Smt. Priyanka Chowdhury vs Sri Narayan Chandra Chowdhury

Rakesh Tiwari, J. - This appeal arises from a judgment and decree dated 3rd May, 2014 whereby the learned District Judge, Hooghly dismissed the Matrimonial Suit no.458 of 2013 filed by the wife/appellant under Section 13 of the Hindu Marriage Act for dissolution of marriage on the ground of cruelty and allowed Suit No.53 of 2008 of the husband for restitution of conjugal rights.

The facts of the case are that the petitioner and the respondent fell in love before their marriage which was solemnised on 20th April, 2001 according to Hindu rites. They led a happy married life for about six months and thereafter differences appeared between the two.

According to the claim of the wife, her husband and his family members started misbehaving with her and she was pressurised for bringing Rs.50,000/- from her father. She was subjected to physical torture, for not acceding to their demands although a considerable amount of dowry was given by her father in marriage in the form of gold ornaments and other valuable articles. On coming to know about the torture to his daughter by the respondent, petitioner''s father paid a sum of Rs.30,000/- to the husband in order to bring peace in his daughter''s married life. However, as time passed, her husband started losing interest in her. He started coming late at night in drunken state, which was a cause of mental agony to her. The respondent also stopped to provide the basic amenities to his wife and when he was requested by her to do so, abuses were hurled by her husband at her.

It is also claimed that petitioner''s health completely broke down but even then the husband did not provide care and medicines to her. In the year 2002 she was assaulted and beaten up so mercilessly that she was compelled to leave her matrimonial home and reside at her father''s house for a couple of months for the purpose of treatment. After recovering from her illness she again went back to her matrimonial house in the first week of 2003. In spite of torture inflicted to her by the husband, she did not take any legal steps against him and his family members in order to keep the matrimonial tie intact she was again assaulted by her husband who forcibly drove her out from her matrimonial house in the year 2005. Under these compelling circumstances, she apprehending danger to her life was forced again to take shelter in her father''s house and refrained herself from returning to the husband''s house.

The case set up by the husband/respondent was that his marriage with Priyanka Chowdhury was solemnised on 20th April, 2001 which was also registered after some years on 04.08.2005 under the Hindu Marriage Act, 1955.

In response to Suit of divorce filed by his wife he preferred an application under Section 24 of the Hindu Marriage Act for his maintenance which was registered as Suit No.270 of 2007. In the said Suit No.270 of 2007 he prayed for a direction to the wife to pay to him a sum of Rs.3,000/- (Rupees three thousand) only towards his maintenance and a sum of Rs.5,000/- (Rupees five thousand) only at a time as litigation cost payable according to English calendar months, for the ends of justice. It was further averred that there was no mental or physical torture inflicted upon his wife by him or his family members when she lived with them and that he never consented to marriage with Priyanka. However, one day she came to him in a hurry and asked him to marry her on the same date. He did not want to marry at that time, as he was unemployed youth and it would have been impossible to maintain her after marriage. On the threat of committing suicide by Priyanka Chowdhury, he had been forced to marry her. She had also assured that as regards expenses and running of family he did not need to bother about the income and that she would run their family by her own income. It is alleged that she assured the respondent that she would arrange a job for him by applying the influence of her father but that proved to be a fake.

A counter claim on behalf of Narayan Chandra Choudhury the husband was also filed by him under Section 9 of the Hindu Marriage Act for restitution of conjugal rights by means of Matrimonial Suit No.53 of 2008 in the court of Additional District Judge-cum-Special Court, Asansol, Burdwan on 10th May, 2012. He prayed the following prayers:

"a) Pass a decree of restitution of conjugal rights u/S. 9 of the H.M Act, 1955 in favour of the petitioner against the respondent directing her to join the company of the petitioner and thereby restore his conjugal rights;

b) Pass a decree of cost of the Suit;

c) Pass such other or further order/orders as your Honour deem fit and proper in the interest of justice."

Affidavit of objection was filed by petitioner/wife Priyanka against respondent/husband''s petition under Section 24 of the Hindu Marriage Act, denying the allegations that she was an arrogant lady or that her husband was an unemployed youth. According to her, she herself was an unemployed lady. It was averred that her husband was carrying on business of catering since before their marriage, under the name and style "Sanjan Caterer" from S.P Market, Chittaranjan from which he was earning Rs.20,000/- per month.

She also claimed that she was mentally and physically tortured by her husband since August, 2005, i.e., after registration of the marriage; that she was presently residing separately from her husband and neither her husband took any steps to bring her back nor changed his indifferent attitude.

Per contra in his written statement the respondent submitted that he looked after his wife well: that he had taken her to Gangtok and Darjeeling in the month of February, 2004, to a trip of Kashmir in the month of May, 2004, and to a trip of South India in the month of December, 2004. The husband claimed to have taken the petitioner/wife as well as her mother and maternal aunt to Sunderban on a tour in the month of December, 2005.

The learned trial Judge on the basis of pleadings framed the following issues:

Is this case maintainable in its present form?

Has the marriage been solemnised between the parties as per Hindu rites and customs on 20.04.2001?

Did the respondent treat the petitioner with cruelty as alleged?

Was the petitioner compelled to leave the matrimonial home by the respondent in effect deserting the petitioner?

Is the petitioner entitled to get a decree of divorce as prayed for?

To what other relief or reliefs the petitioner is entitled to?

Is the husband entitled to get a decree for restitution of conjugal rights?

Other than the petitioner, as prayed for by the husband, is he entitled to get any other relief or reliefs?

Issue no.1 was decided by the learned trial court saying it was of the opinion that the matrimonial suit no.458 of 2013 preferred by the wife for a decree of divorce was maintainable.

As regard issue nos.2 to 6 are concerned, the court after appreciation of evidence found that D.W.1/respondent himself in his cross-examination has admitted the facts that he was doing business prior to his marriage with the petitioner up-till the date of his cross-examination i.e. 7th April, 2014. It was also admitted by the respondent that he was not an unemployed youth at the time of marriage with the petitioner and that the statement made by him in paragraph 3 of his examination in chief on affidavit was not correct. However, the trial court after appreciation of arguments held:

"In my considered opinion after scanning the evidence petitioner/wife has not been able to establish the fact that she was subjected to cruelty by the respondent and the family members of the respondent. Rather it is established from her deposition in cross-examination that she along with the respondent were staying away from the matrimonial home at Chittaranjan for 7 to 8 months and thereafter had to return to the matrimonial home i.e. the residence of the respondent''s father due to financial stringency. No where in the plaint such fact has been disclosed by the petitioner that for some time she along with her husband were staying away from the matrimonial home. Neither do I find any statement explaining why the petitioner and the respondent were staying away from the matrimonial home for 7 to 8 months immediately after their marriage. It, however, goes to prove the allegation of the respondent that soon after the marriage the petitioner insisted to stay away from the matrimonial home leaving the parents of the respondent, but had to return to her matrimonial home leaving such separate accommodation due to financial stringency. From the oral evidence as has been adduced by the parties it is also evident that the petitioner and the respondent were enjoying the marital life by going to various places which fact has also been admitted by the petitioner in her cross-examination. I am, therefore, unable to accept the allegation of the petitioner that she was mal-treated physically and mentally by the respondent from the very beginning of her marital life and/or from the years as has been mentioned in the body of the plaint. I also cannot accept the allegation of the petitioner that soon she found that the respondent lost his interest on her and came back home in a drunken state torturing her physically as she denied to bring money from her father. Other than the stray incident of asking for Rs.50,000/- by the respondent which, of course, has been denied by the respondent both by filing his written statement and when he was cross-examined as D.W.1 I do not find any other incident has been mentioned so as to presume that the petitioner was regularly tortured by the respondent/husband on account of bringing money from her father as has been allegedly by the petitioner. Regarding the giving of Rs.30,000/- is also not believable to this Court as other than adducing oral evidenced by the petitioner and her father who will of course support the case of the petitioner. I do not find any independent witness adducing before this Court to corroborate such statement of P.W.1 and P.W.2. Neither the same is supported by any documentary evidence.

Be that as it may, the allegation of the respondent against the petitioner that the petitioner wanted a separate accommodation for her and the respondent after their marriage leaving the parents of the respondent is proved by the admission of the petitioner herself while adducing as P.W.1, that they were staying at Chittaranjan for 7 to 8 months after their marriage and had to return to the house of the respondent''s father due to financial stringency. It is also evident that the petitioner loved having her own ways as she was pursuing her studies at Kolkata staying away from her matrimonial home and she never denied the fact that after her marriage she was allowed to pursue her studies. All these facts leave no other room that to presume the fact that the petitioner loved having her own ways in her matrimonial home which at times gave rise to certain disputes with the respondent though most of her wishes were accepted by the respondent. I am, therefore, of the opinion that the petitioner miserably failed to establish the fact that she was treated with cruelty and therefore issue No.3 is answered and against the petitioner."

A perusal of the aforesaid findings go to show that as regards the allegation that the petitioner was compelled to leave the matrimonial house and had to stay with her father were not believed by the trial court since it did not find in the plaint that any allegation was made by her that the petitioner lodged any complaint with any authority when she was assaulted by the respondent.

The court rather believed that she was enjoying their married life going to various places as such it appeared to the court that the wife was not mal treated. The court found that for some time the petitioner with her husband was living away from the matrimonial home but returned to her father in law''s house due to financial stringency. The court also was unable to accept the case of the petitioner/wife that for the above reasons he lost interest in her or maltreated her in any way as she could not produce any independent witness before the court to corroborate of P.W.1 and P.W.2. Accordingly, the trial court failed to appreciate the fear of the petitioner which stopped her from returning her matrimonial house at the risk of her life by not approaching the appropriate authorities to lodge complaint against her husband. In this regard, the court opined and ordered thus:

"In view of my above observation I am of the opinion that the petitioner has not been able to establish the fact that the respondent compelled her to leave the matrimonial home thereby deserting the petitioner. The issue No.4 is, therefore, also decided against the petitioner.

Having observed as above and deciding the issue No.3 & 4 against the petitioner I am of the opinion that petitioner is not entitled to get a decree of divorce as prayed for, having miserably failed to establish the fact that she was treated with cruelty by the respondent/husband and/or deserted by him. Issue No.5 is thus also decided against the petitioner.

Under the circumstances I am of the opinion that the petitioner is not entitled to get any relief in the instant Matrimonial Suit.

Hence, it is,

ORDERED

That the instant Matrimonial Suit is dismissed on contest. No order as to costs. Regarding the issue No.7 and 8 which are framed by this Court to adjudicate upon the claim of the husband/respondent as regards restitution of conjugal rights, though I do not find any evidence adduced by the husband/respondent so as to establish that he sincerely wanted the petitioner to return to him and continue with the matrimonial relationship, yet the fact that he was contesting the divorce suit opposing the prayer for divorce leads this Court to presume that the respondent has the desire to continue with the marital tie and thus should get a chance to continue with the relationship between himself and the petitioner which has been put in abeyance by the petitioner by withdrawing herself from the society of the husband without any cogent reasons. I am, therefore, of the view that the issue No.7 and 8 though not proved by the husband with cogent evidence, yet from the actions of the husband, as it appears from the evidence of P.W.1, the petitioner and D.W.1, the respondent, compels this Court to decide the issues in favour of the respondent/husband. In view of the fact that this Court decided the issues No.7 and 8 in favour of the husband/respondent."

It is true that the wife or husband do not normally severe the matrimonial tie on small difference and try to continue their matrimonial obligations before any break down in marriage is accepted by them. Once the matter reaches the police or the local authorities there is lesser chance of any harmony between the couple or any desire to continue with the married life. It is a normal thought in the minds of couple that in case they go to police, any possibility of patching up or continuing with the married life would be hampered due to the police intervention. The wife who had strong desire to live in the matrimonial house could not do so because of the fear to her life from her husband after repeated incidents of assault and throwing her from the house. It does not mean that she has to prove her intention to continue her married life by a document to substantiate such incident in her house or by some independent witness to prove the mental and physical torture inflicted upon her by her husband and his family members by evidence of such person who was available in late night after the husband came back in a drunken state. The trial court ought to have decided the case on the basis of credible evidence available before it. We find that the husband made false statement before the court in paragraph 3 of his affidavit and in cross-examination he admitted this fact. A person who has not come with clean hands before the court and gives a false evidence cannot be believed. On the other hand, there has been a consistent stand of the wife that she was inflicted physical and mental torture by her husband and his family members and in support thereof she did produce P.W.1 and P.W.2 as witnesses. It was only after 2 or 3 incidents that she apprehended danger to her life and could not return to the matrimonial house. In so far as the fact of taking his wife to various places is concerned, it was before 2005 except the alleged tour to Sundarban, which was denied by her. She was ultimately, thrown out of her house by the husband of the petitioner after the marriage was registered on 04.08.2005.

In our considered opinion, the learned trial court has based its judgment on surmise and conjecture and the judgment impugned is not based on correct reading of the statements and evidences.

For all the reasons stated above, we set aside the impugned judgment and decree dated 3rd May, 2014 dismissing the suit. The appellant/wife is entitled to a decree of divorce under Section 13(1)(a) of the Hindu Marriage Act. Accordingly, the marriage between the appellant and the respondent is dissolved. The application of the husband in so far as restitution of conjugal rights is concerned is rejected in the above circumstances.

In the result the appeal is allowed. No order as to costs.