Amrita Biswas vs Swapna Choudhury

This is an appeal under Section 19(1) of the Family Courts Act, 1984 from the judgment dated 25.07.2013 delivered in T.S.(Divorce) 207 of 2012 by the Judge, Family Court, Agartala, West Tripura.

The appellant filed a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolving the marriage between the appellant and the respondent by a decree of divorce. According to the appellant, the respondent immediately after marriage had started behaving with him, with cruelty of various forms. Despite his sincere attempt, to keep the matrimonial peace the respondent was bent for aggravating such conduct which has seriously affected the matrimonial relation. The appellant has illustrated some conducts of the respondent in the said petition, which according to him, constitute cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.

On 21.06.2007 the respondent provoked and picked up quarrel with the appellant and she had continued quarrelling with him till midnight, precisely till 1 p.m. In that wee hour of night, abruptly she left the matrimonial home and proceeded towards Bridhyanagar. The appellant followed her and persuaded her to come back to his house, but she refused to come back. The respondent asked the appellant to touch her feet immediately else she would not return to the house and the appellant in order to avoid the breakdown in the relation touched her feet persuaded her to come to his house. She came back after scolding him in the filthy language. The appellant informed the said occurrence to the respondent's uncle, aunt, elder brother and sister-in-law over phone. In reply, the uncle, aunt and her elder brother told that they would look into the matter so that such incident did not occur in future.

On 03.02.2009 the mother of the appellant was seriously ill, but the respondent did not come from her elder brother's house which is situated at palace compound, Agartala. Even having been persuaded by the appellant she refused to come. Desperately the appellant went to the house of the respondent's elder brother and tried his best to convince her to come back to the house of the appellant. When the appellant failed and stepped out for reaching his house he was forcibly detained in that house by the respondent, her elder sister Ratna Choudhury and younger sister Kalpana Choudhury. They had physically assaulted the appellant by way of slapping in front of the outsiders. The appellant loudly cried for saving his life. Hearing his voice, the aunt of the respondent, came down from the up-stair and asked them for refraining from physical torture or beating the appellant. After mercilessly beating the appellant, they opened the door and thus he came out of that confine. On 28.06.2009 when the appellant was taking rest in his bed room after closing the door, the respondent started using slang languages towards the appellant giving kicks on the door one after another. When he opened the door, she gave two to three kicks on his body and the appellant went away from the house so that he can avoid the ugly situation.

On 22.06.2009, the respondent did not return to the house inspite of repeated persuasions. The appellant has categorically stated that after his marriage with the respondent in the year 1995 he did never look after his mother and elder brother and she deliberately avoided them. In the month of May, 2009 when the mother of the appellant had expressed that she would not take food due to her illness in the house, the respondent caught hold of the old mother and took her to burning gas-oven and forced her to take rice against her will. Having witnessed this incident, the elder sister of the appellant came to the spot and saved his old mother from the respondent. His elder brother Haradhan Choudhury, a saintly person, who used to be busy with worshipping the deity, was also not spared.

The respondent filed a false complaint against the mother and the elder brother of the appellant to Tripura State Commission for Women alleging that they had tortured her physically and mentally. Finally, the respondent deserted the appellant on 22.06.2009.

The appellant and the respondent both are employees of Tripura Tribal Areas Autonomous District Council (TTAADC, in short), Khumulwang and they had been working in the same complex for more than 24 years. There was sincere attempt for reconciliation, but finally it appeared to the Tripura Commission for Women that the respondent was not willing to settle the matter amicably and she was bent to take revenge on the appellant. Her cruel behaviour became everyday's tale. That apart, the appellant was denied consummation of the marriage which resulted in the mental and physical cruelty. It was also detected by the Gynaecologist consulted by the appellant that the respondent had a cyst in her uterus and accordingly a surgery was done to remove that cyst. For whatever reason, the appellant and the respondent failed to procreate. But the respondent was not willing to cooperate with the appellant in her treatment.

The appellant has categorically stated that since 22.06.2009, the respondent did not return to the house of the appellant and she lived separately by denying the appellant the right to cohabitation. Thus the appellant has urged this court to grant the decree of divorce on the ground of cruelty and desertion as it has become a dead relation and the appellant is always visited by cruelty for the matrimonial misconduct of the respondent. Even the respondent did not bring the ration card and voter list to the appellant's place and she continued to show her permanent place of residence at Agartala. Even though the place of work is closer from the house of the appellant, but the respondent used to commute from Agartala spending huge amount and bearing discomfort.

The respondent resisted such allegation by filing an elaborate objection and denied the allegations as levelled by the appellant. She brought the parallel allegations in the para-16 of the written objection. She stated that 5/6 years she enjoyed happy marital life, but for the behaviour of the elder brother-in- law, their family life got seriously affected. The respondent was compelled to handover the salary to her husband keeping the travelling expenses what she used to require to attend her work place. The respondent borrowed a sum of Rs.2,50,000/- from Tripura Gramin Bank, Khumulwang Branch and on every year she was forced to withdraw money from her GPF account for pressure created by the appellant. After she obtained the loan she was forced to handover the entire amount to the appellant. But the appellant never took any loan from his GPF account and that was a ploy to grab the entire money and bind the respondent with obligation of making payment. Even though the respondent made the appellant her nominee in the service book but the appellant nominated his mother as his nominee in the service book. Despite efforts being made by the respondent for peaceful merciful life, for 'inhuman torture' physical and mental she had to leave the matrimonial home in a pitiable condition. Sometimes, she was compelled to sleep on gunny bags on the floor.

On 24.06.2009 she was driven out from her matrimonial home by the appellant and hence, the appellant cannot be granted to take advantage of his matrimonial misconduct. In presence of the appellant, the elder brother-in- law used to torture the respondent physically, but the appellant had never come forward to protect her. As a result, when the respondent was forced out from the matrimonial home she took shelter in her elder brother's house at palace compound, Agartala. Her elder brother made several attempts to impress upon the appellant to take the respondent back to her matrimonial home. The appellant not only denied but asked her elder brother to take back all the belongings of the respondent from his house. The respondent had no intention in mind to leave the matrimonial home but she was forced to leave. Still she is ready to live with the appellant and that is the reason why she resisted the prayer for divorce. Both the appellant and the respondent laid their evidence to support their pleadings as projected in the petition.

The appellant has proved the allegation that the respondent had attempted to commit suicide by taking sleeping pills but the appellant's mother restrained her from taking those sleeping pills. Even in the cross-examination she has stated that the respondent physically assaulted his mother. Further the respondent had severed all relations with the appellant.

The appellant [PW-1] introduced another witness namely Motilal Shil [PW-2]. He has corroborated the basic substance of the allegation brought by the appellant. PW-2 has categorically stated that:

"All attempts were made from my side and also from the side of well wishers of Durganagar to mitigate the dispute and to bring back Smt. Swapna Choudhury (Biswas), wife of Shri Amrita Biswas, but failed and for the last 4(four) years Smt. Swapna Choudhury (Biswas) has been residing in the house of her elder brother at Palace compound, Agartala and there is no family relation between the husband and wife and I feel that now at this stage there is no other alternative but to dissolve the marriage between the husband and wife."

In further examination, PW-2 has stated that he is the brother-in-law of the appellant and he used to hear quarrel between the appellant and the respondent. She used to leave her marital home at her own choice without taking permission from the husband. He was informed by her mother-in-law that she was knocked to the ground by her daughter-in-law, i.e, the respondent. For last 4(four) years, she is not staying in her matrimonial home.

The appellant had introduced another witness namely Dilip Acharjee [PW-3] who has stated that the appellant informed him that the respondent had left the matrimonial home without informing anyone and she lived 15(fifteen) days of every month in her elder brother's house at the palace compound, Agartala. The appellant had also informed him that he was physically tortured in the house of her elder brother at the palace compound. He went to that house to take back her, the respondent, to his house and he had further stated that the door was shut when he was physically assaulted inside. PW-3 has categorically stated that:

"It is known to all people of the locality at Durganagar, Ranir bazaar that Shri Amrita Biswas, his old mother of 92 years and bachelor elder brother are very much peaceful and tried their best to maintain peaceful atmosphere in the house. I along with other also tried our best to mitigate the dispute created by Smt. Swapna Choudhury, but failed."

He has also made reference to the treatment of the respondent by the Gynaecologist. He has stated further that he tried to restore the matrimonial relation but he could not. The respondent has been living separately for the last four years. But in the cross-examination, he has stated that he does not know the cause of dispute between the appellant and the respondent.

The appellant had introduced another witness namely Laxmi Saha [PW-4]. She had supported the appellant in every point what he had raised in the plaint and stated before the court. She has stated in the inquiry that she took personal initiative to bring back the respondent but she could not succeed in the attempt and according to her there is no future in the relation.

The respondent was examined in the inquiry and her statement is recorded as under:

"My husband used to come to the house at late night. He used to keep alcohol regularly in his house and when I raised objection he used to assault me physically. After 6 months of marriage, he expressed his desire to marry another girl, but I raised objection. After ¾ yrs of marriage, I had undergone an operation of removing of my uterus following some medical problem. I wanted to adopt a child but that was strongly objected to by my husband. His mother was seriously ill and I nursed her very closely. His mother is very good and pleased with my behaviour. She also loves me very much. I was subjected to physical assault by my husband and due to his unbearable torture, I had to leave my marital home. I want to give him divorce. I am serving in the ADC, Khumulwng. The allegations levelled against me by my husband are completely false. It is not a fact that I used to leave my marital home at my own choice without informing my husband. I made my husband as nominee in my service book to get pension whereas my husband made his mother as nominee in his service book. I took loan from Gramin Bank for repairing of home building of my husband."

The respondent also introduced Smt. Kalpana Choudhury [DW-2] and she has corroborated that in the drunken condition the appellant used to torture the respondent. She has stated that in one occasion her sister came to their house and the appellant also came and in their presence, the appellant assaulted her sister by way of kicking. In one occasion, DW-2 was informed that her sister had committed suicide and accordingly on arrival in their house she found nothing. On the contrary, they found that their sister was quite normal. For purpose of determining the petition for dissolution of marriage, solitary issue that was framed is whether the husband-appellant was subjected to torture by the wife-respondent and whether she had deserted him without reason and whether the husband- appellant is entitled to get a decree of divorce. Having analysed the evidence as advanced by the appellant and the respondent, the Family Court has observed as under:

"8. The petitioner prays for divorce on the ground of cruelty exercised by his wife and also on the ground of desertion. He deposed that the respondent in one occasion made an attempt to commit suicide but saved by him and in another occasion she attempted to take sleeping tablets which was also resisted by his mother. He further deposed that she used to quarrel with him on trifling matters. On the other hand, it is deposed by wife that her husband used to come home at late night in a state of intoxication and used to assault her physically and on her raising objection. This part of statement is also deposed by DW-2, the sister of wife. In clubbing the above evidence together it is seen that the wife was subjected to torture by her husband in a state of intoxication. The alleged attempt to commit suicide is the outburst of her torture. The above attempt cannot be considered as cruelty exercised by his wife to her husband. Rather it shows the cruelty exercised by the petitioner to his wife.

Another allegation is that in one occasion the wife assaulted his mother. PW-2 heard about the incident as he deposed. Mother is not examined. According to the wife, her mother-in-law is a very good lady and she has no allegation against her mother-in-law. In view of the above facts, no conclusion can be drawn that the respondent used to assault her mother-in-law.

The petitioner further deposed that the respondent deserted her at her own choice. The respondent strongly denied it. She deposed that because of unbearable torture she had to leave her marital home. It is observed earlier that she was subjected to cruelty by her husband. The wife further deposed that she made her husband as nominee in her service book to get the retiral benefits, whereas her husband made his mother in the service book as nominee and that shows the soft corner of the wife towards her husband, while the petitioner has little soft corner for his wife."

Based on the said finding the petition was dismissed.

Mr. D. Chakraborty, learned senior counsel assisted by Mr. N. Majumder, learned counsel appearing for the appellant has submitted that appreciation of the evidence is entirely perverse and casual in nature. Such appreciation has resulted in gross injustice. Mr. Chakraborty, learned senior counsel has further submitted that when a marriage becomes dead and beyond repair its continuance itself cruelty on the spouse. The allegation of the respondent did not find any corroboration from the evidence which she introduced. Despite that the petition was dismissed.

From the other side, Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the respondent has submitted that both the grounds of divorce viz., (i) cruelty and (ii) desertion have fallen through. If the evidence is keenly read it would emerge unwaveringly that the respondent was subjected to marital violence and she had no dignified life in the relation. Despite her best efforts to stitch the marital fabric she had failed and on failing to bear unabated harassment including physical torture she took shelter in the house of her elder brother. Mr. Biswas, learned senior counsel did not fail to submit that the respondent had categorically stated that she was forced out of the house of the appellant.

The appellant has admitted that on the complaint of the respondent on physical torture, there had been an enquiry by the Tripura State Commission for Women. Thus, the cause for the marital discord is attributable to the appellant. The evidence laid by the appellant failed to establish the core elements of cruelty and requisites of desertion. On the contrary, he had made allegations here and there trying desperately to build up a case for dissolving the marriage. The respondent has unequivocally stated in the court that she was ready to go back to the matrimonial home at once, but it is the appellant who carried out this appeal without taking back the respondent. If the evidence is read as a whole, it would emerge that the Family Court did not commit any error or irregularity as stated as the ground of appeal and hence no intervention from this court is warranted.

Having appreciated the submissions made by the learned counsel appearing for the parties and scrutinised the record of evidence this court finds that the marital relation suffered tremor for the conduct of the appellant and his other family members as it has surfaced from the sequential narrative. Moreover, the allegation of marital violence cannot be wished away. Thus, there cannot be any desertion when the respondent was forced by the circumstance to live separately and there was no assurance from the appellant that there would be no recurrence of inconducive situation as alleged by the respondent. On the contrary, this court finds that there is no animus in the conduct of the respondent. She has unequivocally stated in the court that she was ready to go back to the matrimonial home, but the appellant did not state anything in this regard, even not his witnesses. So far the cruelty is concerned, it appears that the uterus of the respondent had been removed by way of surgery after 3-4 years of the marriage for protecting her life she would not be able to bear child. It appears to the court that intense desire to have child has aggravated deterioration of the relation between the appellant and the respondent. That cannot be treated as cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955. Even the allegation in respect of attempting suicide has not been established by the appellant.

Having observed thus, this court does not find any merit in this appeal and accordingly it is dismissed.

After drawing the decree, transmit the LCRs.