Sri Dhrubajyoti Bharadwaj vs Smti. Meenakshi Bharadwaj
2021 Latest Caselaw 3455 Gua

                                                                                Page No.# 1/7

GAHC010212762019




                            THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Mat.App./48/2019

              SRI DHRUBAJYOTI BHARADWAJ
              S/O- SRI DINESH KUMAR SARMAH, R/O- RUPAI SAIDING, LACHIT NAGAR,
              DOOMDOMA, P.O. AND P.S. DOOMDOMA, DIST.- TINSUKIA, ASSAM.

              VERSUS

              SMTI. MEENAKSHI BHARADWAJ
              D/O- LATE NARAYAN SARMA, R/O- SOUTH SONARI, P.O. AND P.S. SONARI,
              DIST.- CHARAIDEO, ASSAM.

Advocate for the Petitioner : MRS. R BORBORA
Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date : 14-12-2021

JUDGMENT & ORDER (ORAL)

(A.M.Bujor Barua,J) Heard Mr. AC Borbora, learned senior counsel for the appellant. None appears for the respondent. By the order of 19.02.2021, the Court had arrived at its conclusion that as there was a refusal to accept notice by the respondent, therefore, under the law, notice was deemed to have been served. As none appears for the respondent in spite of such deemed service, we deem it appropriate to proceed with the matter in the absence of the respondent.

2. The appellant Dhrubajyoti Bharadwaj instituted T.S (M) Case No. 112/2016 under Page No.# 2/7

Section 13(1)(ia) of the Hindu marriage Act, 1955 (in short Act of 1955) in the Court of the learned Additional District Judge, Charaideo at Sonari. In paragraph-5 of the plaint, the appellant inter-alia averred that after one month of the marriage, the respondent started pressurizing the appellant to live separately from his parents, but such opposition on the part of the respondent was not acceptable to the appellant and he was of the view that he cannot live separately from his aged ailing parents. In paragraph 7 of the plaint, it is averred that as the petitioner was also required to stay in Dibrugarh in between for looking after his father's business, the respondent always kept on complaining that she does not want to stay along with the family members of the appellant. In the circumstance, when the appellant asked the respondent to stay with him at Dibrugarh, the respondent again refused to do so. In paragraph-9, it has been averred that the respondent after staying at her parental home had refused to come back to the appellant and also kept on raising her demands for separation from his family. In paragraph-12, it is the averment that the respondent and her family members kept on insisting that the appellant must break away from his own family if he wishes to have his wife and daughter to return to him, but it was unacceptable to the appellant and instead insisted upon the family members of the respondent to talk and sort out the difference of views. In paragraph-14, it is averred that on 18.01.2016, the appellant along with five other persons visited the respondent at her matrimonial home, but in spite of such effort, the respondent as well as the family members had not given the appropriate response to the efforts of the appellant. Further, the appellant also wrote a letter dated 24.02.2016 to the respondent, wherein he had requested her to come back along with her daughter. But in spite of receiving the said letter, there was no response from the respondent.

3. In the trial, the respondent other than submitting a written statement did not participate further in the proceeding. In the trial, the appellant as PW-1 had deposed on affidavit stating that in course of the marital life, the respondent used to visit her parental home at Sonari. After reaching there, she used to refuse to come back and kept on raising her demands for the appellant to live separately from his family and only after severe persuasion, the respondent used to come back. It was also deposed that on 30.11.2015 when the appellant went to the house of the respondent to bring her back, both the respondent as well as the family members refused to oblige. On 11.12.2015, when the mother of the appellant tried to Page No.# 3/7

contact the respondent or her mother to invite them for the ring ceremony of the younger sister of the appellant, again there was no response from the respondent. The appellant in his deposition also stated that on 08.01.2016 when he along with five other persons visited the house of the respondent to sort it out as to what had actually happened, the respondent as well as her family members did not respond in the appropriate manner. In course of his evidence, the appellant also exhibited the letter dated 24.02.2016, which is marked as Exhibit-1.

4. A reading of the Exhibit-1 goes to show that the appellant had a good intention to request the respondent to come back and carry forward their marital life, which itself establishes that the appellant all along had the intention and requirement to have the respondent to come back. As the respondent did not further participate in the trial process, neither there is any cross examination nor any evidence being led.

5. However, we take note of the averments made by the respondent in paragraph 6 of the written statement, wherein it had been averred that since the very inception of the marriage, the appellant demonstrated his arrogant and aggressive nature towards the respondent and had required her to do everything as per his direction and gradually started physical and mental torture upon the respondent. It has also been averred in paragraph 8 that during the trip to Kashmir during the marital life, the appellant had demonstrated his arrogant and aggressive nature to the respondent and did not want to give any space in his life apart from sharing th bed at night.

6. Apart from the said stand that the respondent required certain space in her life without being required to act as per the requirement of the appellant, no specific instances had been averred although the respondent intends to take the stand that there was cruelty on the part of the appellant.

7. Be that as it may, if the respondent intended to take the reason of any cruelty being meted out by the appellant to her for her refusal to carry forward the matrimonial life, further evidence on the instances which may led to a conclusion of cruelty would also be required for arriving at such conclusion. But, however, in the absence of any evidence being led by the respondent, we have no material before us to arrive at any such conclusion.

Page No.# 4/7

8. In the circumstance, we have to take note of the uncontroverted evidence being led by the appellant that the respondent had persistently refused to live with him and carry forward their marital life by insisting that in order to do so, the appellant would have to live separately from his aged ailing parents. The aforesaid aspect of the matter had been dealt with by the learned Additional District Judge, Charaideo in paragraph 15 of the judgment impugned, which is extracted as below:-

""15. Here in this case, the main ground for prayer for decree of divorce by the petitioner is cruelty as plaint has been specifically filed u/s 13(1)(ia) of the Hindu Marriage Act, 1995 and specific submission has been made in this regard. A scrutiny of the pleadings and the evidences on record will show that it is alleged that the respondent after her marriage with the petitioner preferred to keep her in isolation from the family members of the petitioner. It is also the case of the petitioner that the respondent did not talk, mix up with the family members of the petitioner and asks the petitioner to live separately from his family. Here the element of cruelty, which is the main ground for praying for divorce, has not been placed specifically by the petitioner through evidence. The keeping of the respondent in isolation from the family members of the petitioner and the reluctance to get mix up with the family members of the petitioner, in opinion of this court cannot be termed to be cruelty towards the petitioner. During scrutiny of the evidence, I have considered the evidence that one female child was born to the parties. Now, if the parties had a normal matrimonial life as evident from the birth of the girl child then the reluctance to get mix up with the family members of the petitioner is no cruelty. Another aspect I have considered that according to the evidences of the petitioner/PW 1 and the pleading that the petitioner started to live at Dibrugarh, the specific evidence in para no. 7 of the plaintiff shows that the respondent did not stay with him at Dibrugarh which shows that petitioner moved to Dibrugarh keeping the O.P. at his paternal house at Siding. Further, the specific evidence in paragraph no. 10 of the PW 1, it is clear that on 12-11-2015 the respondent came to Dibrugarh to the house of the petitioner and on the next day on 13-11-2015 the petitioner took the respondent and his daughter to her mothers' house. If we consider the paragraph no. 7 & 10 of the evidence of the PW 1 it is clear that the petitioner left for Dibrugarh without taking the respondent with him and when on 12- 11-2015 the respondent went to Dibrugarh, then on the very next day petitioner took the respondent/his wife and their daughter and drop them at her mothers' house. Now, if immediately prior to 12-11-2015 the petitioner was not with the respondent then immediately before 12-11-2015 there could not be any action which may have alleged to have been taken by the respondent against petitioner, as there is no specific evidence in this regard. Further, the taking of the respondent by the petitioner to her mother's house shows that it is the petitioner who separated himself from the respondent by keeping her in her paternal house. The position of allegation that occasionally respondent asks petitioner to live separately cannot be termed as cruelty in strict sense."

Page No.# 5/7

9. A reading of the conclusion arrived at by the learned Additional District Judge that there was no cruelty meted out by the respondent to the appellant would goes to show that the learned Court was of the view that the requirement to keep the respondent in isolation from the family members of the appellant and a reluctance to mix up with the other family members of the appellant in the opinion of the learned Court cannot be termed to be cruelty towards the appellant. In other words, the learned Court was of the view that the refusal of the respondent to live in an amicable manner along with the aged ailing parents of the appellant and her insistence thereof requiring the appellant to live separately from his aged parents did not amount to cruelty.

10. In this respect Mr. AC Borbora, learned senior counsel for the appellant relies upon a judgment of the Supreme Court rendered in Narendra -vs- K. Meena, reported in (2016) 9 SCC 455, wherein in paragraph 14, the Supreme Court is of the view as extracted below:-

".........If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon is income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of "cruelty.""

11. In paragraph 14 of the judgment in Narendra (supra), the Supreme Court was of the view that if a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that. The Supreme Court was also of the view that no husband would tolerate the behavior of a wife requiring the husband to live separately from his own parents and further no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the wife to constrain the husband to be separated from his family would be tortuous for the husband and the opinion formed by the Supreme Court, it would amount to be a cruelty.

12. We also take note of the view expressed by the Supreme Court in paragraph 10 of A. Jayachandra -vs- Aneel Kaur, reported in (2005) 2 SCC 22, wherein it had been held Page No.# 6/7

that although the expression cruelty has not been defined in the Hindu Marriage Act, but cruelty can be physical or mental. It had further been held that cruelty, which is a ground for dissolution of a marriage, may be defined to be a willful and unjustifiable conduct of such character as to cause danger, amongst others, to the mental state of the other spouse.

13. As the mental cruelty is also included and held to be a cruelty, and refusal of the wife to live together with the aged parents of the husband and insisting upon the husband to live separately from his aged parents having held to be a cruelty by the Supreme Court as indicated above, the element of mental cruelty in the facts and circumstances of the present case also appears to be in existence.

14. Following the aforesaid propositions as regards the concept laid down by the Supreme Court vis-à-vis the behavior of the wife requiring the husband to live separately from the aged parents, we are of the view that the materials available on record including the uncontroverted evidence of the appellant as well as the Exhibit-1 letter dated 24.02.2016 would be sufficient to establish that the respondent in her behavior towards the appellant had persistently refused to live along with his old aged parents had also required the appellant to live separately from his own parents. From the aforesaid evidence on record and in view of the propositions laid down by the Supreme Court in paragraph 14 of Narendra (supra) as well as in paragraph 10 of A. Jayachandra (supra), we are of the view that cruelty by the respondent wife towards the appellant husband has been established.

15. From such point of view, we are unable to agree with the conclusion arrived at by the learned Additional District Judge, Charaideo at Sonari that in the aforesaid facts and circumstances, no cruelty by the respondent wife could be found against the appellant husband. As the dismissal of the suit by the appellant husband for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955 was made on the aforesaid conclusion of the learned Additional District Judge, Charaideo at Sonari and we having arrived at a conclusion that the said conclusion of the learned Additional District Judge was contrary to the evidence available on record as well as the law laid down by the Supreme Court in paragraph 14 of Narendra (supra) as well as in paragraph 10 of A. Jayachandra (supra), we are of the view that an interference is required in the judgment impugned dated 17.07.2019 in T.S. (M) No. 112/2016.

Page No.# 7/7

16. Accordingly, the judgment dated 17.07.2019 passed in T.S. (M) No. 112/2016 by the learned Additional District Judge, Charaideo at Sonari stands set aside.

17. We further arrive at a conclusion that the plea raised in TS(M) No. 112/2016 has been established by the appellant justifying a dissolution of the marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955. As we are also in favour of a dissolution of the marriage, we deem it appropriate to remand the matter back to the learned Additional District Judge, Charaideo at Sonari for passing appropriate orders in view of the conclusions arrived hereinabove.

18. Further, as the conclusion arrived at is in favour of a dissolution of the marriage, the consequential aspects regarding payment of alimony etc would also be required to be gone into.

19. Accordingly, having setting aside the judgment dated 17.07.2019, the mater is now remanded back to the learned Additional District Judge, Charaideo at Sonari requiring the parties to appear before the learned Court on 17.01.2022 at 10.30 A.M. and upon their appearance, consequential order in view of the conclusion arrived at be passed by the learned Additional District Judge and also appropriate decision be rendered on the question of alimony whether required to be paid or not and if yes, quantify it.

19. The requirement of passing the consequential order and decree in view of our conclusion be preferably done within a period of two months from the date of appearance of the parties.

20. The appeal is allowed to the extent indicated above.

21. Send back the LCR to the lower Court forthwith.

                              JUDGE                                          JUDGE



Comparing Assistant