Chandana Baidya @APPELLANT@Hash Subodh Suklabaidya

M.R.Pathak, J.

Heard Mr. RC Paul, learned counsel the appellant and Mr. LR Majumdar, learned counsel for the sole respondent.

This matrimonial appeal under Section 20 of the Hindu Marriage Act, 1955 has been filed by the appellant Smt. Chandana Baidya challenging the

judgment and decree dated 03.09.2011 passed by the learned Principal Judge, Family Court, Cachar, Silchar in F.C.(C) 163/2006 dissolving her

marriage with the sole respondent, Sri Subodh Suklabaidya.

The grievance of the appellant is that without adducing proper evidence regarding her misbehavior and conduct, the respondent managed to obtain

the impugned decree dated 03.09.2011. It is also alleged by the appellant that PW-2, her mother-in-law, who on most occasions stays with her son

(the respondent), deposed that she does not know the reason for marital dispute between her son and the appellant and the learned Family Court failed

to consider that aspect of the matter and dissolved the marriage on the ground of cruelty.

The brief facts of the case is that the respondent and the appellant got married on 05.03.2003 as per Hindu rites. The appellant being an employee

of the Electricity Department of Government of Mizoram and as she was posted at Vairengti, she had to stay there. The respondent husband as a

petitioner on 26.09.2006, filed a petition before the Principal Judge, Family Court, Cachar, Silchar under Section 13(1)(i)(i-a) and (i-b) of the Hindu

Marriage Act, 1955 praying for a decree of divorce against the appellant on the ground of cruelty and desertion, which was registered and numbered

as FC (C) 163/2006.

The appellant as respondent appeared in the said case and contested the case by filing her written statement.

For proper adjudication of the case, learned Family Court framed the following issues:

(i) Is there any cause of action for filing the suit?

(ii) Whether the respondent treated the petitioner with cruelty?

(iii) Whether the respondent deserted the petitioner?

(iv) Whether the petitioner is entitled to get a decree of divorce as sought for?

(v) What other relief/reliefs the parties are entitled to?

The respondent husband examined himself as PW-1, his mother, Smt. Monti Suklabaidya as PW-2 and one of his colleague, Sri Biswajit Guha as

PW-3. But, the evidence of PW-3 was expunged by an order dated 10.11.2010.

The appellant cross-examined both PW-1 and PW-2 and she examined herself as DW-1 and was cross-examined by the respondent.

The petitioner/husband in his evidence-in-chief deposed before the Trial Court that he married the appellant in her paternal house at Udharbond on

05.03.2003 as per the Hindu rites and they do not have any issue. After their marriage, he found that the respondent is very aggressive in nature and

she behaves him in harsh and indecent manner, goes out of house at her own whims and reacts badly in front of other members of the family. He

further deposed that after their marriage, on expiry of her leave period, though he requested her to allow him to accompany her to Vairengti, her place

of service at Mizoram, she flared up and behaved him badly and it was difficult for him to tackle such situation. Thereby she used to go alone to her

place work at Mizoram. For her such actions, the respondent husband felt that his wife appellant neglects him and disrespected him by hurting his

emotions. He felt that the appellant gets some sadistic pleasure by humiliating him in front of others. As such, he could not peacefully enjoy his

married life with the appellant due to such mental and physical torture committed by her upon him. He also deposed that she was very rude to his old

mother and she lodged false allegations against her. Respondent husband stated that though he tried to live with her as husband and wife, peacefully,

but on 23.07.2004, she came to his rented house at Silchar, abused him both physically and mentally, charged him to be an incapacitate person to

discharge his marital obligations towards her and left him, thereby deserted him permanently since then, withdrawing herself from him and his society

without his consent and wish.

In his cross-examination, he stated that in March, 2003, he got married with the appellant and she had left him on 23.07.2004 and during the said

period, she visited his house at Silchar mostly in weekends. He admitted that once she became pregnant for which she was admitted in a hospital at

Silchar. But, he denied that as per his advice, she was aborted and stated that it was done as per the advice of the doctor. He also denied that quarrels

between them started as he asked her to resign from her job and stated that he did not lodge any complaint against her before any police station or

authority. He admitted that he informed the wife of his friend Sri Ranjan Suklabaidya about her behavior and conduct, which was informed to the

appellant. But, he denied that he was not aware what had happened between the appellant and the wife of said Sri Ranjan Suklabaidya as said Mrs.

Suklabaidya had discussion with his wife in his house during his absence. He also stated that he is serving as a Khalasi in Inland Water Transport

Department, a permanent post of Government of Assam and that he receives an amount of Rs. 7,000/- per month as gross salary. He also stated that

his parents are alive and his father resides at Karimganj and he is not willing to take back the appellant in the present situation.

PW-2, mother of the respondent husband, in her evidence-in-chief, deposed that her son married the appellant on 05.03.2003 as per Hindu rites at

Udharbond and she found that the behavior of her daughter-in-law towards his son, was very aggressive and that she moved on her own wish and

whims. She also deposed that the appellant never allowed her son to accompany her to her place of work at Mizoram, though her son showed

willingness to accompany her; rather, it is she who insulted him. She further deposed that her son could not live peacefully due to her cruelty, violent

and disrespectful behaviour and that she visited their house at Silchar at her own whims. She deposed that since 23.07.2004, the appellant did not

come to their rented house at Silchar and since then she deserted her son severing all relations with him.

During her cross-examination, she stated that initially after the marriage the appellant came to their house at Silchar every Friday and returned on

Monday, after staying with the petitioner. Both she and her son asked the appellant to leave the job and to live with them in their house permanently

but, she refused to do so. She also deposed that she does not know as to why the quarrel was going on between the appellant and her son. She denied

the suggestion that her son used to drink liquor with his friend in his house.

The appellant as DW-1 in her evidence-in-chief admitted that she is legally married wife of the respondent and that after their marriage, her

husband pressurized her to resign from her job, which according to her was the root cause of matrimonial discord between them. She alleged that her

mother-in-law used to act violently upon her and even started torturing her. She also alleged that her husband is a habitual drunker and all efforts made

by her to bring him back from such habit failed. She deposed that she used to come to her husband’s house almost every week despite severe ill

treatment on every such occasion but, her husband never stayed with her despite several request. She also deposed that though she conceived after

marriage, but due ill treatment and cruelty of her mother-in-law and husband, she was forced to abort. She deposed that her husband used to take very

little care of her and he was guided and instigated by others and that her husband never showed any interest to live a normal marital life.

During her cross-examination, she admitted that since 1986 she had been serving in the Electricity Board of Mizoram and is residing separately

from her husband since July 2004. She also admitted the fact that out of their wedlock, no child was born to them. She further admitted that on

23.07.2004, she took her articles from the house of her husband/respondent and stated that she had not taken her husband to her place of service,

though he requested her to allow him to go there. She denied the suggestion that her husband is not a habitual drunker.

From the perusal of the evidence, we have seen that the appellant after her marriage used to visit her husband in the weekend and since

23.07.2004 she had withdrawn herself from the respondent and severed the relation with her husband. It is also an admitted position that inspite of the

request made by her husband to accompany her to her place of work, she rejected his requests.

In the case of Savitri Pandey -Vs- Prem Chandra Pandey, reported in (2002) 2 SCC 73, the Hon’ble Supreme Court have held that

“Desertionâ€, for the purpose of seeking divorce under the Hindu Marriage Act, means the intentional permanent forsaking and abandonment of

one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of

marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial

obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties.

In the present case no evidence was led by the appellant to show that she was forced to leave the company of the respondent or that she was

thrown away from her matrimonial home or that she was forced to live separately. There is nothing on record to hold that the respondent had ever

declared to bring the marriage to an end or refused to have cohabitation with the appellant. As a matter of fact the appellant is proved to have

abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation.

Hon’ble Apex Court in the case of Savitri Pandey (supra) have also held that Cruelty has not been defined under the Hindu Marriage Act, but

in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty

consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and

manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or

to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the

matrimonial life of the other. “Crueltyâ€, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension

in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the

ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged onthe basis of the

course of conduct which would, in general, be dangerous for a spouse to live with the other.

In the case in hand the appellant wife had failed to prove the allegations of cruelty attributed to the respondent. The averments made in the petition

and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the

appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

We have also observed that the parties are separated from each other since 23.07.2004. The marriage between the parties was solemnized on

05.03.2003 which lasted for only about one year four months and the matrimonial trouble started after few months of the marriage. The respondent

husband has been able to prove the cruelty meted out to him by the appellant wife, as it is she who left him inspite of the fact that he wants to be with

her. The petitioner husband could prove his pleaded case in order to get a decree of divorce. The appellant could not show or establish any illegality in

passing the impugned judgment and decree, nor could show that she could prove her case to the satisfaction of the Court, sufficient enough to dismiss

the petition.

We have also seen from the records that as per the decree of divorce dated 03.09.2011, an amount of Rs. 1,00,000/- has already been deposited

by the respondent husband with the learned Family Court, Cachar, Silchar, towards permanent alimony of the appellant.

Mr. Mazumdar, learned counsel for the respondent husband submits that in the meanwhile, the respondent solemnized another marriage.

We have not found any legal ground to interfere with the impugned judgment and decree dated 03.09.2011 passed by the learned Family Court,

Cachar, Silchar in F.C. (C) 163/2006. Accordingly, this matrimonial appeal being devoid of merit fails.

The interim order passed earlier on 21.02.2013 stands vacated.

Registry shall return the records of F.C.(C) 163/2006 to the learned Principal Judge, Family Court, Cachar, Silchar along with a copy of this

judgment.