also not proved as the

mother did not come and depose in favour of his son.

On such consideration, we do not find any reason to

interfere with the judgement passed by the learned Trial Judge.

The appeal fails. However, there shall be no order as to

costs.

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