Abantika Acharya vs Chanchal Acharya
2024 Latest Caselaw 5153 Cal

Calcutta High Court (Appellete Side)

Abantika Acharya vs Chanchal Acharya on 7 October, 2024

                                          1


                      IN THE HIGH COURT AT CALCUTTA
                          (Civil Appellate Jurisdiction)
                                 APPELLATE SIDE
Present:
The Hon'ble Justice Madhuresh Prasad
And
The Hon'ble Justice Supratim Bhattacharya

                                 F.A. 42 of 2021

                                Abantika Acharya.
                                     Versus
                                Chanchal Acharya

For the Appellant :       Mr. Nilanjan Bhattacharya
                          Mr. Saikat Dey

For the Respondent:        Mr. Abhishek Banerjee

Heard On               : 01.08.2024
Judgement Delivered On : 07.10.2024



Supratim Bhattacharya, J.:

1. This instant appeal has been preferred by the

appellant/petitioner/wife against the respondent/husband, being

aggrieved by and dissatisfied with the judgment dated 16.08.2019

passed by the Court of the Ld. District Judge at Howrah in MAT

Suit No. 463 of 2013.

2. Through the impugned judgment, the Ld. Trial Court has

dismissed the Matrimonial Suit on contest without any cost

holding that the petitioner/wife has been unable to substantiate

the fact of cruelty on which basis she had filed the suit praying for

divorce.

3. The appellant herein was the petitioner /wife before the Ld. Trial

Court and the respondent herein was the respondent /husband.

4. Facts of the instant lis as pleaded in the averments

The petitioner/wife had initially filed the Matrimonial Suit

under Section 13 of the Hindu Marriage Act, 1955 stating that

the marriage between the petitioner and the respondent was

solemnized on 08.07.2000, according to Hindu rites and

customs.

Thereafter, the petition was amended and the petition praying

for divorce under the Hindu Marriage Act was converted to be

one under Section 27 of the Special Marriage Act, 1954 wherein

the petitioner/wife has stated that their marriage was

solemnized on 24.04.2000 as per the Special Marriage Act.

Thereafter, once again the petition for divorce was amended

seeking divorce under Section 27 of the Special Marriage Act,

1954 wherein the marriage has been said to be solemnized, not

on 24.04.2000 under the Special Marriage Act as earlier stated,

but on 08.07.2000 according to Hindu rites and customs.

5. Through the petition seeking divorce the petitioner has stated

that a male child was born on 21.08.2003.

6. It has also been stated that as per demand of the family of the

bridegroom, cash, 20 bhoris of gold ornaments, furnitures,

fixtures, utensils , dress materials and gifts for the members of

the family of the bridegroom were provided.

7. It has further been stated that thereafter once again Rs,

1,50,000/- had been demanded by the respondent /husband

and the same was met by the father of the wife.

8. It has been also contended that the family members of the

respondent tortured the petitioner by using abusive and

provocative words and the same was coupled with physical

assault.

9. It has been stated that during the month of January, 2009, once

again money was demanded which could not be met by the

father of the wife and as a consequence thereof, on 09.02.2009

the petitioner /wife along with her child were driven out of their

matrimonial home and since then the petitioner /wife along

with her son has been residing in her father's house.

Relying upon the aforementioned facts and circumstances the wife has

prayed for divorce.

10. Per contra, the respondent/husband contested the said

Matrimonial Suit and controverted all the allegations placed by the

wife.

11. The husband has stated that the marriage between the

parties was solemnized as per the Special Marriage Act. It has

further been stated that the marriage was registered on

23.05.2000 as per the Special Marriage Act and the social

marriage was solemnized on 24.07.2000.

12. The husband contends that as the marriage was held not by

way of negotiation, so the question of any demand did not arise

at all.

13. It has also been stated that during the years between 2003

to 2013, both the parties resided in the house of the father of the

wife.

14. It is contended that since no incident of torture upon her has

ever been reported by the wife against the husband, so the

allegations levelled against the husband are not at all correct and

hence untenable in law.

15. It has also been contended that as the parties to the suit

have been residing together in the house of the parents of the wife,

any incident of torture or any other untoward incident occurring

with the wife would have been obviously reported by the wife to

her parents. Since no evidence of such report has been ever

brought by the wife before Court, such allegations of torture are

motivated and concocted for the purpose of simply prejudicing the

mind of this Court.

Relying upon the aforesaid facts and circumstances, the husband

has prayed for dismissal of the Matrimonial Suit.

16. Considering the aforementioned pleadings, the Ld. Trial Court

framed the following issues:

1. Is the present case maintainable in its present

form and prayer?

2. Did the husband/respondent use to subject the

wife/petitioner to cruelty since solemnization of their

marriage?

3. Did the husband/respondent drive her out from

her matrimonial home with her son on 09.02.2009?

4. Is the petitioner entitled to the relief as prayed

for?

5. To what relief, if any, the petitioner is entitled?

17. On behalf of the petitioner /wife she herself has deposed as

PW1. On behalf of the respondent /husband, the husband has

deposed as DW1 and one Kalyan Acharya, who is the brother of

the husband, has deposed as DW2.

All the witnesses were cross-examined.

18. The Ld. Trial Court, upon perusal of the evidence presented,

has reached the conclusion that the petitioner/wife has failed to

substantiate her case that she was subjected to cruelty at her

matrimonial home and/or, that the petitioner/wife has also failed

to prove that she was driven out from her matrimonial home on

09.02.2009. In the above view of the matter, the Ld. Trial Court

has dismissed the suit for divorce filed by the petitioner/wife.

19. Against the said dismissal of her suit for divorce, the

petitioner/wife has preferred the instant appeal.

20. Heard the Ld. Counsel representing the appellant/wife at

length.

i) The Ld. Counsel for the petitioner has submitted that the

wife had to face torture since the days of her marriage as

because just after a month her gold ornaments were taken

away by her husband on the pretext of keeping the same

safe and secure, which the petitioner/wife could not

understand initially.

ii) Ld. Counsel for the petitioner/wife has further submitted

that the petitioner/wife used to be tortured mentally during

the initial stages of the marriage and thereafter she has

been tortured both physically and mentally.

iii) The petitioner /wife has even been driven out of her

matrimonial home along with her minor child which is an

instance of extreme matrimonial cruelty.

iv) The child is now being looked after and brought up by

the petitioner with the help of her elderly mother and there

is no contribution to this effect by the respondent/father.

v) Ld. Counsel for the petitioner/wife has stressed upon the

point that since long the petitioner /wife and the

respondent /husband are residing separately and there is

no chance of reunion between the two .

vi) It is submitted that the petitioner/wife has been

rendered senseless on occasions because of the physical

torture inflicted upon her by the respondent.

vii) Ld. Counsel has submitted that the facts presented

above when cumulatively assessed would disclose an

irretrievable breakdown of the marriage.

Per contra, Ld. Counsel, Mr. Abhisek Banerjee representing

the respondent/husband, has submitted that :-

i) The version of facts and circumstances as raised by the

appellant/wife is a blatant lie. It is argued that the

appellant/wife has not come with clean hands and has

concealed the truth.

ii) Ld. Counsel has submitted that the appellant/wife had

initially instituted the Matrimonial Suit under Section 13 of

the Hindu Marriage Act concealing the fact of registration

of marriage which took place prior to the rituals which had

taken place as per Hindu rites and customs.

iii) It is alleged that the appellant/wife has not come with

clean hands as she has concealed the real facts by trying to

mislead the Court on the basis of a false narrative.

iv) It is submitted that the appellant/wife has not produced

an iota of evidence in support of her contention of inflicting

both mental and physical torture upon her by her husband

or any family member of her husband.

v) The Ld. Counsel has pointed out that considering the

entire gamut of evidence and there being no proof as

regards to torture, the Ld. Trial Court has correctly

dismissed the suit. Ld. Counsel has thus prayed for

dismissal of the instant appeal.

21. This Court notices that at the time of adducing evidence the

petitioner/wife has deposed that their marriage was solemnized on

08.07.2000 according to Hindu rites and customs at the house of

her father and, after marriage they resided together at the house

of her husband as husband and wife. The marriage was

consummated and one male child was born on the 31st day of

August 2003.

22. She has further deposed that at the time of the marriage the

parents of the respondent demanded cash, 20 bhoris of gold

ornaments, furniture, fixtures, utensils and dress materials which

were provided by her parents. She has also deposed that after few

days of marriage the respondent asked her to give him all the gold

ornaments so that the said ornaments could be kept in a locker as

because at any point of time those ornaments could be snatched

or stolen from the house during a temporary absence of the family

members and, on good faith, she gave all her ornaments.

23. However, after about a month when she requested the

respondent to bring those ornaments so that she may attend a

marriage ceremony, the respondent denied to handover the

ornaments. She has further deposed that she had intimated

everything to the concerned family members but her parents had

requested her to keep patience.

24. She has further deposed that thereafter once again Rs.

1,50,000/- was demanded and her father somehow met the said

demand. She has further deposed that she used to stay at her in-

laws' house just like a maidservant and she was not provided with

proper food, medicine and clothing. She has further deposed that

the respondent and his family members started to torture her by

using abusive and provocative words which was coupled with

physical assault, which she silently tolerated with the hope that

one day the respondent will behave following the norms attached

with the holy bonding of matrimony. However, the said torture

increased day by day and she was confined within the four walls of

her room and her freedom was snatched away.

25. When she protested against such torture, the respondent

and his family members jointly tortured her both mentally and

physically and the said physical torture reached to such a height

that she was rendered senseless on occasions.

26. She had deposed that on 03.01.2009 the respondent and his

parents once again demanded further cash and for non-payment

the respondent mercilessly tortured her both physically and

mentally. She has further deposed that when the respondent

understood that he will not be provided with the money, then on

09.02.2009 she was driven out of the matrimonial home along

with her son by the husband and since then having no alternative

she is residing at her father's house since 09.02.2009.

27. Thereafter, on each and every night over telephone the

respondent/husband abused her and threatened to divorce her.

She has deposed that since marriage her husband never took care

of her and has behaved inhumanly and has misappropriated all

her stridhan articles. She has deposed that the respondent

/husband has tortured her mentally leading to her physical and

mental breakdown. Being terrified by the nature of cruelty meted

out to her she takes the legal stand that the marriage has

irretrievably broken down and there is no chance of reconciliation.

28. Running a comb through the threads of the deposition

tendered by the petitioner/wife, this Court notices that during

cross-examination the petitioner /wife has deposed that she has

not filed any document as regards to registration of her marriage.

She has further stated that neither in the petition for divorce nor

in her examination-in-chief on affidavit, she has disclosed the fact

of registration of marriage. She has further stated that it is not

correct to say that her husband was her private tutor prior to her

marriage and has also stated that prior to her marriage she had

no introduction with her husband and both of them had met only

once or twice prior to their marriage.

29. She has further stated that she had verbally intimated the

relatives of her parents that she was being treated like a maid

servant in her matrimonial home and nothing had been stated to

them in writing. She has further deposed that she had not

intimated in writing to anybody that she was not being provided

with sufficient food, clothing and medicine in her matrimonial

home. She has further deposed that she has not filed any

document to show her physical condition as she had neither

consulted any doctor nor any nutritionist.

30. She has further deposed that she did not consult any doctor

as regards to the physical and mental torture inflicted upon her.

She has stated that she did not inform any authority in writing,

stating that since 09.02.2009 during each and every night her

husband over telephone abused her and threatened to divorce

her. She has also deposed that she did not lodge any complaint in

writing before any authority disclosing the fact of such torture

upon her at the instance of her husband. She has also deposed

that she has not lodged any written complaint against the family

members of her husband alleging torture. She has stated that she

is not willing to lead matrimonial life with her husband even for

the sake of her child.

31. Now against the backdrop of the above evidence presented

by the wife, this Court is required to examine the counter

evidence of the respondent/husband. The respondent /husband

has deposed that after institution of a case under Section 498A

IPC against him by his wife, he could not join his work place and

as a result he was dismissed from service. Prior to his dismissal

he was an employee under an agent of Life Insurance

Corporation. He has further deposed that his wife has herself

inflicted mental cruelty on him by lodging a false complaint

against him under Section 498A of the Indian Penal Code as a

consequence thereof he lost his employment.

32. The husband has denied keeping the ornaments in the

locker of a bank. He has also denied the allegation of further

demand of Rs. 1,50,000/- and that such amount was paid by his

father-in-law to him. The husband has denied that proper food

was not served to his wife in her matrimonial home and she was

not maintained in her matrimonial home. He has further denied

that his wife was being tortured physically and mentally. The

husband has denied that on 3rd January, 2009 he had again

demanded dowry and being unable to get the amount of dowry, he

had assaulted his wife physically.

33. The husband has also denied the fact that his son and wife

were driven out from the matrimonial home on 09.02.2009. The

husband has further deposed that after 2003 till 2011 he used to

reside along with his wife and son in the father's house of his

wife. The husband has further stated that on 16.08.2010 he has

purchased a plot of land in the name of his wife and had started

construction of a kachha room on the said plot of land. The

husband has also denied the fact of abusing the wife over

telephone since 09.02.2009. He has further deposed that he had

issued a letter in the year 2015 to his wife requesting her to live

with him. He has further deposed that it is still possible for them

to lead a marital life.

34. To the mind of this Court, the statement of the

Respondent/Husband to the effect that on 16th August, 2010 he

has purchased a plot of land in the name of his wife, also starting

the construction of a kaccha room over the said plot of land,

raises serious doubts with regard to the claim of continuous

physical and mental torture as levelled by the petitioner/wife

against her husband. To the further mind of this Court, the

statement of the husband connected to purchase of a plot of land

in the name of his wife on 16th August, 2010 stands in alignment

with the statement also made by him that from 2003 till 2011,

the husband used to lead a matrimonial life with his wife and son

in the house of his in-laws, i.e. the father's house of the wife.

35. Thus from the evidence of the petitioner/wife it is apparent

that she has raised the issue of both mental and physical torture

upon her by her husband and the family members of her husband

but has admitted at the same time, that she has never ever lodged

any complaint before either the police authority or before any

other authority/forum. She has further deposed that she had

verbally intimated her relatives who belong to the side of her

parents, but from the evidence it transpires that not even a single

relative has lodged any complaint or raised the issue of alleged

torture upon the petitioner by her husband or by any relative of

her husband before any family member, the Police or any other

authority. Thus, apart from raising verbal allegations only there is

no document in support of the contention of the alleged physical

or mental torture upon the petitioner. It also transpires that the

petitioner has not visited any medical practitioner after the

alleged physical torture upon her by her husband or relatives of

her husband and even after being rendered senseless because of

the torture upon her she had not got herself checked by any

medical practitioner. Thus, there is no document in support of the

contentions of the alleged torture upon the petitioner by her

husband or relatives of her husband.

36. In the Judgment passed by the Hon'ble Apex Court in the

case between Samar Ghosh and Jaya Ghosh reported in (2007) 4

SCC 511 it has been laid down some instances of human behavior

are enumerated which may be relevant in dealing with cases of

mental cruelty.

37. This Court notices the point that decree of divorce may be

delivered on charge of cruelty under Section 13(1)(ia) of the

Hindu Marriage Act, 1955 and the amendment petition filed by

the wife in the present Matrimonial Suit is under Section 27 of the

Special Marriage Act, 1954, the charge levelled by the wife against

the husband as regards to cruelty has remained the same and

hence deserving pari materia legal treatment.

For the benefit of this discussion the provisions of Sections 27(1)

and 27(1)(d) of the Special Marriage Act are reproduced

hereinbelow:-

"(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent -

(a) ...........

(b) .............

(c) .............

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) .................."

As already discussed earlier in this Judgement, the

wife has been unable to produce any material before this Court

in support of her allegations of cruelty except making bald

statements.

38. It is also noticed that the oral evidence of the wife is

contradictory and unworthy of credence, considering the lack of

disclaimer on her part in response to the specific statements

made by the husband with regard to their joint matrimonial

living at her parents' house between 2003 and 2011 as well as

the purchase of a plot of land in the name of his wife in 2015, all

of which have been also discussed above. In this connection, the

Court is therefore compelled to notice that the only specific

charge levelled by the wife that she had to leave her matrimonial

home along with her son on 9th February, 2009, stands doubtful

in the context of the specific statements made by the husband

with regard to their joint living between 2003 to 2011 and the

purchase of a plot of land in her name all of which have not been

disclaimed by the wife. This Court also notices that at no point

of time the wife had come forward before any family member,

police authority or any other authority raising the issue of

physical and mental torture.

39. On the aspect of 'cruelty' as understood by law against a

spouse by another, this Court usefully refers to the

discussion in Jyotish Chandra Guha vs. Smt. Meera Guha

reported in AIR 1970 Cal 266 wherein and whereunder at

Paragraphs 29,30 and 31 the Hon'ble Court has, inter alia,

laid down the test for determining 'cruelty' in law.

Paragraph 31 being of particular relevance to the principle

which also applies to this appeal reads as follows:

"31. Further "Assuming that Injury or apprehended injury to health is found, the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that the petitioner ought not to be called upon to endure it.""

40. From the facts presented by the wife and contested by the

husband in the present case, this Court is of the considered

view that the cumulative conduct complained of by the wife

without corroboration by hard evidence, not to be of a nature

that is incapable of endurance. Accordingly, this Court finds

no persuasive value in the prayer for divorce made by the wife

on the ground of Cruelty.

41. This Court also refers to the authority of the Hon'ble Five

Judge Bench of the Hon'ble Apex Court In Re: Shilpa Sailesh Vs.

Varun Sreenivasan reported in 2023 SccOnline SC 544, has passed

an order of divorce on the ground of irretrievable breakdown of

marriage following the inherent power reposed in the Hon'ble Apex

Court under Article 142 of the Constitution of India. At Paragraph

50 of the said Judgment the following has been stated.

"50. In view of the aforesaid discussion, we decide this

reference by answering the questions framed in the following

manner:

(i) The scope and ambit of power and jurisdiction of this Court

under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Court

under Article 142(1) of the Constitution of India is answered

in terms of paragraphs 8 to 13, inter alia, holding that this

Court can depart from the procedure as well as the

substantive laws, as long as the decision is exercised based

on considerations of fundamental general and specific public

policy. While deciding whether to exercise discretion, this

Court must consider the substantive provisions as enacted

and not ignore the same, albeit this Court acts as a problem

solver by balancing out equities between the conflicting

claims. This power is to be exercised in a 'cause or matter'.

(ii) In view of, and depending upon the findings of this bench

on the first question, whether this Court, while hearing a

transfer petition, or in any other proceedings, can exercise

power under Article 142(1) of the Constitution, in view of the

settlement between the parties, and grant a decree of divorce

by mutual consent dispensing with the period and the

procedure prescribed under Section 13-B of the Hindu

Marriage Act, and also quash and dispose of

other/connected proceedings under the Domestic Violence

Act, Section 125 of the Cr. P.C., or criminal prosecution

primarily under Section 498-A and other provisions of the

I.P.C. If the answer to this question is in the affirmative, in

which cases and under what circumstances should this

Court exercise jurisdiction under Article 142 of the

Constitution of India is an ancillary issue to be decided.

In view of our findings on the first question, this question has

to be answered in the affirmative, inter alia, holding that this

Court, in view of settlement between the parties, has the

discretion to dissolve the marriage by passing a decree of

divorce by mutual consent, without being bound by the

procedural requirement to move the second motion. This

power should be exercised with care and caution, keeping in

mind the factors stated in Amardeep Singh (supra) and Amit

Kumar (supra). This Court can also, in exercise of power

under Article 142(1) of the Constitution of India, quash and

set aside other proceedings and orders, including criminal

proceedings.

(iii) Whether this Court can grant divorce in exercise of power

under Article 142(1) of the Constitution of India when there is

complete and irretrievable breakdown of marriage in spite of

the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia,

holding that this Court, in exercise of power under Article

142(1) of the Constitution of India, has the discretion to

dissolve the marriage on the ground of its irretrievable

breakdown. This discretionary power is to be exercised to do

'complete justice' to the parties, wherein this Court is

satisfied that the facts established show that the marriage

has completely failed and there is no possibility that the

parties will cohabit together, and continuation of the formal

legal relationship is unjustified. The Court, as a court of

equity, is required to also balance the circumstances and the

background in which the party opposing the dissolution is

placed."

42. The petitioner/wife while deposing has also stated that their

marriage has been solemnized on 08.07.2000 according to Hindu

rites and customs at the house of her father. Thus, there is some

discrepancy as regards to the nomenclature of the petition and the

contents of the petition seeking divorce.

43. Thus, from the above discussion it is clear that the

appellant/petitioner/wife has not been capable of substantiating

her case. She has not been able to prove with material evidence

that she has been tortured either mentally or physically. In

addition there is contradiction as regards to the nomenclature and

contents of the petition.

As regards to irretrievable breakdown of marriage, though the

appellant/wife has said so, but the respondent/husband has not

agreed and the parties are not ad idem in respect of the said

issue.

44. It is also trite in law that this Court does not have the

inherent power which is reposed with the Hon'ble Apex Court

under Article 142(1) of the Constitution of India, in exercise of

which only the Hon'ble Apex Court can pass an order of divorce on

the ground of irretrievable breakdown of marriage.

45. Considering the pleadings and oral evidence, the Ld. Trial

Court has rightly reached the conclusion that the petitioner has

not been able to prove her case for divorce.

46. On the basis of the above reasoning, this Court also finds that the

appellant/petitioner /wife is not entitled to divorce as prayed for.

47. Accordingly, this Court finds no reason to interfere with the

Judgment passed by the Ld. Trial Court

48. Thus, the instant appeal being F.A. 42 of 2021, also stands

dismissed.

49. Parties shall be entitled to act on the basis of the server copy of

the judgment and order placed on the official website of the Court.

50. Urgent certified photo copies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

I Agree,

(Madhuresh Prasad, J.) (Supratim Bhattacharya, J.)