Koushal Kumar vs Priyanka Kumari
2023 Latest Caselaw 7259 Cal

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                    IN THE HIGH COURT AT CALCUTTA

                       CIVIL APPELLATE SIDE

                          APPELLATE SIDE




Present:
THE HON'BLE JUSTICE HARISH TANDON
         &
THE HON'BLE JUSTICE PRASENJIT BISWAS



                               FAT 545 of 2018


                                   Koushal Kumar
                                        Vs.
                                  Priyanka Kumari




Appearance:

For the Appellant              :     Mr. Partha Pratim Roy, Adv.
                                     Mr. Dyutiman Banerjee, Adv.




Judgment On                   :      18.10.2023



Harish Tandon, J.:
      The judgment and decree dated July 2, 2018 passed by the Additional

District Judge, 1st Court, Sealdah, South 24-Paraganas dismissing the

application for dissolution of marriage on the ground of desertion and

cruelty is assailed in the instant appeal by the husband.
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      Several allegations on the conduct of the respondent in relation to the

normal wear and tear of the marital life is projected as a case of cruelty.

According to the appellant immediately after the marriage the conduct of the

respondent became indifferent as she was insisting for a separate mess. It is

further alleged that the respondent tried to control the financial aspect of

the appellant and in fact proceeded to withdraw the entire amount from the

account and the appellant was forced to assign reason for any money which

he required in day to day life. It is further alleged that the respondent never

cooked food in the house nor prepared tiffin when he went to discharging

his duties and even forced the appellant to take food from outside. It is

alleged that on 20.07.2014, the wife voluntarily left the matrimonial house

along with the daughter born on 23.11.2013 to her parent's house and after

a gap of one year, forcibly entered into the matrimonial house which

compelled the appellant to leave the said house and take shelter in the

house of his friend. The appellant has further disclosed several proceedings

initiated at the behest of the parties in order to prove that the marital

relationship has become bitter and the emotional bonding is totally

shattered.

On the other hand, the respondent contends that she is all along

ready and willing to live with the appellant and take all initiatives to

maintain a conjugal atmosphere required for happy living. However, she

disclosed the startling facts in the written statement that the appellant grew

an intimate relation with one lady by the name of Soma and precisely for

such reason the suit for divorce is filed against the respondent. Though she

has also stated that the flat purchased by the husband was funded by her

father but that itself cannot be a ground for the purpose of establishing a

cruelty or the desertion being the fundamental issues involved in the instant

suit.

It is pertinent to mention that three witnesses were cited by the

appellant one of whom was a friend with whom the appellant is allegedly

residing at present but the respondent who was partly cross examined was

not further cross examined by the appellant and Trial Court closed the

evidence of the respondent and proceeded to decide the said application and

ultimately held that the appellant has miserably failed to prove the ground

of cruelty and desertion.

An argument is advanced by the appellant that there has been several

proceedings initiated between the parties and the moment they are found at

the loggers head, it is not advisable to keep the marital tie and the divorce

should be granted. It is vociferously argued by the appellant that on an

allegation touching upon the aspersion on the character of the appellant, in

absence of any conclusive proof, made in the proceeding, is always regarded

as a cruelty perpetrated upon the appellant. It is thus submitted that the

serious allegation is made by the respondent in the written statement and

also in the Examination-in-Chief filed before the Court that the appellant

had grown a relationship outside the marriage institution with a lady which

tantamount to cruelty and, therefore, the Trial Court ought to have

considered the aforesaid aspect and should have granted a decree for

dissolution of marriage.

There is no quarrel to the proposition of law that a proceeding for

dissolution of marriage founded upon a ground of cruelty may be decided if

the cruelty is further perceived in the course of proceedings more

particularly, when a serious allegation is made by the respondent impacting

the character of a person and creating a stigma in the Indian society. The

Court while embarking his journey on the peripheral of the aforesaid aspect

should evaluate the credibility of the witnesses and the quality of the

evidence adduced in this regard. The relationship in a matrimonial

institution depends upon the reposition of trust and confidence into two

individuals who have decided to live together for life. The human body is

complex but the human behaviour is more complicated. Two individuals

brought up in a different environment may at times have a conflicting views

but those are always regarded as a vagaries of life as well as normal wear

and tear of the marital relationship. Every conflict may not tantamount to a

cruelty which is decided on a high degree of the evidence more particularly,

the conduct of one is such to create apprehension in the other to live under

one roof in safe and secured state. The sense of security must be of such

degree which renders a person always in a state of unsafe impacting upon

his/her mental status. Mere demanding to live separately cannot be said to

be a cruelty of such degree which would invite the marital tie to be severed.

There may be circumstances for such demand which cannot be said to be

unreasonable and therefore, it is a reciprocal obligations imposed upon both

the persons to understood the emotions in the attending circumstances.

In the instant case, the allegation is made by the appellant in this

regard but in the cross-examination as well as in the Examination-in-Chief

of the respondent, it does not appear that the aforesaid facts have been duly

proved. It is a specific stand of the respondent that she left the matrimonial

house to pursue her higher degree course at her parental house and was

subsequently instructed to live in the father-in-law's house at Bokaro which

she respected. Such evidence goes to prove that the respondent never

disassociated herself from the appellant without any reason and rhyme but

a reasonable explanation can be seen therefrom. There is no evidence put

forth by either of the parties that the respondent refused to cook the food

nor ever prepared tiffin for the appellant. In Examination-in-Chief, the

respondent categorically asserted that she, in fact, prepared the food and

ready to prepare the food for the appellant as she has still an emotional

connect with the appellant and despite the fact that the appellant has a

relationship outside the marriage institution, she is ready to live a happy

conjugal life. There is no hesitation in our mind that the allegation of cruelty

pleaded in the plaint has not been proved by the appellant and therefore, no

ambiguity in the finding returned by the Trial Court can be seen.

However, it takes us to the another incident of cruelty when the

respondent alleged that the appellant had developed a relationship outside

the marriage institution by naming a lady and further alleged that the

husband is residing with her. She further deposed that after coming to know

of such fact, she returned to the matrimonial house but there was a strong

resistance by the appellant in not permitting the respondent to enter into

the house. Ultimately on intervention of the local people she was permitted

to enter the house but the appellant suddenly left the house without keeping

any relation and/or touch with the respondent. Interestingly, during the

cross-examination the appellant was confronted with the photograph where

the husband and a lady were shown. The appellant accepted that the said

photograph is of the appellant. The said photograph was marked Exhibit-B

on admission. However, the appellant after admitting that he is shown in the

said photograph but with one of his colleagues. Astonishingly, the appellant

refused to divulge the name of said colleague appearing in the said

photograph nor he disclosed her address as well as the mobile number. It is

important to know that a person can recognise the photograph of another

person as his colleague but does not know his or her name which is

improbable. The respondent has further deposed that the incident of

developing a relation outside the marriage institution was communicated

not only to her parents but also to parent-in-laws and the father-in-law

along with his father came to Kolkata and went to the house of the said

lady. After the lady was confronted with the said fact she called the

appellant over the telephone and within few minutes the appellant arrived

and started abusing which propelled the lodging of complaint with Netaji

Nagar Police Station on 15.09.2015 and 01.10.2015. Aforesaid categorical

statement in Examination-in-Chief goes uncontroverted as no question was

put in this regard in the cross-examination. It is a cardinal principle of

evidence that if the statement of fact disclosed in the Examination-in-Chief

is not cross-examined it will be deemed to have been proved. Therefore, it

cannot be said that the allegation of the respondent that the appellant had a

relationship with the lady outside the marital institution has not been

proved.

We, therefore, do not find any substance in the stand of the counsel

for the appellant that such disclosure of the fact in the written statement

amounts to cruelty.

We, thus, do not find any illegality and/or infirmity in the impugned

judgment, the appeal is dismissed.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

      I agree.                                      (Harish Tandon, J.)




(Prasenjit Biswas, J.)