Suparna Dalui vs Bidhan Mondal

Tapash Mookherjee, J. - The present appeal is against the judgment and order dated 30/03/2012 in Mat Suit No. 15/2011 passed by the learned Additional District Judge, Rampurhat at Birbhum. It was a Suit for divorce under Section 13 (I) of the Hindu Marriage Act, 1955, filed by the Petitioner/Wife, Smt. Suparna Dalui. The Suit was dismissed on contest by the impugned judgment and order and hence the Petitioner/Wife has filed the present appeal.

The Petitioner/Wife''s case in the plaint of the Suit in short was as follows:-

The Petitioner Suparna Dalui and the Opposite Party Bidhan Mondal were married on 05.03.2007 according to Hindu Rites and Customs, the Petitioner lived with the O.P. after such marriage and the marriage was duly consummated. It was alleged by the Petitioner that she was subjected to cruelty by her Husband and for such reason they were living separately for more than two years prior to the filing of the Suit and hence the Petitioner filed the Suit for divorce.

Opposite Party/Husband contested the Suit by filing a written statement in which he admitted his marriage with the Petitioner but denied all other allegations in the plaint in general terms. It was also a case of the Opposite Party/Husband that he was willing to continue his marital tie with the petitioner and hence the Opposite Party/Husband prayed for dismissal of the Suit.

On the basis of such pleadings of the parties six issues were framed by the Trial Court. After considering the evidence on record the Trial Court decided the issues No. 1 and 2 in favour of the Petitioner/Wife but decided all other issues which were the vital issues in the Suit, against the Petitioner/Wife. In consequence the Trial Court dismissed the Suit as a whole. Being aggrieved by and dissatisfied with such judgment and order of dismissal of the Suit the present appeal has been filed by the Petitioner/Wife.

The Opposite Party/Husband appeared but none appeared for the Opposite Party/Husband on the day of final hearing of the appeal.

The Appellant/Wife prayed for divorce on the ground of cruelty. But it is not explained in her plaint as to how and in which manner she was illtreated by her Husband. The issue of desertion, if any, has not been also specifically averred in the plaint. Similarly, in her affidavit-in-chief under Order 18, Rule 4 of the C.P. Code the Appellant/Wife did not explain as to how she was tortured or subjected to cruelty. Her case on the point is stated in para 5 of her affidavit-in-chief which is reproduced below "That thereafter Opposite Party started cruelty upon me inflecting torture both physical and mental. So, I was forced to live separately from Opposite Party in my parental house for more than two years". Such a statement without any detail regarding the manner of alleged cruelty is not sufficient to prove cruelty, especially when the Opposite Party/Husband disputed the allegation.

Mr. Basu has submitted that the parties had lived together after marriage for two years only and thereafter they started living separately and after the filing of the Suit there is no communication between the parties. Mr. Basu has further submitted that the marriage in the case has irretrievably broken down and the Opposite Party/Husband has also no interest in the marriage now, due to which he is not contesting the appeal. In the circumstances granting divorce as prayed for by the Appellant/Wife is the only solution in the case. He has cited a decision reported in (1994) 1 Supreme Court Cases 337, (V. Bhagat v. D. Bhagat (Mrs)), to support his contention.

Irretrievable break down of marriage has not yet been recognised by law as a ground for divorce. In the decision cited by Mr. Basu (Paragraph 21) it has been clearly laid down that irretrievable break down of the marriage is not a ground for divorce by itself, although, such a ground needs to be kept in mind while scrutinising the evidence produced in the case. In the present case, as discussed earlier, the ground of cruelty or desertion has not been proved at all by the Appellant/Wife. So, the aforesaid decision of the Apex Court is of no help to the Appellant/Wife.

Learned Trial Court has dismissed the Appellant/Wife''s case on the ground that the Appellant/Wife has failed to prove the alleged cruelty. The view is correct in law and we find no reason whatsoever to take any different view.

In view of the discussion above, the appeal is dismissed ex parte. The judgment and order passed by the learned Additional District Judge, Rampurhat at Birbhum on 30.03.2012 in Mat Suit No. 15 of 2011 are hereby affirmed.

Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.