Smt. Nilima Ghosh vs Sri Bipad Taran Ghosh
2023 Latest Caselaw 6070 Cal

                                                                1



                    IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                           APPELLATE SIDE

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

                             FAT 107 of 2020


                           Smt. Nilima Ghosh
                                    Vs.
                          Sri Bipad Taran Ghosh


Appearance:


For the Appellant             : M rs. Sulekha M itra , Adv.
                                M r. M anas Kumar Das, Adv.




For the ECL                   :   M r. M anik Das, Adv.

For the Coal Mines
Provident Fund Organization :     M r. Kallol Guha Thakurta, Adv.


Judgment On                   : 12.9.2023



Prasenjit Biswas, J.:
        The instant appeal has been preferred against the judgement and

decree dated 10.12.2019 passed by the learned Additional District Judge

4th Court, Asansol, Paschim Bardhaman in Matrimonial Suit No. 33 of

2016 whereby the application filed by the respondent husband for grant of

decree of divorce u/s 13 of the Hindu Marriage Act, 1955 was allowed. The

wife is in appeal before this court.

The parties got married on 23.11.2012 according to Hindu rites

and customs at the house of the appellant. Soon after the marriage

difference and disputes have been cropped up in between them. It was

pleaded that the appellant/wife told the respondent that she had no

intention to marry him and is not willing to live with him. It is stated by

the husband that the appellant/wife used to say that her marriage had

been given by her parents with him by way of exercising force. Despite

hearing this respondent kept himself mum with hope that his wife would

change her habit and normal conjugal life would restore between them.

The husband further pleaded that this appellant used to pickup

quarrel with him and his mother and abused them with filthy languages

and also used to say that she would not live with him in anyway and

ultimately this appellant/ wife left for her father's house on 28.12.2012.

Thereafter the respondent on many questions requested this appellant to

come back but his request was ended in vain. Therefore, when all the

efforts made by him went on vain he instituted a case for restitution of

conjugal rights which was subsequently withdrawn by the respondent as

this appellant/wife filed a complaint case against him under section 498A

of I.P.C. Since 28.12.2012 the parties had not lived together as husband

and wife and the appellate/wife wilfully deserted the respondent for a

continuous period of more than two years the application was filed

seeking divorce.

Reply has been filed by the wife wherein she denied all the

averments and instead it is stated that she had married the respondent to

lead a happy conjugal life but the respondent and his mother started

making demands and sarcastic comments on the wife or demand of

dowry. The wife further states that having not fulfilled the demand of

dowry, the dispute further aggravated and she was put to torture.

However, since she wanted to save her marriage, she continued but

eventually on 20.03.2013 she was abused, assaulted and was ousted from

the house and forced to stay at her matrimonial house. On 22.03.2013

this appellant and her parents went to her matrimonial home but the

petitioner did not allow her to enter in the house. The wife further stated

that she had love and affection towards the respondent and is ready and

willing to lead their conjugal life.

The learned trial court on the basis of pleadings framed the issues

as to whether the wife has treated the husband with cruelty and deserted

him and in order to prove the facts, the husband examined himself as

PW1 whereas the wife has examined herself. The learned trial court after

evaluating entire facts and evidence passed a decree in favour of the

husband under section 13 of the Hindu Marriage Act, therefore, the

instant appeal by the wife.

The Learned Counsel for the appellant would submit that the

learned trial court failed to appreciate the evidence adduced by the

husband who in his cross-examination admitted that in the application for

restitution of conjugal rights he stated that their marriage was

consummated. Our attention was drawn about the evidence adduced by

PW1 wherein he stated that his father-in-law had brought the wife to his

house on 24.11.2013 and pressurised her to live there but this appellant

denied to stay with her husband, such story of pressurising and denial to

stay is not credible because this appellant went there to stay with her

husband to lead a happy conjugal life but unfortunately she was not

allowed to enter into the house. It is stated by the wife that the dispute

started for demand of dowry for which the complaint was made and it is

an admitted fact that till date the case is pending against this respondent.

Therefore, the contention of the wife that she was subjected to cruelty is

well established as no acquittal has been effected till date. Therefore, the

judgement and decree of the trial court is required to be interfered.

We have heard learned counsel for the appellant and have also

perused the materials on records.

We shall deal and discuss with the evidence about cruelty and

desertion in seriatim.

It is profitable to quote the observation of the Hon'ble Apex Court

rendered in case of V. Bhagat vs. D. Bhagat (Mrs.) reported in (1994) 1

SCC 337 wherein it is held that mental cruelty in Section 13(1)(i-a) can

broadly be defined as that conduct which inflicts upon the other party

such mental pain and suffering as would make it not possible for that

party to live with the other. In other words, mental cruelty must be of

such a nature that the parties cannot reasonably be expected to live

together. The situation must be such that the wronged party cannot

reasonably be asked to put up with such conduct and continue to live

with the other party. It is not necessary to prove that the mental cruelty is

such as to cause injury to the health of the petitioner. While arriving at

such conclusion, regard must be had to the social status, educational

level of the parties, the society they move in, the possibility or otherwise of

the parties ever living together in case they are already living apart and all

other relevant facts and circumstances which it is neither possible nor

desirable to set out exhaustively. What is cruelty in one case may not

amount to cruelty in another case. It is a matter to be determined in e ach

case having regard to the facts and circumstances of that case. If it is a

case of accusations and allegations, regard must also be had to the

context in which they were made.

The Supreme Court in case of Parveen M ehta v. Inderjit M ehta

reported in (2002) 5 SCC 706, has held thus:

"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 tha t 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 frustra tion in one spouse caused by the conduct of the other can only be appreciated on assessing the a ttending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the a ttending 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."

It is thus settled that whether in the facts and circumstances of a

given case, the plaintiff has been able to make out a case of grant of

divorce on the ground of cruelty would depend upon the nature of the

pleadings and evidence in that case. There can be no straight jacket

formula where cruelty is said to have been committed by one or other

property to the marriage.

Let us see how the husband was able to bring home his case of

cruelty both mental and physical in getting a decree of divorce. If we

examine the evidence apropos the ground of cruelty, it is to be seen that

the husband has alleged ordinary wear and tear of marital chord in day-

to-day happening as cruelty committed by the wife. It is stated by the

husband that since the day of marriage this appellant used to say that she

had no intention to marry him and she is not willing to live with him also.

Husband deposed that appellant started to misbehave with him and his

family members and did not allow the respondent to live with him. In

cross examination Pw1 husband stated that in application praying for

restitution of conjugal rights he mentioned therein that their marriage has

been consummated. Mere words spoken by the wife that see had no

intention to marry with the respondent and the marriage was fixed

contrary to her wishes would not amount to cruelty as it is understood

and taken as matrimonial offence under section 13(1)(b) of the Act, 1955.

The main allegation of husband is that marriage is not

consummated due to refusal by the wife and she had caused physical and

mental cruelty upon him and his mother since the date of marriage. No

relations of the husband were examined before the trial court. No

plausible explanation exists for the same. If the wife after marriage started

to live in her matrimonial house under one roof with her in-laws and if she

committed misbehaviour with the in-laws and husband as alleged by the

husband which triggered the cruelty, then the husband could have

produced evidence as it cannot be presumed by mere bald statement of

the husband that he and his mother were subjected to torture by the wife.

The allegation also exists that the wife was subjected to torture on

demand of dowry immediately after the marriage. The said allegation

eventually converted into a case filed under section 498A of IPC and the

cases still pending. There is no plausible explanation by the husband

respondent as to what is the outcome of such proceeding pursuant to the

complaint made by the wife. Under the circumstances, when the wife

refused to join the husband, reasonably reasons exist.

The statement of the husband would show that pursuant to the

complaint made by the wife a criminal case is pending and nothing has

been brought before us to show that what has happened in that criminal

case and whether any acquittal has been recorded or charges have been

framed. At this juncture submission made by the wife would be accepted

that for the reasons stated in her complaint, she was forced to stay away

which cannot be amounted to cruelty.

In the instant case, the burden of proving cruelty since has not

been discharged properly by the husband who sought divorce on the

ground of cruelty. Therefore, grant of decree of divorce on the ground of

cruelty appears to be unsustainable. We are not in agreement with the

findings recorded by the trial court on this count that the husband is able

to prove the ground of cruelty.

We shall now advert to the legal principle as to when the ground

of desertion can be said to be proved for grant of decree of divorce.

In Bipinchandra Jaisinghbai Shah Vs. Prabhavati reported in

AIR 1957 SC 176, history and development of a concept of "desertion" as

a cause of action for grant of decree of divorce has been spelt out. Quoting

English authors and Halsbury's Laws of England, the Supreme Court

observed thus in paragraph 10 inter alia that-

"10. What is desertion? "Rayden on Divorce" which is a standard work on the subject at 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 cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily 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 (3rd Edn.), VoL 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without tha t other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

Desertion is not the withdrawal from a place but from the sta te of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must

exist for a period of at least three years immediately preceding the presenta tion of the petition where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".

The Supreme Court thereafter in the above referred case held that

the quality of permanence is one of the essential elements which

differentiate 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 petition for divorce bears the burden of proving those elements in the

two spouses respectively.

In Smt. RohiniKumari Vs. Narendra Singh reported in AIR

1972 SC 459, the Supreme Court again held that desertion does not

imply only a separate residence and separate living. It is also necessary

that there must be a determination to put an end to marital relation and

cohabitation.

In order to seek decree of divorce on the ground of 'desertion',

plaintiff must prove that he/she has been deserted for a continuous

period of not less than two years immediately, preceding the presentation

of the petition. Therefore, in order to attract the said ground there should

be desertion for continuous period of two years prior to the date of

institution of suit. The aforesaid requirement can be termed as a

necessary pre-condition for seeking a decree

of divorce on ground of desertion. Therefore, it is imperative on the part of

plaintiff to plead and prove that defendant has deserted plaintiff and has

continued doing so uninterruptedly for a period of two years, prior to the

institution of suit.

Having summarised the settled legal position as to the nature of

marital offence of desertion and when the said ground can be said to have

been established by the deserted spouse, we shall now consider the

evidence on this aspect.

If, in fact, there has been a separation, the essential question

always is whether the act could be attributable to an animus deserendi.

The offence of desertion commences when the fact of separation and the

animus deserendi co-exist. If a deserting spouse takes advantage of the

locus poenitentiae 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 the marriage and be

ready and willing to resume married life on such conditions as may be

reasonable.

It is stated by the wife that she had intention to resume marital

chord with the husband. Husband stated that this appellant left her

matrimonial house on 28.12.2013 and since then he has/had no relation

with his wife. It is stated by the wife that on 20.03.2013 she was driven

out from her matrimonial house by the husband after inflicting physical

torture upon her and thereafter on 22.03.2013 she went to her

matrimonial home for leading conjugal life with her husband but she was

not allowed to enter into the house. On the other hand husband stated

that his father-in-law brought the appellant to his house and pressurised

her to stay therein but wife openly denied to it. We find such story of

pressurization and denial by wife to stay in matrimonial home is not

credible because she went there to live with the husband.

What has been considered by the Court below is that the wife left

her matrimonial house on 28.12.2012 and thereafter she had not gone

back there. View taken by court below cannot be sustained as according

to scheme of Act, it is the period of two years of continuous desertion prior

to institution of suit, which has to be pleaded and proved by plaintiff in

order to succeed in a suit for divorce on ground of desertion. Since

respondent failed to plead and prove that appellant had deserted him

continuously for a period of two years, prior to date of presentation of

plaint, suit for divorce on the ground of 'desertion' could not have been

decreed. Apart from above, we also find that in order to justify 'desertion'

on part of defendant-appellant, court below has not taken into

consideration the subsequent events which took place after 28.12.2012.In

order to seek decree of divorce on the ground of 'desertion', plaintiff must

prove that he/she has been deserted for a continuous period of not less

than two years immediately, preceding the presentation of the petition.

Therefore, what implies from plain reading of aforesaid section is that

defendant must have deserted petitioner for a continuous period of two

years prior to the date of institution of suit. This requirement can be

termed as a necessary pre-condition for seeking a decree of divorce on

ground of desertion. It is imperative on the part of plaintiff to plead and

prove that defendant has deserted plaintiff and has continued doing so

uninterruptedly for a period of two years, prior to the institution of suit.

Going by the credible testimony of Nilima (DW1) that none of the

occasions she expressed any disinclination to return to her matrimonial

home. There is nothing on record to show that Nilima disliked the

company of her husband. On the contrary, the credible testimony of

Nilima examined as DW.1 will go to show that it was her husband and

mother-in-law who disliked the smooth sail of the matrimony between

Nilima and Bipad Taran. Far from Nilima deserting her husband and her

matrimonial home, it was Bipad Taran who was trying to avoid her

company. The subsequent event of withdrawal of suit for restitution of

conjugal rights and not allowing Nilima to enter in his house after

28.12.2013 will fortify our conclusion that Nilima had never deserted her

husband so as to entitle Bipad Taran to a decree of divorce on

the ground of desertion. View taken by Court below is manifestly illegal as

per scheme of Act itself. We also find that there is no pleading and proof of

animus deserendi and in absence of such pleading we cannot say that the

factum of desertion has been proved.

In view of discussions made hereinabove, present appeal succeeds

and is liable to be allowed. It is accordingly allowed. Accordingly, the

judgement and decree passed by the learned trial court is liable to be and

is hereby set aside.

With respect to permanent alimony, it appears from the document

submitted on behalf of the Eastern Coal Fields Limited having its office at

Devchandnagar, Paschim Bardhaman that husband is working as Stowing

Mazdoor of Satgram Incline Colliery. It appears that the wife was granted

monthly maintenance at the rate of rupees 8,000/-per month. Presently

the wife has no source of income. Considering the present market rates

and inflation and to further averred multiplicity of proceedings, we deem it

appropriate that Rs.10,000/-be granted as monthly maintenance to the

wife henceforth.

Accordingly, the husband shall pay an amount of Rs.10,000/-

(Rupees ten thousand only) as monthly maintenance of the appellant wife.

The deduction shall be made from source and would be paid to the

account of wife.

It is made clear that as and when salary is reciprocally increased,

the amount of maintenance shall also be increased proportionally to the

extent of increase of percentage in future salary, which the wife would be

entitled to receive.

In the result, we allow the appeal and set aside the judgement

and decree passed by the trial court.

No order as to costs.

Urgent photostat certified copies of this judgement, if applied for,

be made available to the parties subject to compliance with requisite

formalities.

I agree.

   (Harish Tandon, J.)                                (Prasenjit Biswas, J.)