Smt. Shampa Datta vs Sri Sougat Das
2021 Latest Caselaw 1263 Tri

                IN THE HIGH COURT OF TRIPURA
                             AGARTALA
                             FA No.9 of 2018
Smt. Shampa Datta
daughter of Sri Batukeswar Datta,
wife of Sri Sougat Das,
resident of Baidya Tilla, Belonia,
P.S. & P.O. Belonia, 799155,
District: South Tripura
                                                      ............ Appellant(s)

                              -Versus-
Sri Sougat Das
son of late Nepal Chandra Das,
resident of Bardowali,
P.O. Agartala- 799 003,
P. S. West Agartala,
District: West Tripura
                                                   ............ Respondent(s)

For the Petitioner (s) : Mr. D. K. Daschoudhury, Adv.

For the Respondent (s)        :      Mr. A. Sengupta, Adv.
Date of hearing & delivery    :      16.12.2021
of Judgment & order
Whether fit for reporting     :      No

            HON'BLE MR. JUSTICE S. TALAPATRA
         HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
                     JUDGMENT & ORDER [ORAL]

Heard Mr. D. K. Daschoudhury, learned counsel appearing

for the appellant as well as Mr. A. Sengupta, learned counsel

appearing for the respondent.

[2] By means of this appeal, the judgment and decree

respectively dated 21.07.2018 and 30.07.2018 delivered in

TS(Divorce) 45 of 2015 by the Judge, Family Court, Udaipur, Gomati

has been called in question. By the said judgment, the Judge, Family

Court has granted the divorce on the ground of cruelty within the

ambit of Section-13(1)(a) of the Hindu Marriage Act, 1955. The

Judge, Family Court while passing the said judgment has observed

that from the evidence it becomes clear that the respondent [the

appellant] had stayed in the house of the petitioner [the respondent

in this appeal] that one year and few months only and thereafter the

parties had been leaving separately for last four years.

[3] The respondent has asserted in her written statement

that though she used to do the household works, yet she did not get

any appreciation at all. It is no denying fact that in our society after

marriage the bride is to leave her parental home from her

matrimonial home and she is to adapt with the environment of her

husband and the matrimonial home becomes are abode. It has been

further observed that usually nobody demands or accepts any

appreciation for working for her own home. Seeking appreciation for

works done in own house seems unusual. So the statement made by

the respondent, as observed by the Judge, Family Court, indicates

that she could not accept the petitioner and his mother as her own

and that may be the reason for madadjustment or the 'epicentre'

of their matrimonial dispute. That apart, the Judge, Family Court has

observed that since the parties have no child who could have acted

as a bridge between the parties, their marital tie suffered severe jolt.

Immediately thereafter, the Judge, Family Court has observed that

there is no justification to let the brittle and dried up relationship to

'grow'. However, the ground as taken by the respondent herein for

granting divorce under Section 13(1)(ib) of the Hindu Marriage Act,

1955 that the appellant had disserted the respondent for a period of

more than two years immediately preceding the presentation of the

petitioner has not been accepted. Thus, the decree of divorce is

founded solely on the ground of cruelty.

[4] Mr. D. K. Daschoudhury, learned counsel appearing for

the appellant has quite assertively submitted that there is no proved

fact based on which the decree of divorce can be granted on the

ground of cruelty. Mr. Daschoudhury, learned counsel has pointed

out that fundamentally, three allegations have been made against

the appellant, the respondent in the proceeding before the Judge,

Family Court. Those are-(1) the appellant is ill tempered and on one

occasion she had slapped him, (2) the appellant was not interested

to share the household works. Even when she was requested, she

had expressed annoyance. After detection of pregnancy, the

appellant left the matrimonial home without any intimation to the

respondent. In para-9 of the petition filed by the respondent, it has

been stated that on 17th November, 2013, the appellant went to

Durgapur with her mother at the expenses of the respondent where

she was examined by one Gynaecologist. After ten days, the

petitioner was informed that she became pregnant again and within

two months the pregnancy was aborted. The respondent defrayed all

expenses of the medical treatment. The appellant and the

respondent went to Kolkata on 11.06.2014 for having consultation

with one eminent Gynaecologist. Even at Agartala, the appellant was

taken to another Gynaecologist of repute. But one day, the appellant

was found to have left the matrimonial home with her all the

belongings and gold ornaments, and she did not come back.

According to Mr. Daschoudhury, learned counsel from reading of the

pleadings of the respondent as filed before the Judge, Family Court,

it would be apparent that the allegation against the appellant is that

she never adapted to the matrimonial home and as a result she had

chosen the path of behaving recklessly.

[5] There is no dispute in respect of solemnization of

marriage on 18.11.2012. The appellant and the respondent in the

proceeding being TS(Divorce) 45 of 2015 filed elaborate statement

of facts and contended that the appellant was pressurized to give up

the job which she was doing under Reliance Life Insurance Company

Limited. She had to leave bed early in the morning for doing all

household chores. It has been admitted that she became pregnant,

Her pregnancy was detected in the month of March, 2014.

Thereafter, the appellant has stated in her written statement as

follows:

"While the pregnancy was three months at that time the mother of the petitioner gave her some Prasad of Thakur Bari and asked her to eat. On good faith the respondent ate the said Prasad, the miscarriage was happened."

She had denied the allegation of taking away the gold

ornaments. Even she had categorically stated that she made utmost

effort to adjust with the matrimonial home, but on 27.06.2014 she

was brutally assaulted by the respondent herein. As a result, she

had take shelter in her paternal house. On that occasion she was

treated at Belonia Hospital.

[6] Mr. Das Choudhury, learned counsel appearing for the

appellant has at the beginning stated that the appellant is ready to

join the respondent in the matrimonial life and is desirous of living a

peaceful conjugal life, but the respondent has denied and resisted

the appellant in reconstruction of the marriage. According to Mr.

Daschoudhury, learned counsel, the respondent has failed to make

out any case of cruelty and the facts those were borne in the petition

(pleading of the respondent) do not constitute cruelty. Hence, the

impugned judgment requires interference from this court. Mr.

Daschoudhury, learned counsel has criticized the judgment as

challenged in this appeal by stating that the appreciation of the

evidence is grossly perverse, otherwise it could have been held by

the Judge, Family Court that the respondent has in order to shield

his own matrimonial misconduct made the allegations against the

appellant. The Judge, Family Court has failed to appreciate the

circumstances in which the appellant did not approach the police

even after being seriously assaulted by the respondent. Mr.

Daschoudhury, learned counsel has submitted that the reason for

living separately by the appellant has been accepted by the Judge,

Family Court. The acts indulged by the appellant, have been used as

the foundation for granting the said decree of divorce.

[7] Mr. A. Sengupta, learned counsel appearing for the

respondent has stated that the judgment returned by the Judge,

Family Court cannot be faulted with inasmuch as the appellant has

been cause of all matrimonial distresses. She had physically

assaulted the respondent. She denied to share the household works.

Not only that, the gravest part of her misconduct is making of

serious allegations against the respondent and his mother. It has

been alleged by the appellant that she was assaulted by him and she

was treated in the Belonia hospital. But no medical record or any

evidence to corroborate such statement has been introduced in the

evidence. Even the appellant has attributed serious allegation

against the mother of the respondent for 'causing' abortion of fetus

that the appellant was carrying. Mr. Sengupta, learned counsel in

order to scaffold his submission has relied on a decision of the apex

court in V. Bhagat vs D Bhagat (Mrs) reported in (1994) 1 SCC

337 where the apex court has analyzed the meaning and purport of

'cruelty' as the ground of divorce in terms of Section 13(1)(ia) of the

Hindu Marriage Act. The relevant passage is extracted hereunder:

"Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties."

[8] In V. Bhagat vs D Bhagat (supra), the apex court has

intended to make out a workable definition of cruelty. Cruelty is a

conduct which afflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with the

other. Mental cruelty must be of such a nature that the parties

cannot reasonably be expected to live together. The situation must

be such that the wronged party cannot reasonably be asked to put

up with such conduct and continue to live with the other party. It is

not necessary to prove that the mental cruelty is such as to cause

injury to the health of the petitioner. While arriving at such

conclusion, regard must be had to the social status, educational

level of the parties, the society they move in, the possibility, or

otherwise, of the parties ever living together in case they are

already living apart and all other relevant facts and circumstances

which is neither possible nor desirable to set out exhaustively. What

is cruelty in one case may not amount to cruelty in another case. It

is a matter to be determined in each case having regard to the facts

and circumstances of that case. If it is a case of accusations and

allegations, regard must also be had to the context in which they

were made.

[9] Mr. Sengupta, learned counsel has submitted that the

appellant does not have any respect for the respondent and she had

spread all lies against him and his mother which were so painful that

the respondent is not expected to live with the appellant.

[10] We have appreciated the submission of the learned

counsel for the parties as well as scrutinized the records. True it is

that the appellant has, without any tenable proof, gathered

impression that for taking the prasad, abortion was caused and since

was given by the mother-in-law, she was held responsible for

abortion. But we are constrained to observe that this is an

impression a prudent person usually would not have made. Making a

statement on the basis of the impression without further scrutiny is

the sign of immaturity. So far the one single act of slapping is

concerned, even if the allegation of the respondent is believed by

this court in our considered view that cannot constitute 'cruelty' for

purpose of Section 13(1)(ia) of the Hindu Marriage Act. The

definition of the cruelty has been further developed in Vinita

Saxena vs Pankaj Pandit reported in (2006) 3 SCC 778. It has

been observed in Vinita Saxena (supra) that the word cruelty is

used in relation to human conduct or human behaviour. It is the

conduct in relation to or in respect of matrimonial duties and

obligations. It is a course of conduct and one which is adversely

affecting the other. The cruelty may be mental or physical,

intentional or unintentional. There may be cases where the conduct

complained of itself is bad enough and per se unlawful or illegal.

Then the impact or the injurious effect on the other spouse need not

be enquired into or considered. In such cases, the cruelty will be

established if the conduct itself is proved or admitted. Here, the

appellant has squarely denied the allegation.

[11] From reading of Vinita Saxena (supra), it would appear

that cruelty has an inseparable nexus with the human conduct and is

always dependent on social strata to which parties belong, their

ways of life, relationship, temperament and emotion that are

conditioned by their social status.

[12] In Neelam Kumar vs. Dayarani reported in (2010)

13 SCC 298, the apex court has observed that a single incidence in

isolation, is not sufficient for the dissolution of marriage on the

ground of cruelty. To constitute cruelty, it is however enough that

one of the party's conduct is so abnormal and below expected norms

that other spouse could not reasonably be expected to put up with

it. Conduct is no longer required to be so atrociously abominable

which would cause reasonable apprehension that it would be harmful

or injurious to continue cohabitation with the other spouse.

[13] Therefore, there is no requirement to establish the

cruelty that there had been physical violence. The mental distress to

an extreme nature can also constitute cruelty. The mental cruelty is

necessarily a matter of inference to be drawn from the facts and

circumstance of the case. From those laws as well as from a catena

of other decisions of the apex court it has been now well settled that

instances of the cruelty are not to be taken in isolation but the

cumulative effect of the facts and circumstances emerging from the

evidence on record be assessed and the inference be drawn whether

those sub-serves the definition of mental cruelty as the apex court

has further set out in Samar Ghosh vs. Jaya Ghosh reported in

(2007) 4 SCC 511. In Samar Ghosh (supra) the definition of the

word 'cruelty' has been given a comparatively liberal meaning.

Highly placed and educated spouse can be severely hurt by an act or

a series of facts which in other cases may not be so painful or

distressful. Thus the status of the spouses to infer about cruelty is

an important element which cannot be ignored while deciding a

petition seeking dissolution of marriage.

[14] In the present case, in our considered view that there is

no such grave act which might generate such apprehension which

would pursuade desist the spouses from living together. Impression

of the appellant is not a grave act. After taking prasad, the

miscarriage took place. The appellant drew the impression that the

mother of the respondent was behind it. But we do not find any iota

of evidence that was ever uttered by the appellant to her. Such

impression, for the first time, surfaced in the written statement filed

by the appellant. Therefore, we will not include this act as the grave

act which might completely sever all fibres of the marital relation.

[15] Having observed thus, we find that the impugned

judgment is unsustainable. While dealing with such cases

particularly with the young spouses a substantial degree of

sensibility should be exercised. Ordinary wear and tear in the marital

relation cannot be used as tool for granting divorce. On every fall of

hat, divorce cannot be granted. Thus, the impugned judgment and

decree are set aside. The parties shall make a serious endeavour to

live together and live their conjugal life peacefully. It is only our

expectation.

In the result, the appeal stands allowed.

Prepare the decree accordingly.

Send down the LCRs thereafter.

          JUDGE                                          JUDGE




Moumita