Ratan Sen VsBhulu Rani Das

Deepak Gupta, C.J.—This appeal by the husband is directed against the judgment dated 22nd December, 2009 delivered by the learned Additional District Judge, Sonamura, West Tripura in case No. TS.(Divorce)06/2009 whereby he allowed the petition filed by the wife u/s 13 of the Hindu Marriage Act, 1956 (hereinafter referred as an Act) and dissolved the marriage between the parties by granting a decree of divorce. The undisputed facts are that the appellant-husband and the respondent-wife got married according to Hindu rites and customs on 3rd March, 2000. Out of this wedlock one male child was born. The marriage between the parties soon hit turbulent waters and differences cropped up between the husband and wife. Thereafter, the wife filed the petition for grant of divorce on the ground that the husband under the influence of liquor used to assault the wife and torture her. She had brought this fact to the notice of her parents and relatives and due to this torture inflicted on her by her husband she was compelled to live in a separate accommodation whereas the husband was living at Agartala with his son. The wife is a Government servant employed as a Staff Nurse.

The husband contested the petition. He denied that he had ever treated his wife with cruelty or had ever tortured her. The husband in his written statement made an allegation against the wife that she had illicit relations with one Bikash Chandra Das of Khayerpur. It was also contended that a meeting was arranged at the instance of the Pradhan of Khas Chowmuhani Gram Panchayat wherein the members and Pradhan of the Mirza Gram Panchayat were also present and during this meeting the wife had admitted that she had illicit relations with said Bikas of Khayerpur.

After trial the learned trial Court granted the decree of divorce not on the basis of allegation made by the wife but on the ground that the husband by levelling false allegation of un-chastity against the wife and had treated her with cruelty. The respondent-appellant aggrieved by the judgment and decree of the learned trial Court has filed the present appeal.

We have heard Mr. T.K. Deb, learned counsel for the appellant and Mr. B.N. Majumder and Mr. S. Adhikari, learned counsel for the respondent.

It is not necessary to discuss the other evidence in detail. Once a spouse who is a respondent in a matrimonial proceeding raises an allegation that the petitioner''s spouse is unchaste then duty is cast on the respondent spouse to prove the allegation made by him/her otherwise leveling the false allegation is itself an act of cruelty within the meaning of Section 13 of Hindu Marriage Act.

The law in this regard no longer res-integra. There is a catena of judgments to support the aforesaid proposition of law. We only need to cite one judgment of the Apex Court in

Vijaykumar Ramchandra Bhate Vs Neela Vijaykumar Bhate reported in AIR 2003 SC 2462

.

The Apex Court held as follows:

To satisfy the requirement of cl. (i-a) of sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the courts perhaps need to consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled by husband in written statement and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact for quite some time past the husband had been persistently indulging in them, unrelenting and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. They continued on record and the indelible impact and scar should have created, cannot be said to have got ipso facto dissolved, with the amendments order.

In the case before the Apex Court, the husband after making the allegations had even filed an application for amendment of the written statement and had withdrawn the allegation of unchastity made by him against the wife. Despite such an amendment application having been filed the Apex Court held that once the act of cruelty was committed it could not wiped out by moving such an application for amendment. In the present case, it is not denied that the allegation of unchastity has been made and therefore it was for the husband to prove such an allegation.

When the wife entered the witness box as P.W. 1 the only question put to her in cross-examination in this regard whether she knew Bikash Chandra Das. She denied that she knew any such person. She was not subjected to any further cross-examination in this regard. No suggestion was put to her that a meeting of two Gram Panchayats along with the Pradhan and Members were held where she had admitted that she was living in sin with Bikash Chandra. By not subjecting the wife to cross-examination the respondent-husband virtually accepted the plea set out by the wife in this regard.

On behalf of the appellant it is strenuously contended that the statements of the husband and his three witnesses specially O.P.W. 4 are sufficient to prove that the wife had made a statement that she had some illicit relationship with Bikash Chandra Das. At this stage, it is also pertinent to mention that no attempt was made to array the said Bikash Das as party to the divorce petition. Be that as it may, as far as O.P.Ws. 2 and 3 are concerned, their statements are more in nature of hearsay because according to them they were told either by the husband or the brother of the wife that she had illicit relations with Bikash Das. It is only O.P.W. .4, who was the former Pradhan of Gram Panchayat Mirza and allegedly present in that capacity in the meeting who has stated that the wife did make a statement before the two Gram Panchayats that she was living with Bikash Chandra Das. In our view the statement of O.P.W. .4 does not inspire confidence. We cannot merely rely on the statement of the Pradhan and hold that a woman is living an unchaste life. There must be better evidence in this behalf.

The admission of the wife has not been proved and no other evidence worth the name has been led to prove that the respondent-wife had any relation whatsoever with Bikash Chandra Das. Even the so called admission has not been proved by the opposite-respondent. If two Panchayats held a meeting one would expect some sort of written record to be produced with regard to the convening of the meeting and summoning of the affected parties. A Panchayat must work in accordance with the procedure prescribed in the Tripura Panchayats Act 1993. A Panchayat must convene a meeting by an order which expected to be in writing. The parties are to be summoned by written summon. Some written record of the meeting must also be kept. In the absence of any written record it would be not prudent to rely upon the oral testimony of a witness even if he be the Pradhan of the Panchayat. Therefore we are constrained to observe that we cannot rely on the statement of the O.P.W. .4. Once the allegation of unchastity of the wife has not been proved then she was entitled to get a decree of divorce only on the ground that the husband had levelled unsubstantiated allegation of unchastity against her which in our opinion amounts to an act of cruelty u/s 13 of the Hindu Marriage Act.

It has been contended that the husband had filed an application for grant of maintenance for himself and for his minor son, but the same was not decided. On going through the record we find that such an application was rejected by the learned trial Court by a detailed order dated 19.11.2009 which has not been challenged by filing an appeal. In view of the above discussion, we find no merit in the appeal and the same therefore stands dismissed. No order as to costs.