Sri Bijan Kumar Sarkar vs Smt. Aparna Das (Sarkar)
2022 Latest Caselaw 286 Tri

                       HIGH COURT OF TRIPURA
                             AGARTALA
                       MAT App. No. 15 of 2018

Sri Bijan Kumar Sarkar
                                                           ........Appellant(s)
                              Versus
Smt. Aparna Das (Sarkar)
                                                        ........Respondent(s)

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

For Respondent(s)      :      Mr. Rajib Saha, Adv.

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

                                  Order

10/03/2022
[S. Talapatra, J.]

Heard Mr. K. Nath, learned counsel appearing for the

appellant as well as Mr. Rajib Saha, learned counsel appearing for the

respondent.

This appeal under section 19(1) of the Family Courts Act,

1984 arises from the judgment dated 27.07.2018 delivered in

T.S.(Divorce) 37 of 2016 by the Judge, Family Court, Udaipur, Gomati

District, Tripura. By the said judgment dated 27.07.2018 which has

been challenged under this appeal, the Judge, Family Court, Udaipur

has dismissed the petition for granting decree of divorce having

observed as follows:

"Another question which revolves in our mind is that as to why the respondent started leaving matrimonial home frequently after few months of their marriage. It is not that immediately after marriage she started leaving her matrimonial home. Why after few months? There is no

allegation made by the Petitioner as to any illicit relationship of the respondent. So, again and again the question comes to surface as to why she used to leave her matrimonial home frequently. She alleged that she was being tortured both mentally and physically by the Petitioner over the demand of dowry. For this reason she filed a criminal case u/s 498-A of IPC against the Petitioner. Admittedly, the said case ended in compromise. So, the allegation of torture made by the respondent cannot be ruled out straight away. In fact, I find no ground to disbelieve the respondent as the veracity of the respondent could not be shaken. So, the overall circumstances as discussed above, indicates that the Petitioner himself is at fault. According to Section 23(1)(a) of the Hindu Marriage Act, 1955 the Petitioner cannot take the advantage of his own wrong. So, the Petitioner cannot be granted divorce on the ground of cruelty. Hence, Issue no.I is decided in negative against the Petitioner.

Next comes Issue no.II, i.e. the question of „desertion‟.

The essence of „desertion‟ under Hindu Marriage Act is the forsaking the abandonment of ones spouse by the other without reasonable cause and excuse. In the instant case it has been already established that there are sufficient reasons for the respondent for living separately from the Petitioner. It has also been established that the Petitioner has been giving maintenance allowance according to the order of this court u/s 125 Cr.P.C. The fact that a husband makes a maintenance allowance to a wife whom he refused to maintain or neglected to maintain is no answer to a charge of „desertion‟. The plea of the Petitioner is that for a long period like (4 years) the Petitioner and the respondent have been living separately and according to the Petitioner such long separation made the relationship between the Petitioner and the respondent dried. Here, I am of different opinion as the „separation‟ may be as long as 50 years but if the Petitioner himself is liable for such long separation, he must not be allowed to take the advantage of his own wrong otherwise, the very purpose of the Hindu Marriage Act will be frustrated. Hence, issue no.II is also decided in negative and against the Petitioner."

Thereafter, the Judge, Family Court has inferred that in view

of the findings, as noted above, the relief as sought by the appellant in

the petition cannot be granted.

From the petition that was filed for granting divorce on the

ground of cruelty and desertion under section 13(1)(ia)&(ib) of the

Hindu Marriage Act, 1955, the appellant has alleged, inter alia, that

after his marriage with the respondent which has been solemnized on

04.10.2010, the respondent started behaving as if she was a guest in

the family of the appellant. The respondent started insisting the

appellant to be Ghar Jamai meaning the resident husband. But, since

the appellant did not agree, the respondent started misbehaving with

him and finally, she left the matrimonial home. On 05.01.2012, the

respondent left the matrimonial home and never came back. It has

been alleged that the respondent has filed one complaint under section

498A of the IPC in the R.K. Pur Womens Police Station and on the basis

of the said complaint, a specific police case under section 498A was

registered and investigated. On completion of the investigation, a police

report was filed against the appellant. It has been stated that the

respondent had initiated a further proceeding under section 125 of the

Cr.P.C for having the maintenance from the appellant and that was

allowed by the Judge, Family Court, Udaipur with a direction to the

employer to recover the maintenance allowance every month from his

salary. Thereafter, a proceeding [under Section 127 of the Cr.P.C.] was

also initiated by the respondent for enhancing the maintenance

allowance.

The respondent by filing a written statement denied all

those allegations leveled against her and categorically stated that it is

the appellant who was not discharging his marital obligations and

duties. She has further stated that she never asked the appellant to be

Ghar Jamai as alleged or otherwise. She has also denied that

continuously since 2012 she had been living separately. In Para 12 of

the written statement, the respondent has stated as follows:

"The opposite party [the respondent herein] informed the matter to her parents and the parents of the opposite party expressed their inability to fulfill the illegal demand of the petitioner. The petitioner and his relatives thereafter always used to torture both mentally and physically on demanding the said cash dowry."

She has however admitted that she filed a complaint under

section 498A of the IPC and initiated the proceeding under section 125

of the Cr.P.C for justice and maintenance.

Mr. Nath, learned counsel has initially submitted that

institution of the complaint under section 498A and acquittal of the

appellant from the charge itself is sufficient proof of cruelty. Hence, the

Judge, Family Court has committed a serious illegality by not

appreciating that fact. Mr. Nath, learned counsel has further submitted

that the respondent is unwilling to restitute the conjugal life and that is

the reason why she has been living separately from the appellant from

2012 by depriving him from the right of cohabitation. For this purpose,

Mr. Nath, learned counsel has brought us to the judgment of the trial

court. According to him, the acquittal is without any blemish. For this

purpose, he has taken us to the finding as recorded in the judgment of

acquittal, which reads as follows:

"In the result, I find, the prosecution has failed to prove its case of the offence punishable under Section 498A of IPC against accused namely Sri Bijan Kumar Sarkar and, therefore, the accused namely Sri Bijan Kumar Sarkar is acquitted from the liability of the offence punishable under Section 498A of IPC. The accused is set at liberty forthwith."

Mr. Nath, learned counsel has further submitted that this

appeal deserves to be allowed by granting the decree of divorce. But,

when this Court querying Mr. Nath on the statement made by the

appellant [PW-1] to the effect that "Once she left the matrimonial home

and filed criminal case against me and my mother which was settled on

compromise." He had no answer and incidence of such compromise has

been recorded in the cross examination by the trial judge i.e. the

Judicial Magistrate First Class, Court No.1, Gomati District in the

following manner:

"In cross-examination P.W.3 stated that at present dispute has amicably been settled between her daughter and her husband with the intervention of their well wishers and she was present in the said settlement and now her daughter is residing peacefully with her husband and she has no grievance against her son in law."

Similarly, the respondent has also stated in her cross-

examination which has been recorded by the Judicial Magistrate First

Class, Court No.1, Gomati District in the following manner:

"In cross-examination P.W.2 stated that at present the dispute has been amicably been settled between her and her husband with the intervention of their well wishers and now she is residing peacefully and she has no grievance against her husband and she does not like to proceed further with the case."

Mr. Nath, learned counsel has further contended that this

cannot be taken into consideration as the appellant has suffered the

derogation in the estimate of the society.

Mr. R. Saha, learned counsel appearing for the respondent

has taken us to one part of the deposition of DW-1, the respondent

herein, where she has stated as follows:

"I still visit the house of the petitioner but I cannot stay there due to continuous dispute. The petitioner also visits our house. There is still relation between me and the petitioner. I am still willing to continue my matrimonial relation with the petitioner."

DW-2 has also corroborated that part of the statement of

the respondent.

We have scrutinized the records and re-read the entire

evidence available therein and appreciated the submissions extended by

the learned counsel for the parties.

It appears to us that the appellant has failed to prove the

grounds such as cruelty and desertion. His endeavour to prove went

haywire. The appellant [PW-1] has admitted that on the basis of the

compromise by the respondent [DW-1] did not state anything in the

trial. This was so done by the respondent with hope of restitution of

conjugal life. The trial court, has accordingly, acquitted the appellant.

In the considered opinion, we are of the further view that

such acquittal cannot be utilized for establishing cruelty against the

other spouse. Moreover, we do not find any evidence relating to

desertion as the element of animus has not been proved. That apart,

the statement of DW-1 as quoted above, has not been confronted

during her cross-examination. Even she has denied that she is not

willing to continue with the matrimonial relation.

On overall assessment of the evidence as noted above, we

do not find any merit in this appeal. Accordingly, the same stands

dismissed.

Draw the decree accordingly. Send down the LCRs

thereafter.

                   JUDGE                                     JUDGE




Sabyasachi G