Smt. Rekha Datta (Sarkar) vs Sri Anil Kumar Sarkar
2021 Latest Caselaw 162 Tri

                             HIGH COURT OF TRIPURA
                                   AGARTALA
                                     MAT APP.24 of 2019

     Smt. Rekha Datta (Sarkar)
                                                                   ..........Appellant(s)

                                           Versus

     Sri Anil Kumar Sarkar

                                                                 ..........Respondent(s)

     For Appellant(s)            :      Mr. K. Nath, Adv.
     For Respondent(s)           :      Mr. N. Chowdhury, Adv.


                    HON'BLE MR. JUSTICE S. TALAPATRA
                 HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                          Order
     11/02/2021

Heard Mr. K. Nath, learned counsel appearing for the appellant [wife]

and Mr. N. Chowdhury, learned counsel appearing for the respondent.

2. By means of this appeal, filed under Section 19(1) of the Family Courts

Act, 1984, the appellant has challenged the judgment dated 27.04.2018 delivered in

T.S.(Divorce)No.187 of 2015 by the Judge, Family Court, Agartala, West Tripura.

3. The respondent [husband] instituted the matrimonial suit being

T.S.(Divorce)No.187 of 2015 under Section 13(i)(a) and Section 13(i)(b) of the

Hindu Marriage Act, 1955 seeking dissolution of marriage between the parties.

indisputedly, the marriage between the parties was solemnized on 12.06.1976 and

the said petition was filed on 18.06.2015 when the parties reached their advanced

age for breakdown of the relation on the ground of cruelty and desertion.

4. In the petition filed before the Judge, Family Court, the respondent has

pleaded that the appellant used to ill-behave with him and such ill-behaviour was of

such decree constituted that cruelty. Consequence of that, he lost a healthy living

within the marital relation. He fell ill impacted by those cruel conduct of the

appellant. Even his son and daughter in law witnessed the cruel treatment meted by

the appellant herein. On 17.03.2018, the appellant allegedly hired some unknown

muscle-men and they had thrown his son and daughter in law from his residence.

Even his daughter tried to make the appellant understand that she was behaving

such a manner that fall may turn out to be fatal for the respondent herein. The

respondent [the petitioner in the matrimonial suit] nurtured full love for the

appellant, but she had destroyed every gain of love by her behaviour.

5. Having been subjected to the continuous cruelty, the petitioner became

a chronic patient of heart diseases and finally, in June, 2011, he had to undergo a

major heart surgery. The appellant had set in a proceeding under Section 125 of the

Cr.P.C. for having maintenance from the respondent. In terms of the order passed

by the Judge, Family Court, the respondent has been paying a sum of Rs.3000/- per

month. Moreover, on 25.02.2014, the petitioner was forced to agree in making

payment of Rs.2,52,460/- to the appellant from his retiral benefit. In para-24 of the

petition, the respondent has made a serious allegation in the following words :

"But the Opposite Party [the appellant herein] ferociously tried to tear the stitches and started beating him mercilessly. The son of the petitioner and the Opposite Party along with security staff of RTIIC prevented the Opposite Party."

As, their marriage had broken irretrievably, that persuaded the

respondent to file the matrimonial suit seeking divorce.

6. The allegations as noted above, has been disputed by the appellant

herein by filing a substantive written statement. According to her, the respondent

was indifferent in raising their children. She has made the counter blast by stating

that the allegation of assaulting the respondent was untrue. On the contrary, the

respondent treated the appellant with cruelty. The appellant had all dedication to

discharge the matrimonial obligation and to raise the children. In para-22 of the said

written statement, the appellant has asserted as follows :

"That in connection with para 17, the Petitioner have purchased a plot of and at Devramthakur Para, West Tripura and has been living there with Srimati Sarkar alias Simar Sarkar, as husband and wife under same roof for many years. It is the Petitioner who has deserted the OP and after deserting the OP, the Petitioner has been living in adultery."

The appellant denied the allegation that "she tried to kill the respondent

in order to enjoy the family pension in full."

7. According to her assessment, matrimonial relation can be reconstructed

if the respondent had given up the life of adultery and returned back to a normal

life.

8. In the face of those rival contentions, the Judge, Family Court

formulated the following issues/questions for determining the suit :

"(i) Whether the husband-petitioner was subjected to cruelty by the wife-respondent?

(ii) Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition?

(iii) Is the petitioner entitled to the decree as prayed for?"

As, after filing of the written statement, the appellant did not appear

before the court consecutively without informing the Judge, Family Court or taking

any steps, the said suit proceeded ex-parte. Lastly, on 13.10.2018, the case was

fixed for cross-examination of the respondent [PW-1] but none came forward to

cross examine him. As a result, on the basis of the evidence as laid by the

respondent, the Judge, Family Court returned the finding that the ground of cruelty

and desertion [both inclusive] have been established by the respondent by the

evidence. The Judge, Family Court on the basis of such finding, has dissolved the

marriage by a decree of divorce, which is under challenge in this appeal.

9. Mr. K. Nath, learned counsel appearing for the appellant has submitted

that it is an ex-parte decree and as such, the judgment may be interfered with and

remanded for re-trial after affording the scope of adducing evidence to the

appellant.

10. We have given our anxious consideration to the reason for not attending

proceeding and the evidentiary materials, and found that the respondent has made

out a case of cruelty and desertion to the hilt. That apart, the allegation of adultery

as made indicates clearly to the breakdown of the marital relation. The allegation is

not about a single act of adultery. The allegation against the respondent was "living

with the adultery" like "husband and wife". We have given our appreciation

extended to the pleaded facts and evidence and conduct of the respondent in the

proceeding.

11. We do not find any substance in the submission of Mr. Nath, learned

counsel, as noted, that this is a case where this court should interfere the decree as

passed by the Judge, Family Court and remand it to the court below and as such,

this appeal stands dismissed.

Draw the decree accordingly.

Before parting with the records, we have gathered after interacting with

the parties and their counsel that at present the appellant is getting a sum of

Rs.3000/- as the monthly maintenance allowance from the respondent. Considering

the various factors, such as increase in the living cost, we direct the respondent to

pay a sum of Rs.5000/- per month to the appellant with effect from 01.02.2021

which will be payable within seven days from the date of the next month and the

respondent shall continue to pay the said amount in the same manner until further

order.

                           JUDGE                                                       JUDGE




Sabyasachi B