Sri Asit Chakraborty vs Smt. Rinku Chakraborty

Prasenjit Mandal, J.—These two first appeals are at the instance of the husband and are directed against the judgment and decree dated December 9, 2004 passed in Matrimonial Suit No. 28 of 2001 and the Matrimonial Suit No. 33 of 2001 which were heard analogously thereby decreeing the Matrimonial Suit No. 28 of 2001 filed by the wife for dissolution of marriage and dismissing the Matrimonial Suit No. 33 of 2001 filed by the husband for restoration of conjugal rights.

The F.A. No. 243 of 2006 has arisen out of the Matrimonial Suit No. 28 of 2001 and the F.A. No. 244 of 2006 has arisen out of the Matrimonial Suit No. 33 of 2001. Virtually, the plaint case of the Matrimonial No. 28 of 2001 is the defence taken in the written statement of the Matrimonial Suit No. 33 of 2001 while the plaint case of the Matrimonial Suit No. 33 of 2001 is the defence taken in the written statement filed by the husband in the Matrimonial Suit No. 28 of 2001. As indicated above, both the suits were tried analogously by the learned Trial Judge and by a common judgment dated December 9, 2004, the two suits were disposed of in the manner as indicated above. Therefore, it will be convenient if we discuss the First Appeal No. 243 of 2006 at first.

The short fact of the case as made out by the wife in her suit for divorce is that the marriage between the parties was solemnized on December 1, 1997, according to Hindu rites and customs at the residence of the father of the wife at 10/A, Uttam Mukherjee Road, Belgharia, District - North 24 Parganas and the marriage was also registered under the provisions of the Hindu Marriage Act. The marriage between the parties was duly consummated but no issue was born in the wedlock. Since her childhood the wife was brought up under the care and custody of her second maternal uncle at his residence at Belgharia where her parents also used to reside. The father of the wife once filed a matrimonial suit against her mother. That matrimonial suit was disposed of without any merit and the parents of the wife left the house of her second maternal uncle but the wife remained under the care and custody of her second maternal uncle. Her parents took her frequently to their residence and she was kept confined thereat and was not allowed to meet anyone. Even her parents lodged false complaint against her second maternal uncle. One Harihar Das, an elderly gentleman, who was a co-passenger of the father of the wife of a chartered bus was introduced to the wife and in course of time, he became a family friend. At that time, the wife was introduced with her husband who was then an office colleague of her mother and he stayed sometime in the house of her mother for two-three days and thus, the wife became aware about the negotiations of her marriage with the husband. Thereafter, the marriage between the two was solemnized on December 1, 1997 in accordance with the Hindu rites and customs. Immediately after the marriage, the wife was taken to her in-law''s house at Medinipur where her husband misbehaved with her for not getting Rs. 1 lakh towards dowry from the parents of the wife. After return from Medinipur, the parties lived together in the residence of the parents of the wife with the understanding that the husband would soon arrange for a separate accommodation. But with the passage of time, the parents of the wife came gradually under the control of her husband and taking advantage of such a situation, the husband increased torture upon her. Finding no other way, the wife left the house of her father and she was compelled to take shelter in the residence of her second maternal uncle. At that time, the husband brought a charge of kidnapping against the second maternal uncle of the wife. Under the compelling circumstances, the wife took shelter in the house of Mr. Harihar Das. In the meantime, she completed her graduation under the care, custody and financial help of the said Harihar Das. The husband this time lodged a complaint case against Mr. Harihar Das on the charge of kidnapping of his wife before the local police station on April 1, 2000. Even the husband inflicted inhuman mental and physical torture upon his wife in collusion of her parents. The wife believes that the marriage has irretrievably broken down between the two and it will not be proper to maintain the matrimonial relationship between the two. For that reason, she filed the petition for a decree of divorce on the ground of cruelty.

The husband contested the suit by way of filing a written statement denying all the material allegations of torture and cruelty upon the wife. His specific defence is that he and his mother-in-law are the employees of the Controller of Finance, Food & Supplies Department, Government of West Bengal. Negotiation was held before the solemnization of marriage which took place on December 1, 1997. He denied that he ever stayed at the house of the father of the wife before their marriage. Never did he demand dowry for Rs. 1 lakh from the wife or her parents. He did not misbehave at all. On the contrary, the wife created pressure upon her husband for being separated from his parents and she pressed to live permanently at her parents'' residence at 10/A, Uttam Mukherjee Road, Belgharia. Since February 22, 1998, the husband started living at the residence of the parents of the wife for B.A. examination of the wife and ultimately, on April 1, 1999, the wife withdrew herself from the society of her husband and started living with one, Mr. Harihar Das at Baranagar at his flat. Whenever the husband went to the residence of Mr. Harihar Das for bringing his wife back, he was subjected to humiliation by the said Mr. Das. Even he was threatened over telephone by his wife and Mr. Das. For that reason, he lodged a complaint case at Belgharia Police Station. The husband never showed any rude behaviour towards the wife and her parents. The wife began to reside at the house of Mr. Harihar Das on her own accord. She often stayed at her second maternal uncle''s house at Belgharia and whenever he went there to bring her back, he was insulted by the cousin sister of his wife in her presence. He was/is ready to stay with his wife in a separate mess. So he has prayed for dismissal of the suit.

Mr. Uttam Bhattacharya, the learned Advocate for the husband, contended that the wife has no justification to reside separately from the husband. At present, the husband has purchased a flat at premises No. 10/A, Uttam Mukherjee Road, Belgharia, and that is in the same house where her mother-in-law resides in her flat after death of her husband. The allegation of demanding dowry is totally false. The wife has no right to reside at the house of her maternal uncle or in the house of one, Mr. Harihar Das and so the Matrimonial Suit No. 28 of 2001 should have been dismissed and the Matrimonial Suit No. 33 of 2001 should have been decreed by the learned Trial Judge.

On the other hand, Mr. Tapabrata Chakraborty, learned Advocate for the wife supported the judgment and decree passed by the learned Trial Judge.

Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that admittedly the parties to the suit were married according to Hindu rites and customs on December 1, 1997 and that after the marriage, they stayed for a short time at the paternal house of the husband at Medinipur. Thereafter, they came to Kolkata and began to reside in the house of the father of the wife. Admittedly, no issue was born in their wedlock. Admittedly, the wife has been residing separately from the husband since April 1, 1999. Admittedly, the mother of the wife and the husband were colleagues in the Food and Supplies Department, Government of West Bengal, Kolkata. Admittedly, the father of the wife, since deceased, was also an employee of the same department. Admittedly, the parents of the wife possessed one flat at 10/A, Uttam Mukherjee Road, Belgharia. Admittedly, after marriage, the parties stayed at Medinipur for a very short period and thereafter they began to reside in the flat of the parents of the wife till the end of March, 1999. Admittedly, since April 1, 1999, the wife has been residing separately leaving her paternal residence. Admittedly, the husband, his brothers and sisters are eight in number. The mother of the wife is still alive. But it is surprising to note that none of the close relations of the parties has supported the contention of the parties. Alternatively, we can say that only the wife has deposed on her behalf and there is no corroborative statement. Similarly, the husband alone deposed in support of his case and there is no corroborative statement on his part. So, we are to scan the evidence of the P.W.1 and the D.W.1 and then to come to a conclusion.

From the evidence of the P.W.1 it has been established that she was brought up under the care and custody of her second maternal uncle while her parents shifted their place of residence from their maternal uncle''s house at Belgharia to another residence at Belgharia. The P.W.1 has stated on oath that because of the strained relation between her parents and also due to mental torture inflicted upon her, she stayed at the house of her second maternal uncle.

Therefore, at present the points to be decided in the appeals are:

i) ii) Whether decree in Whether theg the the learned suit for learned Trial divorce Trial Judge filed Judge was was justified by the wife? justified in in dismissing the suit filed by the for restoration of husband? conjugal rights

The ground of living separately as alleged by the wife is that she was subjected to torture as her husband felt that if he were married elsewhere he would have got at least Rs. 1 lakh as dowry and that she did not feel it prestigious in residing in the flat of her parents treating her husband as a domesticated son-in-law. The wife has deposed on oath that there were disputes between her parents and for that reason, her father had to file a matrimonial suit against her mother and that suit ended without merit meaning thereby withdrawal or dismissal of the same. There is no denial in this regard that the father of the wife had to take such recourse against his wife. Previously, the wife and her parents resided at her second maternal uncle''s house at Belgharia and thereafter, they shifted to their own flat at 10/A, Uttam Mukherjee Road, Belgharia. Immediately after marriage, the wife was taken to the paternal house of her husband at Medinipur and they stayed there for about 10 days. There is no denial of this fact. It is also an admitted position that immediately thereafter, the parties to the suit came back to Kolkata and began to reside at the residence of the parents of the wife at Belgharia meaning thereby, the husband began to reside as a domesticated son-in-law. The wife had strong objection against such way of living. The wife contended that during her stay at her father''s house after marriage, she felt embarrassed because of the strained relationship between her parents and also due to the fact of residing of her husband at her father''s house. Moreover, during their stay at Medinipur, the husband often lamented that if he married elsewhere he would have got at least Rs. 1 lakh as dowry. Though there is denial of such allegation on the part the husband, upon consideration of the entire situation, we do not find any other ground for which the wife would began to reside at her maternal uncle''s house at Belgharia at first and then, in the house of one, Mr. Harihar Das, a co-passenger of his father who became a family friend (now deceased). The wife contended that she agreed to the proposal to reside at her father''s residence on the understanding that her husband would arrange an accommodation soon for them but in fact he did not do so. In view of torture upon her and the fact that it was embarrassing for her to stay at the house of her parents, she left her paternal residence and began to reside at the house of her maternal uncle and then in the house of Mr. Harihar Das. Admittedly, Mr. Harihar Das is an aged person and as per evidence of the wife, he was a family friend of her parents. We do not find any justified ground to disbelieve such statement of the wife. The husband made wild allegations against Harihar babu whom the wife respected as her father because he ultimately became a family friend of her parents and also protected her during her stay in his house. But the husband could not adduce any credible evidence to conclude that Harihar babu had any ill motive towards the wife for which she resided at his house. So the allegation against the said Harihar babu of kidnapping the wife without any justified reason amounted to mental cruelty towards her when the husband, at that point of time, was unable to give shelter to the wife in Kolkata and was insisting on residing in the flat of his father-in-law against the wish of the wife as a domesticated son-in-law. Therefore, at that time, if the wife resided at the house of Mr. Harihar Das who treats her as his daughter, we do not find that such living in the house of Mr. Harihar Das at Baranagar cast any aspersion against the character of the wife. In fact, save and except such statement, there is no other aspersion against the character of the wife for which the wife might reside separately. Admittedly, the husband had been to the house of Mr. Harihar Das for 2/3 times to bring the wife back to reside at her father''s residence but the wife declined to such proposal on the ground of torture and the fact that she did not like that her husband would reside as a domesticated son-in-law in the house of her parents. The wife stated that her mother was completely under the control of her husband and that while her father was alive, both were fully dependent on the husband in all respects. According to the wife, the fact that the husband was greedy and had an eye on the properties of the parents of the wife would appear from the fact that in spite of objection on the part of the wife to stay in her parent''s house, he shamelessly started living in that flat. It is further argued that even subsequently when the husband purchased a flat of his own he decided to acquire the same in the same building where his parents-in-law have the flat so that he can keep them under his own control. What is most astonishing is that although the wife left house of her parents in the month of March, 1999 and filed the suit for divorce in the month of August, 2000 the husband never sent any amount of maintenance to the wife and did not feel the necessity of at least taking separate rented accommodation for living with the wife by leaving the parents-in-law and ultimately, filed the suit for Restitution of Conjugal Rights after having come to know that the decree for divorce on the ground of cruelty has already been filed against him as a defence to the suit for divorce. If he had really any love for the wife, he would not stay with his parents-in-law and filed criminal case against Harihar Das and also the maternal uncle of the wife who gave shelter to the wife at the time of distress and instead of that, make arrangement for separate accommodation. The fact that he never took any such step nor did he pay any amount of maintenance itself suggested that the allegation of the wife that he was a greedy person was correct. Although it was sought to be contended that he made payment of Rs. 15,000/-as maintenance during the said period, we are unable to accept his contention that she paid such amount through her mother-in-law. In that event, it was his duty to bring the mother-in-law who is siding with him as his witness when the wife has denied such allegation of making payment.

On consideration of the entire materials on record we find that the learned trial judge rightly disbelieved the case of the husband and accepted the case of the wife and granted decree for divorce on the ground of cruelty. The wife has proved just reason for staying apart from the husband and as such no question of granting a decree for Restitution of Conjugal Rights arises.

At this stage we may aptly refer to the following observations of the Apex Court in the case of A. Jayachandra v. Aneel Kaur reported in 2005 (3) ICC 291 in the paragraph 12 which is quoted below:

To constitute cruelty, the conduct complained of should be ''grave and weighty'' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ''ordinary wear and tear of married life''. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

In our opinion, in the facts of the present case, it has been well established that the aforesaid ingredients of cruelty have been proved. The husband cannot force the wife to stay in the house of her father without making arrangement of separate residence particularly when in this case it has been established that the wife had at no point of time good relation with her parents and she was brought up in the house of her maternal uncle.

Before this Court, we tried to reconcile but our endeavour failed. We find that the parties are living separately for the last ten years and due to the cruel behavior of the husband, the wife has lost confidence in him and is unable to condone the act of cruelty. The offer of the husband is also not bona fide as he has controlled the mother-in-law who has sufficient amount of wealth and he has purchased a flat in the selfsame building where her mother-in-law has her own flat to be sure that the ailing mother-in-law does not go beyond his control. As it appears from records, the husband is more interested to please the mother-in-law than to live with the wife separately without having any connection with the mother-in-law.

We, thus, dismiss both the appeals preferred by the husband by affirming the decree for divorce and dismissing of the application for Restitution of Conjugal Rights.

There will be however no order as to costs.

Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings.

I agree,