Smt. Supriya Chakraborty vs Sri Avijit Choudhury
2022 Latest Caselaw 1038 Tri

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                       HIGH COURT OF TRIPURA
                         _A_G_A_R_T_A_L_A_
                           Mat App No.03 of 2021
Smt. Supriya Chakraborty, W/O. Sri Abhijit Choudhury, D/O. Late Phani
Bhusan Chakraborty, resident of Bhattapukur, near Bapuji School, P.S.
A.D. Nagar, Agartala, Sadar, West Tripura.
                                                  ......Appellant(s)
                                 VERSUS
Sri Avijit Choudhury, S/O Sri Narayan Choudhury, C/O. Sri Shankar
Choudhury, Bhati Abhoynagar, P.S. West Agartala, West Tripura.
                                                         ......Respondent(s)

For Petitioner(s) : Ms. R. Purkayastha, Advocate.

For Respondent(s) : Mr. Raju Datta, Advocate.

HON'BLE THE CHIEF JUSTICE (ACTING) HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY Date of hearing and Judgment : 8th December, 2022.

JUDGMENT & ORDER(ORAL)

Heard Ms. R. Purkayastha, learned counsel appearing for the

appellant and also heard Mr. Raju Datta, learned counsel appearing for the

respondent.

[2] The present appeal has been filed by the appellant under

Section 28 of the Hindu Marriage Act to challenge the impugned judgment

and decree dated 08.11.2019 passed by the learned Family Judge, Agartala

in Case No. T.S(RCR) 85 of 2016 wherein the learned Trial Judge

dismissed the suit filed by the appellant to obtain a decree of restitution of

her conjugal rights.

[3] The facts of the case, in brief, are that the marriage of the

appellant Smt. Supriya Chakraborty was solemnized with the respondent

Sri Avijit Choudhury on 02.03.2012 as per Hindu rites and after observing

all the necessary formalities of Hindu Marriage. Prior to solemnization of

marriage, the petitioner was employed in a private organization, namely,

Rose Valley and was posted at Agartala. After the marriage was

solemnized, the appellant came back to Agartala and resumed her office.

She used to visit in her in-laws house quite often. After the marriage, the

respondent lost his contractual job and out of their wedlock the appellant

became pregnant. When the appellant was carrying 3 months pregnancy

she was asked for abortion. When she denied, the respondent started to

assault her. In her parent's house also the respondent used to assault her.

On 09.04.2014 the petitioner gave birth to a male child and started to live

in her matrimonial home. On many occasions the respondent used to

assault her and tried to send her in her parent's house. Lastly, in the month

of April, 2016, the respondent beaten her up physically and mentally and

compelled her to leave from his house. The appellant since then is residing

in her parent's house at Agartala. Since no settlement was made to bring

her back to her matrimonial home, she filed the instant petition for

restitution of her conjugal rights with the respondent.

[4] The appellant initially filed a title suit before the Family

Court, Agartala, West Tripura for restitution of conjugal rights with the

respondent. During the course of argument, following issues were raised :

(i) Whether the respondent has driven out the petitioner from

her matrimonial home and thus deserted her without any

reasonable cause?

(ii) Whether the petitioner is entitled to the decree of

restitution of conjugal rights as prayed for.

[5] To substantiate the claim the appellant submitted examination-

in-chief of three witnesses namely, P.W.1, Smt. Supriya Chakraborty,

P.W.2, Smt. Sandhya Chakraborty, P.W.3. Smt. Sampa Chakraborty. On

the other hand, the respondent has also submitted examination-in-chief of

four witnesses namely, D.W.1, Sri Avijit Choudhury, D.W.2 Smt.

Madhuchhanda Choudhury, D.W.3 Shri Dhruba Lal Banik, and D.W.4

Smt. Gopa Banik.

[6] The learned Judge, Family Court, Agartala after taking into

considerations the issues raised by the appellant and after hearing the

submissions made by the counsel for both sides came to the conclusion that

since the appellant failed to substantiate the fact that the she was being

driven out from her in-law's house by assaulting her physically and

mentally, the prayer of the appellant to get a decree of restitution of

conjugal rights was rejected. The operative portion of the order reads as

follows :

"Hence, considering the entire facts and circumstances of this case, this court is of the considered view that the petitioner in this case has failed to substantiate the fact that she was being driven out from her in-laws house by committing torture either mentally and physically by the respondent and his family members or she was being deserted by her husband and deprived her from her conjugal life with the respondent without any reasonable ground and as such having regard to the entire pleadings and evidence on record this court is of the considered view that the petitioner in this case has failed to substantiate her case for obtaining a decree of restitution of conjugal rights against the respondent. So, the prayer of the petitioner to get a decree of restitution of conjugal rights, as prayed for, is rejected."

[7] Being aggrieved by the order of the learned Judge, the

petitioner filed the present appeal restitution of her conjugal rights.

[8] Learned counsel for the appellant submits that the learned

Judge, Family Court committed an error in not deciding the issue No.1

which was framed on the point of desertion and the finding of the Court on

the point of issue No.1 with regard to desertion has not been categorically

dealt with and the learned Judge given his finding on the said issue on the

point of maintainability having jurisdiction.

[9] On the other hand, learned counsel for the respondent submits

that the learned Trial Judge has not committed any error in rejecting the

prayer of the appellant.

[10] After hearing the learned counsel for both parties, this Court is

of the considered view that the learned Judge, Family Court has not

appreciated the facts of the case and could have more vigilant while

passing the order. Accordingly, the appeal is allowed and the judgment and

decree dated 08.11.2019 passed by the learned Family Judge, Agartala in

Case No. T.S(RCR) 85 of 2016 is set aside and the same is remanded back

to the court below for deciding the matter afresh. The other issues and the

other part of the order remain unchanged. The court below may decide the

matter in its entirety.

[11] The appeal is allowed to the extent indicated above. Pending

application(s), if any, also stands disposed of.

(S.G. CHATTOPADHYAY, J)                        CHIEF JUSTICE (ACTING)




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