Rupali Dutta vs Pradip Kr. Barman
2023 Latest Caselaw 4023 Gua

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GAHC010002442023




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

                               Case No. : Mat.App./6/2023

            RUPALI DUTTA
            W/O SRI PRADIP KR. BARMAN
            RESIDENT OF HOUSE NO. 4, BARNACHAL ROAD (NEAR ANURADHA
            CINEMA HALL) PO BAMUNIMAIDAM, PS CHANDMARI, DIST KAMRUP M
            ASSAM



            VERSUS

            PRADIP KR. BARMAN
            S/O LATE PRATAP BARMAN
            RESIDENT OF HOUSE NO. 4, BARNACHAL ROAD (NEAR ANURADHA
            CINEMA HALL) PO BAMUNIMAIDAM, PS CHANDMARI, DIST KAMRUP M
            ASSAM



Advocate for the Petitioner   : MR D K BORDOLOI

Advocate for the Respondent : MR. A K BHUYAN

BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MRS. JUSTICE MITALI THAKURIA

Date of hearing : 28.09.2023.

Date of judgment     : 28.09.2023.
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                     JUDGMENT AND ORDER (ORAL)


(Michael Zothankhuma, Judge)

Heard Mr. D.K. Bordoloi, learned counsel for the appellant. Also heard Mr. A.K. Bhuyan, learned counsel for the respondent.

2. The present appeal has been filed by the appellant wife against the Judgment dated 06.12.2022 passed by the Court of the Principal Judge, Family Court-II, Kamrup (Metro), Guwahati in FC(Civil) Case No. 693/2013, by which the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, filed by the respondent husband has been allowed and consequently, the marriage has been dissolved by granting a divorce decree.

3. The case projected by the appellant is that the appellant who is presently working as a teacher in a Government School, got married on 15.12.1993 with the respondent, as per Hindu rites and ritual. A son was born to them on 25.07.1995. The respondent husband was an Engineer working with the Health & Family Welfare Department who has, as on date, retired from service.

4. On alleging that the appellant wife was having an illicit relationship with someone from Milanpur, Chandmari, the respondent filed FC (Civil) Case No. 693/2013 before the learned Family Court praying for a decree of divorce. The case was filed on further grounds that the appellant was cruel to the respondent, that they had stopped talking from the year 2010 and lived separately in the same compound, but in different parts of the same house. The appellant thereafter submitted her written statement, wherein she denied all the allegations made by the respondent. The appellant also stated that she never had any extra marital relationship with anyone Page No.# 3/10

and did not neglect her matrimonial duty. Further, it was the respondent who was maintaining an extra marital relationship with one Prativa Barman, wife of Suren Barman. Consequently, the following issues were framed by the learned Family Court:-

(1) Whether the respondent has treated the petitioner with cruelty?

(2) Whether the petitioner is entitled to get a decree of divorce as prayed for?

(3) To what relief/reliefs, the parties are entitled?

5. The Family Court thereafter examined three witnesses from the side of the respondent i.e. PW-1, PW-2 and PW-3. On the other hand, the appellant gave evidence as DW-1 alongwith DW-2, who is the son of the parties.

6. The learned Trial Court, after considering the evidence and hearing the parties, came to a finding that the conduct of the parties as narrated in their evidence, was more serious than the ordinary "wear and tear" of married life, which could be construed to be cruelty and thus came within the purview of Section 13(1)(ia) of the Hindu Marriage Act, 1955. Accordingly, a divorce decree was granted by the learned Family Court.

7. The learned counsel for the appellant submits that a new development has taken place during the pendency of this case, inasmuch as the respondent husband became sick in January, 2023 and had been admitted to Nemcare Hospital, Guwahati. The appellant had thereafter been looking after her husband by giving him food etc. He submits that the fact that the appellant is looking after the respondent has been stated in the additional affidavit filed by the appellant on 26.09.2023. He also submits that the learned Trial Court could not have granted a divorce decree, as cruelty could not be proved by the respondent, on the basis of the evidence adduced by the respondent witnesses. He submits that the learned Family Court has passed its Page No.# 4/10

Judgment on the findings made on the basis of presumption and speculation. Accordingly, the same should be set aside.

8. Mr. A.K. Bhuyan, the learned counsel for the respondent, on the other hand submits that the additional affidavit filed by the appellant on 26.09.2023 has been categorically denied by the respondent. He submits that the respondent who is under medical treatment and who has been undergoing haemodialysis signed the affidavit- in-opposition to the additional affidavit filed by the appellant on 27.09.2023, as the appellant is only eyeing the property of the respondent. He submits that there is no infirmity with the Judgment of the learned Trial Court in view of their being an irretrievable break down of marriage. He submits that a case under Section 498A IPC had been filed against the respondent by the appellant, which was registered as G.R Case No. 8512/2013 before the Judicial Magistrate-I, First Class, Kamrup, Guwahati. However, the petitioner has been acquitted of the charge vide Order dated 17.10.2019. He also submits that a case had been registered by the appellant against the respondent before the Assam State Commission for Woman on 26.07.2013, on a complaint alleging that monthly maintenance was not being paid to her and her son (DW-2). He submits that the case before the Assam State Commission for Woman was closed on 15.03.2023 in WP(C) No. 3827/2014, in pursuant to the order dated 15.03.2023 passed by the Single Bench of this Court in WP(C) No. 3827/2014, which states as follows:-

"14. The respondent Commission is neither a civil court nor a family court nor a criminal court, as referred to in Section 26 of the DV Act. Thus, it is ex-facie clear that the respondent Commission while passing the impugned order dated 19.07.2014, had assumed jurisdiction which was not vested in it under the law. The impugned order dated 19.07.2014 is clearly, thus, found out to be outside the power, authority and jurisdiction of the respondent Commission and the same is non est in law since the respondent Commission has also no power, authority or jurisdiction to adjudicate or determine the rights of the parties on the basis of complaint lodged by one of the spouses before it.

15. In the above fact situation obtaining in the case and for the reasons assigned, the impugned order dated 19.07.2014 being a void order, is liable to be set aside and quashed. It is accordingly set Page No.# 5/10

aside and quashed. The interim order dated 08.08.2014 stands merged with this order. There shall, however, be no order as to cost."

9. Mr. A.K. Bhuyan, the learned counsel for the respondent also submits that the appellant had also filed a case under the Protection of Women from Domestic Violence Act, 2005 against the appellant, which was registered as D.V. No. 153/2013, which is still pending before the Court of SDJM-I, Kamrup (Metro), Guwahati. He submits that the prayer made therein is for payment of maintenance to the minor son DW-2 and for a share of the residence which belongs to the respondent. He also submits that there is no allegation made in D.V. No. 153/2013, to the effect that any physical violence was inflicted upon the appellant by the respondent.

10. The learned counsel for the appellant submits that the fact that there has been an irretrievable break down of marriage is proved from the evidence recorded by the learned Family Court. Accordingly, in terms of the various judgments of the Supreme Court and this Court, the divorce decree should not be interfered with.

11. We have heard the learned counsels for the parties.

12. On perusing the impugned Judgments passed by the learned Family Court, we find that a finding has been made that the conduct of the appellant against the respondent amounts to cruelty. As can be seen from the record, the appellant and the respondent are residing in separate parts of the house belonging to the respondent and that the respondent has also been sent to Jail as a UTP, due to the case filed by the appellant under Section 498A IPC. Besides the party not being on talking terms, other cases have been filed by the appellant against the respondent, as shown in the earlier paragraphs.

13. The evidence given by PW-3 is to the effect that the appellant used to come home late at night and he saw the appellant at about 11.30 pm being dropped by Page No.# 6/10

someone near her residence on one particular night.

14. The evidence given by the appellant during her cross examination on 19.03.2018, is to the effect that she did not have any conjugal life with the respondent and they were living separately since the last three years. Further, they did not even talk and in spite of having a dead marriage, she opposed the divorce petition. The appellant also stated that in spite of the fact that they had no relationship, she filed a case under the Protection of Women from Domestic Violence Act, 2005, besides the Police case and the complaint before the Assam State Commission for Woman. The extract of the evidence given by the appellant in her cross examination on 19.03.2018 is reproduced below as follows:-

"since last 3 years I do not have conjugal life with the petitioner and we are living separately. We even do not talk. Petitioner has filed a divorce case against me in the Family Court. In spite of having dead marriage I opposed the divorce petition by the petitioner by filing written statement. In spite of the fact that we have no relationship I filed D.V. Act as well as police case and complaint before the Women Commission".

15. As can be seen from the evidence given by the appellant and the contrasting stands taken by the parties in the additional affidavit filed by the appellant on 26.09.2023 and the affidavit filed by the respondent on 27.09.2023, there has been an irretrievable break down of marriage.

16. In the case of K. Srinivas Vs. K. Sunita, (2014) 16 SCC 34, the Supreme Court has held that a false complaint calculated to embarrass and incarcerate the husband and members of his family was unquestionably a conduct constituting cruelty, as postulated in Section 13(1)(i-a) of the Hindu Marriage Act.

17. In the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 , the Supreme Page No.# 7/10

Court has held that the fact that the parties had been living separately since 27.08.1990 and till the date of the judgment on 26.03.2007 and did not have any interaction with each other, required the High Court to have considered the important and vital circumstances of the case in its proper perspective. The above fact of living separately for a long time juxtaposed with the fact that the serious health issue of the husband was not even enquired to by the wife, was clearly illustrative of the fact that the parties did not have any emotion, sentiments or feelings for each other, which amounted to a clear case of irretrievable breakdown of marriage.

18. In the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court has held that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage. On the contrary, it shows scant regard for the feelings and emotions of the parties. It further held that public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

19. In the case of K. Srinivas Rao Vs. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court has held that the fact of the couple living separately for more than 10 years had created an unbridgeable distance between the two and if the tie is not severed, it may lead to mental cruelty.

20. In the case of Shri Hrishikesh Talukdar Vs. Smt. Purabi Baishya, Mat. App. No. 45/2017, the Division Bench of this Court had held that when allegations of dowry and Page No.# 8/10

treatment with cruelty are leveled in the public media against another, the said person is bound to suffer both mentally and physically. The Division Bench thus held that the treatment meted out by the respondent to the appellant's husband amounted to cruelty and as such, allowed the appeal for grant of a divorce decree.

21. In the present case, we find that there is no evidence to the effect that the respondent was maintaining any extra marital affair with the wife of PW-2, as alleged by the appellant. On the other hand, the evidence given by the appellant in her cross examination clearly shows that the couple are living separately and have not been on talking terms. The stand taken by the appellant in her additional affidavit dated 26.09.2023 that she has been looking after the sick respondent in Hospital, has been denied by way of the affidavit dated 27.09.2023 submitted by the respondent. The above fact and the absence of a common ground between the parties, keeping in view the contrasting stands taken by the parties in their affidavits, is illustrative of the fact that any feelings the parties may have had for each other have broken down. The case made by the appellant against the respondent husband under Section 498A IPC which led to the respondent being incarcerated for some period in Jail, the case under the Protection of Women from Domestic Violence Act, 2005, besides making a complaint to the Assam State Commission for Woman, has created an unbridgeable distance between the parties herein.

22. In the case of Rakesh Raman Vs. Kavita, 2023 SCC Online SC 497, the Supreme Court has held that irretrievable break down of marriage and the existing bitterness between two persons has to be read as cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. It further held that continuation of a marriage which has irretrievably broken down would be continuation of cruelty which would be inflicted on both the sides. It also held that though irretrievable break down of marriage may not be a ground for dissolution of marriage under the Hindu Marriage Act, the same has to be read as cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Thus, as Page No.# 9/10

cruelty is a ground for dissolution of marriage, irretrievable break down of marriage would have to be taken as a ground for dissolution for marriage, coming within the meaning of cruelty within the four corners of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

23. As the parties have lived separately for a number of years and the fact that there has been no conjugal life between the parties, besides them not being on talking terms, is a pointer to the fact that there has been an irretrievable break down of marriage. The cases filed by the appellant against the respondent cannot in any way help in mending the chasm that has sprung up between the parties.

24. In the case of Samar Ghosh (Supra), the Supreme Court has held that when there has been a long period of continuous separation, it may be concluded that the matrimonial bond is beyond repair and that by refusing to grant divorce, the same may lead to mental cruelty.

25. On considering the Judgments referred to above and juxtaposing the same with the evidence recorded by the learned Trial Court, we are of the view that no ground has been made out for interfering with the impugned Judgment dated 06.12.2022 passed by the Principal Judge, Family Court-II, Kamrup (Metro), Guwahati in FC (Civil) Case No. 693/2013.

The appeal is accordingly dismissed. Send back the LCR.

                                        JUDGE                     JUDGE
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Comparing Assistant