He has never shown any interest in his wife after the appellant has left her
family, but the learned Court below failed to appreciate the same.
[16] Mr. Datta, learned counsel appearing for the appellant has
further contended that the respondent, the appellant-wife herein, that earlier
the wife flied maintenance case in the year 2018 and after the maintenance
case the husband filed the divorce case willfully stating fabricated ground
of cruelty and desertion. There is allegation of illicit relation by the
husband against the wife which is not proved in this case. According to her
the husband assaulted the wife and drove her out from the house in the year
2017 but the wife did not file any case thinking of reconciliation. The
husband is now a pension holder from the Electric Department and their
marriage was held much earlier on last 14.12.1979. They pointed out that
the husband had extra marital affair with one lady.
[17] He also disclosed the chief of OPW-2 in the maintenance case.
It has been argued that as per Exhibit-27 and in all these documents there is
mention of threat of life of the wife from the husband. She highlighted
about voluntary submission of PW-3 i.e. the statement of O/C, GB TOP. It
is argued that on the matter of illicit relation news was article published
against the husband. In this case there is allegation and counter allegation
by the parties against each other on the matter of extra marital relation.
According to the respondent the land was actually purchased by the son of
the petitioner in the name of the respondent as he was doing a good job at
that time. Why the husband failed to show any document that he took loan
for the land purchase or took any permission from the authority for
purchasing land in the name of his family member i.e. the name of his wife
as per Civil Services Conduct Rules.
[18] It has been further contended that the respondent is a habitual
drunkard, his younger brother Mrinal Debnath who is involved in Rose
Valley Scam and earned huge money by exercising fraud to the people of
the state of Tripura. Following the family tradition said Mrinal Debnath has
been continuing physical and mental torture to his wife who is a Govt.
employee. The respondent also used to torture the appellant inhumanly and
that was their family tradition to torture both mentally and physically. That,
the respondent and the appellant hailed from the same locality and known
to each other from their childhood but the cunning respondent stated that he
was in dark about the social status of the appellant (wife) and her parents in
nothing but a false statement from which it is crystal clear.
[19] Mr. Datta, learned counsel appearing for the appellant in
support of his case has placed his reliance on some decisions of Court in
F.A. No.01 of 2022 titled as Smti. Pramila Ghosh (Guha) v. Sri Anup
Kumar Guha and in Mat. App.No.12 of 2015 titled as Sri Bijit Kumar
Banik v. Smti. Kaberi Banik (Debbarma), wherein the Court has observed
as under:
"[33] According to Ms. Dhar, learned counsel, in the given case, there are
adequate materials available against the husband with regard to cruelty. It is
pointed out by Ms. Dhar, learned counsel that there is corroborative and
consistent evidence that the husband physically assaulted the wife by
slapping her in presence of children. She could have filed a case seeking
divorce against her husband because such grievous and un-excusable act of
offence satisfies the test of cruelty. But the wife always tried for adjustment
and condoned all his cruel conduct. Even day after the filing of the case
under Section 498 IPC, she rushed to the police station and had withdrawn
her complaint. The wife had thus, consistently shown her intention to stay
with her husband amidst differences. But her husband who himself was at
fault, brought the divorce suit against the wife. It is submitted by learned
counsel that in the case of Savitri Pandey (supra) the Apex Court declined to
grant divorce in favour of the appellant who tried to take advantage of her
own wrong. Learned counsel of the appellant submits that in the present case
also the appellant husband is trying to take advantage of his own wrong
which should not be entertained by this court.
[34] We have already pointed out that in his divorce petition, the appellant
has merely mentioned Section 13 of the Hindu Marriage Act and in the body
of the petition he has highlighted certain instances which indicate that he
wants divorce on the ground of cruelty and desertion. The evidence of the
parties have been discussed in detail. We have re-evaluated and examined
such evidence in the light of the judgments of the Apex Court relied upon by
learned counsel of the parties. In all the cases, relied upon by the learned
counsel of the appellant, the factual contexts are completely different. In the
case of Gurbux Sinh(supra), the Apex Court has succinctly held that mere
trivial irritations, quarrel, normal wear and tear of married life which happen
in day to day life in all families would not be adequate for grant of divorce
on the ground of cruelty. In Savitri Pandey (supra), the Apex Court has
emphasized on the move of protecting the institution of marriage which is
the basic unit of society. Also in the case of Naveen Kohli (supra), the Apex
Court has held that except in the cases when the marriage is found totally
dead, it would be appropriate for the courts and all concerned to maintain the
marriage status as far as, as long as possible and whenever possible. In the
case of Samar Ghosh (supra), the Apex Court after analysis and scrutiny of
its past judgments on the issue, laid down certain decisions on the basis of
which the allegations of mental cruelty can be decided. We are of the
considered view that none of these tests is satisfied in the given case."
"5. After elaborate arguments on behalf of both sides, both the parties
present in court have mutually consented to be away from each other in view
of their domestic issues and prays for judicial separation for some period. As
the parties are senior citizens and considering their case on special reasons
and having humanitarian grounds not to precipitate the litigation and with a
hope in future they will have better days this court is of the view that for
granting judicial separation which would be appropriate instead of divorce."
[20] Ms. R. Guha, learned counsel appearing for the respondent-
husband has submitted on the point of cruelty and desertion against the
wife. The respondent wife filed several types of complaints in different
forums in connection with illicit relation of the husband with another
woman just to hackle him. Earlier she was working as a postal agent and
earning some amount of money from commission. The husband gave
funding to his wife to purchase land of 1 kani 4 gandas in the name of his
wife. The wife filed maintenance case earlier and an order of monthly
maintenance of Rs.7,000/- was granted to her. It is paid regularly.
[21] The respondent filed similar complaint to the O/C., GB TOP
who deposed as PW-3 in this case where it is revealed that the wife did not
mention any sort of illicit relation in that complaint. All allegations of the
wife are bogus and false filed against the petitioner, the respondent herein.
The respondent is now residing in an 'Ashram' as he has been ousted by his
wife from the house which was purchased by him. The wife was
complaining to various authorities for which the husband was compelled to
take voluntary retirement. All these allegations were mental cruelty upon
the husband for which he was bound to resign from his job and took
voluntary retirement. Attention was drawn upon the cross of DW-2 in this
case. The question was raised that why the wife did not file any RCR case
to restore conjugal life. There is no criminal case by the wife. Moreover,
she disclosed that the husband and the wife are separated for last 10 years
or more and there is irretrievable breakdown of marriage. Thus, the
petitioner, the respondent herein prayed for granting of divorce and
dissolution of marriage on the ground of cruelty and desertion by the
appellant-wife.
[22] It has been contended that the marriage was solemnized on
14.12.1979 and their son was born on 27.07.1980 and the daughter in the
year 31.12.1981. In the plaint, the date and the time was not mentioned
when the appellant was found to have extra marital affair with Ashok
Datta. Ashok Datta has not-been made party in this suit as he is expired.
She always stayed at Pratapgarh after their marriage. During their stay in
the rented house at Dharmanagar the appellant maintained extra marital
relation with one Ashok Datta of Bhattapukur Agartala and previously said
Datta was known to the appellant as her boyfriend and she was found in
compromising position with said Datta at different times. The landlord of
the rented house for this reason asked to vacate the rented house and for
this reason after 3 months we were driven out of the rented premise and
shifted to another rented house.
[23] The appellant resided sometimes with her son and daughter
but the respondent has no personal knowledge. Learned counsel for the
appellant has contended that the respondent was driven out from his job for
his wrongful deeds but this is completely a wrong submission. After the
marriage of our daughter the appellant maintained illicit relation openly
and desperately inspite of objection and in consequence to those objections.
The appellant leave the matrimonial house and stayed outside for 2/3 days
by deserting the respondent and on being asked e about her whereabouts,
she flared up and tortured the respondent mentally and physically and the
said attitude and habit continued upto 18.04.2016.
[24] The father of the appellant was a habitual drunker and found
lying here and there in drunken condition. The mother of the appellant had
bad reputation in the society. Whether the complaint made before GBP
O.P. has been registered as a case or there is GD entry of the same or not
was known to the respondent. In Exhibit 27(SO) i.e. the complaint at GBP
O.P. the respondent did not mention that the appellant has illicit relation
with Ashok Dutta, Swapan Debnath, Abinash Ch. Das or Paritosh
Chakraborty. The said complaint does not bear the seal of any P.S. No
complaint was filed during the service tenure to my authority against the
appellant. For maintaining illicit relation with the wife of one of the
colleagues compelled to undergo voluntary retirement from the office. The
respondent is not a prestigious lady and she is holding a good position in
the eye of her children and desires to restore conjugal relation with the
respondent.
[25] From the conspectus reading of the pleadings, evidence
adduced by both sides and also the argument advanced by the learned
counsels of both the parties, it transpires that the main allegation of dispute
centers around the fact that the husband-respondent was humiliated and
tortured by his wife-appellant both mentally and physically and also on the
other hand on the issue of extra-marital affairs of his wife with other
persons. Before delving deep into the very essence of this particular case,
the appreciation of the evidence of both sides is necessary for discussion in
this case.
[26] It would appear that the petitioner, the respondent herein, got a
job in the Department of Power, Govt. of Tripura in the year 1979 and
joined in service on 12th July 1979 as Operator Grade-Il at Dharmanagar,
North Tripura District. Meanwhile the respondent, the appellant herein,
also passed said ITI Course. Subsequently their marriage was solemnised
on 14.12.1979 at Laxmi Narayan Bari, Agartala, as per Hindu rites and
customs, inspite of repercussion from the family of the husband-respondent
regarding marriage. Out of their wedlock two children were born who are
presently married and the son of the parties is serving at Chennai in a
private company.
[27] When they were living at Dharmanagar in course of service of
the respondent, he came to know from reliable source that the appellant
used to lead her life in an ugly manner and leading an unsocial life and
maintained illicit relation prior to her marriage which also continued after
marriage. It transpires that when the respondent used to go to the office for
his duty, the appellant started maintaining extra marital relation with one
Sri Ashok Datta of Bhattapukur, Agartala who was previously known to
her as her boyfriend and she was found in a compromising position with
aforesaid Ashok Datta in that rented house at Dharmangaar at different
house.
[28] It further appears that when the respondent and the appellant
were residing at Indranagar in the quarter of the respondent who used to
serve in the power department at 79 tilla Grid-station, PW-2 Sri Mrinal
Debnath caught the appellant and one Paritosh Chakraborty of the same
quarter of the respondent in the same floor and his door was just fact to
face with that of the respondent. When on several occasions, Sri Mrinal
Debnath caught them red-handed in compromising position. It transpires
that the respondent has made some other allegation of extramarital affairs
of the appellant with other persons but he did not apprehend them nor there
is any other eye witnesses to that effect, so those are not proved.
[29] The married life should be assessed as a whole and a few
isolated instances over certain period will not amount to cruelty. The ill-
conduct must be precedent for a fairly lengthy period where the
relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, one party finds it extremely difficult to live with the
other party no longer may amount to mental cruelty. Making certain
statements on the spur of the moment and expressing certain displeasure
about the behaviour of elders may not be characterized as cruelty. Mere
trivial irritations, quarrels, normal wear and tear of married life which
happens in day to day life in all families would not be adequate for grant of
divorce on the ground of cruelty. Sustained unjustifiable and reprehensible
conduct affecting physical and mental health of the other spouse may lead
to mental cruelty.
[30] In view of the fact that the parties have been living separately
for more than 10 years and a very large number of aforementioned criminal
and civil proceedings have been initiated by the respondent against the
appellant and some proceedings have been initiated by the appellant against
the respondent, the matrimonial bond between the parties is beyond repair.
A marriage between the parties is only in name. The marriage has been
wrecked beyond the hope of salvage, public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto. To keep the sham is obviously conducive
to immorality and potentially more prejudicial to the public interest than
dissolution of the marriage bond.
[31] We have already pointed out that in his divorce petition, the
respondent has merely mentioned Section-13 of the Hindu Marriage Act
and in the body of the petition he has highlighted certain instances which
indicate that he wants divorce on the ground of cruelty and desertion. The
evidences of parties have been discussed in detail. Mere trivial irritations,
quarrel, normal wear and tear of married life which happen in day to day
life in all families would not be adequate for grant of divorce on the ground
of cruelty. Except in the cases when the marriage is found totally dead, it
would be appropriate for the courts and all concerned to maintain the
marriage status as far as, as long as possible and whenever possible. We are
of the considered view that none of these tests is satisfied in the given case.
[32] It is true that the parties are living apart over a considerable
period of time. But this is not the only test of irretrievable break down of
marriage. Divorce is found on fault theory. Husband applied for divorce on
the ground of cruelty and desertion. He has not been able to prove either of
these grounds. We have already discussed that the basic element of
desertion is animus deserendi which has not been proved in this case. With
regard to cruelty, it is seen that the appellant wife has pointed out to serious
instances of cruelty against her husband, which have also been supported
by consistent and coherent evidence of her witnesses.
[33] It reveals from the evidence that on earlier occasions the
parties were present before this Court and for settling the matter; it was
referred to the mediation but in vain. The husband-respondent expressed
that he has no thought of going for a second marriage and he will remain
like this for rest of his life. Considering the family status and the emotion
of children who are already grownup, both the parties are having children
and they also got married and having their own children but staying
separately i.e. the appellant is presently staying with her daughter. In this
backdrop, it may not be appropriate to leave the remaining life of a female,
the appellant herein, stigmatic.
[34] However, since both of them are staying separately for a long
period and there is no scope for reunion, considering the family
background, the social status of the married life of their children and the
parties are also senior citizens, they may not be subjected to lead divorce. It
reveals from the record that, the learned Court below concluded the point
of cruelty and leading adulteries life by the appellant-wife only by relying
upon the evidence of PWs-1, 2 and 4, namely, Sri Santi Debnath, Sri
Mrinal Debnath and Sri Subrate Ganguly.
[35] It has been contended that the appellant-wife had illicit
relations with Ashok Dutta, Swapan Debnath, Abinash Ch. Das or Paritosh
Chakraborty. On repeated occasions when the respondent-husband has
noticed the same he has not taken any steps for any family settlement or
holding panchayet to cautioned the above named persons who were so
called in relation with his wife. There is no independent witness neither the
landlord nor any neighbour has been examined. The persons with whom
the appellant-wife had illicit relations have not been examined as witnesses
also on behalf of the husband or the wife. The Court also has not taken any
steps for summoning them as Court witness and to record their evidence.
[36] When the matter is of such serious nature, the Court could
have taken appropriate steps but that has not been done by the learned
Court below. There is no reason as to why the respondent-husband kept
silent all through from 1980 onwards i.e. when the marriage has taken
place i.e. in the year 1979 and within two years he noticed that his wife was
in illicit relationship with the above named persons on different stages. He
also consummated in 1980 with a son namely Sandip Debnath and in 1981
his daughter was born namely Saheli Debnath. Since, several issues stood
unanswered, in support of the allegations made by the husband and the
learned Court below has also not taken any steps for summoning the
necessary persons as witness and record their evidence, this Court finds it is
not a case for granting any divorce following the drawbacks as discussed
above.
[37] In view of above analysis and the having gone through the
material evidence on record as well as the social status of the parties as
they have grown children and their grand-children also to protect the
modesty of a woman at this age, it would be appropriate if the findings of
the learned Court below is set aside keeping only the maintenance part
alive. As such, the husband will continue to pay Rs.10,000/- instead of
Rs.7,000/- as awarded by the learned Court below considering the present
price hike and old age ailments of the lady. Consequently, the appeal stands
allowed. As a sequel, miscellaneous application, pending if any, shall stand
closed.
B. PALIT, J T. AMARNATH GOUD, J
A.Ghosh
ANJAN GHOSH Digitally signed by ANJAN GHOSH
Date: 2025.04.25 14:16:45 +05'30'
