Tripura High Court
Sri Abhijit Sarkar vs Smt. Priyanka Ghosh(Sarkar) on 13 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 10
HIGH COURT OF TRIPURA
AGARTALA
MAT APP NO.07 OF 2022
Sri Abhijit Sarkar,
S/o Sri Sadhan Sarkar,
Resident of Mohanpur, P.O.- Majalishpur,
P.S.- Ranirbazar, District- West Tripura.
......Appellant(s)
Versus
Smt. Priyanka Ghosh(Sarkar),
W/o- Abhijit Sarkar,
Resident of Village Natun Pally,
Volcan Club, P.S.- East Agartala,
District- West Tripura.
.......Respondent(s)
For the Petitioner(s) : Mr. D. Bhattacharjee, Sr Advocate.
Mr. Samar Das, Advocate.
Mr. Soumyadeep Saha, Advocate.
For the Respondent(s) : Mr. H.K. Bhowmik, Advocate.
Date of hearing and delivery of
Judgment & Order : 13.03.2024
Whether fit for reporting : NO .
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
T. AMARNATH GOUD(J)
This appeal has been filed under Section 28 of the
Hindu Marriage Act, against the Judgment and decree dated
30.03.2022 passed in T.S.(Divorce)240 of 2019 by the learned
Addl. Judge Family Court, West Tripura, Agartala.
2. On the last date of hearing i.e. on 12.03.2024,
when this case came up for consideration before this Court, the
Advocates appearing were heard and the same was fixed on today
for the personal appearance of both the parties.
3. Both parties are present today and initially the
appellant-husband indicated before this Court that on the ground of
„cruelty', he approached the Court below with a divorce suit but the
same was dismissed. Thereafter, he has preferred the present
appeal on the ground that the Court below has failed to appreciate
the serious 'allegation' made by the respondent-wife against the
appellant and his father. In connection to this, an FIR has also been
filed and the complainant respondent also prayed to send the
appellant-husband to imprisonment along with his family members.
As such, the appellant-husband prayed for an order of divorce by
filing this present appeal on the ground of cruelty.
4. Per contra the respondent-wife denied the said
'allegation' and made counter „allegation‟ before this Court against
the husband and also prayed to dismiss the appeal. Further, when
this Court made an effort to settle the matter amicably, the
appellant-husband declined to take his wife back to lead a conjugal
life. However, the respondent-wife expressed her willingness to join
him. Respondent-wife also submitted that she has a 5(five) years
old child and herself is around 25 years of age and they need the
care, love and affection of the appellant-husband.
5. This Court after making several deliberations came
to the conclusion that both the appellant-husband and the
respondent-wife cannot lead a conjugal life and this Court is also
conscious that by force, this Court cannot make both of them lead a
conjugal life.
6. In view of the above, the matter has been heard on
merit.
7. Mr. D. Bhattacharjee, learned Sr. counsel assisted
by Mr. S. Das, learned counsel, and Mr. Soumyadeep Saha, learned
counsel appearing for the appellant-husband argued his case for
grant of divorce on the ground of 'cruelty'. Learned Sr. counsel
submits that respondent-wife is not willing to reside in her
matrimonial home and she used to threaten her husband that she
would commit suicide and lock herself in the room regularly,
creating panic situation in the house. Further, the mother and
father of the respondent-wife used to interfere in the day-to-day
affairs of their matrimonial life. There was also an altercation
between the appellant-husband and respondent-wife including their
respective in-laws due to which a criminal case has also been filed
by the respondent-wife and the proceeding of the same is alive till
date.
To support his case of divorce on the point of
'cruelty', learned Sr. counsel appearing for the appellant-husband
referred to Para-101 of the Hon'ble Supreme Court Judgment
reported in (2007) 4 SCC 6 511 titled as Samar Ghosh and Jaya
Ghosh, the same is produced here-in-under:-
"101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some instances of
human behaviour which may be relevant in dealing with the cases of
'mental cruelty'. The instances indicated in the succeeding paragraphs are
only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute
mental pain, agony and suffering as would not make possible for the
parties to live with each other could come within the broad parameters of
mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the wronged
party cannot reasonably be asked to put up with such conduct and
continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect may
reach such a degree that it makes the married life for the other spouse
absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of other
for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to
torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually
affecting physical and mental health of the other spouse. The treatment
complained of and the resultant danger or apprehension must be very
grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total
departure from the normal standard of conjugal kindness causing injury to
mental health or deriving sadistic pleasure can also amount to mental
cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant of divorce on the ground of
mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married
life which happens in day to day life would not be adequate for grant of
divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill-conduct
must be persistent for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and behaviour of a
spouse, the wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without
medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy or abortion without medical
reason or without the consent or knowledge of her husband, such an act of
the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to
have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may
fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing to
sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties. In such like situations, it may lead to mental
cruelty."
8. On the other hand, Mr. H.K. Bhomwik, learned
counsel appearing for the respondent-wife argued that a divorce
petition can be granted only on the ground of 'desertion' and
'cruelty'. But both of the characteristics are missing in this present
case. Marriage was solemnized between both parties on 11.05.2018
and the child was born on 21.02.2019. The divorce case was filed
on 16.05.2019. The minimum criteria of divorce by 'desertion' is
2(two) years and the same is not fulfilled in this case. On the point
of „cruelty‟, learned counsel submits that the prosecution failed to
establish the fact of 'cruelty', only some omnibus and trivial
statements have been made on the behavior and lifestyle of the
respondent-wife.
To strengthen his argument, learned counsel
appearing for the respondent-wife referred to the relevant portion
of the Hon'ble Apex Court Judgment titled as R. Balasubramanian
Vs. Smt. Vijayalakshmi Balasubramanian passed on 11th
August, 1999. The same is produced here-in-under:-
"Mr. A.B. Rohatgi, learned counsel appearing for the husband
submitted that as far as the allegation of adultery against respondent-
wife is concerned he is not going to press. That may be good of him
but the fact remains that the allegation that the wife had sexual
intercourse with a person other than the husband is a serious
allegation against the wife and shows the cruel conduct of the husband
entitling the wife to seek relief against him under the Act or otherwise.
It was submitted that on July 6, 1979 parties celebrated their tenth
wedding anniversary. That would show that both were living together
and it is apparent that the husband has condoned the cruelty, if any,
alleged by him against the wife. Husband has not gone to see his third
child Kamakshi since her birth. High Court has rejected his plea that he
ever made attempt to bring his wife and the daughter, who was born
to her at her parents house. High Court has considered pleadings and
the evidence on record threadbare and came to the conclusion that the
case of cruelty and desertion set up by the husband has not been
proved. We agree with the High Court and rather we find that it is
husband, who is in wrong.
[emphasis added]"
9. Heard both sides and perused the evidence on
record.
10. In view of the above submission, this Court feels
that serious allegations made by the respondent-wife against the
appellant-husband and his family members that the father-in-law
used to misbehave with her and abused her and touched her on the
chest and also pushed her and the unacceptable behaviour of the
husband, in all, the contents of the compliant, constitute the ground
of 'cruelty' for filing a divorce. Thus, in the light of the Hon'ble
Supreme Court Judgment passed in Samar Ghosh and Jaya
Ghosh (supra), this Court for the submissions and reasons
recorded above considers granting of divorce. Accordingly, this
instant application filed for grant of divorce by the appellant-
husband stands allowed. The Judgment as preferred by learned
counsel appearing for the respondent-wife is not relevant to the fact
of the case.
11. Now coming to the point of fixing the permanent
alimony, the appellant himself indicated that he is doing trading
business on a commission basis. His father is a retired Government
Employee, they have their own property to stay and he earns
around Rs.30,000/- per month. Further, the appellant-husband has
been paying a monthly maintenance of Rs.6,500/- till date to the
respondent. The said submission made by the appellant-husband is
not disputed by the respondent-wife.
12. In view of the above submission made as well as
after considering all aspects and after discussion with both sides,
this Court comes to the conclusion that it would be appropriate if
Rs.10,00,000/-(Rupees ten lakhs)only is fixed as permanent
alimony for the respondent-wife and Rs.5,00,000/-(Rupees five
lakhs) only is fixed as permanent alimony for their baby-child
Akshita Sarkar, in total Rs.15,00,000/-(Rupees fifteen lakhs)only.
The appellant in consultation with his father Mr. Sadhan Sarkar who
is present before this Court submits that they would pay the same
amount in 3(three) equal monthly instalments. The respondent-wife
agreed to receive the same.
13. Considering the same, this Court grants 3(three)
months time to the appellant herein for paying the said permanent
alimony of Rs.15,00,000/-(Rupees fifteen lakhs) only. The 1st
instalment of the said permanent alimony is to be paid on or before
the 1st of April, 2024, the 2nd instalment is to be paid on or before
the 1st of May, 2024 and the 3rd instalment is to be paid on or
before 1st of June, 2024. So far as the permanent alimony for the
baby-child is concerned, the said Rs.5,00,000/-(Rupees five lakhs)
is to be deposited in a nationalized Bank by way of fixed deposit till
the child attains majority and the mother shall be guardian cum
nominee. The petitioner-husband shall deposit the said amount to
the Bank account of the respondent-wife wherein he has been
paying the monthly maintenance.
14. This Court also directs the appellant-husband to
return the articles/gifts which he had received at the time of the
marriage with the respondent-wife within the stipulated time of
3(three) months mentioned here-in-above. The wife-respondent
shall duly receive the same.
15. Both parties shall take steps to get the matter
closed before the concerned Court(s)/police station or any other
forum as expeditiously as possible before the entire amount of
alimony is paid.
16. This decree of divorce will come into operation only
after the final payment of permanent alimony is made. It is
needless to observe that once this permanent alimony of
Rs.15,00,000/-(Rupees fifteen lakhs) only is paid, the appellant
need not pay any maintenance to the respondent-wife and the
child.
17. Further it is also observed that in the event if the
father i.e., the appellant herein wants to have visitation rights of
child i.e. Baby Akshita Sarkar, the appellant-father can go and visit
her and even take her and spend some time with the child.
18. This order is passed with the mutual consent of
both the parties in the presence of their respective counsel.
19. With the above observation, the present appeal is
allowed and disposed of and the impugned order passed by the
Court below is set aside. As a sequel, stay if any stands vacated.
Pending application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2024.03.16
SINGHA 11:51:24 +05'30'
