Sri Subrata Das vs Smt. Uma Majumder (Das)
2022 Latest Caselaw 287 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                              MAT.APP.14 of 2018

Sri Subrata Das,
son of Sri Swapan Chandra Das
of Village-Dwajanagar, P.S. R.K. Pur,
District - Gomati Tripura
                                                              ..........Appellant(s)
                                        Versus
Smt. Uma Majumder (Das),
wife of Sri Subrata Das
of Jail Road, Udaipur,
P.O. R.K. Pur, P.S. R.K. Pur,
District - Gomati Tripura

presently residing at
care of Amal Deb
of Dakbangla Road, Word No.9, Udaipur,
P.O. R.K. Pur, P.S. R.K. Pur,
District -Gomati Tripura
                                                            ..........Respondent(s)

For Appellant(s)                  : Mr. A. Acharjee, Adv.
For Respondent(s)                 : Mr. B. Banerjee, Adv.

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

                           Judgment & Order(Oral)

10/03/2022

[S. Talapatra, J]

Heard Mr. A. Acharjee, learned counsel appearing for the

appellant as well as Mr. B. Banerjee, learned counsel appearing for the

respondent.

2. This is an appeal under Section 19(1) of the Family Courts Act,

1984. It arises from the judgment dated 03.04.2017 delivered in T.S.(Div.)46

of 2015 by the Judge, Family Court, Udaipur, Gomati District, Tripura.

3. The resume of facts which is considered relevant is being

introduced at the outset. The appellant herein filed a petition under Section

13(1)(ia)&(ib) of the Hindu Marriage Act, 1955 seeking dissolution of the

marriage which subsists between the parties and was solemnized on

24.04.2008 as per Hindu Rites and Customs. The allegations as has been made

against the respondent are that the respondent had been avoiding preparation

of food for the family members. The respondent has never accepted the

appellant as her husband. But it has not been denied that in the wedlock, a

female child was born. At present, the said female child is living with the

respondent. Further, it has been stated that a false complaint was filed against

the appellant and his parents, which was registered as R.K. Pur Case

No.263/2012 under Section 498(A) of the IPC corresponding to Case

No.PRC(GR)406 of 2012. It has been elaborated that not only the appellant,

but the parents were implicated in that said case based on the false complaint.

The charge-sheet was filed against the accused persons and the appellant had

to suffer fourteen days in the jail custody as the bail was initially denied to him

on his surrender before the Court of the Chief Judicial Magistrate, Gomati,

Tripura. But the parents were granted bail on the same day of their surrender

before the court. After trial, the appellant and his mother were acquitted by

the judgment dated 16.06.2014 as delivered in PRC(GR)406 of 2012 on

observing as follows :

"In the result, I find, the prosecution has failed to prove its case beyond any reasonable doubt of the offence punishable under Section 498A of IPC against accused namely Sri Subrata Das and Smt. Marani Bala Paul @ Asha

Das and, therefore, the accused namely Sri Subrata Das and Smt. Marani Bala Paul @ Asha Das are acquitted from the liability of the offence punishable under Section 489A of IPC. The accused persons are set at liberty forthwith."

4. Even, prior to coming to this conclusion, the trial court has

observed that due to non-corroboration in establishing certain facts, he did not

find the evidence beyond all reasonable doubt against the appellant. Now,

since, the appellant has been acquitted, according to him, sending him to the

jail custody for fourteen days and forcing him to gruel through the persecution

of judicial trial, adequately constituted cruelty. That apart, as the appellant and

the respondent have been living separately for more than two years after the

appellant left the respondent in a rented house that constitutes the desertion.

In para 12 of the petition, it has been also asserted that the marital tie in

between the appellant and the respondent has been irretrievably broken.

5. The respondent by filing the written statement on 04.05.2016

squarely denied the allegations and stated that the complaint that she filed was

based on cruelty that she suffered in the matrimonial life and hence, there is

no question of filing a false compliant to the police. She had however also

stated in para 6 of the written statement as follows :

"But after amicable settlement in between both the parties afore mention the case was disposed by the Ld. Judicial Magistrate 1st class, Udaipur (court no.2) on 16- 06-2014 passed the Judgment and acquitted the petitioner and his mother. Thereafter the respondent went her matrimonial house and started conjugal life with the petitioner as husband and wife."

6. The respondent has also stated that on her petition being

Misc/FC/UDP/67/2012 as filed in the Court of the Judge, Family Court, Udaipur,

Gomati Tripura for maintenance under Section 125 of the Cr.P.C., the Judge,

Family Court by the order dated 25.04.2013 directed the appellant to pay the

maintenance at Rs.1000/- per month to the respondent and another sum of

Rs.2000/- per month to the minor daughter. In para 11 of the written

statement it has been stated that since the petitioner was hell-bent to get rid

of marital relation and that is the reason why he has filed the petition for

dissolution of marriage but the allegations that has been made against her in

the said petitions are all false and concocted and hence, she has denied all

such allegations. In para 16, the respondent has given a short detail of the

gifts that her parents had given during her marriage. But she has denied of

taking a sum of Rs.4,00,000/- from the respondent. But she was very

categorical in para 17 that on 10.08.2009, the appellant herein started physical

torture upon her within the knowledge of the in-laws of the respondents.

Under such circumstances, she filed the complaint before the R.K. Pur Police

Station, which was later on registered as a specific criminal case as mentioned

before. Thereafter, the Judge, Family Court framed the following issues for

determining the petition seeking dissolution of marriage :

"1. Whether the respondent committed cruelty upon the petitioner and permanently deserted the petitioner ?

2. Whether the petitioner is entitled to get the decree for dissolution of marriage ?"

7. The appellant, as the petitioner, adduced two witnesses including

himself [PW-1]. The respondent had examined herself [DW-1] in regard to the

evidence of the appellant. After the evidence was recorded, the Judge, Family

Court appreciated those evidence and on analysis observed that from the

deposition of PW-1 and DW-1 it is clear that though the petitioner filed this

case for divorce, he does not want divorce from the respondent herein as can

be seen from the examination-in-chief of the petitioner [the appellant herein].

Moreover, the story of PW-1 regarding taking of money by the O.P. from the

petitioner is only self-serving evidence and that part of his evidence has not

been supported even by PW-2. PW-1 and PW-2 came up with two different

stories and did not support each other.

8. Mr. A. Acharjee, learned counsel appearing for the appellant has

submitted that the Judge, Family Court has utterly failed to appreciate the

incidence of institution of the criminal case against the appellant and his

mother. Mental cruelty as emanated from the said prosecution has been

omitted to the serious prejudice of the appellant. This omission shows that the

evidence was not properly appreciated. Filing of a false case is itself a cruelty.

The appellant had suffered fourteen days' jail custody as consequence of that

false complaint and he had lost his social dignity. Mr. Acharjee, learned counsel

had quite emphatically submitted that the acquittal shows the complaint was

false and hence, this evidence is sufficient to constitute the cruelty within the

meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. That apart, Mr.

Acharjee, learned counsel has contended that since the parties are living

separately for two years, the desertion is evident in the face of the record, no

further proof is required. In addition, Mr. Acharjee, learned counsel has

submitted that the marriage has been broken irretrievably and as such, it

would be wiser to grant the decree of divorce by dissolving the marriage that

subsist between the parties.

9. Mr. B. Banerjee, learned counsel appearing for the respondent

having drawn out attention to the deposition of PW-1 and DW-1 has submitted

that PW-1 [the appellant] in his deposition on his examination-in-chief has

categorically stated, as under :

"I do not want to get divorced from the respondent."

Similarly, DW-1 [the respondent] has also stated that she is not

interested in dissolution of marriage as she has a minor child.

10. For purpose of appreciation of the submissions made by the

learned counsel, we find it apposite to reproduce the entire statement made by

PW-1 [the appellant] in the trial :

"I am the husband petitioner of this case. My marriage was solemnized with the respondent about 8 years back but there was no social marriage. After marriage we started living together as husband and wife in my house and out of our cohabitation the respondent gave birth of a she baby who is presently 7 years old. After marriage for about 2 years I spend my married life happily with the respondent but thereafter a dispute cropped up in between me and the respondent over a issue of money. At that time I had a garments shop at North Chataira and during this period the respondent borrowed Rs.4,00,000/- from me and when I asked the respondent to return me back the same she started quarreling with me and left my house and started living in a rented house and later on I also started residing in the rented house and we stayed there for about 1 ½ years but there also the respondent continued her quarrel with me. When I used to come back to home from work I used to not find the respondent at home and over this issue a quarrel took place in between me and the respondent and lastly 3 years back I left the rented house and started residing in my house. On several occasions I tried to take back the respondent but she refused. Since then there is no relation in between me and the respondent. The respondent is still residing in the rented house. I do not want to get divorced from the respondent.

It is not a fact that the respondent did not start quarrel with me over the issue of money.

It is not a fact that the respondent did not borrow Rs.4,00,000/- from me and when I asked the respondent to return the money she did not start quarrelling with me and did not leave the matrimonial home.

It is not a fact that I committed mental and physical torture upon the respondent.

It is not a fact that I tortured the respondent for demand of money of Rs.15,000/- and subsequently another Rs.1,00,000/-.

It is not a fact that I am deposing falsely in this case."

11. We have also read the statement/deposition of DW-2, the father

of the appellant along with the deposition of DW-1 [the respondent]. In the

examination-in-chief PW-1 has categorically stated that three years back, he

left the rented house where the appellant and the respondent were living to

lead their conjugal life and he has also stated that on several occasions he

tried to take back the respondent but she refused. In the face of such

statement, it is very difficult to believe that the respondent deserted the

appellant and left the appellant permanently. PW-2 was brought to corroborate

that part but he did not corroborated that part but he has stated vaguely:

"Over this issue baithak was also held but all were in vain."

He has not attributed anything against the respondent that for obstinacy

of the respondent, the differences could not be reconciled. For purpose of

constituting desertion animus deserendi has to be proved that after the

formation of animus, meaning total breaking down of marital tie two years has

elapsed and despite the efforts from the other spouse, the spouse who is

facing allegation of desertion, did not come back to the matrimonial home.

There is no such evidence on record. As such, we confirm the finding of the

Judge, Family Court that there is no proof of desertion. Finally, when we

scrutinized the records we find that the fact of institution of complaint,

investigation and filing of the police report under Section 173(2) of the Cr.P.C.

has been well proved. It has also been denied by the respondent that the

husband suffered fourteen days jail custody for the said complaint for his

criminal conduct and finally, the husband and her mother-in-law was acquitted

from the charge, however, for failure of the prosecution, to prove the case

beyond reasonable doubt. The respondent has also stated in her deposition

that before the trial actually commenced, there was an amicable settlement

and the acquittal was outcome of that amicable settlement. But unfortunately,

we do not find any such statement in the deposition of DW-1 [the respondent].

12. Be that as it may, this court held that when an accused is

acquitted from the charge for absence of evidence beyond reasonable doubt, it

cannot be held that the initiation of the prosecution was on the basis of a false

complaint. It has been, time and again, observed various courts that an

acquittal without any blemish and acquittal for not proving the case beyond

reasonable cause are two distinct categories. In the first category, if someone

is acquitted without any blemish and the trial court observes that the

institution of the complaint was wholly malicious then, of course, the benefit

would be garnered by the person who is affected by the prosecution. But in

this case, we do not find such evidence. Moreover, on reading of the judgment

of the trial court, as referred before, we find that there were some materials

against the appellant but for lack of corroboration of each of the materials, the

trial Judge has given the benefit of doubt to the appellant. As such, on that

ground, we cannot hold that the cruelty has been proved. But most

importantly, PW-1 in his examination-in-chief has stated clearly that he does

not want divorce. In the face of such record, the judgment of the Judge,

Family Court, Udaipur Gomati District cannot be faulted with. As corollary, we

affirm that judgment.

In the result, the appeal stands dismissed.

Draw the decree accordingly.

Thereafter, send down the LCRs.

                       JUDGE                                                  JUDGE




Sabyasachi B