Calcutta High Court (Appellete Side)
M Ridula Sikdar vs Jitendra Nath Sikdar on 12 September, 2023
1
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 539 of 2014
IA No. CAN 2 of 2017
(Old No. CAN 72 of 2017)
M ridula Sikdar
Vs.
Jitendra Nath Sikdar
Appearance:
For the Appellant : Ms. Chandreyi Alam, Adv.
For the Respondent : Mr. Saurav Chaudhuri, Adv.
Judgment On : 12.09.2023
Harish Tandon, J.:
1. The present appeal is at the instance of a wife assailing the judgment
and decree dated 29th August, 2014 passed by the learned Additional
District & Sessions Judge, 3rd Court, Barrackpore in Matrimonial Suit No.
1 of 2008 by which the decree for dissolution of marriage was granted in
favour of the husband on the ground of cruelty and desertion.
2. An application for dissolution of marriage was founded not only the
allegation of cruelty and desertion but several allegations have been made
against the wife pertaining to her extra marital affairs with several persons
named therein. Although, in the preamble of the said application it is
indicated that the aforesaid application is filed under Section 13 (1) (ia) and
(ib) of the Hindu Marriage Act, 1955 but the averments made therein also
includes the allegation of adultery of the wife without impleading the
persons having alleged adulterous relation with the wife.
3. It is necessary to adumbrate the salient facts emerged from the said
application filed by the husband-respondent touching upon the aforesaid
allegations before we proceed to decide the appeal on the points canvassed
before us by the respective counsels. Admittedly, the parties were married
under the Hindu rituals and rights on 3rd December, 1990 at the parental
aunt's house of the appellant. After the solemnization of the marriage , the
parties started living at the house of the respondent and the marriage was
duly consummated and a female child was born on the said wedlock on
30th August, 1992. A precursor to the solemnisation of the marriage is
extensively narrated in the said application that the wife who was studying
at a relevant point of time and admitted into a coaching centre run by the
husband respondent developed the emotional liking as the respondent
supported her to pursue her studies upto the Bachelor Degree course. On
disclosure of such emotions have borne in the mind of the appellant, the
respondent advised to disclose the same to her parents who in turn to
disclose the same to his parents and ultimately on such advice both the
families agreed to give marriage which was solemnised on the date as
indicated hereinabove.
4. The allegation proceeds to the extent that immediately after the
marriage the appellant being an obstinate, headstrong, suspicious lady
started burning the conjugal life raising a unbold and unsubstantiated
allegation of having relation with the maid servant and started using
unwanted and unacceptable languages castigating the prestige and the
position of the husband-respondent. It is further alleged that on the eve of
the six months of the marriage, the appellant inflicted a systematic
pressure on the issue of separate living in separate mess and having denied
to accept the same, the annoyance on the part of the appellant and
misbehaviour aggravated by chiding the various vulgar and defamatory
languages having lowered the reputation and the prestige which the family
had in the society. It is further alleged that on 04.01.1992 the appellant
threatened the husband-respondent to commit suicide if her demands are
not met. The allegation as to ill-treatment with the husband-respondent
with the extreme cruelty as and when the respondent interacts with any
lady customer visiting the shop of his father in course of business
transaction on some false acquisition obviously guided by a suspicious
mentality having a negative impact not on the business and the customer
avoiding to visiting the said shop but also tarnishing the image and
prestige of the family. The allegations run further to the extent that the
appellant was leaving the house at her sweet will without taking prior
consent of the permission of the respondent and coming late in the house
and on being asked in this regard she replied in a rude manner which
shows that the appellant has a scant respect towards the respondent which
amounts to cruelty.
5. Astonishingly, an allegation is also made against the appellant
having an extra-marital affair with the person named therein; even
disclosing the name of a person who witnessed such act of the appellant. In
a subsequent paragraph of the said application several other names have
been divulged apart from the name disclosed in paragraph 19 thereof who
have an extra-marital affair with the appellant and some of the incidences
have also been vividly averred therein corroborating the aforesaid
allegations. It is also alleged that the wife forcibly took the possession of the
STD booth belonging to the respondents when he was taken in the custody
in connection with a false allegation and took away a substantial amount
therefrom and since then she is having control thereof. Several allegations
relating to perpetration of the threat at the behest of the appellant as well
as her relatives are also narrated in the said application. It is further
alleged that a landed property at Durgapur which was purchased by the
respondent in the name of the appellant has been disposed of in the year
2005 by the wife and the entire consideration money has been deposited in
her account. Further allegation as to withdrawal of the money from the
joint account of the appellant and her father-in-law is also alleged in the
said application as an element of cruelty inflicted upon the respondent. The
respondent has further averred that there is no co-habitation between them
since 2003 as the appellant started living in a separate room with their
daughter in the same house and such disassociation without any reason
and rhyme constitute a desertion.
6. The wife-appellant contested the said matrimonial proceedings by
filing the written statement denying all the allegations made therein. The
appellant took a stand that few days after the birth of the only daughter,
the husband-respondent developed an extra-marital affair with the lady
and on protest not only by the appellant but the family members of the
respondent, the respondent became indifferent and started inhuman
physical and mental torture upon the appellant. It is further averred
despite the same, the appellant tried to restore the happy conjugal life with
the hope of a better future not only of her but also her daughter, but the
respondent did not pay any heed to such request. Astonishingly the
respondent married another lady, the name whereof is disclosed in
paragraph 16 of the written statement, on 27.03.2006 which was registered
before the Marriage Registrar. It is a specific stand of the appellant that the
respondent on and from 27.03.2006 voluntarily withdrew himself from the
association of the appellant which compelled her to leave in a separate
room along with their daughter in the same house. Several attempts were
made to restore such relation with the intervention of the respected and
reputed peoples of the society and the family but there was a complete
refusal on the part of the respondent. The respondent even stopped bearing
the expenses of the appellant and the educational expenses of the
daughter. She has further disclosed the income of the husband-
respondent from various businesses and the rent received by him from the
tenants of his other houses including the kerosene dealership business
which initially stood in the name of the father-in-law and upon his death in
the name of the respondent. She has categorically averred in the written
statement that despite the respondent having contracted the second
marriage she is still willing to live with him and lead a happy conjugal life.
7. On the basis of the aforesaid pleadings of the respective parties, the
evidence was adduced by them only and not a single witness was called in
support of the allegations relating to the extra-marital affairs alleged by
both the parties. However, the wife produced the certified copy of the notice
of intending marriage and the certificate of marriage contracted by the
respondent with another lady during the subsistence of the marriage. On
the other hand, respondent has filed the complaint alleged by the appellant
with the police station and the certified copy of the judgment passed by the
Court in Matrimonial Suit no. 54 of 2007 in support of his stand that the
second marriage was declared a nullity and ultimately annulled.
8. The Trial Court while deliberating on the ground of cruelty envisaged
under Section 13 (1) (ia) of the said Act extensively narrated the concept of
cruelty as recognised in a judicial parlance and held that the moment the
wife-appellant has withdrawn the money from the joint account held in the
bank with the father-in-law without any intimation to the respondent
constitute the element of cruelty. The Trial Court further found that the
second marriage with the lady which was dissolved by a decree passed by
the Competent Court itself proved that there was no co-habitation between
them and, therefore, the allegation of the wife in this regard cannot be held
to be of such nature which would invite the disassociation from the
conjugal life. Even being conscious of the proposition of law that
irretrievable breakdown of the marriage is not recognised as a ground for
granting dissolution of marriage under Section 13 of the said Act, the Trial
Court took note of the same and held that the conduct of the appellant is
such that she does not care for the respondent nor could restore a
confidence, which may constitute a cruelty. The another ground of cruelty
which has been held by the Trial Court relates to the withdrawal of money
from the joint bank account and the sale of the property which admittedly
stood in the name of the wife without the consent and concurrence of the
respondent. Interestingly, the Trial Court held that even if the wife -
appellant wanted to continue the marital life forgetting and forgiving all the
act of the respondent in the past but if the parties are allowed to continue
or directed to continue a marital life it would constitute a cruelty on the
respondent.
9. The Counsel for the appellant submits that there is convincing
materials produced before the Court in support of the averments made in
the written statement more particularly the second marriage contracted by
the respondent but the Trial Court misconstrued the aforesaid incidents
and held that the conduct of the respondent cannot be such which
constrained the disassociation. It is submitted that even thereafter the
respondent all along intended to restore the conjugal life and the
respondent himself has deserted the appellant and, therefore, the decree on
the ground of desertion is not sustainable. It is further submitted that
several allegations relating to extra-marital affairs of the appellant is
pleaded in the application as well as in the evidence but not a single
witness or the person named therein was cited as witness and, therefore,
such allegation shall be deemed to not have been proved. The Counsel
further submits that the aforesaid persons have not been impleaded as
party in the proceeding and, therefore, such allegation cannot constitute a
cruelty nor a ground of adultery. She vociferously submits that the
allegation of cruelty has not been proved by the respondent and if the
respondent himself is found to have perpetrated cruelty by contracting a
second marriage, he is not entitled to get a decree against the appellant. In
support of the contention that allegation made by the wife on contracting
the second marriage having been proved by producing the notice intending
marriage and in fact the marriage was not denied as the respondent-
husband produced the certified copy of the decree passed in a matrimonial
suit filed by the said lady, such allegation cannot be construed as a blatant
lie and, therefore, no element of cruelty can be perceived therefrom.
Reliance is placed upon a judgment of the Division Bench of this Court in
case of Ratna Banerjee vs. Chandra Madhab Banerjee reported in
(2007) 1 CHN 503. It is submitted that though serious allegation is levelled
against the appellant in the said application filed by the respondent having
not proved it can at best may constitute a cruelty upon the appellant and
for such act the respondent cannot get a decree for cruelty. It is thus
submitted that the appellant despite the aforesaid allegations having made
against her still have a cherish and desire to continue with the conjugal life
condoning all the act of the respondent.
10. On the other hand, the Counsel for the respondent submits that the
conduct of the wife in making false allegation constituted a cruelty and
there is no infirmity and/or illegality in the impugned judgment passed by
the Trial Court. It is vehemently submitted that the wife not only sold the
property purchased by the respondent in her name without seeking any
permission or a prior approval but also withdrew substantial amount of
money from the joint bank account held with his father for which the
several suits are filed by his mother and the elder brother. It is arduously
submitted that the wife voluntarily deserted the respondent since 2003 and
living in a separate room with daughter which amounts to a desertion apart
from mental cruelty. It is thus submitted that the decree annulling the
marriage at the behest of the lady would indicate that there was no
conjugal relation with them and, therefore, the allegation of the appellant
in this regard is untenable. It is further submitted that the conduct of the
appellant in treating the respondent as well as the family members is such
that it renders himself to live together with the part of the respondent as
there is a sense of insecurity having developed in the mind of the
respondent. It is vociferously submitted that the parties have been living
separately since 2003 and the marriage has broken down irretrievable and
there is no possibility of the restoration thereof and, therefore, it is better to
severe such marital tie than to compel the parties to live in such
matrimonial institution.
11. On the backdrop of the aforesaid pleadings and the submissions
advanced before us, whether the judgment and decree of the High Court on
the ground of cruelty and desertion can be sustained.
12. The cruelty has not been defined under the Hindu Marriage Act,
1955. The seminal point involved in the instant case is to ascertain the
meaning and the definition of the word 'cruelty' in the perspective of a
matrimonial offence under the aforesaid Act. Though the cruelty is
included under Section 13 as one of the ground for dissolution of marriage
but the same has not been defined in the said Act nor any explanation has
been appended thereto throwing light on the meaning and the tenet of the
said word. Section 13 (1)(ia) of the Act postulates that the marriage can be
dissolved by a decree of divorce if the petitioner of the said application is
treated with cruelty by the other party. The aforesaid Section doe s not
restrict the right only on her husband but recognises the right of both the
husband and wife to seek the dissolution of marriage by the decree of
divorce on the ground of cruelty provided such cruelty is proved that he or
she is treated with cruelty by the other party. The intention behind the
incorporation of the expressions and/or languages used therein is laudable
in the sense that a person be a husband or a wife can present the said
application alleging the cruelty having perpetrated upon him/her by the
other side which necessarily implies that the person who himself treated
the other side with cruelty is not entitled to get the decree of divorce. The
obvious reason is that a person who is a wrongdoer cannot reap the benefit
of his own wrong. Since the cruelty has not been defined in the said Act,
there is no ambiguity in holding that it includes both mental and the
physical cruelty. Presumably the legislature avoided to define the word
'cruelty' in the said statute because of its nature and the degree in relation
to a matrimonial discord. The English Courts attempted to define the
cruelty which is also accepted by the Indian Courts that the conduct of
such character as to have caused danger to life, limb or health (bodily or
mentally), so as to give rise to a reasonable apprehension of such danger
may be one of the factors to be borne in mind while extending the meaning
of the expression 'treated the petitioner with cruelty'. The reason of not
defining the cruelty is presumable to understand both exclusive or
inclusive dependent upon the nuances of every act or the incident or the
conduct of the respective parties in the perspective of the Indian culture or
the Indian society. The mindset of a man or woman in the Indian society
have diverse colours or so varied and/or infinite that it is merely impossible
to define the said word 'cruelty' with precession. What may constitute a
cruelty in one circumstance may not be a cruelty in the other and,
therefore, the legislature in their wisdom have not squeeze d the concept of
cruelty by defining it in the statute. The Apex Court in case of Parveen
Mehta vs. Inderjit Mehta, reported in (2002) 5 SCC 706 attempted to
explain the concept of cruelty for the purpose of Section 13 (1) (ia) of the
said Act as a behaviour of one man towards the other which may cause a
reasonable apprehension in the mind of the other with regard to his safety
in continuing with the matrimonial relationship. It is further held that the
cruelty in relation to a mental cruelty is a state of mind and a feeling which
either of the spouses has because of the behaviour or the behavioural
pattern of another. The Apex Court was conscious that in case of physical
cruelty the manner of proving is somewhat easier than in case of mental
cruelty which is more difficult and complex in the following:
"21. Cruelty for the purpose of Section 13 (1) (i-a) is to be taken as a
behaviour by one spouse towards the other, which causes reasonable
apprehension in the mind of the latter that it is not safe for him or
her to continue the matrimonial relationship with the other. Mental
cruelty is a state of mind and feeling with one of the spouses due to
the behaviour or behavioural pattern by the other. Unlike the case of
physical cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from the
facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct
of the other can only be appreciated on assessing the attending facts
and circumstances in which the two partners of matrimonial life
have been living. The inference has to be drawn from the attending
facts and circumstances taken cumulatively. In case of mental
cruelty it will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty. The
approach should be to take the cumulative effect of the facts and
circumstances emerging from the evidence on record and then draw a
fair inference whether the petitioner in the divorce petition has been
subjected to mental cruelty due to conduct of the other."
13. In A. Jayachandra vs. Aneel Kaur, reported in (2005) 2 SCC 22
the Apex Court has expanded the horizon of the concept of cruelty not only
to a danger to life, limb or health, bodily or mentally but to be decided on
the parameters of a particular society to which the party belonged
including the social values, the social status the environment in which they
lived together. The Apex Court further held that the cruelty in relation to a
criminal case which is to be decided on the basis of a proof beyond the
shadow of doubt cannot be imported in case of a matrimonial disputes
relating to a dissolution of marriage in the following:
"10. The expression "cruelty" has not been defined in the Act. Cruelty
can be physical or mental. Cruelty which is a ground for dissolution
of marriage may be defined as wilful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be considered in the
light of the norms of marital ties of the particular society to which
the parties belong, their social values, status, environment in which
they live. Cruelty, as noted above, includes mental cruelty, which
falls within the purview of a matrimonial wrong. Cruelty need not be
physical. If from the conduct of the spouse same is established
and/or an inference can be legitimately drawn that the treatment of
the spouse is such that it causes an apprehension in the mind of the
other spouse, about his or her mental welfare then this conduct
amounts to cruelty. In a delicate human relationship like matrimony,
one has to see the probabilities of the case. The concept, proof beyond
the shadow of doubt, is to be applied to criminal trials and not to
civil matters and certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore one has to see
what are the probabilities in a case and legal cruelty has to be found
out, not merely as a matter of fact, but as the effect on the mind of
the complainant spouse because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be mental. In physical
cruelty, there can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct evidence. In
cases where there is no direct evidence, courts are required to probe
into the mental process and mental effect of incidents that are
brought out in evidence. It is in the view that one has to consider the
evidence in matrimonial disputes.
11. The expression "cruelty" has been used in relation to human
conduct or human behaviour. It is the conduct in relation to or in
respect of matrimonial duties and obligations. Cruelty is a course or
conduct of one, which is adversely affecting the other. The cruelty
may be mental or physical, intentional or unintentional. If it is
physical, the court will have no problem in determining it. It is a
question of fact and degree. If it is mental, the problem presents
difficulties. First, the enquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the mind of the
spouse, whether it caused reasonable apprehension that it would be
harmful or injurious to live with the other. Ultimately, it is a matter
of inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse. However, there may
be a case where the conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or injurious effect on the
other spouse need not be enquired into or considered. In such cases,
the cruelty will be established if the conduct itself is proved or
admitted. (See Shobha Rani v. MadhukarReddi.)
12. To constitute cruelty, the conduct complained of should be "grave
and weighty" so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other spouse. It
must be something more serious than "ordinary wear and tear of
married life". The conduct, taking into consideration the
circumstances and background has to be examined to reach the
conclusion whether the conduct complained of amounts to cruelty in
the matrimonial law. Conduct has to be considered, as noted above,
in the background of several factors such as social status of parties,
their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the conscience of the court
that the relationship between the parties had deteriorated to such an
extent due to the conduct of the other spouse that it would be
impossible for them to live together without mental agony, torture or
distress, to entitle the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable mental agony
and torture may well constitute cruelty within the meaning of
Section 10 of the Act. Mental cruelty may consist of verbal abuses
and insults by using filthy and abusive language leading to constant
disturbance of mental peace of the other party."
14. The Division Bench of this Court in Ratna Banerjee vs. Chandra
Madhab Banerjee, reported in (2007) 1 CHN 503 has taken into account
the various wear and tear of the matrimonial relations and held that even if
the wife has a dissenting view to the husband or his family that itself
cannot tantamount to an act of cruelty as such disagreement is a normal
human behaviour and in absence of any cogent evidence that there is any
misbehaviour or the conduct is such which would render the husband or
his family members impossible to live together, the divorce on such ground
should not be granted. It is further held that in order to prove that the wife
is quarrelsome there must be some witnesses or the evidence to be
adduced in this regard, even though in the common parlance such quarrel
if there be any involves at least two parties. It is thus held mere alleging of
misbehaviour without any corroborative proof shall not constitute cruelty
in the following:
"14. The next allegation is that the wife used to quarrel with the
members of the in-law‟s family including the husband. The specific
case of the husband is that she used to quarrel with his father. The
father or the mother or the sister of the husband has not come
forward to depose against the wife. Only the brother has given
evidence and has alleged that the appellant used to quarrel with his
father. Whenever we mention of a quarrel, there must be at least two
parties to such incident and a reason for the disagreement. In this
case, the PW-4 has not disclosed the reason of altercation between
his father and the appellant. Every wife has right to resist improper
demand of the in-laws and in the process, if she protests against
such unacceptable demand, she cannot be held to be guilty of
showing disrespect to her in-laws. Therefore, unless evidence is
adduced indicating the reason of altercation between the appellant
and her father-in-law, we are unable to come to any conclusion as to
whether the conduct of the wife was abominable. As regards the
allegation of the PW-4 that the appellant misbehaved with him, we
are not in a position to rely upon such statement unless the actual
nature of misbehaviour is brought to the notice of the Court. By
simply alleging misbehaviour without giving instances thereof, the
charge of misbehaviour against the wife has not been proved at the
instance of the PW-4. We, thus, find that the husband has failed to
prove allegation of misbehaviour of the appellant with his parents,
brother and sister."
15. What emerged from the above noted decision that to constitute
cruelty under the aforesaid provision of the Act it should be of such
magnitude and must weigh in the mind of the reasonable person that it
would not be reasonably possible to live together as the sense of insecurity
not only to life or limb, bodily or mentally must be inhered and deeply
rooted in the mind in absence of any definition assigned in the statute to
the cruelty. It has to be considered on the various aspects including the
behaviour, their social status, education and the environment in which
they live. Hindu Mythology propagates the marriage between the two
Hindus as sacred and made in heaven, trifling or irritation developed in the
marital tie is a normal wear and tear of a human behaviour and it would be
dangerous to constitute the same as cruelty as two persons grown up in a
different atmosphere having decided to live together may always have a
disagreement in various aspects but such menial disagreement may not
constitute a cruelty. With the changing society and the education having
imparted to them may bring a disagreement as the perception of one may
not be a perception of other which is a normal human behaviour. Every
individual has a right to percolate his understanding of a subject which
may bring disagreement to an idea or the conception of a subject which
cannot be construed as a cruelty in the Indian society.
16. As held in A. Jayachandra (supra) the foundation of a sound
marriage is tolerance, adjustment and respecting to one another; petty
quarrels, trifling differences should not be exaggerated and magnified to
destroy the matrimonial relationship. It is further held that two technical
and hyper technical approaches may be counter-productive to the
institution of marriage as the Court never expects to deal with ideal
husband and ideal wife. The Apex Court has succinctly laid down that in
order to constitute the conduct of any of the party to be called as cruelty it
must touch a certain speech of severity and it is a ardent duty of Court to
weigh the gravity on the parameter as to whether the conduct was such
that no reasonable person would tolerate on the ratio as laid down in the
above noted case.
17. The onerous duty of this Court is to determine whether the allegation
made by the husband-respondent in the petition as well as the evidence
have been proved and may constitute a cruelty against him under the
aforesaid provisions of law. The petition running into several pages vividly
narrates the incidents which the husband-respondent construed as a
cruelty upon him but not a single independent witness has been brought in
support thereof. It is alleged that within few days of solemnisation of
marriage the wife being a lady of suspicious mind made an allegation
against the petitioner having a relation with the maid servant but no such
maid servant was brought as an witness to corroborate the aforesaid
allegation; furthermore the conjugal relationship continued even after such
allegation alleged to have been made by the appellant and a daughter is
born on the eve of the two years of marriage. Even if we construed such
allegation to have been made by the wife by the act of the husband the
same is condoned as they continued establishing the physical relation
which resulted in the form of blessing bestowed upon them by giving birth
to a daughter. Apart from the same the Trial Court has not held the same
as cruelty upon the petitioner as the cruelty was perceived solely on the
ground that the wife forcibly took control of the STD Booth business and
also sold the property without the concurrence and permission of husband-
respondent.
18. Admittedly, the property at Durgapur was purchased in the name of
wife. It is alleged that the consideration money was paid by the husband-
respondent but not a single iota piece of evidence was produced in this
regard. It is held by the Trial Court that the wife has deposed that she did
not have any income before the marriage which leads to a presumption that
the consideration was paid by the husband-respondent. Even if the
aforesaid fact is considered to be true which does not appear to have been
proved, for the sake of argument, indubitably the property stands in the
name of the wife-appellant. The wife cannot be regarded as a property of
the husband nor she is expected to seek any permission from the husband
to do any act or a thing which she decided to do in her life. The mindset of
the husband-respondent is evident that he wanted the wife to remain a
passive companion having no freedom of mind nor to take any decision of
her life without his permission or concurrence. Such mindset cannot be
accepted in a changing behaviour of the society nor the wife is considered
to be subservient to the husband incapable of taking any independent
decision in her life. It appears that both are educated and if the wife
decided to sell the property standing in her name without seeking approval
or permission from the husband-respondent, it shall not constitute the
cruelty. The dominance of male over the female is not acceptable to the
present society nor the framers of our Constitution ever inculcated such
sense. There cannot be any bias on gender as both male and female have
equal right and if the husband can sell the property without the approval
and permission of wife we are unaware to comprehend that the property
standing in the name of the wife cannot be sold by her without the
permission and/or approval of her husband. We have to eradicate the
mindset of gender inequality and therefore the finding of the learned Judge
in the Trial Court is unacceptable and untenable.
19. The second element of cruelty held by the Trial Court that the wife
withdrew the money from the joint bank account held with the father-in-
law after his death is also not tenable nor can be brought within the
purview of cruelty. The Trial Court ought to have considered the case from
a different angel, it is a categorical allegation of a husband-respondent that
within 15 days of marriage the wife was indifferent, quarrelsome as raising
various suspicion against the husband of a relation with the maid servant
and also misbehaved with the family members yet the father-in-law opened
a bank account with the appellant and put a substantial amount of money
therein. It leads to an inescapable conclusion that the father-in-law had
reposed confidence on the wife-appellant in opening the bank account with
her which leads to destroying the allegation made by the husband against
the wife-appellant. Whether the withdrawal of money after the death of the
father-in-law is a matter to be decided in a civil suit filed by the mother-in-
law and the elder brother-in-law and, therefore, we do not intend to make
any comment thereupon. The wife has categorically admitted to have
withdrawn the said amount in her evidence and have given an explanation
that since the husband-respondent was not providing any money to
sustain her or the daughter, such amount was necessary. Though it has
not been said in clear precession but an impression can be gathered from
the evidence from the deposition of the wife if read in its entirety. It is far-
fetched to constitute a cruelty on withdrawal of the money from the join
bank account and the decree for divorce is granted thereupon.
20. The finding of the Trial Court that since the inception of the marriage
the parties were not happy does not appear to have been corroborated by
any evidence. The Trial Court surreptitiously jumped to such conclusion
solely on the ground that the wife withdrew the money from the joint bank
account overlooking the fact that within two years of marriage the parties
were blessed with the daughter and, therefore, it cannot be said that since
the inception of the marriage they were not happy. Though it is held that
the parties are not leading a conjugal life nor there is any consummation
since 2003 which amounts not only to desertion but a cruelty on the
husband-respondent but we do not find any findings returned on the
concept of desertion. In order to constitute a desertion which is very
difficult to give a comprehensive definition as one of the paramount
ingredients is the intention of a party to put an end to the co-habitation
permanently. There must be an element of animus deserendi as mere
justifiable separation may not come within the purview of the desertion.
21. The Apex Court in case of Adhyatma Bhattar Alwar vs. Adhyatma
Bhattar Sri Devi, reported in (2002) 1 SCC 308 succinctly narrated the
essential ingredients which may constitute desertion in the following:
"The clause lays down the rule that desertion to amount to a
matrimonial offence must be for a continuous period of not less than
two years immediately preceding the presentation of the petition.
This clause has to be read with the Explanation. The Explanation
has widened the definition of desertion to include „wilful neglect‟ of
the petitioning spouse by the respondent. It states that to amount to
a matrimonial offence desertion must be without reasonable cause
and without the consent or against the wish of the petitioner. From
the Explanation it is abundantly clear that the legislature intended
to give to the expression a wide import which includes wilful neglect
of the petitioner by the other party to the marriage. Therefore, for
the offence of desertion, so far as the deserting spouse is concerned,
two essential conditions must be there, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently to
an end (animus deserendi). Similarly, two elements are essential so
far as the deserted spouse is concerned: (1) the absence of consent,
and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. The petition for divorce bears the burden of proving those
elements in the two spouses respectively and their continuance
throughout the statutory period."
22. What appears from the ration laid down in the above judgment that
by insertion of an explanation the scope of understanding the desertion has
been expanded and/or widened even to include a wilful neglect and/or
disassociation from the company of another without any reasonable cause
and above all there must be a permanent intention to bring an end to co-
habitation. It admits no ambiguity that mere avoiding the company of
another or living separately may not constitute desertion simplicitor unless
the aforesaid ingredients are proved by the cogent evidence. In the event,
the explanation is offered leading to such separation or disassociation if
may not be considered as desertion which can be forfeited from the
judgment of the Apex Court in case of Bipinchandra Jaisinghbai Shah
vs. Prabhavati reported in AIR 1957 SC 176.
10. What is desertion? "Rayden on Divorce" which is a standard
work on the subject a p. 128 (6th Edn.) has summarised the case-law
on the subject in these terms:-
"Desertion is the separation of one spouse from the other, with an intention on the
part of the deserting spouse of bringing c ohabitation permanentl y to an end without
reasonabl e c ause and without the c onsent of the other spouse; but the physic al ac t
or departure by one spouse does not nec essaril y make that spouse the deserting
party".
The legal position has been admirably summarised in paras 453 and
454 at pp. 241 to 243 of Halsbury‟s Laws of England (3 rd Edn.), Vol.
12, in the following words;-
"In its essenc e desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without reasonabl e c ause. It is a total
repudiation of the obl igations of marriage. In view of the l arge variety of
circ umstances and of modes of life involved, the Court has disc ouraged attempts at
defining desertion, there being no general principle applic abl e to all c ases.
Desertion is not the withdrawal from a pl ac e but from a state of things, for what the
l aw seeks to enforc e is the rec ognition and disc harge of the c ommon obl igations of
the married state; the state of things may usuall y be termed, for short, „the home‟.
There c an be desertion without previous c ohabitation by the parties, or without the
marriage having been c onsummated.
The person who ac tually withdraws from c ohabitation is not nec essaril y the
deserted party. The fac t that a husband makes an all owanc e to wife whom he has
abandoned is no answer to c harge of de sertion.
The offenc e of desertion is a c ourse of c onduc t whic h exists independentl y of its
duration, but as a ground for divorce it must exist for a period of at l east three years
immediatel y prec eding the presentation of the petition or where the offenc e appears
as a c ross-c harge, of the answer. Desertion as a ground of divorc e differs from the
statutory grounds of adul tery and c ruel ty in that the offenc e founding the c ause of
ac tion of desertion is not c omplete. But s inc hoate, until the suit is c onstituted.
Desertion is a c ontinuing offenc e.
Thus the quality of permanence is one of the essential elements
which differentiates desertion from wilful separation. If a spouse
abandons the other spouse in a state of temporary passion, for
example, anger or disgust, without intending permanently to cease
cohabitation, it will not amount to desertion. For the offence of
desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely, (1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential so far as the
deserted spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The
petitioner for divorce bears the burden of proving those elements in
the two spouses respectively. Here a difference between the English
law and the law is enacted by the Bombay Legislature may be pointed
out. Whereas under the English law those essential conditions must
continue throughout the course of the three years immediately
preceding the institution of the suit for divorce, under the Act, the
period is four years without specifying that it should immediately
precede the commencement of proceedings for divorce. Whether the
omission of the last clause has any practical result need not detain
us, as it does not call for decision in the present case. Desertion is a
matter of inference to be drawn from the facts and circumstances of
each case. The inference may be drawn from certain facts which may
not in another case be capable of leading to the same inference; that
is to say, the facts have to be viewed as o the purpose which is
revealed by those acts or by conduct and expression of intention, both
anterior and subsequent to the actual acts of separation. If, in fact,
there has been a separation, the essential question always is whether
that act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the animus
deserendi co-exist. But it is not necessary that they should commence
at the same time. The de facto separation may have commenced
without the necessary animus or it may be that the separation and
the animus deserendi coincide in point of time; for example, when the
separating spouse abandons the marital home with the intention,
express or implied, of bringing cohabitation permanently to a close.
The law in England has a prescribed a three years period and the
Bombay Act prescribed a period of four years as a continuous period
during which the two elements must subsist. Hence, if a deserting
spouse takes advantage of the locus poeniteniae thus provided by law
and decides to come back to the deserted spouse by a bona fide offer
of resuming the matrimonial home with all the implications of
marital life, before the statutory period is out or even after the lapse
of that period, unless proceedings for divorce have been commenced,
desertion comes to an end and if the deserted spouse unreasonably
refuses to offer, the latter may be in desertion and not the former.
Hence it is necessary that during all the period that there has been a
desertion, the deserted spouse must affirm he marriage and be ready
and willing to resume married life on such conditions as may be
reasonable. It is also well settled that in proceedings for divorce the
plaintiff must prove the offence of desertion, like and other
matrimonial offence, beyond all reasonable doubt. Hence, though
corroboration is not required as an absolute rule of law the courts
insist upon corroborative evidence, unless its absence is accounted
for to the satisfaction of the court. In this connection the following
observations of Lord Goddard, C.J. in the case of Lawson v. Lawson ,
1955-1 All E R 341 at p. 342 (A), may be referred to :-
"These c ases are not c ases in whic h c orroboration is required as a matter of l aw. It
is required as matter of prec aution . . . . . ." .
With these preliminary observations we now proceed to examine the
evidence led on behalf of the parties to find out whether desertion
has been proved in this case and, if so, whether there was a bona fide
offer by the wife to return to her matrimonial home with a view to
discharging marital duties and, if so, whether there was an
unreasonable refusal on the part of the husband to take her back.
21. But it is not necessary that at the time the wife left her
husband‟s home she should have at the same time the animus
deserendi. Let us therefore examine the question whether the
defendant in this case, even if she had no such intention at the time
she left Bombay, subsequently decided to put an end to the
matrimonial tie. This is in consonance with the latest
pronouncement of the Judicial Committee of the Privy Council in the
case of 1955 A.C. 402 at p. 417 (F) in an appeal from the decision of
the High Court of Australia, to the following effect:-
„Both in Engl and and in Austral ia, to establ ish desertion two things must be proved:
first, c ertain outward and visibl e c onduc t-the „fac tum‟ of desertion; sec ondl y, the
„animus deserendi‟ - the intention underl ying this c onduc t to bring the matrimonial
union to an end.
In ordinary desertion the factum is simple; it is the act of the
absconding party in leaving the matrimonial home. The contest in
such a case will be almost entirely as to the „animus‟. Was the
intention of the party leaving the home to break up for good, or
something short of, or different from that?‟"
23. In the present case both the parties are living in the same house
though it is admitted that they are living in a separate room. The wife-
appellant has categorically stated and deposed that she wanted to restore
the matrimonial relationship and also co-habitation yet the husband
respondent has no intention to resurrect such relationship. The
requirement under the law is that thus petitioner must prove with the
cogent evidence that the other party has deserted him/her but does not
recognise that the petitioner who himself is guilty of deserting the other
party should succeed on the ground of desertion. Even though the parties
have not established the co-habitation since 2003 but it is found from the
evidence that the husband in fact did not intend to co-habit with the wife-
appellant. Although the learned Judge in the Trial Court has held that
since there was no co-habitation between the parties since 2003 it
tantamounts to irretrievable breakdown of the marriage which is not a
ground for passing a decree for dissolution of marriage but held the same
not only a cruelty perpetuated upon the husband-respondent but the
desertion at the behest of the wife appellant. Refusal to co-habit under the
marriage institution may sometimes constitute a cruelty which is also
required to be proved by a person that such refusal is at the behest of the
other side.
24. We are not unmindful of the fact that e ven in course of the
proceedings any bald allegation as to the character of a husband is made
by the wife, there is no fetter on the part of the Court to grant decree on the
ground of cruelty provided such allegation is not proved by cogent
evidence. The wife has alleged that the husband-respondent has contracted
a second marriage which she proved by producing the certificate of
marriage with another lady which are marked exhibit in the said suit. In
turn, the husband has produced a decree annulling the said marriage to
substantiate his stand that it was mere a paper marriage but the Court can
draw a inference from the findings rendered by the Court in the said
proceeding. The suit was filed by the lady seeking declaration that the
marriage is a nullity and be annulled on the ground that it is a mere paper
marriage and there was no consummation ever happened. Interestingly, the
husband-respondent appeared in the said matter and filed the written
statement admitting that the marriage was not consummated and later on
did not participate therein which led the ex-parte decree to be passed on
the basis of such stand taken by the husband therein. The marriage is not
denied which is proved by the wife by exhibiting the certificate issued by
the marriage registrar. The allegation made by the lady in the said suit has
to be seen wherein she stated that the husband-respondent was persisting
her to get married with him and on her refusal he could manage certain
blank papers duly signed by her which is converted into an application to
be filed before the Special Marriage Registrar. Such allegation goes
uncontroverted as the husband-respondent in the written statement
admitted not only the marriage being registered before the marriage
registrar but his role and the conduct in getting the said marriage
registered under the Act. The intention of the husband-respondent is
evident from the aforesaid stand that despite having married with the
appellant he has declared himself as unmarried and it would not be wrong
to presume that he wanted to get rid of the present appellant and intend to
establish another relationship with the said lady.
25. On the discussion has made hereinabove, we find that the judgment
and decree passed by the Trial Court cannot be sustained. The judgement
and decree impugned in the instant appeal is hereby set aside. The
matrimonial suit no. 54 of 2007 is dismissed.
26. However, there shall be no order as to costs.
27. 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.)
