It is settled law that mens rea has no role to play to constitute cruelty as per number of decisions of Hon'ble Apex Court including Sovarani vs. Madhukar Reddy reported in AIR 1980 SC 121 as well as Suman Kapur vs Sudhir Kapur reported in (2009)1 SCC 422. The husband is under moral and legal obligation to establish the detail particulars of acts and behaviour of wife manifest to constitute the ingredients of matrimonial cruelty. It has been held therein that "the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded is cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has not been any deliberate or wilful ill- treatment."
Calcutta High Court (Appellete Side)
Smt. Bipasha Bhowal vs Sri Biplab Bhowal on 15 May, 2014
Present : The Hon'ble Justice Tapan Kumar Dutt and The Hon'ble Justice Dr.Mrinal Kanti
This appeal is directed against the judgement and decree dated March 15, 2012 in Matrimonial Suit No.78 of 2009 and 79 of 2009 passed by learned Additional District Judge, 4th Court at Alipore, District 24 Parganas (S).
The husband filed a Matrimonial Suit No.78 of 2009 praying for a decree of divorce and the wife filed a Matrimonial Suit No.79 of 2009 praying for restitution of conjugal rights. Learned trial court disposed of the Suits analogously and decreed the Mat Suit No.78 of 2009 under Section 13(1)(ia) of Hindu Marriage Act filed by the husband Biplab Bhowal against his wife Bipasha Bhowal on contest without cost and dismissed the Matrimonial Suit No.79 of 2009 filed by the wife Bipasha Bhowal against her husband Biplab Bhowal under Section 9 of Hindu Marriage Act on contest without cost.
Being aggrieved by and dissatisfied with the judgement and decree, the wife has preferred these appeals as appellant.
The husband, in Mat Suit No.78 of 2009, is plaintiff and the wife in the said Suit is defendant. On the other hand, the wife, in Mat Suit No.79 of 2009, is plaintiff and the husband in the said suit is defendant. In order to avoid confusion, it would be wise to term the parties as husband and wife.
The parties were married on 21st July, 1986 according to Hindu rites and customs, at 88, Garfa Main Road, Police Station Kasba, Kolkata-700075. After marriage, they led conjugal life at the residence of the husband's parents at 65, Southend Park, P.S. Lake, Kolkata-700209 where the marriage was consummated.
The case of the husband is that, shortly after marriage the husband found the wife to be indifferent towards him on the basis of her suspicious nature and conduct. During their conjugal life, two children were born. The first child, a daughter was born on 28th November, 1989 and the second child, a son was born on 10th December, 1999.
The husband alleged that since the inception of marriage, the wife subjected him and his family members to outrageous and insulting behaviour and this caused the husband a great deal of mental anguish. The husband further stated that the wife tried to dominate and intimidate by threat of suicide and by her use of coarse, vulgar, obscene language and thereby she destroyed his mental peace. The husband suffered at the hands of the wife who was aided and abetted by her associates. Due to the wife's cruel act and conduct the husband reasonably apprehended that it would be impossible for him to resume conjugal residence with the wife and it would be harmful and injurious to his mind and health.
The husband has given the following particulars of cruel treatment of the wife -
1) The husband found that the wife was suffering from introvertness and abnormality from the beginning of the marriage.
2) The wife is suffering from suspicious mind. She used to suspect the husband to have been living in illicit relationship with various women. As a result, she used to behave in an irresponsible manner indulging her slander, coarseness, vulgarity even involving the members of the husband's family and thereby she suspected the character of the husband without any basis and reason.
3) The wife had an intractable temper and ruled the husband down.
During the conjugal life, there were several occasions where husband had to bear the full blast of wife's fury with no fault of his own.
4) The husband narrated the conduct of the wife to her parents but in vain. She intended to split up the solidarity of the family of the husband by vilifying and slandering the members of the family by all means.
5) The wife did not respect the husband and expressed her view to control the normal movements and activities of the husband.
6) She was found negligent to discharge her normal duty and obligations towards the husband in the matter of leading conjugal life. The husband had to adjust the misconduct of the wife in consideration of his status, position and future of the children.
The husband has further stated that when his brain tumor was detected, the wife started making comments that the husband had his brain tumor long before the marriage and he married the wife suppressing the fact of brain tumor. Therefore, the husband suffered serious mental pain on such allegation of the wife. During the treatment and operation, the behaviour of the wife gradually deteriorated. She was reluctant to show any sympathy towards her husband. The husband went to Chennai during 1995 for operation of brain tumor. She was not inclined to accompany the husband at Chennai, but ultimately she accompanied the husband at Chennai after forcing him to execute a Will for giving all his properties and wealth in favour of the wife. The husband was compelled to execute such Will as it was a precondition of the wife going to Chennai. In fact, she stayed at Chennai for 4-5 days and thereafter she left Chennai keeping her husband in the hospital bed. However, the husband went to Chennai being accompanied by his sister's husband and other friends. The wife citing flimsy grounds came back to Calcutta from Chennai which was shocking to the husband. After operation on 14th June, 1995 and on his return to Calcutta on 25th June, 1995, the wife did not enquire about his health including the treatment of the husband. She used to repeat her earlier allegation that after suppressing the brain tumor which was detected before his marriage, he married the wife.
The husband tried to normalise the relationship by undertaking a tour with his wife to entire Europe and America twice in 1991 and 1996. But the attitude of the wife did not change even after the birth of the second child in 1999.
The husband had to undergo second surgical operation at Mumbai after detection of cancer in tongue. The said operation took place in the month of August, 2000. The husband requested to the wife to accompany him at Mumbai, but she refused to accompany him. The two friends of the husband and Dr. Chittaranjan Das, his sister's husband accompanied him. She even did not bother to accompany the husband at airport. The wife was so cruel that she did not care to take any information of the husband during his stay at Mumbai.
After the return of the husband to Calcutta, he felt a lot of difficulty in the matter of pronunciation due to tongue amputation. The wife, not only expressed her annoyance, but also made sarcastic remarks to the husband giving him mental shock and agony.
The husband was shocked to see that the wife separated all his towel, brush, plates and other belongings of his daily use on the plea of infectious nature of disease. She also instructed the children not to approach their father and thereby she restricted all the household activities of the husband on account of her abnormal superstitious conduct and attitude.
On 4th June, 2003, while their son returned from outside, the husband brought his son in his room out of love and affection. When the wife found her son in close company of the father, the wife dragged the son and started beating mercilessly saying the husband that "your days are counted. Do you like same fate for my son?" The words and gesture of the wife shocked the husband to such an extent that he was compelled to leave his parent's house and shift to his flat at Salt Lake and he started living there. But the wife did not bother to visit Salt Lake flat of the husband and she did not show any interest to know any whereabouts of the husband. On the contrary, the wife used to demand huge amount of money through the driver. The husband felt humiliated as the wife used to demand money through the driver who was appointed and paid by him.
The husband noticed that when he shifted to his Salt Lake flat, the wife made several withdrawals of huge amount from their joint account. The husband sustained mental agony out of the breach of trust of the wife.
The daughter of the couple aged 15 years started living with her father from 27th August, 2004 on the ground of her mother's apathetic and abnormal attitude. His son was also suffering from his mother's callousness, indifferent attitude and neglect.
The wife, therefore, compelled the husband to leave his paternal house and to shift to Salt Lake residence and thereby the wife is guilty of deserting the husband. The husband stated that he did not condone the act of cruelty of wife. Therefore, the husband has prayed for dissolution of marriage by a decree of divorce. In his written statement to the Suit filed by his wife for restitution of conjugal rights, the husband alleged the aforesaid cruelty and misbehaviour. In the said written statement and additional written statement, the husband further stated that the wife left no stone unturned to harass the husband. She lodged a complaint to the West Bengal Commission for Women and procured the presence of the husband through the police personnel. She lodged a complaint to the Company Law Board for closure of his business. He has stated that by instituting the suit for restitution of conjugal rights, she had been shedding crocodile's tear to have a happy conjugal life. He stated further in the written statement that the wife visited his office on two or three occasions only for the purpose of harassing and abusing in front of his employees. On one occasion, the wife, in front of Professor Dr. Sumantra Chanda, the author of Books, abused the husband on the allegation of having illicit relationship with different ladies. The behaviour of the wife was intended to lower down the social prestige of her husband before the employees and the others. She also lodged proceeding before the Company Law Board, New Delhi to damage the business of the husband. Therefore, the conduct and action of the wife are sufficient to constitute cruelty of highest degree justifying a decree of divorce as prayed for by the husband. Due to immense cruel treatment of the wife the marriage tie between the parties had broken down and, therefore, the wish of the wife does not make her entitle to get a decree of restitution of conjugal rights in her favour. The husband, therefore, prayed for the dismissal of the suit of praying for restitution of conjugal rights.
The wife has contested the divorce suit by filing a written statement followed by an amended written statement. She has also filed a suit for restitution of conjugal rights. In the written statement of the divorce suit and in the plaint of the suit for restitution of conjugal rights, she stated that the allegations made by her husband are false and concocted. According to the wife, her marriage with the husband took place on the basis of negotiation held by the parents of both as per Bengali customs. After marriage, she lived jointly with her parents-in- law along with her husband. Her father-in-law died in 1997 and before his death, he made separate arrangement of business amongst his three sons. The wife was present at Chennai at the time of operation of brain tumor of her husband in 1995. Her eldest child was 6 years old. After the birth of son, the tongue cancer was detected in August, 2000. The wife had intention to accompany her husband to Mumbai but her husband and the family members of her in-laws did not allow her to accompany her husband on the ground of her infant baby who was 6 months old at the relevant time. After the return of her husband to Calcutta, the wife took up the responsibility for post operation period. On 4th June, 2004, the daughter of the wife who was reading in Class IX had an altercation with her father. The husband suddenly left the matrimonial home and started living at his Salt Lake flat.
The wife, in order to bring him back to the normal peaceful family life, persuaded her daughter to live with her father at Salt Lake. Thereby, the daughter lived with her father and appeared Madhyamik examination. She passed the said examination. Her father tried to send her at Darjeeling for further study. The daughter did not agree with the said proposal. She returned back to the Southend Park house on June, 2005 and intimated her mother that it was not possible for her to live with her father. But she did not disclose any reason. On 30th March, 2007, the wife came to Alipore Court for divorce suit, where she met Prasun Sen, a boyhood friend of her husband. The wife further came to know from Prasun Sen that immoral and unethical relationship between his wife Mitali Sen and her husband (Biplab Bhowal) compelled Prasun to institute a Matrimonial Suit bearing No.3 of 2003. The relationship between Mitali Sen and Biplab Bhowal became more intimate after the decree of divorce. Mitali was residing at Purbasha Housing Estate, Maniktala Main Road which is in close proximity with Biplab's residence at Salt Lake. The judgement and decree of Mat 3 of 2003 was passed on 31.05.2003 and the petitioner (Biplab) started to reside at Salt Lake flat on and from 4th June, 2003.
This wife denies each and every allegation of the husband. She was very dutiful and attentive towards the household work and for the care of her husband and in-laws. Her father-in-law, out of natural love and affection, gave away 32.88% of the share holding in the Book Syndicate Private Limited during 1994-95 of which he was the then Managing Director. The wife has further stated that she and her husband lived together till 4th June, 2003. On 4th June, 2003, her husband left the family residence at 65, Southend Park, Calcutta without any just cause/reason. The wife has categorically denied the allegation that since the inception of her marriage, she subjected him to outrageous behaviour by hurting the husband's sentiments by using insulting words towards her husband and his family. The family members of her husband wanted to reside closely with the wife at the time of purchasing two flats at Hardwar, Uttar Pradesh. The parents-in-law preferred to acquire and hold the said two flats adjacent to each other. In fact, her father-in-law purchased a flat in her name. The wife has categorically denied that she, by use of coarse, vulgar and abusive language, destroyed the sangfroid of her husband's mind. The wife has further stated that no specific allegation against her was made in the petition praying for divorce. The wife disputed the contention of her husband that she has been suffering from introvertness and abnormality. In fact, she adjusted herself with the social environment of her in-laws' family keeping good relation with every member of her in-laws family. She did not find any cordial relation between her husband and other family members after marriage. She maintained normal relation with other brothers of her husband and his family including her widow mother-in- law and other brothers of the husband and one of her sisters-in-law. She categorically denies to have suspected her husband living in illicit relationship with various women. Her father-in-law made her one of the Directors of the Company of the Book Syndicate Private Limited but her husband removed her from the said post without her knowledge for the reason best known to him. During her happy conjugal life with her husband, her daughter and son were born and they enjoyed happy conjugal life. The wife categorically denied that she was found careless, negligent towards the normal duty of conjugal life. On the contrary, she has stated that she looked after her husband before detection and after operation of brain tumor in spite of the fact that she had to look after her baby daughter and to perform household duty as a wife. She categorically denied to have made allegation of suppression of brain tumor at the time of her marriage with husband. She has further stated that she went to Chennai at the time of brain tumor operation along with her baby daughter. After her husband's return from Mumbai, she along with her husband and son and daughter spent Puja Holiday in Puri and on the subsequent winter holiday she also went to Santiniketan on the occasion of Grihaprobesh at the newly constructed house of the husband. She also denies the allegation that she compelled her husband to execute a Will for disbursing all his properties as a pre-condition for her going to Chennai. She has stated that she never dreamt of dissociating herself from her husband during the time of his critical operation. She stated that not only she went to Chennai but her brother Sri Asis Das along with one Dri. Girin Das, the elder brother of the brother-in-law of her husband, Dilip Mitra - a friend of her husband and one Rajubabu in a group went to Chennai. She used to take information from time to time regarding the operation and post operation recovery of her husband by visiting hospital and also from Dr. Girin Das - a medical expert. She had to return Calcutta as per desire of her husband as school of her daughter was reopened after summer vacation and her daughter was to prepare for her examination. She devoted full time for nursing of her husband and arranged for nutritious food by herself cooking the same so that the husband starts leading a normal working life at an early date. Therefore, the relation between herself and her husband was very cordial. They undertook travel as a happy couple. This cordial relation and happy conjugal life contributed to the birth of second child on 10th December, 1999. This wife has further stated that she was prevented to accompany her husband to Mumbai for the second operation as the child was eight months old and her husband desired that she shall not go as 'Annaprasan' of the child did not take place. Therefore, her absence at Mumbai with her husband was not at all a willful act of the wife. In fact, she accompanied her husband along with her brother to Calcutta Airport to see her husband off. The wife took the landline telephone number of the hotel to take information of safe reaching to Mumbai and she frequently got updated information about her husband during pre-operation and post operation period. Her brother also took information over phone about the condition of her husband at Mumbai. She sent her brother Asis Das to receive her husband at Calcutta Airport when her husband came back after successful operation from Mumbai.
The wife always cooperated with her husband in all matters in post operation period and categorically denied the allegation of making sarcastic remark as alleged by the husband.
She provided her husband with sterilized materials like towel, brush and other belongings and disinfected the same for the purpose of use of her husband. The allegation of separating or isolating her husband was false. She was very much careful to maintain separate keeping all the personal belongings of her husband from other family members. She further stated that her little son may be disturbing her husband and she pulled up her son to dissuade from disturbing on 4th June, 2003. On that date, her daughter received a telephone call and she became so agitated that she was shouting towards her father. Suddenly her husband left the house and started living at his Salt Lake flat. She denied the allegation to have beaten the little child by shouting that the days of her husband are counted and does he want same fate for her son. The wife has further stated that she attempted to visit her husband's flat at Salt Lake but he did not allow her to enter into his flat. She also stated that she imposed restriction on her husband as per medical advice. She stated that the withdrawal of amount from the joint account was made at the instance of her husband who undertook to reinvest the said amount on her behalf.
She sent her daughter to stay with her father at Salt Lake to look after her father with the intention also to bring him back to the matrimonial home. But her daughter was compelled to leave the said flat on 15th June, 2005 and was staying with her. Therefore, she was never apathetic towards her daughter. The question of deserting her husband does not arise as wife is willing to live in matrimonial home with her husband and children. She, therefore, filed a suit for restitution of conjugal rights. She has also stated in the plaint of the suit praying for restitution of conjugal rights that her husband started living at Salt Lake by abandoning the matrimonial home on 4th June, 2003 without any just cause. Her husband had without any reasonable excuse, withdrawn himself from the society of the wife on 4th June, 2003. The wife has tried her level best for restoration of normal conjugal life. On 14.11.2004 on the day of Bhatridwitiya, the wife being accompanied by her son, went to Salt Lake flat of her husband where her daughter was also living with her father in order to perform the ceremony of Bhatridwitiya between her son and daughter. But neither the wife nor her son was allowed to go up to the Salt Lake house. Therefore, the wife was compelled to perform Bhatridwitiya in the ground floor in an unceremonious manner. She tried to contact her husband from the land phone of one neighbour in the Salt Lake premises but husband did not respond by disconnecting the telephone line.
On 26.02.2005 and 19.03.2005 the wife went to the private chamber of the Directors of their family business and verbally requested to the husband to return back to the paternal house and to lead conjugal life. But the husband was unwilling to talk with the wife. On the contrary he left the chamber and did not turn up. In the beginning of April, 2005, the wife proposed her willingness to reside with her husband at the Salt Lake house of the husband but her husband did not pay any heed to her request. In the facts and circumstances, the wife has prayed for the dismissal of the divorce suit and for a decree of restitution of conjugal rights.
In the light of aforesaid pleadings, learned trial court framed 16 issues.
After recording the evidence of both sides learned trial court decreed the suit for divorce and dismissed the suit for restitution of conjugal rights without cost.
Being aggrieved by and dissatisfied with the judgement and decree passed by learned trial court, the wife has preferred these appeals. The wife has preferred two appeals, one against the judgement and decree of Matrimonial Suit No.78 of 2009 granting decree of divorce dated March 15, 2012 bearing No. FAT No.164 of 2012, another against Matrimonial Suit No.79 of 2009 dismissing the suit for restitution of conjugal rights bearing No. FAT 165 of 2012.
The points for consideration in this appeal are :-
1) Whether the husband has been able to prove that his wife subjected him to cruelty.
2) Whether the wife deserted her husband.
3) Whether the husband deserted his wife.
4) Whether the judgement and decree passed by learned trial court in Matrimonial Suit No.78 of 2009 and 79 of 2009 are legal and valid and justified.
We have heard the learned counsels for the husband and the wife at length. We have considered the materials on record and the notes of argument and reply filed by the parties. We have also carefully scrutinised the evidences of both sides and perused the decisions of Hon'ble Court.
Hon'ble Apex Court in a number of decisions held that cruelty is a state of mind, a conduct in relation to or in respect of matrimonial duties and obligations. A set of facts stigmatised in one case cannot be so in other case. Each case has its own peculiar factual matrix and the existence of mental cruelty has to be decided after taking into consideration of seriousness and gravity of the circumstances, the conduct and behaviour of parties.
Hon'ble Apex Court in a decision reported in AIR 2013 SC 2176 (K. Srinivas Rao vs. D. A. Deepa) referred to the principle of judging the mental cruelty in matrimonial life in the decision reported in (2007)4 SCC 511 (Samar Ghosh vs. Jaya Ghosh). Hon'ble Apex Court in the said decision set out some illustrative references to draw any inference of the mental cruelty. One of such reference is : "The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty." Therefore, Hon'ble Apex Court put emphasis upon the totality of matrimonial life of the parties.
In (1994)1 SCC 337 (V.Bhagat vs. D. Bhagat) Hon'ble Apex Court held that cruelty must be of such a nature that the parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. Hon'ble Court has further held that "merely because there are allegations and counter allegations, a decree of divorce cannot follow. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself."
In AIR 2005 SC 534 (A. Jayachandra vs. Aneel Kaur) Hon'ble Apex Court observed that "to constitute cruelty, 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. The Court must be satisfied that the relationship between the parties have deteriorated to such an extent due to the conduct of the other spouse that it would be impossible to live together without mental agony, torture or distress to entitle complaining spouse to secure divorce."
In another decision of Hon'ble Apex Court reported in AIR 2012 SC 2586 (Vishwanath Sitaram Agarwal vs. Sau.Sarla Vishwanath Agarwal) Hon'ble Apex Court observed that "the expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social status to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. A set of facts stigmatised as cruelty in one case may not be so in another case." It is further been held in the said decision that "from the conduct of the spouse, it is established and/or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then it would amount to cruelty."
On a careful perusal of the aforesaid decisions of Hon'ble Apex Court and of the pleadings and evidences, it is indispensable to scrutinise whether the following allegations levelled by the husband upon the wife fall within the parameter of matrimonial cruelty inviting this Court to grant a decree of divorce.
It is alleged that the wife used to misbehave with the husband and the family members by using obscene, coarse and vulgar language. The evidence in the examination-in-chief of the husband reveals that from the beginning of their marriage, the husband was subjected to outrageous behaviour. She used to insult him and his family members by using abusive and filthy language. She was not inclined to discharge her duty and obligations towards her husband and his wife created unpleasant atmosphere with her misbehaviour towards each of the family members. She used to indulge such behaviour to isolate the husband from other family members and to take control over his business absolutely.
There is no specific allegation of misbehaviour and insult in the affidavit-in-chief of the husband. The husband has not uttered a single example of the misbehaviour, insult and vulgarity in the language of the wife both in pleadings and evidences. All the statements of allegation of cruelty are general in nature without specifying the allegation of misbehaviour and insult of outrageous nature. Even not a single family member has been examined to substantiate the allegations.
It is alleged by the husband that the wife was suffering from abnormality in behaviour and also from possessiveness and dominating nature towards the husband. The allegation of abnormality and introvertness are not at all specified. No particulars about the aforesaid allegations are forthcoming in the pleadings and evidences of the husband. Not a single member of Bhowal family consisting of brothers, sisters and brother-in-laws and the sons and daughters appeared before the court to support and substantiate the aforesaid allegation of cruelty and abnormality and dominating nature. The husband's allegations of suspicious mind of the wife and carelessness and negligence towards household work in the pleading and in the examination-in-chief appear to be sound and fury signifying merely the ordinary wear and tear of the matrimonial life in absence of particularisation, specification and finally corroboration. Even the husband's allegation of wife's act of harassment and humiliation and abusive language with false and flimsy allegation of having illicit relationship with different ladies are devoid of particularisation and specification. The husband has failed to particularise with sufficient cogent and corroborative evidence that throughout his marital life beginning with on 31st July, 1986 till the leaving of his paternal house on 4th June, 2003, his wife subjected him to cruelty by flimsy allegation of illicit relationship with different ladies and also by outrageous insulting and humiliating behaviour.
It is settled law that mens rea has no role to play to constitute cruelty as per number of decisions of Hon'ble Apex Court including Sovarani vs. Madhukar Reddy reported in AIR 1980 SC 121 as well as Suman Kapur vs Sudhir Kapur reported in (2009)1 SCC 422. The husband is under moral and legal obligation to establish the detail particulars of acts and behaviour of wife manifest to constitute the ingredients of matrimonial cruelty. It has been held therein that "the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded is cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has not been any deliberate or wilful ill- treatment."
No explanation has been advanced by the husband as to why his near and dear relatives have not been examined by him to corroborate and substantiate the aforesaid allegation of cruelty. From the evidence on record, it transpires that the husband has good relation with younger brother Kajal Bhowal, Dr. Chittaranjan Das - the husband of his sister, Dr. Girin Das - the elder brother of the brother-in-law of husband among others who attended his brain tumor operation at Chennai. The aforesaid relatives being close to the husband and having no enmity with them are vital witnesses to prove the alleged cruelty of his wife. If the wife is guilty for the alleged cruelty they must have been examined by the husband. It is most surprising to note that these vital witnesses have been withheld by the husband. No cogent explanation is forthcoming from the end of the husband for their non-examination. Even the sisters of the husband have not been examined. The husband in his cross- examination (at Page 257 of Paper Book) has admitted that he has no quarrel with his brother Kajal and (at Page 253 of Paper Book) he has stated that his brother Kajal was present at Chennai at the time of brain tumor operation. Therefore, non-examination of these vital witnesses by the husband to establish his allegation of cruelty invites us to draw adverse inference under Section 114(g) of the Evidence Act. Had they been examined the truth would have been revealed.
Since the Matrimonial cases are civil nature, the standard of proof is not the same with Criminal case of proof beyond all reasonable doubts. The principle of preponderance of probability is the basis of the satisfaction that any one of the spouses is guilty of cruelty in matrimonial dispute. Reliance can be placed on decision of Apex Court reported in AIR 1975 SC 1534. Therefore, it would be highly probable to conclude that the wife is guilty of cruelty towards the husband in case these aforesaid vital witnesses including other inmates of the same paternal building would have corroborated the allegation of husband.
It has been argued by the learned counsel for the husband that the wife in her evidence has stated that husband has no good relation with his brothers. But this argument finds no basis when the husband has stated in his evidence (at Page 257 of Paper Book) that he has no quarrel with the younger brother Kajal and he attended at the time of operation at Chennai. Moreover, the husband has never uttered that his brothers and sisters and brother-in-laws would not depose in his favour due to bitter relationship with him. In accordance with the cardinal principle Civil suit, the plaintiff must prove his own case at his own footing without depending on the lacuna of the defendant. Therefore, it is the bounden duty of the husband to examine them; otherwise to explain the non-examination of the aforesaid vital witnesses. In absence of any explanation we are tempted to draw adverse presumption that there is hardly any ingredient of cruelty of grave and weighty nature other than usual wear and tear of the matrimonial life. Otherwise, the husband would not have undertaken wide tour in India and abroad as admitted by the husband and wife in the evidence and pleadings.
The husband has examined one Dilip Kumar Mitra as P.W.2 who is a childhood friend of the husband. This witness does not corroborate the allegation of cruelty of wife with detail particulars of any incident and does not specify any incident of cruel behaviour of wife. He does not specify any kind of misbehaviour of wife which tantamounts to cruelty. He has only stated that on some occasions he found the wife to misbehave with her husband. He found that the wife was indifferent and careless to her husband. He has stated that the husband told him about the misbehaviour of the wife but no detail particulars of misbehaviour was ever reported to him by the husband. Therefore, the evidence is totally vague without particularisation and specification like that of the husband and, therefore does not inspire our confidence so as to reach to a conclusion that the wife is guilty of matrimonial cruelty. This witness speaks in the same tune of the husband like a parrot in the same vague language of the husband and is, therefore, nothing but a tutored witness.
The husband has examined another witness Dr. Sumantra Chanda as P.W.3. He is neither a close relative nor a family member in the paternal building of husband. This witness has business interest with the husband in the matter of publishing books. He stated in his evidence that he visited the publishing house of Mr. Bhowal to discuss different matters relating to publication of books written by him. He has stated that in the month of April, 2005, he went to the office of the husband. While he was talking, he found that the wife entered into the chamber and started behaving very rudely. This statement does not at all prove that the wife used to misbehave and insult the husband throughout the long period of matrimonial life. He stated that the wife, on query by this witness as to what happened, started shouting by saying that her husband has illicit relation with different ladies. He stated that the employees of Mr. Bhowal being attracted by the shouting of the wife gathered in front of his chamber. Therefore, the husband was embarrassed and humiliated. This evidence of the witness does not disclose with whom the husband has illicit relationship. Moreover, no employee has been examined by the husband to prove that his wife shouted alleging illicit relation with different ladies. The statement of wife's shouting and rude behaviour in presence of this witness is not corroborated by any office employees of husband. The witness does not disclose how the wife misbehaved rudely. There is no narration of specific incident and specific mention of lady with whom alleged illicit relationship prevailed. He only speaks of rude behaviour without particularisation in any way. He speaks only of an isolated incident without covering entire married life of husband. Moreover, he has business interest with husband. Therefore, this P.W.3 cannot be deemed as trustworthy and reliable witness. This witness does not at all whisper that during the conjugal life he found the wife to have misbehaved with her husband. This witness does not whisper that the wife alleged illicit or immoral connection with any specific lady and other named woman during their conjugal life. He only speaks of his presence, sometimes in the month of April, 2005, during which the husband left the matrimonial home and filed divorce suit. Admittedly the husband left matrimonial home on 04.06.2003 and filed divorce suit on 23.05.2005. This P.W.3 speaks of an isolated incident of April, 2005. Therefore, this witness may also be termed as chance witness. No reliance can be placed upon his evidence to constitute the cruelty of the wife. He utters as to allegation of illicity made by wife when the husband came out from conjugal life after abandoning the matrimonial home. What is required to scrutinise is whether during the entire conjugal life starting from the marriage with effect from 31.07.1986 till the abandoning the matrimonial home on 04.06.2003 the wife subjected the husband to cruelty of any kind. This P.W.3 does not cover the said period so as to justify the husband's compulsion of leaving matrimonial home on the ground of cruelty. Therefore, this P.W.3 cannot be treated as disinterested and independent and reliable witness.
The husband has, therefore, failed to examine any one of his employees of his office to establish that he had been insulted and humiliated by his wife in their presence as alleged by the husband.
In both the Suits i.e. in the plaint of divorce suit and in the written statement of the restitution petition filed by the wife, the husband alleged misbehaviour of the wife. He also alleged that one year after his marriage, his parents were compelled to come down to the ground floor from the joint mess of second floor when the uncle of the husband (khursosur of the wife) was also with them, due to the torture of the wife. It is submitted by learned counsel for the husband that the wife has stated in both the pleadings and evidence in both the suits that she was very careful about the parents-in-law. Learned counsel for the husband argued that if the wife was so careful, why did the parents-in-law come down from the second floor and continued separate mess in the ground floor in the Southend Park residence? It is further submitted that this situation establishes the allegation of the husband that due to torture of the wife, the parents were compelled to come down to the ground floor from the second floor.
To establish the allegation, the husband has not adduced any independent, reliable and trustworthy evidence. He could have examined any one of the family members including his uncle who is the khursosur of his wife. He could have examined his brothers and sisters, sister-in- laws and their son and daughter and sister's husband to prove his allegations. None came forward. Even the husband could have examined his cousin sister Shali Kar with whom no enmity or quarrel is reported in the pleading or evidence. No explanation is advanced for their non-examination. The husband only relied upon his own isolated and uncorroborated testimony. In absence of any explanation for non- examination of aforesaid vital and natural witnesses we are again compelled to draw adverse inference under Section 114(g) of the Evidence Act namely had they or any of them been examined, it would have been established that the husband's allegations are far from truth. For his parents' coming down from second floor to the ground floor there might be hundred reason including medical and age related one. But casting the stigma of cruelty on the wife without proof cannot automatically establish the allegation of the husband that due to torture of the wife, the parents were compelled to come down to the ground floor. The learned counsel for the husband has based his submission on the basis of conjecture or hypothesis and his submission stands devoid of evidence and merit.
The allegation of torture and cruelty levelled by the husband is further belied by the fact that the father-in-law made the wife a director of the company to which he was a director and a flat was purchased by her father-in-law in her name at Haridwar. In case, the wife was found by her parents-in-law to have inflicted torture upon them, the father-in- law would surely have taken step for her removal from the post of director of the company. But the same was not done. On the other hand, the evidences of wife revealed that her father-in-law allotted in her favour 32.88% share in the publishing business. The evidence of the wife further reveals that she with her husband undertook tour in Madhya Pradesh during August 1990. In her cross-examination (at Page 317 of Paper Book) she stated that she undertook tour in M.P. along with her husband and daughter during August, 1990. All these are unchallenged testimony. Had there been any cruel treatment of the wife towards her husband and parents-in-law, the husband would not have traveled to Madhya Pradesh when their daughter was 9 months old. Therefore, the allegation of cruel treatment towards parents-in-law stands unsubstantiated and appears to be a figment of imagination of the husband.
It has been alleged by the husband that wife subjected him to cruelty after detection of brain tumor and after operation of the same at Chennai. It has been alleged that the wife was unwilling to accompany him at Chennai, but ultimately she went to Chennai after compelling him to execute a Will in respect of his whole property. She returned back before his discharge. It is further alleged that when brain tumor was detected and the Doctor advised for operation, his wife inflicted mental torture by alleging that the husband by suppressing the disease married the wife.
Admittedly, the marriage was a negotiable one and the parents of both the parties held talk. It is submitted by learned counsel for the wife that in case there was any suppression of the disease of brain tumor, the parents of husband might have alleged to the parents of wife on account of suppression of the disease. The brain tumor was operated on 14th June, 1995. It was detected much earlier. The father of husband died during 1997. No evidence is forthcoming to the effect that the parents of husband alleged to the parents of wife as to the alleged suppression of the existence of brain tumor before marriage. Therefore, this kind of allegation of the husband that the wife blamed the husband to have suppressed the disease before the marriage is totally unfounded. Further no corroborative evidence is forthcoming. The uncorroborated and unfounded allegation of husband against his wife can by no stretch of imagination substantiate matrimonial cruelty. Even his childhood friend Dilip Kumar Mitra examined as P.W.2 and another witness P.W.3 - a customer of husband's publishing business do not utter anything on this point. No near and dear relative of husband substantiated this allegation of husband.
Furthermore, the allegation of the husband that the wife compelled him to execute a Will in respect of the property as a pre-condition for accompanying him at Chennai is far from credibility. The wife shall legally inherit the property of her husband after his death as per Law of Succession for which execution of Will is uncalled for. If the wife wants to grab the property of her husband during his lifetime, she would have compelled her husband to execute a deed of gift. Therefore, the present allegation is totally a manufactured and concocted story and an unproductive and fruitless attempt on the part of the husband to level the stigma of cruelty upon his wife in order to get a decree of divorce at any cost.
It is admitted by the husband that the wife accompanied him at the time of brain tumor operation at Chennai on 14th June, 1995. The husband returned to Calcutta on 25th June, 1995 after operation. The husband alleged that wife returned to Calcutta 4/5 days after operation. The wife admitted to have returned to Calcutta after one week as per advice of her husband. It appears from the evidence on record that Dr. Chittairanjan Das, the medical expert and brother-in-law of the husband and Dilip Kumar Mitra - his childhood friend and Kajal Bhowal - his younger brother and Dr. Girin Das - the elder brother of the brother-in- law of husband and other friends were present at Chennai. They did not oppose the wife's return to Calcutta after operation. No evidence is forthcoming to hold that after operation at Chennai, the husband was in a precarious condition. The husband has categorically stated in Page 253 of his cross-examination that at the time of brain tumor operation at Chennai Dr. Girin Das, Arun Prakash Guha, Dr. Chittairanjan Das, the younger brother of husband Kajal, one Rajkumar Khetan and other friends were present. None of them has been examined by the husband to prove that the wife intentionally returned to Calcutta after operation on false plea. They have not stated that in spite of their opposition, the wife returned to Calcutta on false plea. The wife has stated in her evidence that she returned to Calcutta as the school of her daughter reopened and preparation of examination is required.
It is submitted by learned counsel for the wife that the school of the daughter of the parties reopened after summer vacation and examination was to take place. The post operation period of the husband was not critical. Had it been so, the brother-in-law of husband i.e. Dr. Chittaranjan Das and the younger brother Kajal also would not have allowed the wife to return to Calcutta with her brother Asis Das. The submission of learned counsel for the wife has sufficient merit and we accept the same.
The learned counsel for the husband citing a Government notification of Education Department, Government of West Bengal attempted to show that academic session at the relevant time was from May to April. Therefore, there was no question of half yearly examination of daughter as pleaded by the wife. In spite of the fact that the academic session was from May to April, the return of the wife to Calcutta after 4/5 days or after 7 days cannot be treated as cruelty or negligence inasmuch as other medical expert along with the relative of the husband who accompanied him did not reveal that the condition of the husband after operation was critical and they opposed the wife's return to Calcutta. The fact remains the school of the daughter of the party reopened after summer vacation. The holding of the weekly examination of the school cannot at all to be disbelieved. The submission of learned counsel for the wife sounds logic.
There is no evidence that the husband was struggling for life after operation at Chennai as stated by the husband and there is no evidence on record that the husband remained in the hospital alone. Dr. Chittaranjan Das - brother-in-law of husband, Dilip Kumar Mitra, his childhood friend remained there. Therefore, the return of the wife to Calcutta is not a matter of astonishment and disheartening incident and not an incident of matrimonial cruelty as alleged by the husband. The allegation of carelessness of the wife towards husband in the post operation period is also uncorroborated. There is no allegation that the wife did not prepare meal or serve the same. On the other hand, the wife has categorically stated that she took care of her husband during the entire post operation period. She prepared nutritious food which was likely to suit her husband in post operation period.
It is submitted by learned counsel for the husband that the wife was totally apathetic towards the husband during and after operation of brain tumor because she failed to remember the name of Dr. Durgadas Roy Chowdhury who advised operation of the husband and she could not correctly say in which position of the brain the said tumor was located as she stated once in the back side and once in the middle side. But the discharge summary of husband denotes the location at the right occipital.
It is a common experience that an ordinary housewife without any medical expertise cannot be expected to promptly answer after a lapse of years in the witness box as to which particular area of brain, the tumor was located. She is likely to vacillate with regards to location after the lapse of so many years. For this vacillation she cannot be levelled as an apathetic.
The husband alleged that the wife could not remember whether she administered analgesic tablets towards her husband. She also failed to answer whether there was any pathological test of her husband and whether subsequent check-up was advised by the Doctor after brain tumor operation. But the discharge summary advised the husband for pathological test after one month and subsequent check-up and the husband was directed to take different medicines after operation including Paracitamol 500mg which is analgesic.
It is needless to reiterate that an ordinary housewife having no medical expertise or having no involvement of medical profession is not expected to reply on the nature of medicine whether Paracitamol is analgesic or not or to accurately remember and answer the detail particulars of the advice in the discharge summary after a lapse of so many years. Non-remembrance of nature of medicine and advice in discharge summary on the part of an ordinary housewife cannot contribute to the mischief of apathy, carelessness so as to constitute the grave and weighty nature of cruelty as one of the grounds of divorce.
After operation of brain tumor, the husband returned Calcutta on 25th June, 1995. The allegation of cruelty levelled by husband on pre and post operation period are not at all proved by any kind of evidence specially when the family relatives accompanied the husband at the hospital at Chennai. The falsity of allegation has been further strengthened by the wide tour undertaken by the husband along with wife and children. The husband has stated that he along with wife and daughter undertook a wide tour in Europe and America during 1996. Had there been any kind of cruelty, which is may be considered as serious, weighty and grave, the husband would not have travelled in foreign country like Europe and America. The reliance may be placed on the decision of Hon'ble Apex Court reported in AIR 2005 SC 534 (Jayachandra vs. Anil Kaur). The husband undertook tour with his wife and children in 1991 and also in 1996 as per pleading (at Page 113 of Paper Book) and as per evidence of the husband. No prudent and sensible man will believe that after having received such cruel treatment of grave nature, the husband would have undertaken a marathon travel in foreign country like America and Europe. Hon'ble Apex Court in decision reported in (1994)1 SCC 337 (V. Bhagat vs. D. Bhagat) held that the cruelty must be of such nature that the parties cannot be expected to live together. Merely because there are allegation and counter allegation, a decree of divorce cannot follow. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading and other admitted materials. Hon'ble Apex Court in the decision reported in AIR 2005 SC 534 (Jayachandra vs. Anil Kaur) has further observed that to constitute cruelty "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."
The Court must be satisfied that the relationship between the parties have deteriorated to such an extent that due to conduct of the other spouse it would be impossible for them to live together without mental agony. On scrutiny of the allegations of the husband in pleading and the evidences, we do not find that the wife's behaviour and conduct complained of is so grave and weighty so as to hold that the wife subjected her husband to cruelty in the manner alleged by the husband.
The husband has advanced explanation that he tried to rectify the attitude of his wife by undertaking wide tour in the foreign countries as well as in his own country. But it is quite unbelievable that a highly educated husband having a reputed business of publishing would think it prudent that in case he undertakes wide tour, the cruel conduct of the wife would be rectified. The undertaking of tour to India and abroad after several intervals belies the allegation of cruelty levelled by husband.
The husband alleged merciless conduct and negligence of his wife while his tongue cancer was detected. It has been alleged by the husband that the wife did not accompany him at the time of tongue cancer operation at Mumbai. Even she did not accompany him in the airport. The wife has stated in her evidence that she accompanied her husband at the time of operation of tongue cancer in Bell Vue nursing home, Calcutta in the year 2000. She was willing to accompany him at Mumbai but she was advised by her husband not to go to Mumbai on account of new born son who was born on 10.12.1999. The operation of tongue cancer took place at Mumbai on 23.08.2000. The age of her son was 8 months 13 days at the time of operation at Mumbai. The question is whether non-attendance of wife at Mumbai when her son was 8 months 13 days old is justified. The plea of wife is that her son was of tender age and 'Annaprasan' was not held and she could not go as per advice of husband. The allegation of the husband is that she willfully neglected to accompany him and had taken a false plea of son's tender age.
First of all, the plea of tender age of her son is not at all false. Secondly, 'Annaprasan' had yet to be performed and it is not false. Had it been the intention of the wife not to accompany her husband during tongue operation, she would not have attended the tongue cancer operation at Bell Vue nursing home, Calcutta. The distance between the place of operation at Calcututa and Mumbai cannot be equated. Whatever may the plea of wife and allegation of the husband be, non- attendance of the wife to the place of a long distance at Mumbai when her son was 8 moths old does not justify the husband's allegation of the wife's cruelty by her deliberate act of non-attendance at Mumbai. Dr. Chittaranjan Das and his friends and well-wishers accompanied him at Mumbai. There is no evidence on record to prove that his friends and relatives advised her (wife) to accompany her husband at Mumbai and she refused. It has been submitted by the learned counsel for the husband that the wife and her husband undertook tour at Madhya Pradesh in August 1990 when the daughter was 9 months old. Therefore, the wife should have gone to Mumbai to attend the operation of husband despite the tender age of the new born son. This argument does not sound a good logic. The husband was hale and hearty at the time of tour of Madhya Pradesh as there is no evidence to the contrary. The health condition of the husband and wife at the relevant time and that of the parties at the time of operation of husband cannot be equated. Therefore, the argument of learned counsel of the husband does not inspire us to blame the wife as cruel for not going to Mumbai when husband was accompanied by medical expert and other friends and well-wishers.
The husband alleged cruelty of wife in the matter of segregation of articles like utensils and towel from other family members. The family members of husband consisted of himself, his wife, his daughter and newly born son of 8 months old. The wife claimed that she provided her husband with sterilized and disinfected materials. Although cancer is not an infectious disease, yet ordinary housewife maintains care and caution by making separate arrangement like sterilized utensils, towels, glass for the purpose of protection from infection. This plea of the wife does not sound illogical. This kind of segregation cannot be termed as cruel as alleged by the husband.
In fact, the operation took place on 23.08.2000. The cross- examination of husband in Page 254 of Paper Book discloses that he went to Puri along with his wife after one month of his second time operation. He constructed a house at Shantiniketan and Grihaprobesh ceremony was held in the month of June, 2001. Had there been any cruelty of grave and serious in nature as observed by Hon'ble Apex Court elucidated above, the husband would not have travelled Puri after one month of his second operation and in Shantiniketan at the time of Grihaprobesh along with wife and children after 10 months of his operation.
It is alleged that the wife made sarcastic remarks at the time of difficulty of pronunciation of husband after surgery. The wife categorically denied the same. The husband has failed to adduce any evidence to corroborate his allegation of his wife's sarcastic remarks. No detail particulars of sarcastic remark has been advanced by the husband. He does not specify the sarcastic remarks of his wife. In fact, all the allegations of cruelty by husband thus stand as uncorroborated testimony of husband. It is most precarious to rely upon the uncorroborated testimony of husband who alleges cruelty in order to get a decree of divorce by hook or by crook. Since the wife could not go to Mumbai under the circumstances of her 8 months old son at her lap, the question of her remembrance of post operation diet restriction or follow up treatment of her husband does not arise. For this purpose, the brother-in-law of husband Dr. Chittaranjan Das was a standby companion. The husband has miserably failed to prove the allegation of cruelty against his wife on this score.
It has been submitted by the learned counsel for the husband that the husband was compelled to leave his paternal house of Southend Park on 4th June, 2003 due to inhuman mental torture of the wife. But the fact remains that in the second week of April, 2003, the husband along with wife and children went to Puri. If prior to one month or so the husband toured to Puri along with his wife and on several times he toured with his wife in Puri, how can he justify the plea of cruelty of his wife for abandoning his matrimonial home on 04.06.2003 ?
Learned counsel for the wife submitted that the husband could not adduce any evidence to prove his allegation. None of the inmates of the paternal building came forward to support the allegation of cruelty.
It is further alleged that on 04.06.2003, the wife snatched her son who came on the lap of her husband by saying that the days of husband are numbered and does he want the same for her son? No corroborative witness is coming forward to support the same. It is submitted by the learned counsel for the wife that the wife took away her son, because she was apprehensive of infection of her husband. The child's closeness to father, who just come from outside (from school), she apprehended, might give birth to infection of her husband. The act was done, it is submitted by the learned counsel for the wife, due to apprehensiveness of wife and this act cannot be explained as cruelty of his wife. There appears sufficient merit in the submission of learned counsel for the wife. The wife stated in her written statement that her daughter received a telephone call and she was agitated. As a result, the father left the house. This incident of taking away of the son by the wife from father or the receipt of telephone call by the daughter and her irritation has no bearing on the incident of husband's leaving the matrimonial home. The act of husband in leaving/abandoning the matrimonial home finds no reasonable and sensible justification. The husband has miserably failed to establish any justification of his act of abandoning the matrimonial home on 4th June, 2003 when the son was barely two years five months old. The incident of abandonment of husband's matrimonial home does not appear to be the result of cruelty of the wife as no corroborative evidence is forthcoming to that effect. On the other hand, the wife stated in her cross-examination that she went to Puri in April, 2003. It appears, therefore, that husband went to Puri with his wife and children one month before his leaving the matrimonial home. Had there any cruelty of the standard required for a decree of divorce, the husband would not have travelled to Puri with his wife. The purpose of such abandonment is best known to the husband. But we do not find any just cause. Therefore, we have no other alternative but to hold that the husband deserted his wife and abandoned the matrimonial house without any just cause or reason and he took the false plea in the suit that his wife deserted him and subjected him to cruelty.
It is most pertinent to note that when the husband left the paternal house of Southend Park and started living in Salt Lake with effect from 4th June, 2003, the conjugal life of the husband with his wife ended. In the foregoing paragraphs, we found the falsity of husband's allegation of cruelty during his married life. His allegation of cruelty has not at all been proved by adducing reliable and trustworthy evidence. The husband withheld the most vital witnesses with whom he had no enmity. He has also failed to prove that during his conjugal life with his wife, his wife humiliated him by alleging illicit relation with different women.
After the end of his conjugal life, the husband alleged the wife's act of lowering down his social prestige by sending his driver asking for family expenses. It is a fact that the wife sent family driver asking for money for the expenses of his family consisting of herself, her son and daughter. If sending family driver asking family expenses is the cause of lowering his social prestige, why did he send money through the family driver? It is, therefore, quite natural for the wife to ask family expenses including the education of son and daughter through the driver as the husband was not available in the matrimonial home. The act of the wife in asking money is not an act of lowering the social prestige and cause of humiliation to the husband. The wife is quite justified in not involving her aged mother-in-law of 82 years in the cold war between the couple although the husband's learned counsel proposed that the wife could have complained her mother-in-law for money. The submission of learned counsel for husband is devoid of any merit.
The husband is under legal and moral obligation to maintain his wife, son and daughter. By deserting them and taking shelter at Salt Lake flat he cannot deprive his wife , son and daughter specially when his wife's salary of Rs.18,000/- per month was stopped due to the husband's act of removal of his wife from the post of Director as we find from the unchallenged testimony of the wife.
The husband has alleged that the wife falsely alleged the illicit relation with one Mitali Sen, wife of Prasun Sen, but could not prove the said illicit relation. It is also alleged that the wife failed to prove that after the divorce decree between Prasun and Mitali on 31st May, 2003, the husband became more intimate with Mitali Sen and this resulted in leaving the paternal house of husband on 4th June, 2003 for his Salt Lake house as Mitali Sen was living at Purbasha Housing Estate which is in close proximity with the residence of husband in Salt Lake.
Learned counsel for the husband has argued that had the allegation of the wife been true, the wife could have filed suit immediately. The husband was also put into cross-examination on Prasun Sen's allegation of illicit relation and some suggestion indicating the illicit relationship was also given to the husband.
The wife denied to have alleged illicit relationship between her husband and Mitali Sen. She has categorically stated in her pleading and evidence that she went to Alipore Court during 2007 in connection with divorce suit filed by her husband and she met Prasun Sen, a childhood friend of her husband. Prasun narrated her that due to immoral and unethical relationship between Biplab and Mitali, he was compelled to institute divorce suit against his wife. Prasun further narrated her that the divorce decree was passed on 31st May, 2003 and thereafter both of them became intimate resulting into the leaving of Biplab's paternal home for his Salt Lake house which is in close proximity with Purbasha Housing Estate where Mitali was living. The certified copy of the divorce petition and compromise petition and the compromise decree have been filed. The husband, on this point, admitted that Prasun Sen made some allegations against him. But he was not made a party in the suit. He did not prove the same because suit ended on compromise where parties admitted that "out of some misgivings and misunderstandings, they were living separately".
It is, therefore, crystal clear that the wife did not allege any illicit relationship between her husband and Mitali Sen at any stage of her written statement. The wife filed written statement to the divorce suit during 2005. There is no allegation of illicit relationship between her husband and Mitali. In fact, the wife was in dark about the said narration of Prasun during her entire marital life with her husband. Had it been in her knowledge, she must have alleged the said immoral relationship in appropriate forum as well as in her first written statement of the divorce suit filed by her husband. But she did not do. After her conjugal life which ended on 04.06.2003 and after the lapse of 3 years from her husband's leaving matrimonial home, she came to Alipore Court during 2007 in connection with divorce suit filed by her husband and she came to know as to the said incident from Prasun Sen. It is only during 2007, she got information from Prasun and she filed amended written statement and incorporated the information received from Prasun. On a close scrutiny of the divorce petition filed by Prasun against his wife Mitali, we find that Prasun alleged immoral and unethical relationship between Biplab Bhowal and Mitali Sen in detail. The husband has also admitted that he found some allegations against him made by Prasun in the plaint of Matrimonial Suit No.3 of 2003. The plaint of Matrimonial Suit No. 3 of 2003 at Page 26 of Paper Book II (Ext.6) reveals that his wife was attached to Biplab and wanted to live together. In paragraph 8 of the said plaint Prasun has stated during the month of January, 2000 his boyhood friend Biplab got a scope to intimate with his wife and he (Biplab) indulged his wife to intimate with him. The cause behind such intimate relations with Biplab is his unlimited earnings and wealth. Naturally, Biplab Bhowal became her ideal. Therefore, the averment of the plaint of the divorce suit filed by Prasun corroborated what he stated to this wife (Bipasha Bhowal). The divorce suit did not end in contest. The question of proof of that allegation does not arise as the Suit ended on compromise with averment that due to misgivings and misunderstanding, the parties were living separately. Although the suit was disposed of on compromise, the allegation of extra marital relationship between Biplab Bhowal and Mitali Sen was not withdrawn. There is no whisper in the compromise petition that the allegation of Prasun in relation to illicit relation between Biplab and Mitali was abandoned/withdrawn. The act of wife in the matter of giving information as to the Prasun's allegation of immoral relation in the amended written statement of divorce suit does not tantamount to wife's allegation of that relationship between her husband and Mitali Sen. It is rather an information of allegation of Prasun to the Suit by filing amended written statement. In connection with this information in amended written statement, husband was likely to be cross-examined, but that does not amount to wife's allegation of immorality against her husband. In her cross-examination (at Page 327 Paper Book I) the wife has categorically stated that she did not make any allegation that her husband had illicit relationship with Mitali Sen. The matter may be viewed from another angle. The wife is likely to be disheartened or frustrated after getting information from Prasun as to the immoral relationship between Biplab and Mitali. Out of such frustration and mental shock, she might be apprehensive as to the reasoning or justification of her husband's leaving the matrimonial home. This act cannot at all be termed as an act of cruelty and humiliation. On the contrary, the wife had been suffering from mental agony, pain, shock and frustration. Therefore, the allegation of husband on the point of cruelty for alleged false illicit relationship fails.
The husband has further alleged that the wife went to his chamber for the purpose of humiliating him before the outsider and employees. But no such employee has been examined to substantiate the allegation. The husband has further alleged that in presence of P.W.3 Dr. Sumantra Chanda, the wife humiliated him or alleging illicit relationship with different ladies. The statement of P.W.3 Dr. Sumantra Chanda does not find any corroboration from any of the office employees of the husband. P.W.3 is an interested witness in the matter of book publishing. Therefore, corroboration by official employee is essential. In absence of any corroboration and in absence of any explanation for non- examination of office employee of the husband, we are not inspired to accept that husband's allegation of cruelty and humiliation by his wife. No particulars of ladies with whom the husband had illicit relation is forthcoming from the statement of P.W.3. Even this P.W.3 has stated in his cross-examination that he does not know Mitali Sen and he does not know whether Mitali is the wife of Prasun Sen. Therefore, the evidence of P.W.3 is not worth of credit. The allegation of cruelty levelled by husband is devoid of merit.
It has been submitted by the learned counsel for the husband that the wife humiliated the husband on the allegation of illicit relationship with different ladies during the hearing of Women Commission when the brother of wife, Asis Das was present and Asis Das during his evidence did not deny the same.
But the husband could not substantiate this allegation by citing any cogent and reliable witness. No suggestion was put to Asis Das during his cross-examination to that effect that his sister made allegation of illicit relationship with different ladies during the time of hearing of Women Commission. Therefore, Asis Das got no opportunity to repudiate the husband's allegation of his sister shouting about the illicit relation of the husband with different ladies. The submission of learned counsel for the husband finds no merit on this point.
It is alleged by the husband that his daughter while preparing for Madhyamik Examination was constantly disturbed by her mother and on 16th July, 2004, she was severely beaten by her mother resulting in injury. The husband went to Southend Park house and brought her daughter to Ruby General Hospital for treatment. No reason is forthcoming as to why the daughter should be severely beaten up by her mother. Only an outpatient bill (Ext.9) was procured by the husband and this paper only speaks of prescription of injection. Neither is there any history of assault nor is there any nature of injury in any medical paper. Therefore, the allegation of severe beating and, therefore, the cruelty of wife levelled by husband is nothing but a concocted story.
It is further alleged by the husband that the wife, towards her journey for harassment and humiliation filed a false complaint against him and he was compelled to attend Women Commission through police and, therefore, the cruel and harassing conduct of the wife is apparent through her said action. It is also alleged that the wife did not hesitate to entangle her daughter in a false case before her leaving India for higher studies.
It is submitted from the end of wife that the application before Commission filed by the wife is not a false one. It was intended for reconciliation between the parties and payment of maintenance.
On a close and careful perusal of the said application dated 30.11.2005 (Page 65-66 of Paper Book II) it appears that the wife prayed before the Women Commission for saving her family from disintegration as her husband left the matrimonial home and she also disclosed her distress. She requested the Commission to reunite her family and to save the helpless wife and the children through discussion. She also narrated in her application filed before the Commission that she had been removed from the post of Directorship and thereby her monthly earning of Rs.18000/- was stopped and her husband deserted her and was living at Salt Lake house without maintaining and looking after herself, her son and daughter. There is no false allegation against her husband. Therefore, the application before Women Commission are not at all intended for harassment and humiliation of the husband. As the husband did not appear before Commission despite notice, the Commission compelled his presence by issuing summons through police machinery. The issuance of summon upon the daughter by the Commission has no connection with the husband's allegation of cruelty. The Commission on its own process issued the summon for the purpose of counselling as the wife has prayed for integration of her family through discussion and counselling. The wife has no role to play in the process of the Commission. The Commission used its own procedure and machinery for which the wife cannot be blamed and stigmatised as cruel. Although an order of maintenance was passed by the Court in favour of the wife, the petition before the Commission was pending as the remaining portion of her prayer was not disposed of by the Commission. Therefore, the allegation of cruelty levelled by the husband also fails.
It is also alleged by the husband that the wife initiated proceeding before the Company Law Board in order to close the business of the husband and she made some dirty personal allegations against the husband, which were quite irrelevant for the adjudication of dispute.
This allegation of the husband that the wife lodged petition before the Company Law Board for closure of his business is far from truth inasmuch as the wife was compelled to file petition as she had been removed in 2004 from Directorship which was made by her father-in-law during 1994. No cogent evidence has been adduced by the husband to prove that wife filed petition to close the business of the husband. Moreover, the husband in his cross-examination (at Page 256 of Paper Book I) has stated that regarding the termination of Directorship, the wife filed a case before the Company Law Board. It is submitted by learned counsel for the wife that the husband had ample opportunity to call for record through Court and take step for making the certified copy of wife's petition as exhibit so much so it would be established that the wife lodged a petition before the Company Law Board for closure of the business of the husband and she made some dirty personal allegation. But it was not done by the husband for the reason best known to him. Therefore, the allegation of harassment and cruelty of wife levelled by husband fails. On the contrary, the husband (in Page 256 of the Paper Book) in his cross-examination has stated that he and his wife visited Shilong, Gopalpur on Sea, Joyrambati, Nepal, Madhya Pradesh, Kedar Badri twice, Joypupr and Digha. Had the relation between the couple so sour and the cruelty been grave and serious in nature, the husband would not have undertaken such wide tour throughout their matrimonial life.
It is also alleged that the wife is careless about his daughter. In reply it has been submitted by learned counsel for the wife that the daughter sometimes stayed with her father, sometimes with her mother. When she stayed with her mother during Higher Secondary examination, she secured more marks than during her Madhyamik examination when she stayed with her father. Therefore, the question of wife's carelessness to the daughter does not arise. It is alleged that the wife was ignorant about her daughter's operation of ovarian ceast. But the operation of ovarian ceast of her daughter was not disclosed to the wife by her husband as well as by her daughter. These submissions of learned counsel for the wife are not controverted. We scrutinised the result of both examination of the daughter. We find sufficient merit in the submission and accept the same.
It is alleged that the wife caused monetary loss to the husband by withdrawing money from different accounts without consent of husband and also by giving instructions for freezing the bank account.
It is submitted by learned counsel for the wife that as per advice of husband, the withdrawals were made. From the materials on record it transpires that in some accounts the name of wife stands first and then there appears the name of husband. In the said accounts, the wife made withdrawal, inasmuch as she was entitled to withdraw the amount. Otherwise, bank would not have allowed her to withdraw. In case, the husband does not approve the withdrawal of the amount by the wife, he could have given instruction for freezing the account as was done by the wife in the joint account of UTI Bank, Golpark Branch.
It is strange that the husband left the matrimonial home without just cause and thereafter he started to find fault to each and every act of the wife in his untiring endeavour to level her conduct as cruel. There is likelihood of usual wear an tear of matrimonial life and those cannot be viewed as cruel acts of the spouse.
The wife, on the other hand, filed suit for restitution of conjugal rights. She also filed petition to Women Commission for reunion of her family. Her evidence reveals that she went to husband's Salt Lake flat several times and mentioned the specific dates of her going to husband's flat. She has stated further that she persuaded her husband to return to matrimonial life but the husband paid no heed. That the wife went to husband's Salt Lake flat and also to his chamber is not denied. On the contrary, the husband opined that the purpose of wife's visit is to harass and humiliate him. She went to her husband's Salt Lake flat to perform Bhatridwitiya on 14.11.2004. As the husband did not allow, she was compelled to perform the same on the ground floor of the flat. All the attempts of the wife for the purpose of bringing her husband back to the matrimonial home were viewed by husband in negative manner by criticising the same as harassing and humiliating. She went to her husband's office on 26.02.2005, 19.03.2005, 05.04.2005 and requested her husband to return to the matrimonial home, but her husband paid no heed and was unwilling to talk with her. The sworn testimony of the wife on the aforesaid matter stands unshaken and contribute to the credibility of her statement.
The husband has stated (in Page 264) in his cross-examination that he did not leave Southend Park house for scolding his daughter or to prevent her from shouting. He left the house and started living in Salt Lake as his wife was mercilessly beating her son for coming in close contact with him. But the husband has not adduced any witness to prove that his son was mercilessly beaten by his wife. On application of ordinary human prudence, this cannot be a ground for leaving matrimonial home as the circumstances does not denote that as a result of cruelty of his wife he left the matrimonial home. There is no serious and weighty ground for leaving the matrimonial home. The wife has stated that she only snatched his son in apprehension of infection of her husband. Therefore, on a close scrutiny of the aforesaid facts and circumstances, we may unhesitatingly hold that the husband deserted his wife without just cause and reason.
It is submitted by learned counsel for the husband that the husband did not attend the marriage ceremony of the daughter of his elder brother. But the wife attended the same and thereby she caused to lower the social prestige of the husband. On the other hand, it has been submitted by the learned counsel for the wife that the husband left the paternal house for Shantiniketan on the date of marriage of the daughter of his elder brother and left the wife and children in their house alone. In order to preserve the family prestige, the wife attended the ceremony and gifted golden earrings from her own use.
The wife in her cross-examination at Page 311 has stated that she attended the marriage ceremony of the daughter of her bhasur. At that time her husband used to reside at paternal house at Southend Park. Her husband did not participate the marriage and left for Santiniketan. She also stated in her cross-examination at Page 312 that she presented gold earrings to the two daughters of her bhasur in their marriage. She did not purchase as the same was with her. The husband left for Santiniketan leaving his wife and children in the Southend park paternal residence. What the wife did, by attending the marriage, she did the same for the family dignity and prestige and for good family relation. This cannot be termed as an act of cruelty of the wife or an act to denigrate the prestige of her husband. On the contrary, the absence of husband on the occasion of marriage ceremony of the daughter of his elder brother is insulting and humiliating to the wife who while residing in the same paternal building in absence of her husband though it wise to attend the ceremony and gift some ornaments out of her own use.
The husband has, therefore, miserably failed to prove the allegation of cruelty of the wife on each and every point.
Decisions cited by learned counsel for the husband in Visghwanath Sitaram Agrawal vs. Sau.Sarla Vishawanath Agrawal reported in AIR 2012 SC 2586 is quite distinguishable inasmuch as the facts and circumstances of that case are totally different from the present case. In the said case, there was publication of notice with regards to the extra marital relationship of the husband alleged by the wife. In the said case, the wife published in the newspaper that the husband was a womaniser and drunkard and the wife made wide allegation about the character of the husband. Therefore, the facts and circumstances of the said case are quite distinguishable from the present one.
Similarly, the decision cited by learned counsel for the husband in Naveen Kohli vs. Neelu Kohlireported in (2006)4 SCC 558 has no application in the present case. In the said case, the wife filed number of cases including criminal complaint against the husband and made every effort to harass and torture the husband and even got him arrested and put him behind the bars and in the said case specific instances were given by the husband. The wife sent notice for breaking the nucleus of HUF, expressly stating that the family nucleus had been broken with immediate effect and asking for partition of all the properties and assets of HUF and stating that her share should be given to her. The wife also issued public notice on the newspaper with a view to lower the prestige of her husband. Therefore, the facts and circumstances of the said case are not applicable in the present one.
Learned counsel for the husband has also cited a decision reported in (2007)4 SCC 511 (Samar Ghosh vs. Jaya Ghosh). In the said case, the wife did not bother to enquire about the health of her husband when her husband had heart problem and had to undergo bypass surgery. The facts and circumstances of that case are quite distinguishable from the present case. The wife attended brain tumor operation at Chennai. She attended tongue cancer operation at Bell Vue nursing home at Calcutta. She, however, could not attend tongue cancer operation at Mumbai as per her husband's advice for looking after tender aged son of eight months. The said decision has no application in the present case.
Decision cited by learned counsel for the husband in Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462 has no application in the present case. In the said case an application for amendment was made seeking deletion of accusation made in the written statement. In the present case, there is no application for amendment for deletion of the accusation of husband. On the other hand, amended written statement was filed by wife after getting information from Prasun Sen that the wife of Prasun Sen had intimate relationship with the husband (Biplab) in the said case. The Hon'ble Apex Court held in the aforesaid case that amendment carried out subsequently does not absolve the husband from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements. Hon'ble Court further held that if the taunts and complaints and reproaches are of ordinary nature only, the Courts had to consider whether those are so serious or injurious as to make the spouse charged with them. In the present case, the materials on record do not reveal any intensity, gravity and stigmatic impact of what the wife was alleged to have done so as to constitute matrimonial cruelty.
Similarly, decision cited by learned counsel for the husband in Sri Asit Baran Bhattacharya vs. Smt. Gouri Bhattacharya reported in (2008)3 CAL LT 322 (HC) has no application in the present case. In the said case, the wife, in the presence of outsiders misbehaved with the husband and practically drove them out by describing the husband as 'Rascal' and 'Scoundrel'. But the case in hand does not disclose any gravity, intensity and seriousness of wife's alleged act. No specific obscene and abusive language is disclosed in the present case.
Therefore, we do not find any such just cause for the husband to leave the matrimonial home. We also do not find any misbehaviour on the part of the wife so grave and intense as to constitute matrimonial cruelty. Learned Trial Court erroneously held that the wife in the amended written statement has made allegation that the husband has illicit relationship with one Mitali Sen. But learned Court overlooked the averment in written statement that on 30.03.2007, the wife came to Alipore Court in connection with divorce suit filed by her husband and met Prasun Sen who reported as to the unethical and immoral relationship between Biplab and Mitali. Learned court below also failed to note that the wife in the amended written statement only informed the fact of what Prasun Sen stated to her about the involvement of Biplab with Mitali. Learned court below has failed to scrutinise that the husband has failed to adduce any substantive and corroborative evidence to prove the allegation of misbehaviour and cruelty in all respect. Learned court below also failed to observe that no one of the inmates of paternal three storeyed building was examined by the husband to prove the alleged cruelty of his wife. Trial court only relied upon P.W.2 - Dilip Kumar Mitra but failed to note that this P.W.2 could not corroborate the allegation of cruelty with specific incident in detail. Trial court only relied upon the allegation of the husband which are not at all substantiated by any independent and reliable witness. Furthermore, learned court erroneously shifted the burden of proof upon the wife to establish that she did not go to Mumbai at the time of operation of tongue cancer as per advice of her husband. Without considering the surrounding circumstances and other materials on record, learned trial court also erroneously held that the wife did not accompany the husband at both place at Chennai and Mumbai at the time of operation of husband. It is clear that the learned trial court did not apply its mind on the factual matrix of the case. Learned court made an error of the factual aspect of the case when the court observed that the plea of respondent/wife that she was asked by husband not to go to Chennai has not been corroborated by the evidence of other witnesses. Learned court below has also failed to observe that the standard of cruelty as alleged by the husband must be grave and intense and not merely ordinary wear and tear of matrimonial life. Learned court below has also made an erroneous observation that the wife tried to harass the husband in various manner by making complaint before the Chairperson of Women Commission. In fact, the wife filed application to the Women Commission so as to reunite her family and to save her family from disintegration as her husband has left the matrimonial home without just cause. It does not appear from the judgement of trial court as to how the court held that the wife treated the husband with cruelty without substantive and corroborative evidence. Moreover, the judgement of trial court does not reveal as to how the husband was compelled to leave the matrimonial home while the alleged cruelty is not at all proved.
Therefore, the judgement and decree passed by learned trial court in both the divorce suit and the suit for restitution of conjugal rights are vitiated by misconception of facts and law and, therefore, cannot sustain and are liable to be set aside.
We, therefore, allow both the appeals being Fat No.164 of 2012 and Fat No.165 of 2012 preferred against the judgement and decree of Matrimonial Suit No.78 of 2009 and Matrimonial Suit No.79 of 2009 and set aside the judgements and decrees passed by learned trial court in both the Matrimonial Suits.
The Matrimonial Suit No.78 of 2009 filed by the husband praying for the decree of divorce is dismissed and Matrimonial Suit No.79 of 2009 filed by the wife praying for restitution of conjugal rights is decreed.
The husband Biplab Bhowal is directed to resume conjugal life with his wife Bipasha Bhowal with immediate effect.
We make no order as to costs.
In view of the judgement pronounced above the CAN No.4649 of 2012 is disposed.
LCR be sent back to the trial court below.
Let a Photostat certified copy of the judgement, if applied for, be given to the parties after compliance of necessary formalities.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Tapan Kumar Dutt, J.) LATER:
After the aforesaid judgement is delivered in open Court the learned advocate for the respondent/husband prays for stay of operation of the judgement, in so far as it directs the husband/opposite party to resume conjugal life with the wife/appellant.
The learned advocate for the wife/appellant objects to such prayer.
Having considered the submission of both sides the prayer for stay is rejected.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Tapan Kumar Dutt, J.)