Amarendra Mukherjee vs Swapna Mukherjee

G.N. Ray and Pabitra Kumar Banerjee, JJ.—This appeal is directed against the judgment and decree dated the 13th September, 1984 passed by the learned Additional District Judge, Asansol in Matrimonial Suit No. 7 of 1983. By the aforesaid decree the suit instituted by the plaintiff appellant Amarendra Mukherjee was dismissed by the learned trial Judge. The plaintiff-appellant made an application u/s 13 of the Hindu Marriage Act, 1955 for a decree of divorce against the Respondent wife Smt. Swapna Mukherjee on the ground of adultery and creulty on the part of the wife. The Appellant-Petitioner stated in the plaint that the Petitioner and his wife were married in December, 1977 and were governed by the Hindu Marriage Act. Out of the wedlock a son was born to the couple sometime in September, 1980. The main grievance of the petitioner as appears from the plaint is that the wife was a nurse attached to a Government Hospital and despite requests the wife did not give up the job and used to stay alone at her place of residence where she used to freely mix up with other persons. Such action on the part of the wife was highly resented by the husband and he was lowered in the estimation of his.relations and neighbours. The husband petitioner also alleged that the wife was so cruel that on one occasion she assaulted the husband with a cycle chain causing serious bleeding injuries to the husband for which the husband had no lodge information to the local Police Station. Such fact has been stated in paragraph 10 of the said application for divorce. That although such action of cruelty had been taken by the wife, for the sake of family prestige and for the safety and welfare of the infant son the petitioner did not take steps against the wife for such cruelty and brutality and somehow with much distrubed state of mind he passed his days with the respondent for sometime more at Chittaranjan even after such assault and cruel treatment made to the petitioner. In paragraph 11 of the petition the husband has stated that the climax reached when the wife went to the petitioner''s father''s quarter at Durgapur during the Puja time in the ''Maha Nabami'' day in order to stay there for a few days during the Puja time and all on a sudden she voluntarily left her father''s quarter without any information either to the husband or to his parents.

The said application for divorce was contested by the wife by filing a Writing Statement, inter alia, denying the allegations made by the husband. The wife contended in the Written Statement that she had always tried to adjust the conjugal life although the husband was unreasonable and often sued to maltreat and assaulted her at times and the husband was addicted to drink despite objections made by the wife. The wife denied the allegations specifically that she had ever assaulted the husband or dealt with him cruelty. It may be noted in this connection that in the evidence the husband made a departure from the pleading as contained in Paragraphs 10 and 11 of the application for divorce. Although it was specifically alleged by the husband that the wife herself assaulted the husband with Cycle chain causing bleeding injuries for which the husband had to report to the police, in the evidence the husband stated that the brother of the wife assaulted him. with cycle chain causing bleeding injuries and the wife caught hold of his hands and also kicked him and scratched his body with her nails. One Khokan Chatterjee who is a colleague of the husband was also examined by the husband and the said Khokan also deposed to the effect that being attracted by the crowd at the front of the residence of the husband he came and saw the wife holding the hand of the husband and a man was assaulting him with a cycle chain and the husband disclosed the identify of the said man to be the brother of the wife. It has been stated in the evidence of the husband that immediately after the said incident of assault by the cycle chain the husband had to go the hospital for treatment but on return after such treatment as an out-door patient to his house he found that the wife had gone away with her infant son without leaving any information whatsoever and only on the Maha Nabami day the uncle of the wife took the wife to the husband''s father''s place and the wife voluntarily wrote a statement which was also endorsed by the uncle. Such statement and the alleged endorsement of the uncle are Exts. 2 and 2/1. A reference to the Ext. 2 reveals that the wife made a statement to the effect that on June 6, 1981, without the permission and in the absence of the husband the wife left the place of residence and she stayed at Achra. But being induced by some people she admitted that she had made false allegation that the husband had beaten her. It was also stated by the wife in the said recorded statement which is Annexure ''B'' that her brother Sankar Narayan Dey and one Ashoke Biswas got the husband assaulted by one Chittaranjan by a cycle chain and all of them had gone away from the place after beating. She admitted in the said recorded statement that it was disgraceful on the part of the married women to pass night elsewhere without her husband''s consent and she made a promise in writing that she would not take recourse to such misdeed and would not do anything which would lessen the social status and prestige of the husband. The uncle of the wife who took the wife to the husband''s father''s place made an endorsement to the effect that the wife had written the said statement wilfully in his presence. In the deposition, however, the wife has stated that such statement was obtained from her against her will and the same was a prepared statement to which she had to sign and the uncle had to give an endorsement. It may be noted in this connection that about such alleged writing of the wife there was no mention in the application for divorce and as such, there was no occasion for the wife to deal with such allegation or the said writing in the written statement made by the wife. It may also be noted that although the wife had stated categorically that the prepared statement was to be signed by her under force at the residence of the father of the husband, the petitioner husband did not take any step to get the writing examined for the purpose of establishing that the said writing was in the hand of the wife.

After taking into consideration of the evidences adduced by the parties the learned Judge, inter alia, came to the finding that the allegations of adultery against the wife coulf not be proved by the husband and the case of cruelty sought to be made out by the husband was also disbelieved by the learned Judge. The learned Judge had noted that so far as the case of assault as sought to be made in the application for divorce was concerned, there was a clear departure from such case in the evidence adduced by the husband and, accordingly, such story of assault could not be believed. The learned trial Judge was also of the view that even on the husband''s own case after such assault by the wife the husband started living with the wife with a hope to improve the marital home and admittedly thereafter they had resided for a couple of months and only on December 12, 1981, the wife had left without any information either to the husband or to his parents. The learned Judge has noted tat such act shows that the husband, in any event, had condoned the cruel treatement made by the wife and as such, there was no occasion to give any decree for divorce on the ground of cruelty. The application for divorce, therefore, was dismissed by the learned trial Judge and as aforesaid, the instant appeal has been preferred by the husband.

The learned counsel appearing for the appellant husband in his fairness has submitted before this Court that the case of adultery could not be established by the husband and as such, the husband does not intend to press the case of adultery before this Court. But he has submitted that on the ground of cruelty the learned trial Judge should have given a decree for divorce. Mr. Banerjee, the learned counsel for the appellant has contended that in a matrimonial case the cruelty requires consideration on an overall assessment of the case sought to be made out by the parties and the standard of evidence as required in a criminal case is not required to prove the allegation of cruelty in a matrimonial proceeding. For the aforesaid purpose, Mr. Banerjee has referred to the decision of the Supreme Court made in the case of Kalya Singh Vs. Genda Lal and Others, . Mr. Banerjee also referred to the two Bench decisions of this Court made in the case of Samir v. Sujata reported in 70 CWN 633 and Saptami Seth v. Jagadish Seth reported in 73 CWN 502. It has been held in the said decisions that for the purpose of appreciating the contention of condonation by a spouse the Court must take into consideration whether the husband and/or the wife had real intention to condone the lapse of cruelty on the part of the concerned spouse and intended to live the conjugal life with true spirit of the husband and wife. It has been held that mere cohabitation on some occasion by itself may not prove that there had been condonation of the act of cruelty on the part of the concerned spouse. Relying on the said decision, Mr. Banerjee has contended in the insant case the husband specifically stated in the application for divorce that although the wife assaulted him with cycle chain causing bleeding injuries and although the wife was arrogant the husband intended to remain with the wife in order to maintain marital home for the sake of the child. Mr. Banerjee has Contended that once the allegation of cruelty is established there is no material to establish that such act or cruelty had really been condoned by the husband despite his attempt to live with the wife for sometime. Hence there was no occasion for the learned Judge to consider the case of condonation and the decree for cruelty should have been pased in the facts and circumstanecs of the case. It may, however, be noted here that cruelty has not been defined in the Hindu Marriage Act but there are a number of judicial decisions of this Court and other High Courts and also of the Supreme Court by indicating that if by any physical act and/or by words, way of living and gestures, physical and or mental pain is caused to a spouse such acts amount to cruelty. The degree of sensitivity of the concerned spouse, the way of living and the social bockgrounds are essential factors for the purpose of constituting as to whether or not the acts alleged had constituted the cruelty either physically or mentally. It has been held by different High Courts and also by this Court in the case of Sm. Krishna Sarbadhikary Vs. Alok Ranjan Sarbadhikary, that trivalities which can be called as wear and tear of married life do not constitute cruelty and in deciding whether the act,.conduct or attitude or behaviour of one spouse towards the other amounts to cruel treatment it is to be measured by the resultant danger or apprehension of the victim with reference to the standard of culture of the spouse, social ideals and all other relevant circumstances having bearing on the question whether the acts complained of amount to the matrimonial offence of cruelty. Such act of cruelty may be judged by reference to victim''s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse. In the instant case, however, there is no difficulty in appreciating the case of cruelty because the allegation of cruelty in this case is of physical assault by the wife with a cycle chain causing bleeding injuries for which the husband had to report to the police. Such case had not been accepted by the learned Judge and in our view, there is good reason for not believing the said story. In the pleading the husband made out a specific case that the wife herself assaulted the husband with a cycle chain causing bleeding injuries for which the husband had to report to the local police station. If such a complaint was made by the husband by lodging a FIR it is reasonably expected that the husband should have caused production of such FIR for the purpose of establishing that such complaint was really lodged by him immediately after the alleged assault. We have already indicated that in the evidence, there has been complete departure of the case sought to be made out in the application for divorce. The husband in his deposition has stated that the brother of the accused assaulted the husband with a cycle chain causing bleeding injuries. Khokan Cnatterjee, a witness of the husband, has also deposed to the effect that the wife caught hold the hands of the husband and a person was assaulting the husband with a cycle chain and the identity of the person was disclosed by the husband as the brother of the wife. The case, therefore, sought to be made out by the husband in the pleading of this case could not be established. On the contrary, a new case of assault by the brother'' of the husband was sought to be made. If a reference is made to the Ext. 2 since relied on by the husband, it will reveal that one Chittaranjan Das had really assaulted the husband with a cycle chain and neither the wife nor the brother of the wife had really assaulted the husband. If in the aforesaid background, the learned trial Judge has not relied on the said story of assault we do not find any reason to take a contrary view. In our view, the appellant has miserably failed to establish the case of assault by the wife as pleaded in the application for divorce. It may be noted in this connection that the learned trial Judge has also held that even if the case of assault is accepted the petition for divorce must fail on that score because by the admitted conduct of the husband, there has been condonation of the said cruelty on the part of the wife because according to the plaint case after the incident in June, 1981, the husband and wife remained together till December 12, 1981.

In our view, the aforesaid finding of the learned Judge is also justified in the facts of the case and we are also of the view that even if the allegation of cruelty as alleged by the husband in his pleading could have been believed, no decree for divorce was required to be made because on the admitted case of the husband in the application for divorce, such allegation of cruelty must be held to have been condoned by the husband. It may also be noted in this connection that if the allegation of cruelty had really made any effective inpart on the husband, the suit for divorce should have been instituted shortly after such inrident or at least shortly after December 12, 1981 when the wife had left the company of the husband. But the instant suit was instituted only on February 2, 1983. In the aforesaid circumstances, this appeal fails and is dismissed with costs. An application for amendment of the plaint for a decree for divorce on the ground of desertion has been made by the appellant husband in this appeal. Such application was directed by this Court to be considered along with the appeal. The case of desertion had not been made at all in the application for divorce and such ground could not have been taken on the dfay when the petition for divorce was presented. Even assuming that there had been a case of desertion we do not think that application for amendment should be allowed at this stage. The materials on record and the evidences adduced by the parties do not establish that without any'' justification the wife had left the husband''s place. We may also note that during the pendency of the matrimonial proceeding in the trial court more than two years had passed from the alleged date of desertion of the wife and if the husband had really intended to bring the action for divorce also on the score of desertion, such application should have been made in the trial Court immediately after two years from the alleged date of desertion so that parties could lead appropriate evidence in the matter. The application is quite belated, without any jurisdiction and on that score also the same should not be entertained. We, therefore, rejected the application for amendment.