Smt. Kanika Datta Chowdhury vs Sri Biswajit Chowdhury
2025 Latest Caselaw 528 Tri

Tripura High Court

Smt. Kanika Datta Chowdhury vs Sri Biswajit Chowdhury on 11 February, 2025

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                                            Page 1 of 7




                                    HIGH COURT OF TRIPURA
                                          AGARTALA
                                    MAT APP. NO.22 OF 2024


             Smt. Kanika Datta Chowdhury
                                                               ......Appellant(s)

                                           Versus

             Sri Biswajit Chowdhury.

                                                          .......Respondent(s)

For the Appellant(s) : Mr. Ratan Datta, Advocate.

For the Respondent(s) : None.

Date of hearing and delivery of Judgment & Order : 11.02.2025

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 present appeal has been filed under Section 28

of the Hindu Marriage Act, 1955, read with Section 19(1) of the

Family Courts Act, 1984, challenging the Judgment and Order dated

06.04.2024, passed in T.S(Div) No. 136/2021 by the learned Judge,

Family Court, Belonia, South Tripura, whereby the learned Court

below dismissed the suit filed by the appellant-wife against the

respondent-husband seeking dissolution of marriage under Section

13(i-a) of the Hindu Marriage Act, 1955.

2. The brief facts of the case are that on 26.04.2011, the

appellant married the respondent as per Hindu rites and customs at

Owangchara, Belonia. Out of their wedlock, a girl child, namely

Adrija Chowdhury, was born. They lived together as husband and

wife until 07.01.2020, when her husband and in-laws started to

physically assaulted her. It is also alleged that after the

solemnization of marriage, her husband hit her on the face and

back and subjected her to physical abuse multiple times, treating

her with cruelty. Furthermore, the appellant claimed that she was

entitled to the return of her jewellery and accessories.

Subsequently, she filed the aforementioned petition i.e., T.S.(Div)

No. 136/2021, under Section 13(i-a) of the Hindu Marriage Act,

1955, on 17.11.2021 before the learned Court below. However, the

suit was dismissed. Being aggrieved by the impugned Judgment and

Order dated 06.04.2024, the appellant has preferred this instant

appeal.

3. When the case is called, Mr. Ratan Datta, learned

counsel appearing for the appellant, is present. The respondent-

counsel is called absent. It is seen from the record that, despite

effective service of notices, the sole respondent has not appeared

before this court. Despite the issuance of notice on 05.08.2024, the

respondent remained unrepresented on 04.02.2025 and again

today, i.e., 11.02.2025, the respondent remained unrepresented. In

view of the urgency pressed by the appellant-counsel, and as the

matter has been listed for final hearing today, the same is heard.

4. Mr. Ratan Datta, learned counsel appearing for the

appellant, submits that the Court below failed to appreciate that,

within a few days of marriage, the appellant was subjected to

consistent physical violence, assault, and other harmful behavior by

the respondent. This treatment had reached such an extent that the

appellant could not reasonably be expected to continue living with

the respondent. The learned trial Court also failed to consider that

the concept of mental cruelty is subjective and depends on the facts

and circumstances of each case.

To substantiate his argument, the learned counsel for the

appellant referred to paragraphs 16, 17, and 18 of the Judgment

of the Hon'ble Supreme Court reported in [2023] 3 SCR 552,

bearing No. Civil Appeal No. 2012 of 2023, titled as Sh. Rakesh

Raman Vs. Smt. Kavita, decided on 26th April 2023. The same is

produced hereunder:

"16. Matrimonial cases before the Courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pin point to an act of "cruelty" or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a Court must take into consideration. In Samar Ghosh v. Jaya Ghosh6 a three judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13 (1) (ia) of the Act. An important guideline in the above decision is on the approach of a Court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury‟s Laws of England (Vol 13, 4th Edn, Para 1269, Pg 602) which must be reproduced here:

"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, 6 (2007) 4 SCC 511 accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists." The view taken by the Delhi High Court in the present case that mere filing of criminal cases by the wife does not constitute cruelty as what has also to be seen are the circumstances under which cases were filed, is a finding we do not wish to disregard totally, in fact as a pure proposition of law it may be correct, but then we must also closely examine the entire facts of the case which are now before us. When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other.

Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party "has, after the solemnization of the marriage treated the petitioner with cruelty"7. In our

considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act.

17. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to 7 Section 13 (1) (ia) of the Hindu Marriage Act, 1955be seen as a „human conduct‟ and „behavior" in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental: "46...If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.

Cruelty can be even unintentional: ...The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful illtreatment." This Court though did ultimately give certain illustrations of mental cruelty. Some of these are as follows:

(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. (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.(emphasis supplied)

18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningfulbonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a „marriage‟ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock."

5. Heard and perused the evidence on record.

6. The learned counsel appearing for the appellant

submitted that the respondent had subjected the appellant to

continuous mental and emotional cruelty, making cohabitation

impossible. Furthermore, in Sh. Rakesh Raman v. Smt. Kavita

(supra), it was held that 'cruelty' needs not always be violent;

prolonged separation, the nature of the relationship, and the

general behavior of the parties toward each other are also relevant

factors that a Court must consider when determining 'cruelty'. In

the present case, the appellant endured physical abuse and

emotional distress, leading to the irretrievable breakdown of the

marriage. Keeping such a broken marriage intact would only

perpetuate suffering for both parties.

                             B. PALIT, J                              T. AMARNATH GOUD, J




   suhanjit

RAJKUMAR       Digitally signed by RAJKUMAR
               SUHANJIT SINGHA
SUHANJIT       Date: 2025.02.13 11:09:52
               +05'30'
SINGHA