SRI DHRUBAJYOTI BARUAH vs SMTI RAKHI BARUAH and ANR

This appeal under Section 19 of the Family Court Act, 1984 read with Section 39 of the Special Marriage Act, 1954 has been filed by the

husband-Dhrubajyoti Baruah - challenging the legality and validity of the impugned judgement dated 10/11/2016 passed by the Principal Judge,

Family Court No.1, Kamrup, in F.C.(Civil) Case No. 210/2013, whereby she has dismissed his suit for divorce against his wife-Rakhi Baruah.

The brief facts are these. Appellant married the respondent on 19/01/2006 as per the provisions of the Special Marriage Act. At that time he

was in search of a job and according to him, the parents of the respondent and her aunt promised to support him monetarily till he gets a job. After

marriage, they started living as husband and wife in a rented house and out of their wedlock a girl child was born on 14/3/200 8.Also, after the

birth of child, the parents of the respondent stopped monetary support to appellant and the respondent started humiliating him for his inability to

earn sufficient money to run his family. Thus, the respondent started treating him with cruelty and on 04/04/2009 she deserted him without any just

cause. Due to such harassment, the appellant shifted to a room on 04/04/2009, which was free from rent as provided by one Narayan Das in lieu

of teaching his daughter folk songs-''Bargeet''. Appellant requested the respondent to stay with him but in vain and hence, he filed the petition for

divorce on the grounds of desertion and cruelty.

The respondent contested the suit by filing written statement stating inter-alia that there was no promise on the part of her family members to

monetarily support the appellant. Appellant had no sufficient means of income and he could not support his family. After birth of the child, the

expenses of the family also increased many folds and the income of appellant remained more or less the same. Appellant then started treating her

with cruelty and indirectly asked her to bring money from her parents. She was running a small herbal parlour, but after birth of the child she also

could not attend her duties and thus her earnings also stopped. While living in the rented house, she went to her parental home on 15/3/2010 and

stayed there till 20/04/2010. During that period, appellant left the rented house on 04/04/2009 and started living separately in a rent free room.

Respondent tried to contact him over telephone on several occasions and called him to stay with her, but, he did not respond and remained

adamant. Finding no other alternative, respondent stayed in a rented house along with her baby at Rukminigaon till 31/03/2012. She alleged that

the appellant did not come to visit her and did not even come on the birthday of their baby. She also visited the room of appellant and

accompanied him to her matrimonial home during Magh Bihu festival from 13/01/2011 to 16/01/2011 to find some amicable settlement, but all her

efforts were proved to be futile. Finding no other alternative and being unable to pay the rents of the rented house, she ultimately moved to her

aunt''s place on 21/03/2012. Hence, she pleaded that she did not desert the appellant without any just cause and never treated him with cruelty

and as such prayed for dismissal of the suit.

Both the parties adduced their respective evidence. Appellant adduced his evidence as PW-1 and one Sri Lakshyan Kumar Nath as PW-2,

whereas the respondent adduced her evidence as DW-1 and her aunts-Smti Stuti Deka as DW-2 as well as Smti Tultul Bora as DW- 3. The

Family Court relying upon the evidence of the respondent came to the conclusion that appellant failed to prove that the respondent deserted him

without any just cause and treated him with cruelty and vide the impugned judgment the suit of the appellant was dismissed. Hence this appeal.

None appeared for the Respondent. However, after hearing the learned Counsel for appellant and after perusing the records, we find ourselves

in complete agreement with the findings of the Family Court. It is the evidence of appellant that he shifted himself to a rent free accommodation.

According to him, he did it due to continuous humiliation and cruel treatment by the respondent. But the same fact is not supported by cogent

evidence. The PW-2 (Sri Lakshyan Kumar Nath) has deposed that the respondent used to treat appellant with cruelty. But, his is not a direct

evidence and he has stated in his examination-in-chief itself that he had heard from the appellant that after birth of the child, the family members of

the respondent stopped supporting him financially and he was subjected to harassment and mental torture by the respondent. It is the evidence of

PW-2 that the appellant used to earn a meagre sum of Rs.5000/- per month, which was obviously not sufficient to meet the day-to-day expenses.

It is his further evidence that the respondent started living with her aunt Smti Stuti Deka (DW-2) from 04/04/2010. On the other hand, the

respondent has categorically deposed that appellant started living in the rent-free accommodation while she was in her parental home and she had

to remain in the rented house with her baby for some time. But, since she could not pay the rents, she had to move to the house of her aunt.

Though, DW-2 (Smti Stuti Deka) submitted her evidence in the form of affidavit, the same was subsequently withdrawn as she could not appear

before the court for cross examination. However, the evidence of the respondent is supported by her another aunt DW-3(Smti Tultul Bora). Thus,

it is crystal clear that appellant failed to prove that the respondent used to treat him with cruelty and she deserted him without any just cause.

It is expected by a wife that her husband should be capable of maintaining her as well as their offspring. Failure on the part of the husband to do

so amounts to a just cause for desertion. It is clear that appellant did not do anything and could not meet the day-to-day expenses of his family. He

even moved to a rent free accommodation putting the respondent in a precarious condition compelling her to even leave the rented house for not

being able to pay the rents and stay with her aunt. Therefore, we have no hesitation but to hold that appellant failed to prove that the respondent

treated him with cruelty and also deserted him without any just cause. Hence, we do not find any illegality or infirmity in the impugned judgement of

the Family Court.

In view of the above, we find no merit in the present appeal. It is accordingly dismissed.