Bikash Borah vs Swapnali Saikia

Manish Choudhury, J

Heard Ms. K. Deka, learned counsel for the appellant. Also heard Ms. M. Borah, learned counsel, appearing for the respondent.

This appeal, under Section 19 of the Family Courts Act, 1984, is presented against the judgment and order dated 30.06.2018 passed by the Court of

learned Principal Judge, Family Court â€" I, Kamrup, Guwahati in F.C.(Civil) Case No. 390/2014. By the said judgment and order, the learned Family

Court while allowing the petition of the respondent seeking dissolution of her marriage with the appellant by a decree of divorce on the allegation of

cruelty, has dismissed the counter-claim filed by the appellant seeking the same relief of dissolution of his marriage with the respondent on the ground

of cruelty. In the present appeal, the appellant has sought for setting aside of the impugned judgment and order of the learned Family Court in so far as

allowing the petition of the respondent seeking of dissolution of the marriage is concerned, and has further sought for allowing the counter-claim

preferred by the appellant before the learned Family Court by reversal of the order of dismissal.

Before proceeding further as regards the rival contentions of the parties, it is necessary to state the respective versions, in brief, projected by the

contesting parties seeking, finally, the same relief of dissolution of their marriage.

It is admitted by the parties that their marriage was solemnized on 11.03.2011 under the Special Marriage Act, 1954 before the Marriage Officer,

Kamrup (M) at Guwahati. The petition was filed before the learned Family Court on 09.05.2014 by the respondent-wife initially under the Hindu

Marriage Act, 1955. The petition was, later on, amended and the same was preferred for dissolution of marriage under Section 27(1)(b) & Section

27(1)(d) of the Special Marriage Act, 1954. The appellant had also prayed for dissolution of his marriage, by filing a counter-claim along with the

written statement, by a decree of divorce under Section 27(1)(b) & Section 27(1)(d) of the Special Marriage Act, 1954.

The respondent stated that after solemnization of the marriage on 14.03.2011, she along with the appellant and his parents went to her matrimonial

home at Bhopal where the couple stayed till 28.03.2011. On 29.03.2011, the couple went to Delhi, the workplace of the appellant, to start their

conjugal life. In Delhi, the appellant instead of taking the respondent to his rented house, stayed along with her in a hotel nearby the railway station.

During that period, the appellant citing financial hardship and his willingness to set up his own business, pressurized the respondent with his demand for

money and also seduced her to have sexual intercourse. The respondent was sent back to Guwahati to join her contractual job under a Government

project where she joined before marriage, with the assurance to bring her back after her resignation in June, 2011. But the appellant, contrary to his

assurance, did not come to Guwahati till August, 2011 on the pretext of official work, tour, etc. Thereafter, the appellant visited Guwahati as well as

the respondent’s parental house at Moranhat and during that period too, the appellant pressurized the respondent to ask money from her parents.

After their return to Guwahati from Moranhat, the appellant tortured her physically as well as sexually and did not take her along with him to Delhi. It

was only in December, 2011, the couple went to Delhi and started to live in the rented house of the appellant which, according to the respondent, was

improperly located and unhygienic. The respondent alleged to have brought the household items from Guwahati to Delhi at her own cost by carrier.

But the appellant resumed his demand of money for which he harassed her on her refusal. The appellant even during her illness did not take due care

for which the parents of the respondent had to visit Delhi to stay with her till her recovery. As the respondent got selected for a contractual job under

the National Vector Borne Disease Control Programme, she came back to Guwahati in February, 2012 to join in the new job. In June, 2012, the

appellant came to Guwahati to stay with the respondent for a month and during that period, the appellant who cohabited with her as a usual husband.

The respondent had alleged that the appellant and his family prior to the marriage, deceitfully introduced the appellant as a software engineer, well

settled in Delhi and believing so and assured of a happy married life, the respondent entered into the marital relationship. Though the appellant’s

family treated her well for a few days, they started mentally harassing her demanding dowry. Alleging that the appellant had no empathy towards their

marital relationship and intentionally stayed away from her since September, 2012 by stopping communication with her and by not visiting her. The

respondent had alleged to be passing her days in extreme agony for a period of two years at the time of institution of the petition seeking dissolution of

her marriage, though the appellant instituted a petition, in the meantime, seeking restitution of conjugal rights only in order to escape from arrest in a

case, G.R. Case No. 6786/2013, which the respondent lodged under Sections 376/406/419/496/498A, Indian Penal Code (I.P.C.).

While admitting factum of marriage, the appellant by denying the contentions of the respondent-wife in his written statement, had also lodged a

counter-claim with it. The case projected by the appellant in the counter-claim, in brief, is that his family is settled in the district of Bhopal, Madhya

Pradesh, though they originally hail from Assam. He has been working as a Software Engineer in a company at Noida, U.P. since the year 2010. He

further stated that the respondent is a Master Degree holder in Biotechnology and was working as a District Project Officer under National Vector

Borne Diseases Control Programme at Guwahati. After the marriage, he along with the respondent and his parents came to Bhopal from Guwahati on

14.03.2011 for the marriage reception ceremony scheduled at Bhopal on 27.03.2011. The conjugal life between them was started at Bhopal on

16.03.2011. But on 17.03.2011, he had to leave for Delhi for official duty and returned back to Bhopal on 23.03.2011. After the reception held on

27.03.2011, both of them reached Delhi on 29.03.2011. As the respondent-wife was supposed to leave for Guwahati on 31.03.2011 after staying at

Delhi only for two nights, in order to continue her job after marriage till June, 2011, the appellant arranged for her stay in a hotel for her convenience in

order to catch the flight, instead of taking her to his rented accommodation in Faridabad. Thereafter, though both of them joined their respective jobs,

they were in touch with each other over phone, mail, etc. On 14.08.2011, the appellant after taking leave from his company job, reached Guwahati and

stayed with the respondent in her flat at Guwahati. Thereafter, on 16.08.2011, both of them went to the respondent’s paternal home at Moran but

on 21.08.2011, he had to go back to Delhi on receiving call from the company and thereafter, had to go to Cochin for Software Installation job. The

appellant admitted that during that time, there was good cordial relation between them. That his job required visits to various sites as per the directions

of the company, was explained to the respondent-wife prior to the marriage. The respondent also, at no point of time, had stated that she would resign

from her job and join him in Delhi. Denying the allegation of demand of dowry and torture of the respondent on her refusal as false, it was stated that

the respondent landed in Delhi on 15.12.2011 to restart their conjugal life. From 02.01.2012, the respondent started having back pain, fever and

stomach pain for which the appellant took all care including medical examination which showed that she suffered from Jaundice. As the

respondent’s father is a Doctor, she used to take only those medicines, which were prescribed by her father. On 09.01.2012, the respondent’s

parents arrived in Delhi. As she got an interview call, the respondent came back to Guwahati on 14.01.2012 for the interview, without taking any kind

of permission from the appellant as he was never in support of the respondent joining another job at Guwahati while she was adamant to join such a

job. Though she joined in her new job in October, 2012, the respondent stayed in Guwahati alone during that intervening period, despite numerous

requests from him to join him in Delhi. The appellant came to Guwahati in June, 2012 and stayed till 25.06.2012 during which period, the respondent

asked him to settle in Assam. Following her request, he had even applied for new jobs at two places in Assam. As interview was due in September,

2012, the appellant went back to Delhi to join his job and on 01.09.2012, he came back to Guwahati to appear in the written test and the interview for

the jobs which he did not ultimately get. Referring to the calls, as alleged by the respondent, he stated that those were calls from his company clients

only. As about the condition of the rented house at Faridabad which the respondent termed as unhygienic, he stated that he took the same as per his

financial capacity. The household items alleged to be brought by the respondent, were already taken by her in February, 2012, he averred. Since the

beginning of the marriage life, the respondent did whatever she liked and on several occasions, she abused the appellant in filthy language despite no

fault on his part. The appellant stated to have tolerated such tortures inflicted upon him by the respondent as he never thought of dissolving the

marriage. In December, 2012, the respondent suddenly called him and without citing any reason, abruptly asked him for mutual divorce but the

appellant did not respond to the said proposal. After joining in her new job in October, 2012, the respondent started behaving in a completely different

manner and stopped picking up his phone calls. Faced with such situation, the appellant stated to have come to Guwahati along with his parents in

April, 2013 in order to meet the respondent for resolving the differences between them, if any, amicably but the respondent not only refused to meet

them but also did not receive his phone calls. Thus, without meeting the respondent, all of them had to leave Guwahati. It was since September, 2012,

the respondent-wife had kept herself away from the appellant and she had neither contacted him nor visited her matrimonial home since then, which

had caused immense mental and physical trauma to the appellant. Thereafter, the appellant, to his surprise, learnt in August, 2013 that the respondent

had filed a complaint being Complaint Case No. 6786/2013, making concocted allegations, against him and his old and innocent parents alleging

criminal breach of trust, cheating by personation, commission of rape and subjecting her to cruelty, which got registered as a police case under

Sections 376/406/419/496/498A, I.P.C. The appellant and his parents had to approach the High Court and they were granted pre-arrest bail by the

High Court. Forgetting all these misdeeds of the respondent, the appellant stated to have sent an e-mail on 13.08.2013 urging her to solve all her stated

problems in an amicable manner but the same was not responded to. Though he filed a petition for restitution of the conjugal rights, he having realized

that the lives of his old and ailing parents apart from his own, would be in danger at the hands of the appellant as she had resorted to false case, he

had withdrawn the said petition on 21.06.2014 and preferred the counter-claim seeking dissolution of his marriage by a decree of divorce on the

ground of the respondent’s wilful desertion and inhumane torture inflicted on him.

Ms. Deka assailing the findings of the learned Family Court, has submitted that no case of cruelty, either mental or physical, and desertion can be

made out from the evidence led by the respondent-wife and in such view of the matter, the learned Family Court could not have rendered such a

finding. Rather, it is the appellant who has led sufficient evidence in support of his contentions regarding cruelty and desertion and, as such, the

counter-claim filed by the appellant ought to have been allowed. The respondent had instituted a case under Sections 376/406/419/496/498A, I.P.C.

not only against the appellant but also his parents falsely who did not interfere in their matrimonial relationship at any point in any manner whatsoever.

In support of her submission, she has placed reliance in the decision in Arnesh Kumar vs. State of Bihar, reported in (2014) 8 SCC 273.

Per contra, Ms. Bora supporting the decision of learned Family Court, has submitted that the learned Court had rightly allowed the petition of the

respondent on the ground of cruelty and dismissed the counter-claim of the appellant. As the learned Family Court has rendered the judgment after

rightly appreciating the rival contentions, there is no reason to disturb the said findings in appeal. She has further placed reliance in the decision of

Vijaykumar Ramchandra Bhate vs. Neela Vijakumar Bhate, reported in (2003) 6 SCC 334.

We have considered the submissions of the learned counsel for the parties and also considered the materials available in the records of F.C.(Civil)

No. 390/2014, in original, as the learned counsel for the parties have referred to the respective evidence led by the contesting parties.

Upon the rival pleadings of the parties, the learned Family Court had framed three issues each in respect of the petition of the respondent-wife as

well as in respect of the counter-claim of the appellant-husband. One of the issues in respect of the petition of the respondent-wife was that as to

whether the appellant had treated the respondent with cruelty. In respect of the counter-claim, the learned Family Court had framed issues, firstly,

whether the respondent had treated the appellant with cruelty ? and, secondly, whether the respondent had deserted the appellant ?

In support of her petition, the respondent examined herself as P.W.1. Though the father of the respondent submitted his evidence on affidavit as

P.W.2, the said evidence stood expunged by the learned Family Court as he did not appear for cross-examination. On the other hand, the appellant

examined himself as D.W.1 and also adduced the evidence of one Smti. Nilima Borah as D.W.2, who were cross-examined by the respondent.

Both the parties had admitted that their marriage was solemnized on 11.03.2011 under the Special Marriage Act, 1954 before the Marriage

Officer, Kamrup (M), Guwahati. It has further emerged from the evidence of the parties that since September, 2012, they have been living separately

from each other at different places. What has further emerged is that during the period between 11.03.2011 and September, 2012, the spouses had

lived together a few times, on each occasion for a short period of time, which periods were interspersed. After the marriage on 11.03.2011, at

Guwahati, both of them along with the appellant’s parents went to Bhopal on 14.03.2011 as the appellant’s family resides in Bhopal, Madhya

Pradesh. As per the version of the appellant, the conjugal life between them was started on 16.03.2011. But on 17.03.2011, he had to leave Bhopal for

Delhi wherefrom he came back to Bhopal on 23.03.2011. There was a marriage reception ceremony in Bhopal on 27.03.2011. After the said

reception ceremony, the couple left for Delhi and reached there on 29.03.2011. There is no allegation of the respondent to the effect that during the

said period of her brief stay in Bhopal, anybody from the appellant’s family had treated her badly. In Delhi, the couple stayed for two nights in a

hotel, instead of staying at the rented accommodation of the appellant located in Faridabad. An allegation was made by the respondent that instead of

taking her to his rented accommodation, the appellant had accommodated her in a hotel. She had stated that she came back to Guwahati from Delhi

by flight on 31.03.2011. It was not explained by the respondent as to why such stay in the hotel had any correlation with the allegation of cruelty. The

version of the appellant was that as the respondent was supposed to come back to Guwahati by catching a morning flight from Delhi on 31.03.2011,

he preferred to stay together in a hotel for those two nights for the convenience of the respondent, instead of taking her to Faridabad which is far off

from the Airport. When cross-examined, the respondent stated that she was not aware that the appellant had taken her to the hotel for her

convenience. Thereafter, there was nothing on record to show that the spouses stayed together at one place until August, 2011.

The appellant stated to have reached Guwahati on 14.08.2011 after getting leave from his company and stayed with the respondent in her flat at

Guwahati till 16.08.2011, on which day they both went to the respondent’s paternal home at Moran. But on 21.08.2011, the appellant had to go

back to Delhi and thereafter, went to Cochin for attending his official duty and it was stated by him that during that time, they had good cordial

relationship. The respondent had also stated that the appellant acted like a responsible husband during that period and admitted that after one week, he

went to Delhi for his official works with the assurance that he would come back to Guwahati to take her to Delhi in December, 2011. It has also

emerged from the version of the respondent that she after coming back from Delhi in January, 2011, joined her contractual post at Guwahati. From

February, 2011 to August, 2011, the parties had not stayed together at one place. It was the testimony of the respondent that during that time, the

mother of the appellant used to tell her to shift to Delhi. The version of the appellant was that the respondent was supposed to continue in her job till

June, 2011 to complete her one year job tenure and thereafter, to join him at Delhi. From the aforesaid testimonies of the parties, it can be noticed that

after 31.03.2011, they again stayed together from 14.08.2011 to 21.08.2011 and during that period they had no allegation against each other.

It was in December, 2011, the appellant came to Guwahati and after staying in Guwahati for one week, they both left for Delhi. It was the case of

the respondent that she took few household belongings like T.V., storewell, etc. which the appellant had not denied, along with her in December, 2011

with a view to start a new life, as per the respondent, at Delhi and stayed at the rented house at Faridabad. The respondent stated to have fallen sick

in the 1st week of January, 2012. While the respondent had alleged that the appellant did not take due care of her by not taking her to a Doctor, the

appellant had asserted that he had taken all necessary care of the respondent and had also taken her to a Doctor who after due medical examination,

confirmed that she had suffered from Jaundice and prescribed medicines for her. But the respondent, whose father is a Doctor, had taken medicines

which were prescribed by her father. The respondent had stated that it was at the request of her father, the appellant had admitted her in a hospital

and had done her medical checkup. It was during that period, the parents of the respondent visited her in Delhi. As she got an interview call from a

Government Organisation in the meantime, she after recovery had come back to Guwahati to attend the interview with due permission of the

appellant. The appellant on the other hand, had stated that the respondent left Delhi for Guwahati in February, 2012 and he also accompanied her to

Assam. While the respondent stated that he was not in favour of her joining in a new job, the respondent had stated that the appellant did not make

any intervention, rather, he showed eagerness asking her to join the job. While the respondent had stated that the appellant also expressed his

willingness to settle himself in Assam, the appellant, on the contrary, stated that it was on the persuasion of the respondent he tried to get a job in

Guwahati for which he appeared in some interviews also. The respondent had stated that the appellant came to Guwahati in June, 2012 in order to

stay with her for a month. It was alleged that he used to get missed calls from unknown numbers and he hesitated to receive those calls and tried to

conceal things and she found his such behaviour unsound. On the other hand, the appellant had sought to explain that those calls were calls from his

company and customers and he did not want to receive those calls in order to avoid causing disturbance to her. He further stated that being in a

company job, he had to keep the mobile phone switched on at all the times. The respondent had admitted that the appellant had made efforts to secure

a job in Assam and having failed to secure a job in Assam, he left for Delhi to continue his job. Subsequent to that, none of the parties had stated they

had stayed together at one place and both of them had admitted that they have been living separately since September, 2012. On a combined reading

of the testimonies of the appellant and the respondent together, it clearly transpires that they lived together at one place on three occasions, that too,

for a short period on each occasion. It is on the aforesaid premises, the allegations and counter-allegations of the respective parties are to be

considered.

From the materials on record, it does not emerge that except for the period immediately after the marriage i.e. from 14.03.2011 to 29.03.2011, the

respondent-wife had stayed with the parents of the appellant in Bhopal and it does not emerge from her testimony that anything untoward had

happened during that brief period of stay. She had, however, alleged vaguely in her petition that there was some demand of dowry from her mother-in-

law but there was no specific allegation. There was absolutely no whisper as regards any allegation of demand of dowry from the father of the

appellant. Though an allegation was made that there was deception on the part of the parents of the appellant who projected the appellant as a well

settled Software Engineer, the respondent did not lead any evidence to substantiate the said allegation. She alleged that on enquiry, she found the

appellant as fake and he married her by giving false identity and fraudulent information and his intention was to extract money from her as dowry.

Such allegation which she had made when she filed her evidence on affidavit initially on 22.06.2015, had been changed by herself, later on, materially

by submitting additional evidence on affidavit on 11.01.2016 where she had stated that the appellant is a Software Engineer at R.M.S. Software Pvt.

Ltd, Noida, Uttar Pradesh since 2010 and he used to earn not less than Rs. 1,50,000/- per month as salary. The respondent in her petition, also

demanded an amount of Rs. 50,00,000/- as permanent alimony from the appellant. The stand of the respondent on that count is found to be vacillating.

While admitting that he has been working as a Software Engineer at R.M.S. Software Pvt. Ltd., the appellant had stated that his monthly salary was

not Rs. 1,50,000/-but Rs. 35,000/- for which he exhibited his pay slips (Ext.-C, Ext.-D and Ext.-E) as well as a bank statement (Ext.-F).

It is noticed that the respondent had instituted a case, initially as a complaint case, before the Court of learned Chief Judicial Magistrate, Kamrup

(M), Guwahati which, later on, was forwarded to the Geetanagar Police Station for enquiry and report. As the complaint was made by the respondent

against the appellant and his parents, who stayed in Bhopal, Madhya Pradesh for commission of offences under Sections 376/406/419/496/498A,

I.P.C., a case was registered by police being Geetanagar Police Station Case No. 146/2013 under those Sections of law. The appellant and his parents

were granted pre-arrest bail in connection with Geetanagar Police Station Case No. 146/2013 and the police after investigation, had submitted charge

sheet only against the appellant under Section 498A, I.P.C. which is indicative of the facts that no prima facie case was found by the police to lay a

charge sheet against the parents of the appellant for any of the offences mentioned above, and against the appellant under Sections 376/406/419/496,

I.P.C. As has been admitted by both the parties, they have been living separately from each other since September, 2012 at two different places but

the respondent had chosen to institute a case under Sections 376/406/419/496/498A, I.P.C. in the year 2013. Neither party had exhibited the F.I.R. or

the charge sheet filed in connection with Geetanagar Police Station Case No. 146/2013 (G.R. Case No. 6786/2013) and, as such, there is no occasion

for us to know any details about the same. There is also no explanation on the part of the respondent as to why she had leveled such allegations, that

too, after a period of delay. There is no testimony of the respondent to the effect that there was any forceful sexual act on the part of the appellant

against her during the periods they were together. It is submitted by Ms. Deka, by referring to the additional affidavit filed on behalf of the appellant,

that the G.R. Case No. 6786/2013 had ended in acquittal of the appellant by virtue of a judgment and order dated 03.12.2018 passed by the Court of

learned Judicial Magistrate, First Class, Kamrup (M), Guwahati.

The term ‘cruelty’ is not defined in the Special Marriage Act, 1955. Cruelty can either be physical cruelty or mental cruelty. As there is no

allegation of physical cruelty in the case in hand, no dilation is required in that respect. Mental cruelty is the conduct and treatment of one spouse

against the other which causes mental suffering, trauma or fear to the matrimonial life and such conduct and treatment has to be of such magnitude as

to cause a reasonable apprehension in the mind of the other spouse that it would be harmful and injurious for the petitioner to live any longer with the

other party. It has to be borne in mind that cruelty is distinguishable from the ordinary wear and tear of family life. It is a matter to be considered and

determined in each case having regard to the facts and circumstances of that particular case.

In Vijaykumar Ramchandra Bhate (supra), the question that has arisen is as to whether the averments, accusations and character assassination of

the wife by the appellant-husband in the written statement constitute mental cruelty for sustaining the claim for divorce under Section 13(1)(ia) of the

Hindu Marriage Act, 1955, a provision pari materia to the provision of Section 27(1)(d) of the Special Marriage Act, 1954. It is held to be well settled

that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is

a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions attributed to the wife viewed in the

context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself

to substantiate cruelty in law, warranting the claim of the wife being allowed. In the case in hand, the appellant in the written statement had stated that

the respondent used to share issues relating to her married life with friends, specially males. It was stated that the respondent had the habit of roaming

around with her boyfriends prior to her marriage and she did not abandon the said habit after the marriage and concocted the story about infliction of

cruelty by him in order to get a decree of divorce. During the cross-examination, he stated that the respondent wanted to go out with boys. From a

perusal of it, it does not appear that the appellant had made any character assassination of the wife by scurrilous accusations of unchastity or extra

marital relationship assaulting the character, honour, reputation, etc. of the wife so as to entitle the wife to claim dissolution of marriage on the ground

of cruelty in law. The ratio exposited in the decision in Vijaykumar Ramchandra Bhate (supra) is found to be inapplicable to the fact situation obtaining

in the present case.

From the case presented by the respondent, as has been discussed above, it does not inspire any confidence that the case falls in the category

wherefrom a conclusion can be arrived at that because of the conduct and treatment of the appellant the respondent had undergone such mental

suffering, trauma or fear in her matrimonial life which has the effect to cause an apprehension, much less reasonable apprehension, in her mind that it

would be harmful and injurious for her to continue the matrimonial relationship any longer with the appellant. The allegations made by the respondent

in relation to the incidents enumerated in the case on hand, without corroboration of any kind, cannot be termed as cruelty so as to entitle her to the

dissolution of the marriage by a decree of divorce under Section 27 of the Special Marriage Act, 1954. Having regard to the materials on record, we

are of the considered opinion that the learned Family Court was not justified in its approach to come to a conclusion that the respondent was

compelled to file the case against the appellant and his family members finding no alternative when the demands of the appellant crossed all limits and

she was subjected to continuous physical and mental torture. In such view of the matter, the present appeal in so far as against the petition filed by the

respondent-wife is concerned, succeeds and resultantly, the decision of the learned Family Court of granting the decree of divorce, in our considered

opinion, in favour of the respondent-wife, deserves to be reversed. Accordingly, the appeal against that part of the judgment and order dated

30.06.2018 is allowed by setting aside and quashing the dissolution of the marriage by a decree of divorce.

One of the pleas that was raised for grant of divorce by the appellant in the counter-claim was under Section 27(1)(b) of the Special Marriage

Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than 2 (two) years immediately preceding the

presentation of the petition. As per prescription of Section 27(1) (b) of the Special Marriage Act, a wife or a husband can seek dissolution of marriage

by decree of divorce if the other party has deserted the spouse seeking the divorce for a continuous period of not less than 2 (two) years immediately

preceding the presentation of the petition. Desertion, in the context of a case seeking dissolution of marriage, has been interpreted, in essence, as

intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. Desertion does

not mean simple withdrawal by one spouse from the company of the other spouse.

The learned Family Court had observed that the appellant stated that since the month of September, 2012, the respondent kept herself away from

the appellant and stopped receiving his phone calls. It further arrived at a finding that the appellant since June, 2012 behaved indifferently towards the

respondent by harassing her with demand of dowry and becoming violent at the non-fulfillment of his demands, about which a discussion has already

been made above, and having observed so, the learned Family Court had further held that the allegation of desertion brought by the appellant in the

counter-claim was not proved.

Notwithstanding the above finding of the learned Family Court as regards desertion, the records of F.C.(Civil) Case No. 390/2014 shows that the

petition was filed by the respondent-wife seeking dissolution of marriage by decree of divorce on 09.05.2014. Responding to the same, the appellant

had filed his written statement along with the counter-claim on 21.06.2014. It is an admitted version of both the appellant and the respondent that they

have been living separately since September, 2012. Thus, at the time of presentation of the counter-claim by the appellant-husband, the condition of 2

(two) years continuous period was not satisfied and as such, the ground of desertion, taken by the appellant, has to be held as untenable in the present

case.

The appellant in his evidence as D.W.1 had reiterated the same facts as in the written statement and counter-claim. He further alleged that the

respondent had the habit of roaming around with her boyfriends prior to her marriage and she did not abandon her said habit even after her marriage

and she had, in order to get the decree of divorce with alimony, made allegations against him which were concocted and also instituted the criminal

case. In order to substantiate his said allegation, he exhibited few photographs as exhibits under objection from the respondent. He asserted that he

used to give money to the respondent occasionally and also used to pay her mobile bills, cable connection bills, etc. By exhibiting a number of mobile

bills, he had stated about the number of calls he used to give to 3 mobile numbers of the respondent. He further stated that respondent used to stay in

a 3-bedroom flat given to her by her father at Guwahati and used to have the services of a car driver. In his cross-examination, he admitted about

sending the respondent to Guwahati to continue her job. He stated that he came to Guwahati for settlement but despite numerous phone calls, the

respondent did not pick up the phone. He stated to have told the facts to D.W.2 when he and his parents visited her on 14.03.2013 at Jorhat. D.W.2, a

retired professor, is a resident of Jorhat. The appellant is the son of her husband’s younger brother and the respondent is the daughter of her

cousin brother. Because of such relation, the appellant was known to her since his birth. The marriage between the appellant and the respondent was

arranged through her. After their marriage on 11.03.2011, the couple visited her house in Jorhat in June, 2012 and at that time, both looked happy. The

appellant’s father is a heart patient and as he had undergone a heart operation in 2010, the appellant’s mother had to stay with him always as

there was nobody to look after since their only daughter is settled happily in Norway with her family. She stated that once in April, 2013, the appellant

and his parents visited her house at Jorhat and they told D.W.2 as to how they had suffered at the hands of the respondent. It was told to her by the

appellant that the respondent did not want to stay with the appellant and refused to go to Delhi to stay with him, by preferring to stay in Guwahati

alone in her flat. On being made aware about the events in the aforesaid manner, D.W.2 stated to have talked to the respondent’s father with the

proposal as to whether the elders of both the sides should talk to the spouses in order to sort out their differences. Without giving any reply to the said

proposal, the respondent’s father blamed her for arranging the marriage of his daughter with the appellant before switching off the phone. D.W.2

had, however, admitted that she never met the respondent intimately since she had grown up but proposed the marriage as both the families were

known to her. She further stated that in July, 2013, she was informed by the appellant’s mother over phone about filing of the criminal case against

the appellant and his parents.

Thus from the evidence of D.W.2, it is evident that after the marriage on 11.03.2011, she met the couple only on one occasion in June, 2012 when

the couple visited her house at Jorhat and she found, at that time, both of them happy. D.W.2 does not have first hand knowledge about the married

life of the spouses for the period subsequent to June, 2012. It was in the month of July, 2013 only D.W.2 was informed about institution of the case

against the appellant and his family. The said witness was told about the alleged torture by the appellant and his parents only in April, 2013 when they

visited her house at Jorhat. But it was from September, 2012 i.e. much prior to April, 2013, the appellant and the respondent have been staying

separately with they both continuing their jobs at Delhi and Guwahati respectively. The prayer for dissolution of the marriage, in the petition as well as

in the counter-claim, was made for the events that had occurred between 11.03.2011 and September, 2012. Thus, the testimony of D.W.2 in view of

her admission about the source of her knowledge, does not carry much value in so far as regards the marital relationship between the appellant and

the respondent is concerned and it cannot be said that her deposition has lent any corroboration to the contention of the appellant with regard to his

plea for divorce on the ground of cruelty.

The decision in Arnesh Kumar (supra), was rendered in a criminal appeal where the petitioner apprehended his arrest in a case under Section

498A, I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. After discussing the rate of charge sheeting in cases under Section 498A, I.P.C. and

the rate of conviction in such cases after trial, the Hon’ble Supreme Court in order to ensure that police officers do not arrest the accused

unnecessarily and Magistrates do not authorize detention casually and mechanically, has given certain directions to all the State Governments to

instruct its police officers not to automatically arrest when a case under Section 498A, I.P.C. is registered but to satisfy themselves about the

necessity for arrest under the parameters laid down therein flowing from Section 41, Code of Criminal Procedure, 1973. We do not find any relevance

of the said decision with the merits of the instant appeal arising out of a judgment and order of the learned Family Court in a petition and a counter-

claim seeking divorce.

As has been noticed above, the contesting parties had stayed together at one place only on three occasions, on each occasion for a brief period,

interspersed between 11.03.2011 and September, 2012 to discharge their marital obligations to each other. The events which had occurred between

them have already been discussed above wherefrom it is found that allegations and counter-allegations were made by each respective spouse without

any corroboration from any other quarter. The testimony of the appellant, in the context of the aforesaid discussion, does not also inspire us to come to

a conclusion that he had been able to make out a case of infliction of mental cruelty on him by the respondent so as to entitle him for the dissolution of

his marriage by decree of divorce. The allegations and counter-allegations leveled by one against the other, even assumed to be true, appear to have

arisen out of the types of life the parties are accustomed to in relation to their social and economic conditions as well as their perception to culture and

human values. The conduct and behaviour of one spouse vis-Ã -vis the other spouse in the case in hand appear to have caused unhappiness,

dissatisfaction and emotional upset but the same cannot be a ground for grant of divorce on the ground of mental cruelty. Such irritations and

oppositions of one spouse about the conduct and behaviour of the other spouse could not be adequate for grant of divorce under Section 27(1)(d) of

the Special Marriage Act, 1954. Though the parties have stated that they have been living separately since September, 2012, such separate living per

se does not enable the Court to grant a decree of divorce when it does not fall under any of the statutory prescriptions of Section 27 of the Special

Marriage Act, 1954. Thus, we hold that the appeal to that part of the judgment and order dated 30.06.2018, whereby the learned Family Court had

dismissed the counter-claim of the appellant, fails and accordingly, the appeal to that part of the judgment and order is rejected.

With the aforesaid observations, the present appeal stands disposed of.

The LCR is to be sent back accordingly.