Bidhan Chandra Sinha vs Sushmita Sinha And Anr.
1986 Latest Caselaw 11 Del

JUDGMENT

Mahinder Narain, J.

(1) The husband who is appellant before me, filed an application under Section 13(1)(i), (ia) and (ib) of the Hindu Marriage Act, 1955. The .assertion in the petition filed the husband was. therefore, that the wife, after the solemnization of the marriage had voluntary sexual intercourse with a person other than the petitioner; that after the solemnization of the marriage, treated the petitioner with cruelty; and that the husband has been deserted by the respondent for a continuous period of not less than two years immediately after the presentation of the petition.

(2) The facts as stated in the petition are that the marriage was solemnized between the petitioner and respondent No. 1, Smt. Sushmita Sinha alias Sikha Sinha on 13th June, 1978 at Kashini Bazar. Bolpur, District Birbhum, West Bengal. it is asserted in the petition that after the marriage the parties lived at Bolpur and 15 days after the marriage, the petitioner came Delhi and the respondent stayed back with her father. It was asserted by the petitioner that when his letters to the respondent to come to Delhi did not have any response, he brought the respondent from Bolpur to Delhi. The petitioner stated that the respondent left Delhi for her father's house in the middle of February 1979, on the plea that she has to complete her studies and stayed with her father till April, 1979. Respondent came to Delhi at the end of April. 1979 and stayed in Delhi for about month thereafter. After she had come back to Delhi the result of the examination which she had taken was declared and communicated to Delhi. After that she insisted for doing further studies like Ph.D. This was done by the respondent wishes of the petitioner who wanted her to do further studies by taking admission in Jawahar Lal Nehru university. Delhi. The respondent did not do so and insisted that she would pursue the studies in her father's house and accordingly left Delhi.

(3) The petitioner went to Bolpur again in September, 1979 to bring the respondent back but she did not want to come hack on the plea that she had taken admission in Vishwa Bharti University. There is also an assertion in the plaint that the petitioner was humiliated in his in-laws house and as such he returned to Delhi.

(4) In October, 1979. however, respondent No. 1 came to Delhi with her brother. After staying in Delhi with her brother for a few days. she left Delhi and on 10th November. 1979. when she left Delhi, she took all her fewellery and belongings etc;. Thereafter she never returned to the petitioner.

(5) The petitioner further stated in the petition that lie had come to learn that while residing away from the petitioner, respondent No. 1 developed intimacy with one Jadu Gopal Ghosh, respondent No. 2 in the petition. As a result of the said intimacy between respondent No. 1 and respondent No. 2. a child was born to respondent No. I on 27th March. 1981. It is obvious from the pleadings that the petitioner, by necessary in tenderfeet stated that he had no access to respondent No. 1 since November, 1979 till the birth of the child on 27th March. 1981. It was asserted in the petition that he learnt about the child being born at a local hospital at Suri in district Birbhum. West Bengal and as a result of the birth of the child the petitioner suffered mental agony and pain and that the respondent had not condoned the said act of cruelty and desertion. Tt is stated by the petitioner that respondent No. I was continuing to live with respondent No. 2.

(6) Before the trial court attempts were made to have service effected on the respondents. Summons self to the respondents were not received back and after having made, a number of attempts. as is apparent from the order dated 25th May, 1982 and 28th May. 1982. it becames necessary to order In have substituted service effected by publication in the newspaper Publication was made in the 'Statesman' dated 16th June 1982 in the Calcutta edition. No one appeared in spite of publication in the newspaper.

(7) THEREATER- ex parte statement of the petitioner as Public Witness -1 was recorded in the court on 31-8-1982. The statement reads as under :-- "MY marriage with the respondent No. I was solemnised. on June 13, 1978 at Bolpur district in West Bengal according to Hindu rites. The marriage was arranged through the maternal uncle of my father Shri Kishori Mohan Dutta. After marriage I and the respondent lived there for 15 days, and thereafter I came back to Delhi while the respondent No. I continued to stay there as she was studying in M.A. in those days. She lived there up to December, 1978. In December, 78 I went to take her and brought her to Delhi after my stay there for 3 days. The respondent lived with me at 'Delhi up to February, 1979. In February, 1979 the respondent went to her parents house in Bolpur for her studies as she was still doing M.A. "the respondent lived there for I 1]2 month. In the last week of April or 1st week of May. 1979 the respondent returned to Delhi. Her result was declared when she was living in Delhi. The respondent went- to Bolpur in June, 1979 as she had to take admission in M.A. second year after her qualifying the M.A. Previous. I asked the respondent to discontinue the studies but she persisted and then I requested her to take admission in Jawahar Lal Nehru University, Delhi. She. however, declined to study in Delhi and demanded that she will so to Bolpur and studying in Vishwa Bharti University. She left for this purpose in June, 1979. I had been writing letters to her requesting her to return. In September, 1979 I personally went there. The father of the respondent questioned as to why had gone to his house. The respondent No. 1 did not return with me. I came back. Thereafter I sent a letter to her. The respondent No. I, however. came to my house in Delhi in October, 1979 with her younger brother. She lived with. me till 9th November, 1979 and then she left for Bolpur in West Bengal. After that the, respondent has not returned. She had carried all her jewellery with her on the pretext- that the marriage of her younger sister was. coming off in December, 1979. The marriage of her yonder sister was not performed in December, 1979. Whilethe respondent No. I was residing with me she was not behaving properly will me and with other members of my family, ;l sent letters to the respondent No. I asking her to come back but she has not returned."

(8) Shri Kishori Mohan Dutta is maternal uncle of my father. Shri Anand Moy Sinha is my father. I am acquainted with Bengali and also the English language. I am also acquainted with the handwriting of Shri Kishori Mohan Dutta. He had sent the letter x. P-l to my father written in Bangla script. I identify his writing on it. Its correct english transcription is Ex. P-2. Shri Ramesh referred to in this letter at point 'A' in the letter Ex. P-2 is the one of the daughter of Shri Kishori Mohan Dutta. He is a resident of Kulia in district Birbhoom of West Bengal. From this letter we learnt that the respondent No. l has married the respondent No. 2 in a temple of Tara Maan in district Birbhum. Shri Lakhi Narain Dutta is the son of the sister of Kishori Mohan Dutta. I am acquainted with his writing and signatures. He had sent a letter to my father which is Ex. P-3. I identify his writing and signatures Or it. It is in Bangia script. Its correct english translation is Ex. P-4. The letter Ex. P-3 contained in the envelope Ex. P-5 was sent to my father at his shop's address. From this letter we came to know that the respondent No. I has delivered a child on 27-3-1981 in Suri Hospital near Bolpur and the respondent No. 2 was shown as the husband of the respondent No. I. I suffered mental shock and tortures and agony from all these things. ' do not want to live with the respondent No. I now. I have not condoned th& adultery and cruelty of the respondent No. 1 have not filed the petition in collusion with the respondent No. 1. I have not filed any other matrimonial petition against the respondent."

(9) Learned District Judge did not believe the contents of Ex. Public Witness -2 and Public Witness -4, which are English translations of the communications which have been received by the petitioner. It ; these communications which informed the petitioner that a child had been born to respondent No. I on 27-3-1981. The trial court has denied the relief on the ground of adultery for the reason that the petitioner is not the eye-witness to the living in adulterv, inasmuch as the petitioner is living in Delhi and as the respondent is living at Bolpur, it was obviously impossible for the petitioner to be an eye witness to the same. The District Judge also says that the petitioner had not himself seen the hospital records nor he "dare to call the writers of the letters".

(10) I think that the District Judge has gone wrong in his approach to this case. In this particular, case the petitioner has all along been living at Delhi. He had no occasion to have any connection with Bolpur since the respondent left him. There was no way in which the petitioner could summon these witnesses as these witnesses reside beyond the limits of jurisdiction as postulated by Order Xvi, rules 19 of the Code of Civil Procedure and the authors of the letters Ex. P-l and P-3 reside similarly outside these limits and they reside at a place which is not connected by air, therefore, summons could not be issued to them. The petitioner relied upon AntoniswamyVs. Anna Mailickam. Air 1970 Madras 91(1). This case is under the Indian Divorce Act but appears to be in Pari Meteria with the present case. In that case also the only person examined was the husband. His testimony was believed, and a decree of divorce was granted.

(11) In this case I have set out the statement of the petitioner. I am in respectful agreement with the judgment of Madras High Court that in the ordinary circumstances of society in this country, a man would not like to make statements against a wile, such as of prolonged desertion, and continued illicit intimacy with another man, if such averments have no basis or foundation in truth.

(12) On filing of the appeal in the High Court the notices were sent to the respondents through this court by Regd. A.D. post. Notices were sent to respondent No. 2 under the name of Jadu Gopal Dutta, C/o Shri Chand Gopal Datta whereas in the petition, the name of respondent No. 2 is shown as Jadu Gopal Ghosh. I am satisfied that as they are the same person. Notices which were sent by registered A.D.post to both the respondents were also refused on the same date, i.e. on 5-3-1983. The Regd. covers which have come back unserved clearly stipulate that the papers have been sent through the Registrar of High , Court of Delhi. It is difficult for me to believe that both the respondents were unaware that these envelops would contain documents pertaining to some court proceedings. Even in the trial court they have chosen to refuse to acknowledge accept) the summons which have been sent. They are ex parte before me. For all the aforestated reason I am satisfied that the statements which have been made by the petitioner are true and ought to be believed. From the uncorroborated statement. of the petitioner it is established that whatever is stated in the petition under Section 13(1)(d)(ia) and (ib) stands proved. There is obviously no collusion between the parties.

(13) The petitioner, in my view, is entitled to have divorce. I accordingly, after setting aside the order of the learned District Judge, grant the petitioner relief of decree of divorce against respondent No. 1. The marriage between the petitioner and respondent No.1 stands dissolved by a decree of divorce.

(14) There will be no order as to costs.