Tripura High Court
Smt. Joyasree Dey vs Shri Jayanta Ghosh on 13 September, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 17
HIGH COURT OF TRIPURA
AGARTALA
Mat.App.11 of 2023
Smt. Joyasree Dey ......Appellant
Versus
Shri Jayanta Ghosh .........Respondent
Mat.App.12 of 2023
Smt. Joyasree Dey ......Appellant
Versus
Shri Jayanta Ghosh .........Respondent
For the Appellant(s) : Mr. Samrat Kar Bhowmik, Sr. Advocate
Mr. E.L. Darlong, Advocate
For the Respondent(s) : Ms. R. Purkayastha, Advocate
Mr. R. Saha, Advocate
Date of hearing : 11.09.2024.
Date of pronouncement
of Judgment & Order : 13.09.2024.
Whether fit for reporting : No ______
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Mr. Samrat Kar Bhowmik, learned senior counsel
assisted by Mr. E.L. Darlong learned counsel appearing for the
appellant. Also heard Ms. R. Purkayastha, learned counsel and Mr.
R. Saha, learned counsel appearing for the respondent.
[2] The present appeal being Mat.App.11 of 2023 has been
preferred challenging the judgment dated 18.05.2023 and decree
dated 29.05.2023 passed by the learned Addl. Judge, Family Court
Agartala, West Tripura in Title Suit (Div.) No.384 of 2019. On the
other hand, the appeal being Mat.App.12 of 2023 has been
preferred challenging the judgment dated 18.05.2023 and decree
29.05.2023 passed by the learned Addl. Judge, Family Court,
Agartala, West Tripura in Title Suit (RCR) No.05 of 2020. Since
these appeals arise out of a common cause of action, the parties of
both these appeals are same, issues involved in both the cases are
similar in nature and moreso, learned counsel representing the
parties are same, these are taken up together for consideration and
disposal by a common judgment and order.
[3] The brief facts of these cases are that the marriage of
the appellant wife and the respondent husband was solemnized on
27.04.1999 as per Hindu Rites and Customs and out of their
wedlock one son and one daughter were born. The appellant-wife is
a service-holder in the Government of Tripura whereas; the
respondent-husband is an employee of Government of India. It is
contended in the present appeals that the son is about 24 years old
who completed his Agri. B. Sc degree and the daughter is about 21
years old pursuing master degree in MCA. The respondent-husband
namely, Mr. Jayanta Ghosh preferred a petition being T.S.(Divorce)
384 of 2019 under Section 13(1)(ia) (ib) of the Hindu Marriage Act,
1955 before the learned Court below seeking dissolution of his
marriage with Smt. Joyasree Dey (appellant herein) by a decree of
divorce. It was mainly alleged in the said petition before the Court
below that the wife and her parents used to torture her husband to
discontinue all relations with his parents. The wife denied for
dissolution of the marriage stating various grounds including torture
upon her by her husband in her written statement. She admitted
their marriage and denied all the allegations made by her husband
in his plaint. The wife-petitioner did not dispute any fact of their
parenthood of their children. Learned Court below after observing
all the factual aspects and examining the witnesses, allowed the
decree in favour of the husband on 18.05.2023 and thereafter,
decree was passed on 29.05.2023 in his favour. The relevant
contents of the said order dated 18.05.2023 passed in T.S.(Divorce)
384 of 2019 is extracted as under:
"......O R D E R
28. In the result, the suit is decreed in favour of the petitioner-
husband as he has successfully established the facts of cruelty and
desertion against the wife-respondent. Accordingly, it is ordered that the
marriage between the petitioner, Sri Jayanta Ghosh and the respondent
Smt Joyasree Dey is dissolved by a decree of divorce from today i.e. from
18.05.2023.
29. The case is disposed of on contest without cost.
30. Prepare a decree accordingly within due time.
31. Supply copy of the decree free of cost to both the
parties..........."
[4] On the other hand, the wife-petitioner filed a petition
being T.S. (RCR) 05 of 2020 before the Court of Addl. Judge, Family
Court, Agartala, West Tripura under Section 9 of the Hindu Marriage
Act, 1955 against her husband, Sri Jayanta Ghosh for a decree of
restitution of conjugal rights. It was mainly alleged by the wife
before the learned Court below that in the course of her marital life,
she was subjected to mental and physical torture by her husband
and in-laws. It was also alleged that the husband-respondent was in
extra-marital affairs with one lady. It was contended before the
learned Court below that she had condoned all the illegal activities
of her husband and would be ready to continue her conjugal life
with her husband. The petitioner appeared before the Court below
and admitted his marriage with the petitioner but denied all the
allegations and averments made by the wife in her petition for
restitution of conjugal rights. Learned Court below after observing
all the factual aspects and examining the witnesses, dismissed the
petition of the wife by order dated 18.05.2023 and thereafter,
decree was accordingly passed on 29.05.2023 against the wife. The
relevant contents of the said order dated 18.05.2023 passed in
T.S.(RCR) 05 of 2020 is extracted as under:
"......O R D E R
18. In the result, the petitioner-wife herein has miserably failed to
prove her case for a decree of restitution of conjugal rights against the
respondent-husband and the petitioner is not entitled to get the decree of
restitution of conjugal rights as prayed for. In the divorce case filed by the
respondent herein vide case No. TS(Div) 384/2019 this court also granted
decree of divorce in favour of the husband-respondent as he was able to
prove his case against the respondent-wife on the ground of cruelty and
desertion on her part.
19. Accordingly, the suit stands dismissed without cost.
20. Prepare a decree accordingly within next 14 days.
21. Supply copy of the decree free of cost to both the
parties........"
[5] Aggrieved by the above-mentioned impugned order
dated 18.05.2023 and decree dated 29.05.2023 passed in
T.S.(Divorce) 384 of 2019 and the impugned order dated
18.05.2023 and decree dated 29.05.2023 passed in T.S.(RCR) 05 of
2020, the appellant herein has preferred the instant appeals
respectively for setting aside the same.
[6] Mr. Samrat Kar Bhowmik, learned senior counsel
appearing for the appellant-wife contends that learned Court below
did not appreciate that the respondent-husband was cruel towards
the appellant-wife from the date of their marriage on 27.04.1999. It
is stated that for more than 24 years, the wife has sacrificed most
part of her life selflessly for the family and two children of the
respondent-husband. He further submits that the appellant-wife in
her deposition before the Court below contended that the husband-
respondent was maintaining an illicit relationship with one lady of
Behlianchip village at Jampui hills and quite frequently her husband
used to visit the village of the said lady. Whenever, the wife asked
about the illicit relationship, her husband used to get violent and
used to torture her along with the threat of giving divorce. In her
deposition she further stated that she and her husband are not
residing separately but, unfortunately, learned Court below did not
consider the submission made by the wife and wrongly passed the
judgment and decree of divorce.
[7] It is further contended on behalf of the appellant-wife
that she vide her firisti dated 19.02.2021 submitted 10 items in 34
sheets and in her evidence in chief at para 20, she prayed before
the Court below to exhibit her documents and photographs but the
same were not exhibited by the Court below.
[8] Mr. Kar Bhowmik, learned senior counsel contends that
the certificate of marriage of the parties was issued only on
05.05.2017 from which it can reasonably be assumed that till
05.05.2017, there was no cause of action for the respondent
husband to file a divorce petition. Appellant-wife pardoning all the
guilt of her husband with a desire to continue her conjugal life with
her husband filed the petition for a decree of restitution of conjugal
rights, but, learned Court below did not consider the same and
committed an error in the eye of law. He submits that on the
averments made by one of the parties, the marriage between them
cannot be dissolved. He, therefore, urges this Court to allow the
present appeals setting aside the impugned judgments and decrees
passed by the Court below.
[9] To support the case on behalf of the appellant, learned
senior counsel has placed reliance on judgments of Hon'ble
Supreme Court. For the purpose of reference, the contents of the
said judgments as referred by the learned senior counsel are
extracted herein-below:
Savitri Pandey vs. Prem Chandra Pandey reported in (2002) 2
SCC 73:
"6. Treating the petitioner with cruelty is a ground for divorce
under Section 13(1)(i-a) of the Act. Cruelty has not been defined
under the Act but in relation to matrimonial matters it is
contemplated as a conduct of such type which endangers the living
of the petitioner with the respondent. Cruelty consists of acts
which are dangerous to life, limb or health. Cruelty for the purpose
of the Act means where one spouse has so treated the other and
manifested such feelings towards her or him as to have inflicted
bodily injury, or to have caused reasonable apprehension of bodily
injury, suffering or to have injured health. Cruelty may be physical
or mental. Mental cruelty is the conduct of other spouse which
causes mental suffering or fear to the matrimonial life of the other.
"Cruelty", therefore, postulates a treatment of the petitioner with
such cruelty as to cause a reasonable apprehension in his or her
mind that it would be harmful or injurious for the petitioner to live
with the other party. Cruelty, however, has to be distinguished
from the ordinary wear and tear of family life. It cannot be decided
on the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the other. In the
instant case both the trial court as well as the High Court have
found on facts that the wife had failed to prove the allegations of
cruelty attributed to the respondent. Concurrent findings of fact
arrived at by the courts cannot be disturbed by this Court in
exercise of powers under Article 136 of the Constitution of India.
Otherwise also the averments made in the petition and the
evidence led in support thereof clearly show that the allegations,
even if held to have been proved, would only show the sensitivity
of the appellant with respect to the conduct of the respondent
which cannot be termed more than ordinary wear and tear of the
family life.***************
15. To appreciate such a submission some facts have to be noticed
and the interests of public and society to be borne in mind. It
appears that the marriage between the parties was dissolved by a
decree of divorce vide the judgment and decree of the Family
Court dated 8-7-1996. The respondent-husband filed appeal
against the judgment and decree on 19-1-1997. As no stay was
granted, the appellant solemnised the second marriage on 29-5-
1997, admittedly, during the pendency of the appeal before the
High Court. There is no denial of the fact that right of at least one
appeal is a recognised right under all systems of civilised legal
jurisprudence. If despite the pendency of the appeal, the appellant
chose to solemnise the second marriage, the adventure is deemed
to have been undertaken at her own risk and the ultimate
consequences arising of the judgment in the appeal pending in the
High Court. No person can be permitted to flout the course of
justice by his or her overt and covert acts. The facts of the cases
relied upon by the learned counsel for the appellant are distinct
having no proximity with the facts of the present case. In all the
cases relied upon by the appellant and referred to hereinabove,
the marriage between the parties was dissolved by a decree of
divorce by mutual consent in terms of application under Section
13-B of the Act. This Court while allowing the applications filed
under Section 13-B took into consideration the circumstances of
each case and granted the relief on the basis of compromise.
Almost in all cases the other side was duly compensated by the
grant of lump sum amount and permanent provision regarding
maintenance.*******
17. The marriage between the parties cannot be dissolved only on
the averments made by one of the parties that as the marriage
between them has broken down, no useful purpose would be
served to keep it alive. The legislature, in its wisdom, despite
observation of this Court has not thought it proper to provide for
dissolution of the marriage on such averments. There may be
cases where, on facts, it is found that as the marriage has become
dead on account of contributory acts of commission and omission
of the parties, no useful purpose would be served by keeping such
marriage alive. The sanctity of marriage cannot be left at the
whims of one of the annoying spouses. This Court in V. Bhagat v.
D. Bhagat held that irretrievable breakdown of the marriage is not
a ground by itself to dissolve it.
18. As already held, the appellant herself is trying to take
advantage of her own wrong and in the circumstances of the case,
the marriage between the parties cannot be held to have become
dead for invoking the jurisdiction of this Court under Article 142 of
the Constitution for dissolving the marriage......"
Ramchander vs. Ananta reported in (2015) 11 SCC 539:
".......10. The expression "cruelty" has not been defined in the
Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(1-a)
is to be taken as a behaviour by one spouse towards the other,
which causes a reasonable apprehension in the mind of the latter
that it is not safe for him or her to continue the matrimonial
relationship with the other. Cruelty can be physical or mental. In
the present case there is no allegation of physical cruelty alleged
by the plaintiff. What is alleged is mental cruelty and it is
necessarily a matter of inference to be drawn from the facts and
circumstances of the case. It is settled law that the instances of
cruelty are not to be taken in Isolation but to take the cumulative
effect of the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the plaintiff has
been subjected to mental cruelty due to conduct of the other
spouse. In the decision in Samar Ghosh cases this Court set out
illustrative cases where inference of "mental cruelty" can be drawn
and they are only illustrative and not exhaustive..................."
[10] Furthermore, reliance has also been placed by the
appellant side on the judgments of this Court dated 31.05.2016
passed in MAT Appeal 03 of 2012 and dated 22.03.2021 passed in
FA No.06 of 2015. The relevant contents of the said judgments are
quoted herein-below:
Order dated 31.05.2016 passed in MAT Appeal 03 of 2012:
"......9. Having referred to Savitri Pandey Vs Prem Chandra Pandey
reported in (2002) 2 SCC 73. Mr. Majumder, learned counsel has
submitted that desertion may constructively be inferred from the
attendant circumstances for which living in the separate residence
is not necessary. Mr. Majumder, learned counsel has further
submitted that no evidence was led by the respondent to show
that she was forced to leave the company of the appellant or that
she was thrown away from the matrimonial home or she was
forced to live separately. It has been asserted that the appellant
has squarely proved animus deserendi. The respondent had
brought the marriage to an end by refusing to have cohabitation or
to have live with the appellant. It is manifest on the face of the
record that the respondent had withdrawn from state of things, the
matrimonial relation. What the respondent has stated in the trial to
support her conduct has only reflected that she was banned to
take advantage of her own wrong or disability. In this regard, Mr.
Majumder has referred the following passage from Savitri Pandey
Vs Prem Chandra Pandey:
"13. In any proceedings under the Act whether defended or not,
the court would decline to grant relief to the petitioner, if it is
found that the petitioner was taking advantage of his or her own
wrong or disability for the purposes of the reliefs contemplated
under Section 23(1) of the Act. No party can be permitted to carve
out the ground for destroying the family which is the basic unit of
the society. The foundation of the family rests on the institution of
a legal and valid marriage. Approach of the court should be to
preserve the matrimonial home and be reluctant to dissolve the
marriage on the asking of one of the parties."******
11. In reply, Mr. B. Majumder, learned counsel appearing for the
respondent while defending the impugned judgment has submitted
that it has been established by the judicial records that for
perpetration of violence on the respondent she had to live alone.
Moreover, taken that advantage, the appellant started living with
another woman despite disapproval strongly expressed by the
respondent and such allegation has been proved by OPW- 2 and
3As such, the contention that such allegation was left at lurch
without proving it, is entirely without foundation and contrary to
the records. He has relied on a few judgment of the apex court to
support his contention. In Bipinchandra Jaisingh Shah versus
Prabhabati reported in AIR 1957 SC 176, as relied, the apex court
has observed as under:
"10. What is desertion ? "Rayden on Divorce" which is a standard
work on the subject at p. 128 (6th Edn.) has summarised the
case-law on the subject in these terms :-
"Desertion is the separation of one spouse from the other, with an
intention on the part of the deserting spouse of bringing
cohabitation permanently to an end without reasonable cause and
without the consent of the other spouse; but the physical act of
departure by one spouse does not necessarily make that spouse
the deserting party".
The legal position has been admirably summarized in paras. 453
and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd
Edn.) Vol. 12, in the following words :-
"In its essence desertion means the intentional permanent
forsaking and abandonment of one spouse by the other without
that other's consent, and without reasonable cause. It is a total
repudiation of the obligations of marriage. In view of the large
variety of circumstances and of modes of life involved, the Court
has discouraged attempts at defining desertion, there being no
general principal applicable to all cases.
Desertion is not the withdrawal from a place but from a state of
things, for what the law seeks to enforce is the recognition and
discharge of the common obligations of the married state; the
state of things may usually be termed, for short, 'the home'. There
can be desertion without previous cohabitation by the parties, or
without the marriage having been consummated.
The person who actually withdraws from cohabitation is not
necessarily the deserting party. The fact that a husband makes an
allowance to a wife whom he has abandoned is no answer to a
charge of desertion. The offence of desertion is a course of conduct
which exists independently of its duration, but as a ground for
divorce it must exist for a period of at least three years
immediately preceding the presentation of the petition or, where
the offence appears as a cross-charge, of the answer. Desertion as
a ground of divorce differs from the statutory grounds of adultery
and cruelty in that the offence founding the cause of action of
desertion is not complete, but is inchoate, until the suit is
constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements
which differentiates desertion from wilful separation. If a spouse
abandoned the other spouse in a state of temporary passion, for
example, anger or disgust, without intending permanently to cease
cohabitation, it will not amount to desertion. For the offence of
desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned : (1) the absence of
consent, and (2) absence of conduct giving reasonable cause to
the spouse leaving the matrimonial home to form the necessary
intention aforesaid. The petitioner for divorce bears the burden of
proving those elements in the two spouses respectively. Here a
difference between the English law and the law as enacted by the
Bombay Legislature may be pointed out. Whereas under the
English law those essential conditions must continue throughout
the course of the three years immediately preceding the institution
of the suit for divorce; under the Act, the period is four years
without specifying that it should immediately precede the
commencement of proceedings for divorce. Whether the omission
of the last clause has any practical result need not detain us, as it
does not call for decision in the present case. Desertion is a matter
of inference to be drawn from the facts and circumstances of each
case. The inference may be drawn from certain facts which may
not in another case be capable of leading to the same inference;
that is to say, the facts have to be viewed as to the purpose which
is revealed by those acts or by conduct and expression of
intention, both anterior and subsequent to the actual acts of
separation. If, in fact, there has been a separation, the essential
question always is whether that act could be attributable to an
animus deserendi. The offence of desertion commences when the
fact of separation and the animus deserendi co-exist. But it is not
necessary that they should commence at the same time. The de
facto separation may have commenced without the necessary
animus or it may be that the separation and the animus deserendi
coincide in point of time; for example, when the separating spouse
abandons the marital home with the intention, express or implied,
of bringing cohabitation permanently to a close. The law in England
has prescribed a three year period and the Bombay Act prescribes
a period of four years as a continuous period during which the two
elements must subsist. Hence, if a deserting spouse takes
advantage of the locus poenitentiae thus provided by law and
decides to come back to the deserted spouse by a bona fide offer
of resuming the matrimonial home with all the implications of
marital life, before the statutory period is out or even after the
lapse of that period, unless proceedings for divorce have been
commenced, desertion comes to an end and if the deserted spouse
unreasonably refuses the offer, the latter may be in desertion and
not the former. Hence it is necessary that during all the period that
there has been a desertion the deserted spouse must affirm the
marriage and be ready and willing to resume married life on such
conditions as may be reasonable. It is also well settled that in
proceedings for divorce the plaintiff must prove the offence of
desertion, like any other matrimonial offence, beyond all
reasonable doubt. Hence, though corroboration is not required as
an absolute rule of law, the courts insist upon corroborative
evidence, unless its absence is accounted for to the satisfaction of
the court. In this connection the following observations of Lord
Goddard, C. J. in the case of Lawson v. Lawson [1955] 1 All E. R.
341 may be referred to :-
"These cases are not cases in which corroboration is required as a
matter of law. It is required as a matter of precaution....... ".
With these preliminary observations we now proceed to examine
the evidence led on behalf of the parties to find out whether
desertion has been proved in this case and, if so, whether there
was a bona fide offer by the wife to return to her matrimonial
home with a view to discharging marital duties and, if so, whether
there was an unreasonable refusal on the part of the husband to
take her back."
It has been further observed in the said report that :
"15. The defendant's further case that she had been turned out of
the house by the husband under duress cannot be accepted
because it is not corroborated either by circumstances or by direct
testimony. Neither her father nor her cousin say a word about her
speaking to them on her arrival at Jalgaon that she had been
turned out of her husband's home. If her case that she had been
forcibly turned out of her marital home by the husband had been
made out, certainly the husband would have been guilty of
"constructive desertion", because the test is not who left the
matrimonial home first. (See Lang v. Lang [1955] A. C. 402, 417.
If one spouse by his words and conduct compel the other spouse
to leave the marital home, the former would be guilty of desertion,
though it is the latter who has physically separated from the other
and has been made to leave the marital home. It should be noted
that the wife did not cross-petition for divorce or for any other
relief. Hence it is no more necessary for us to go into that
question. It is enough to point out that we are not prepared to rely
upon the uncorroborated testimony of the defendant that she had
been compelled to leave her marital home by the threats of the
plaintiff."
12. The ratio as laid down in Bipinchandra Jaisingh Shah versus
Prabhabati, if culled out would be that the offence of desertion
commences when the fact of separation and the animus deserendi
co-exist. But it is not necessary that they should commence at the
same time. The spouse who intends to take desertion as the
ground for divorce he or she must prove the said offence beyond
all reasonable doubt. The spouse who compels for separate living
is guilty of desertion as he has made the other spouse to be
physically separated from him. He cannot take such physical
separation as the ground of divorce by branding the same as
desertion......."
Order dated 22.03.2021 passed in FA No.06 of 2015:
[5] During trial, both the parties led oral evidence. The appellant
husband adduced oral evidence of 4 (four) witnesses including
himself. The other witnesses were his neighbours Sri Biswajit Roy
[PW-2], Smt. Shanti Paul [PW-3] and his younger brother Sri Ajit
Paul [PW-4]. His respondent wife on the other hand examined
herself as DW-1, her elder brother Sri Mantu Ch. Rudrapaul as
DW-2 and neighbour Sri Khokan Ch. Das as DW-3.
[6] The trial court examined the matter in detail in the background
of evidence available on record and dismissed the petition filed by
the appellant husband for divorce. It was held by the trial court
that the appellant husband could not establish the ground of
desertion. Rather, the respondent wife was found always willing to
live with her husband. The Family Court having found possibility of
their reunion, dismissed the petition for divorce by judgment and
order dated 26.03.2011 passed in TS (Divorce) 332 of 2009.
[7] Aggrieved appellant challenged the said judgment of the
Family Court in FA No. 10 of 2011 in this High Court. The matter
was decided by this Court by the judgment and order dated
18.12.2014. It was then observed by this Court that opportunity
was not given to the other side to cross examine the witnesses of
the petitioner. Therefore, the matter was remanded back to the
trial court with the following directions:
"8. Admittedly, the procedure as laid down by the High Court in
the aforesaid judgment has not been followed. Therefore, without
going into the merits of the case we set aside the judgment and
decree of the Family Court and remand the matter to the Family
Court to rehear the matter from the stage of framing of issues.
9. The parties shall be permitted to lead evidence and the opposite
party shall be permitted to cross examine the witnesses in
accordance with the aforesaid judgment. In view of the fact that
the divorce petition was filed in the year 2009, we direct the
learned Judge, Family Court , Agartala, West Tripura, to dispose of
the case as early as possible and in any event not later than 31st
July, 2015. The parties through their counsel are directed to
appear before the learned Judge, Family Court, Agartala, West
Tripura on 14.01.2015."
[8] In the course of fresh trial, new issues were framed by the
Family Court which were as under: "1. Has the respondent
petitioner been deserted by wife respondent and if so from what
point of time?
2. Is the petitioner entitled to a decree as prayed for?"
[9] During fresh trial after remand, appellant husband examined
himself as PW-1 and his neighbours Sri Biswajit Roy as PW-2 and
Smt. Shanti Paul as PW-3. Similarly, the respondent wife examined
herself as DW-1, her elder brother Sri Mantu Ch. Rudrapaul as
DW-2 and neighbour Khokan Ch. Das as DW-3. All witnesses were
cross examined by the other side. On appreciation of evidence the
trial court arrived at the following conclusion:
"10. In view of the discussion made above, I find that the
petitioner failed to establish any fact to show that he has been
deserted by his wife, rather it appears that the respondent is still
willing to live with her petitioner along with her daughter. No
wrong or cruel activities on the part of the respondent could also
be established. The allegations made by the PW-1 against his wife
also appears to be general in nature and mere wear and tear of
every marital life and cannot be treated as exceptional to
constitute matrimonial offence to satisfy the requirement of the
term "cruelty‟.
11. In case of desertion also, their lordship observed in Savitry
Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73 that:
"Desertion", for the purpose of seeking divorce under the Act,
means the intentional permanent forsaking and abandonment of
one spouse by the other without that other's consent and without
reasonable cause. In other words it is a total repudiation of the
obligations of marriage. Desertion is not the withdrawal from a
place but from a state of things. Desertion, therefore, means
withdrawing from the matrimonial obligations, i.e., not permitting
or allowing and facilitating the cohabitation between the parties.
Having held so, Family Court again rejected the petition for divorce
by the impugned judgment and order dated 30.04.2015 which has
been challenged by the appellant husband in the present appeal.
[10] The appellant husband in his deposition at the trial has
replicated his plaint case. According to him, his wife always
misbehaved with him and his family members right from the
beginning of the marriage. She was unwilling to share mess with
his parents and brothers. Ultimately on 04.08.2005 she left her
matrimonial home along with her daughter and started living at
her parental home at Udaipur. According to the PW, he met his
wife in his in-laws house several times to bring her back but she
wanted him to stay with her at Udaipur. With a view to restore the
conjugal relationship he filed a suit for restitution of conjugal rights
in which both of them were directed to meet each other at their
respective places once in a week. Though he met his wife at her
place in terms of the said order, his wife never came to his house
which proves that she had withdrawn herself permanently from his
company. Then he filed a petition for divorce in the Family Court.
In cross examination, the appellant husband admitted that he was
convicted and sentenced in a case lodged by his wife under section
498A IPC. He denied to have committed any torture on his wife. In
his cross examination he also denied the fact that after their
separation in the year 2005, his wife returned back to him along
with their daughter and thereafter again she had to leave her
matrimonial home since she was threatened by the PW with dire
consequence.
[11] Sri Biswajit Roy [PW-2], who is a neighbour of the appellant
husband stated that the respondent wife of the appellant was
living with her parents at Udaipur. When the PW met her at
Udaipur she told him that she was not willing to continue her
conjugal relationship with her appellant husband.
But in his cross examination, he said that he was not aware about
the address of the parental house of the respondent wife of the
appellant.********
[16] In this factual background, learned counsel for the appellant
has argued that the parties are living separately for more than 15
years. During this period the wife has never met her appellant
husband at her place which indicates that their relationship has
broken down irretrievably and there is no chance of restoration of
such relationship. It is contended by learned counsel of the
appellant that in similar situation divorce was granted in favour of
the husband by this Court in the case of Bidyut Kumar Saha Vs.
Tapa Saha reported in MANU/TR/0138/2020. Learned counsel,
therefore, urges the court to put the marriage to end by granting
divorce in favour of the appellant.*********
[20] Desertion for the purpose of divorce has not been defined
anywhere in the Hindu Marriage Act. The expression "desertion"
appearing in Section 13 of the Hindu Marriage Act has been
interpreted in various judicial pronouncements. It is held that the
essence of desertion is animus deserendi or the intention on the
part of the offending spouse to bring cohabitation permanently to
an end without reasonable cause against the consent or wish of
the other spouse. About how to arrive at the conclusion as to
whether one spouse has been deserted by the other within the
meaning of Section 13(1)(ib) of the Act, the Apex Court in Sanat
Kumar Agarwal Vs. Nandini Agarwal reported in (1990) 1 SCC 475
has viewed that the question of desertion is a matter of inference
which has to be drawn from the facts and circumstances of each
case and observed as under:
"5. It is well settled that the question of desertion is a matter of
inference to be drawn from the facts and circumstances of each
case and those facts have to be viewed as to the purpose which is
revealed by those facts or by conduct and expression of intention,
both interior and subsequent to the actual act of
separation....................."
[21] In the given context, ostensibly the respondent wife
abandoned her husband on 04.08.2005 along with their daughter
and according to the appellant husband she did not come back to
her matrimonial home thereafter. Whether divorce can be granted
for such conduct of the respondent wife has to be decided in the
peculiar factual context of this case. Before we do so, it would be
appropriate to refer to the decision of the Apex Court in Savitri
Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73
where the Apex Court dealt with the concept of desertion in the
context of divorce and held as under:
"8. Desertion", for the purpose of seeking divorce under the Act,
means the intentional permanent forsaking and abandonment of
one spouse by the other without that other's consent and without
reasonable cause. In other words it is a total repudiation of the
obligations of marriage. Desertion is not the withdrawal from a
place but from a state of things. Desertion, therefore, means
withdrawing from the matrimonial obligations, i.e., not permitting
or allowing and facilitating the cohabitation between the parties.
The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalizes the
sexual relationship between man and woman in the society for the
perpetuation of race, permitting lawful indulgence in passion to
prevent licentiousness and for procreation of children. Desertion is
not a single act complete in itself, it is a continuous course of
conduct to be determined under the facts and circumstances of
each case. After referring to a host of authorities and the views of
various authors, this Court in Bipinchandra Jaisinghbai Shah v.
Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the
other in a state of temporary passion, for example, anger or
disgust without intending permanently to cease cohabitation, it will
not amount to desertion......................" ********
[23] In the instant case, looking into the conduct of the parties
subsequent to the filing of the divorce petition no inference can be
drawn that the respondent wife ever intended permanent
abandonment of the company of her husband. In A. Jayachandra
Vs. Aneel Kaur reported in (2005) 2 SCC 22, the Apex Court
observed that acts of the spouses subsequent to the filing of the
divorce petition can be looked into to infer condonation of the
aberrations, acts subsequent to the filing of the petition can be
taken note of to show a pattern in the behaviour and conduct.
[24] In the given case, the appellant husband in his testimony at
the trial before the Family Court has categorically stated that his
wife always wanted him to stay with her at Udaipur. Since, her
proposal was not agreeable to him, he filed a suit for restitution of
conjugal rights at the Family Court at Agartala. It is admitted by
the husband that in terms of the direction of the Family Court he
used to meet and stay with her at Udaipur. Admittedly, his
respondent wife never objected his stay with her at Udaipur. In her
evidence as DW-1, the respondent wife also stated that she used
to visit her husband at Agartala along with her daughter after the
order was passed by the Family Court in the suit for restitution of
conjugal rights. According to her, since she was doing a Govt. job
at Udaipur she used to come on every Saturday to the place of her
husband and leave on Monday morning to resume her duties at
Udaipur. All those meetings between the spouses took place after
the respondent wife allegedly abandoned her husband on
04.08.2005.
[25] Such evidence, viewed in the light of law enunciated by the
Apex Court in the judgments cited to supra, does not support the
case of the permanent abandonment of his company by his
respondent wife.*************
[27] The argument is not acceptable firstly because the decision in
the case of Bidyut Kumar Saha (Supra) was rendered by this court
in a completely different factual context and secondly because long
separation between the couple is not a sure sign of irretrievable
break down of marriage. It is seen in many cases that even after
long separation, the spouses reunited, renewed their relationship
and lived together till the end of their life. Moreover, in the given
context, the spouses admittedly lived together even after the
alleged separation between them.
[28] With regard to the ground of irretrievable break down of
marriage, the Apex Court in Shyam Sunder Kohli Vs. Sushma Kohli
Alias Satya Devi reported in (2004) 7 SCC 747, held that on the
ground of irretrievable break down of marriage, the court must not
lightly dissolve the marriage. It is only in extreme circumstances
that the court may use this ground for dissolving the marriage.
[29] In a later decision in Naveen Kohli Vs. Neelu Kohli reported in
(2006) 4 SCC 558 though the Apex Court granted divorce because
in view of the fact that the marriage between the parties had
broken down irretrievably, in paragraph 85 of the judgment it was
held by the Apex Court that it is the obligation of the court and all
concerned that marriage status should, as far as possible, as long
as possible and whenever possible be maintained. In the said case,
following observation was made by the Apex Court:
"85.Undoubtedly, it is the obligation of the court and all concerned
that the marriage status should, as far as possible, as long as
possible and whenever possible, be maintained, but when the
marriage is totally dead, in that event, nothing is gained by trying
to keep the parties tied forever to a marriage which in fact has
ceased to exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage. The
course which has been adopted by the High Court would encourage
continuous bickering, perpetual bitterness and may lead to
immorality."
[30] For what has been discussed by us, the marital bond between
the parties cannot be said to have gone beyond repair and as such
the ground of irretrievable break down of marriage as expounded
by learned counsel of the appellant is not acceptable to us........"
[11] On the contrary, Ms. R. Purkayastha, learned counsel for
the respondent opposes the submissions made by the learned
senior counsel for the appellant. She contends that there is dispute
between the parties for a long time and there were allegations and
counter allegations against each other. She further contends that
the wife had filed a case being CR(DV) 11 of 2020 before the JM
First Class, Agartala, West Tripura against her husband which was
dismissed for non-prosecution on 04.07.2024. It is contended that,
in this situation, the parties cannot be allowed to live together
because of their irretrievable breakdown of marriage. While arguing
the case, learned counsel for the respondent has placed reliance on
the judgment of Hon'ble Supreme Court in Shri Rakesh Raman
versus Smt. Kavita reported in 2023 LiveLaw (SC) 353.
[12] Heard the submissions made at the Bar. Perused the
material evidence on record.
[13] Upon hearing the submissions made by both the parties,
this Court is of the considered opinion that the marriage between
the parties has not become irretrievably break down. It is not
disputed that both the parties are staying in the same house one on
the ground floor another on the upper floor. Both of them are
middle-aged persons and their son and daughter are also grown up
since they are pursuing higher education and yet to get married.
The recent photographs and also the recent marriage registration
documents of the family indicates that on and off they are in
maintaining relation and good terms and only at times, the
relationship is triggered against each-other. This Court is not
expressing any opinion about the conduct of both the parties in
terms of their personal and private life keeping the interest of the
entire family, this Court is not inclined to dissolve the marriage.
There is every scope in future that they would again lead a conjugal
life. Hence, the judgment referred by the learned counsel for the
respondent is not relevant to the facts and circumstances of the
case in hand.
In view of the above discussions, the impugned
judgments and decrees in these respective appeals are set aside.
Resultantly, the present appeals are allowed and the same are
disposed of.
As a sequel, miscellaneous application(s), pending if any,
shall also stand closed.
B. PALIT, J T. AMARNATH GOUD, J
Sabyasachi G.
RAJKUMAR SUHANJIT Digitally signed by RAJKUMAR SUHANJIT
SINGHA
SINGHA Date: 2024.09.13 13:04:05 +05'30'
