Sri Abani Das vs Smti Surabhi Baishya

AM Bujor Barua, J

Heard Mr. D. Sarmah, learned counsel for the appellant and Ms. R. Devi, learned counsel for the respondent.

The appellant and the respondent had married on 14.05.2012 according to Hindu Rites andCustoms and out of their marriage, a male child was

born. It is the allegation of the appellant that after the birth of the child, the respondent harassed the appellant by using abusive language and that the

respondent had brought in an allegation that the appellant is having illicit relation with other woman and that she had also spread the said allegation

amongst the relations in his village. It is also the allegation of the appellant that the respondent is sending text messages on the mobile phone of the

appellant raising such false allegation. It is also the allegation of the appellant, who is a constable in the Border Security Force that whenever he

comes at home on leave, the respondent refuses to cohabit with him and that she lives the house of the appellant on her own sweet will. On the basis

of the said allegation, the appellant alleges that the respondent had meted him with cruelty.

Based on the aforesaid allegation, the appellant had preferred a T.S.(M) No.22/2015 u/s 13 ofthe Hindu Marriage Act, 1955 in the Court of the

learned District Judge, Nalbari. The respondent took the stand that the appellant used to torture her both physically and mentally as she had failed to

bring any dowry. It is also the allegation of the respondent that the appellant did not provide any maintenance to her and her son since the last seven

months, as a result of which, she had to go back to her parental home. It was her denial that she had treated the appellant with any cruelty or she had

misbehaved or ill treated her in-laws.

In course of the trial, the appellant examined himself as PW-1 and deposed that therespondent harassed him by using abusive language and sending

text messages in the mobile phone. He also deposed that the respondent raises an allegation that he has illicit relationship with some other woman. It

was also deposed that the respondent ill-treated his mother and goes away to her parental home as per her own will. It was further deposed that the

respondent forced the appellant to buy a plot of land, which he could not because of his meager income.

The sister of the appellant Smti Saraswati Das, who had deposed as PW-2 stated that after thebirth of the child, the respondent quarreled with the

appellant and also sent some unacceptable text messages in the mobile phone. It was also deposed that the respondent often demand costly cloths and

jewelry, which the appellant could not afford. She further deposed that the respondent often goes away to her parental home.

The Gaon Bura of the village Sri Jagadish Das was examined as PW-3 and in his depositionalso he states that the respondent often quarrels with

the appellant by forcing him to buy a plot of land in Guwahati and also goes away to her parental home on her own will.

  In his cross examination, PW-3 states that whenever the appellant comes to his home on leave, he does not know where the appellant stays, but

he knows that the appellant does not stay at his home.

Based on the aforesaid evidence, the learned trial Court by the judgment and order dated17.02.2017 had dismissed the petition of the appellant on

the ground that the appellant had failed to substantiate the allegations made by him. Being aggrieved, the present appeal has been preferred on the

ground that the conclusion of the learned trial Court that the appellant had failed to substantiate the allegation of cruelty is incorrect and that the

evidence led by the appellant was not appropriately appreciated.

The said evidence led by PW-3 that the appellant does not stay at his home whenever hecomes home on leave, clearly demolishes the stand of the

appellant that the respondent refuses to cohabit with him and that she frequently quarrels with him. On the other hand, the said evidence of PW-3 in

his cross examination also corroborates the evidence of the respondent as DW-1 that whenever the appellant came home, he used to leave separately

by avoiding the respondent with the plea that he is involved with someone else and therefore, he wants to divorce the respondent. The said evidence

also supports the evidence led by the respondent that the appellant had gone to her mother’s house along with the Gaon Bura and had threatened

her not to return back to the house of the appellant as the appellant is arranging a second marriage.

In view of the above, the allegations made by the appellant that the respondent refuses tocohabit with him and that she often quarrels with him are

found to be unacceptable. Further, in view of the evidence led by the PW-3 in his cross examination that the appellant does not reside in the house

whenever he is on leave, goes to show that firstly the allegation that the respondent does not cohabit with him is unacceptable and secondly, the

allegation made and evidence led by the respondent that the appellant is having a relationship with another woman and intends to marry her by

obtaining a divorce also cannot be discarded.

In view of the above, we do not find any reason to interfere with the judgment and order ofthe learned trial Court dated17.02.2017 in TS(M)

22/2015. Accordingly, we find that the present appeal is devoid of any merit and same stands dismissed.