Calcutta High Court (Appellete Side)
Smt. Sutapa Chakraborty vs Sri Gautam Chakraborty on 7 October, 2024
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:-
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Madhuresh Prasad
F.A.T. 525 of 2019
Smt. Sutapa Chakraborty
Vs.
Sri Gautam Chakraborty
For the Appellant : Mrs. Kakali Samajpathy,
Mrs. Sangita Jangra,
Mr. Subhranil Roy.
For the Respondent : Mr. Sounak Bhattacharya,
Mr. Sounak Mondal,
Mr. Abhirup Halder,
Mr. Anirban Saha Ray.
Judgment on : 7th October, 2024
Madhuresh Prasad, J.:
1. The husband (respondent) had approached the Court seeking a
decree of divorce on the grounds of cruelty and desertion. The same
has been allowed. The present appeal is by the defendant wife
assailing the Judgment and Decree passed in M.A.T Suit No. 72 of
2013 under Section 27 of the Special Marriage Act whereby and
whereunder the marriage solemnized between the appellant, with the
respondent on 19.04.2006 was ordered to be dissolved.
2. The case of the plaintiff respondent at the trial was that the
marriage was solemnized on 19.04.2006. Prior to the marriage being
solemnized the plaintiff claims that the plaintiff and respondent were
known to each other as they were residing in the same village. The
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plaintiff claims that the respondent allured the petitioner into
marriage by presenting herself to be suffering and in a miserable
condition, requiring support. She invoked the sympathy of the
petitioner.
3. As per the plaint, just two days after the marriage was
solemnized, the defendant appellant started intimidating the plaintiff
by threatening him with implication in proceedings under Section
498 A I.P.C. by taking help of her Advocate boyfriend. When the
petitioner went to his in-laws along with the respondent on the
occasion of 'Asthamangala', the respondent's father was found to be
ill. The petitioner claims to have arranged for his treatment and
requested the respondent to attend to his illness from her
matrimonial home situated near to the house of the respondent. The
respondent did not pay heed to such request, and on her own started
staying in her father's house.
4. During this period, which was immediately after the marriage,
the petitioner's relatives and acquaintances came to meet with the
respondent but could not meet her because she was not residing in
her matrimonial home. This prompted the relatives and
acquaintances to make certain disparaging remarks upon the
petitioner's family. The act of abandoning the conjugal life just
couple of days after the marriage was solemnized, and the
consequence of her staying at her father's house, inviting such
remarks from the relatives and acquaintances has been alleged to
constitute cruelty. The plaintiff/ husband has, further, stated that
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the respondent's behavior towards him was very cruel. She used
cheap, filthy and caustic language. Her relatives (mother, maternal
uncle and brother) would also often come to the house of the
petitioner threatening him and his family with dire consequences.
Subsequently, they started pressurizing him to leave his joint family
and live as 'ghar jamai' at the respondent's father's home. There is
also an allegation that Rs. 2 lakhs was demanded from the petitioner
for facilitating a business venture of respondent's brother.
5. The plaintiff goes on to allege that the respondent had many
soul mates and was leading an immoral life. On objections being
raised, she would become furious, used filthy language and
sometimes also beat the petitioner with stick, shoes, brooms etc. It is
alleged that even on a trivial issue the respondent would sometimes
slap the petitioner in front of everyone and that she would often
deprive the petitioner of conjugal intercourse; and often during
intercourse she would cause bodily injury upon the petitioner
husband.
6. Finally, it is alleged that on 14.03.2010 after receiving a
telephonic call regarding her father's illness she went to her father's
house, never to return. The expenses over treatment of her father
was being incurred by the petitioner and on 15.06.2010, he lodged a
station diary entry at the Noapara Police Station bearing Noapara
P.S. being GDE No. 1678 in respect of the cruelty being meted out to
him. He also tried counselling for which he took the help of a local
counselor Smt. Sabita Chakraborty.
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7. On 02.09.2010, however, the respondent took all her belongings
including her bedding, clothing, furniture, utensils, book etc.
Thereafter, she lodged a case bearing Barrackpore P.S. case No. 167
dated 30.09.2010 under Section 498A/ 34 I.P.C. It is also alleged
that she instituted proceedings under Section 125 Cr.P.C. It is
alleged that on account of false allegations under Section 498A, the
petitioner husband was arrested; and suspended from service for
months together.
8. The respondent appellant, on the other hand, has a different
story to tell. According to her, the petitioner husband demanded a
huge sum as dowry. Her father could somehow manage and gave an
amount of Rs. 1 lakh before the marriage hoping that in future,
further demand would not be made. The amount was paid by an
account payee cheque bearing no. 698001 in account No.
11223428919 maintained with the State Bank of India, Ichapur
Branch. Just few days after the marriage, he started demanding
further amount of Rs. 5 lakhs which the respondent's father was in
no condition to meet. Thereafter, she was subjected to physical and
mental torture. The appellant wife was also restrained from visiting
her father and her family. While she was being afflicted with mental
and physical torture, she continued to reside at her matrimonial
home performing the household work.
9. It is also the case of the appellant that the petitioner husband
had an illicit relationship with one Sujata Bhattacharjee, which was
protested by the petitioner, for which she was subjected to physical
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and mental torture at the hands of the petitioner husband. In spite of
her best efforts to reconcile the situation, the same could not be done
due to the hostile and cruel attitude of the petitioner husband.
10. At the trial, the petitioner husband has supported his
allegations in his affidavit-in-chief. He has tendered as exhibits, copy
of bank statement relating to house building loan (Exhibit-1), the
photocopy of marriage certificate (Exhibit-2), a receipt of the General
Diary Entry No. 1676 dated 15.06.2010 (Exhibit-3), certified copy of
orders and FIRs in connection with Barrackpore P.S. Case No. 167 of
2010 under Section 498A/34 I.P.C. (Exhibit-4), application filed by
the respondent wife under Section 125 Cr.P.C. and the notice
received from the Court of learned 3rd Judicial Magistrate at
Barrackpore, in this connection (Exhibit-5). The six pages have
collectively being marked as Exhibit-6. The notice of suspension
along with envelope marked as Exhibit-7. And copy of the notice
served on him in C. Case No. 878 of 2010 under Section 406/ 506
I.P.C. by his wife (Exhibit-8). He has also denied the allegations
levelled by the respondent appellant. During his cross-examination,
the petitioner husband has admitted to the fact that he went to
Digha in the month of August, 2006 with the respondent appellant
as husband and wife. Thereafter, he also went to Puri, Kamakhya,
Shilong and Guahati. He has admitted to receiving the amount of Rs.
1 lakh by cheque from his father-in-law prior to his marriage. He has
also admitted that his wife used to participate in the celebrations at
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the family gatherings/ ceremonies. He also admits to the fact that he
went to his in-law's home in 'Jamai Sasthi' in the year 2010.
11. The petitioner husband has denied the other allegations levelled
against him by the instant appellant. It would be relevant to take into
consideration 11 photographs taken during the petitioner's tour with
his wife, which have been marked as Exhibit-A series on admission.
During his further cross-examination, he has stated about recovery
of articles from his house on 31.09.2010, by the police. He has
however volunteered to say that he intended to hand over originals of
his wife's (appellant's) medical papers after keeping photocopy of the
same, which were required for processing the divorce suit. It would
be worthwhile to notice here that no specific date, time and manner
of subjugation to torture at the hands of his wife was mentioned in
the petition filed for divorce.
12. He has also examined his mother as PW2. The sum and
substance of the affidavit-in-chief is that she was a resident of the
same village and in fact it was the appellant who frequently visited
their house and expressed her desire to marry her son. She has
alleged being subjected to insult by the appellant. She disliked her
relatives and did not behave well with anyone. She would spend most
of her day at her parent's house, did not cook rice more than what
was required for her to consume and later she did not cook at all.
She was also not doing any of the household work. She was mostly
living at her paternal house and when she was at the matrimonial
home, she would create trouble if the petitioner had any conversation
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with the mother. She alleges that she was often beaten by the
appellant, who wanted the petitioner to live at her paternal house.
She did not want the petitioner to look after his parents and desired
that he live in her paternal house as 'ghar jamai'. She alleges that the
criminal case has falsely been filed by the appellant and based on
such false implication, her husband (the appellant's father-in-law)
was taken by the Police. She further corroborates the fact that the
petitioner was also arrested and suspended from service for a few
days. Details with reference to any specific date or incident of alleged
cruelty by the appellant is conspicuously absent even in the evidence
of PW2. That apart there is corroboration of the fact that the
appellant's medical papers were not given to her on 02.09.2010, and
only after copies of the same were prepared, the same were to be
handed over. PW2 in her cross-examination had admitted that before
marriage, Laxmi Puja was being performed at a banana plant; and
after marriage of the appellant with the petitioner, she founded a
brass idol of Laxmi at the matrimonial home.
13. The appellant also has filed her affidavit-in-chief. According to
which, her marriage with the petitioner was solemnized on
19.04.2006 before the Marriage Officer under the provisions of the
Special Marriage Act, 1954. It was socially celebrated on 01.05.2006
at her paternal place according to Hindu Rites and Customs. The
marriage was a negotiated one in which her mother-in-law played a
pivotal role. She has denied that she in any manner had allured the
petitioner or expressed her desire of marrying the petitioner. In fact,
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it is alleged that after negotiations, her father gave Rs. 1 lakh dowry
to the petitioner through an account payee cheque. The petitioner
had promised not make any subsequent demand, but post marriage,
he did not keep his promise and demanded Rs. 5 lakh cash,
expressing dis-satisfaction with the quality and quantity of gifts given
to him at the time of marriage. She has asserted that post marriage
the conjugal life was happy at her matrimonial home. She used to
perform all the household work including cooking, washing of clothes
and house cleaning. She took good care of all her in-laws, including
her husband. She has stated that she used to take her mother-in-law
to the doctor for periodical checkups and also took her to her
Gurudev at Barrackpore. She has asserted that she had started
Laxmi Puja at the matrimonial home which continued till she was
forcefully driven out from the matrimonial home on 02.09.2010. She
has even stated that her father accompanied her father-in-law at the
time of his eye surgery at Disha Eye Hospital. The cordial
matrimonial relation is apparent from the fact that together they
visited touring spots. The last visit being to Shilong, Asam,
Kamakhya and Kajiranga in November, 2009.
14. According to her, the conjugal life was made miserable by one
Sujata Banerjee who resided near her matrimonial home. Along with
her husband the said Sujata Banerjee misbehaved with the appellant
and terrorized her, agonizing her life. Sujata Banerjee used to
interfere in all family matters including the personal relationship of
the appellant with her husband (petitioner). It is alleged that later, in
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her conjugal life the petitioner started to exploit the appellant
verbally, emotionally and financially with different kinds of fancy
pleas. The intention according to her was that she would leave the
matrimonial home under such durace enabling the petitioner and
Sujata Banerjee to continue their free and unauthorized life. The
appellant somehow was able to endure all of these indecency,
whereafter the husband and in-laws became violent and drove her
out of the matrimonial home on 02.09.2010, retaining all her
personal belongings and articles. Having no income of her own she
had no option but to initiate a case for maintenance against
petitioner and to initiate criminal proceedings under Section 406 to
recover her 'stree dhan'. She has specifically denied the allegation
that she ever asked the husband to reside in her parental home as a
domesticated son-in-law. According to her the petitioner lastly visited
her parental house on the occasion of 'jamai sasti' in June 2010. He
left after taking meal and blessings from her father. She has
expressed eagerness to live conjugal life with the petitioner. She has
gone on to state that her father was a retired Central Government
employee and entitled to medical facility and treatment at recognized
hospital of Kolkata. He was thus never in need of financial help from
her husband. She has stated that even though her father was sick,
she was compelled to live at the matrimonial house after she visited
them on the occasion of 'Ashtamangala'. She was thereafter
restrained from attending to her father. She has stated that false
allegations have been levelled by the husband in the petition for
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divorce and during his deposition to somehow obtain a decree of
divorce. She has tendered in evidence certified copy of the Judgment
in complaint case No. 878 of 2010 in support of her statement that
the same was dismissed by holding the allegations to be baseless and
ended in acquittal. She has also stated about the petitioner's sister
and their children residing at her matrimonial home. Her
relationship with her in-laws started deteriorating one year after her
marriage and from 02.09.2010 onwards she was subjected to torture
by the petitioner and his family members. It is under such
circumstances that the criminal case was lodged and the petitioner
was arrested remaining in custody for 4 days. Regarding her
husband's suspension she has stated that she was suspended from
her service because he took leave without intimation to the office.
She has stated about the case under Section 498A being pending
and given certified copy of her deposition and her father's deposition
in the said case which have been marked as Exhibit-10 and 10/1 as
public documents. She has also admitted that she was medically
treated at the instance of her husband for conceiving a child. The
medicines which were prescribed, however, were supplied by her
father to her.
15. During further cross-examination, she has stated about going to
Digha after her marriage, on honeymoon and also regarding going to
Kamakhya, Kaziranga, Shivori, Puri etc. In spite of the marriage
being consummated, she was not conceiving and, therefore, she has
stated about her husband taking her to the doctor for treatment. She
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has denied that her husband did not have illicit relation with Sujata
@ Sonali Banerjee and stated that she came to know about her
relationship just after her marriage, yet she did not complaint about
the same. All other suggestions regarding her demanding her
husband to be a domesticated son-in-law and other such suggestions
have flatly been denied.
16. The Trial Court has framed 5 issues. Issue No. 2, whether the
applicant had any cause of action to file the suit has been answered
by observing that after considering evidence and material there is
nothing to hold that the petitioner has no cause of action to file this
case. The issue has not been answered in positive terms. After
recording the facts emerging from the pleadings and the allegations
made at the trial such a finding has been recorded to frame the issue
No. 2. The finding is not based on consideration of the case with
reference to any specific instance on any specific date, corroborated
by any specific evidence. In fact, the finding with reference to this
issue is based on surmises.
17. Issue No. 3 whether the applicant was subjected to cruelty by
the respondent has affirmatively been held to have been established
in favour of the petitioner husband. This finding also, however, is
preceded by mere recording of the case put forth by both the parties;
and the allegations and contra-allegations. The findings are also self-
contradictory and again without reference to any details such as
specific dates, specific events or specific evidence supporting the
factum of alleged cruelty. The Court has taken into consideration the
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fact that the appellant filed 3 cases against the petitioner. He has
been acquitted in the case lodged under Section 406 I.P.C., namely
C. case No. 878 of 2010. The allegations made by the appellant have
thus been discredited. The Court has thus proceeded to find that
filing of such false criminal case, would indubitably constitute
matrimonial cruelty and thereby entitle the victim spouse to claim
divorce on the ground of cruelty. Surprisingly, the Court while
considering the plea for divorce has recorded a finding that the
amount of 1 lakh admittedly received by the husband petitioner was
not by way of dowry but was, in fact, a loan for house construction to
provide a suitable accommodation to the appellant wife. By resorting
to a hypothesis the Court has concluded that since the petitioner
was an educated person in a Government job having average
intelligence he would never dare to accept dowry by an account
payee cheque. The allegation of the amount being given by way of
dowry thereby has been disbelieved and such false allegation has
been made the basis of concluding that it tantamounts to cruelty,
being a basis for seeking divorce. While arriving at such finding
during pendency of the criminal proceedings arising out of
Barrackpore P.S. Case No. 167 of 2010 lodged under Section
498A/34 I.P.C., the Court has virtually given a finding on the
pending allegations in the criminal trial. There is a further finding
that there is no allegation of any physical torture against the
petitioner husband and his family members either in the written
statement or affidavit-in-chief filed by the appellant O.P.W.1, which
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finding is contrary to the allegations made in the W.S. filed by the
appellant as well as her affidavit-in-chief in clear and explicit terms.
The appellant O.P.W.1 in her affidavit-in-chief has stated about the
manner in which her husband in connivance with Sujata Banerjee
used indecent and disparaging language against her, terrorized her
and agonized her life. She has also specifically stated that she was
subjected to exploitation, verbally, emotionally and financially on
different fanciful pleas. It is also her specific case that when she did
not yield to such pressures and was able to endure the same she was
driven out from her matrimonial home. She has stated instances of
being abused and humiliated by petitioner and his family members
along with Sujata Banerjee. It is specifically stated during the further
cross-examination of the appellant that "on and from 02.09.2010 I
was subjected to torture by my husband along with family members
of my matrimonial house both physically and mentally". The Trial
Court's Findings to the contrary while considering issue No. 3,
therefore, is clearly unsustainable. The Trial Court seems to have
overlooked the fact that the petitioner husband was seeking divorce
on the grounds of cruelty. The 11 photographs which were taken as
evidence was taken on record as evidence without objection showed
that the petitioner and the instant appellant were touring different
tourist spots, and would only go to suggest that there was cordial
relationship between the petitioner and the present appellant. Such
photographs cannot lead to a conclusion that the petitioner was
being subjected to cruelty. Rather than considering whether the
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photographs would support the plea of divorce, the Court has
proceeded to conclude on the basis of these photographs that the
respondent wife happily toured with the petitioner husband and that
her desire of touring with the husband was fulfilled.
18. The Trial Court has also taken into consideration the allegations
levelled against Sujata Banerjee in a perspective which may be said
to be perverse. The petitioner nowhere in his divorce petition has
made allegation or raised an issue that any cruelty has been caused
by allegations of illicit relation with one Sujata Banerjee. In fact,
such allegations have been made by the wife appellant during the
trial because as per her case, Sujata Banerjee has been
intermeddling with all the affairs in the matrimonial home including
the personal relationship of the appellant wife with the petitioner
husband. She has been participating and in fact inciting perpetration
of mental and physical abuse and torture upon the appellant. The
Trial Court however has made out a third case by relying on a fact
which emerged at the trial that Sujata Banerjee was a distant cousin
of the petitioner, to conclude that the applications made by the
appellant wife against Sujata Banerjee would constitute mental
cruelty upon the petitioner which tantamounts to cruelty. Such
finding is in our opinion, clearly unsustainable.
19. In So far as issue No. 4 and 5 regarding the petitioner's
entitlement to a decree of divorce, we find that the same has been
answered in favour of the petitioner by highlighting and relying upon
the perceived weakness and several counter allegations made by the
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appellant wife and her defense to the plea of divorce based on cruelty
taken by the petitioner husband.
20. The conclusion of the Court that cruelty has been made out,
primarily appears to be based on the lodging of C. case No. 878 of
2010 under Section 406 I.P.C. which culminated in acquittal prior to
decision in the matrimonial case. We find that there are two relevant
factors in this regard worth consideration. The first is that the
petitioner during his evidence has admitted that on 31.09.2010 the
Police recovered articles from his house. This was admitted during
further cross-examination of the PW1 on 16.01.2018. This was an
admission in the matrimonial suit itself. Ignoring such evidence
which emerged in the course of the proceedings, reliance placed on
acquittal of the petitioner in C. Case No. 878 of 2010 is clearly
unsustainable. In view of the specific admission of PW1 in the
instant proceedings, the Trial Court ought not to have relied solely
upon acquittal of the petitioner in the criminal case under Section
406 which being a criminal proceeding was decided by applying the
strict rule of evidence applicable to a criminal trial. The same could
not be considered in isolation to arrive at a finding of cruelty so as to
make out a ground for divorce. It was required by the Court to rely
upon the evidence emerging in the course of the instant civil
proceedings for divorce with respect to the allegations made by the
appellant regarding her 'stree dhan' being retained by the petitioner
and his family members. We, therefore, do not approve of the finding
in this regard recorded by the Trial Court.
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21. We have already held that the other finding on cruelty based on
the allegations made by the present appellant regarding the illicit
relationship of the petitioner with Sujata Bhattacharjee would not
constitute cruelty as there was no allegation of any cruelty based on
such allegations made by the petitioner. We, therefore, are of the
opinion that the finding that series of acts of cruelty are made out is
clearly unsustainable on the basis of the case of the parties and
evidence adduced at the trial.
22. Having held so, we must also consider the consistent stand of
the appellant (wife) that she has all intentions of continuing her
conjugal relationship with the petitioner.
23. Keeping in view the totality of the circumstances and having
regard to our findings above, we hereby set aside the Judgment and
decree of divorce passed by the Additional District Judge,
Barrackpore on 13.09.2019.
24. The appeal is accordingly allowed.
(Madhuresh Prasad, J.)
25. I agree.
(Harish Tandon, J.)
