Champa Chanda vs Moni Chanda

Heard Mr. R De, learned counsel for the appellant and Ms. F Ahmed, learned counsel for the respondent.

The respondent husband instituted T.S (Divorce) Case No. 20/2015 in the Court of the Learned District Judge at Karimganj. Paragraphs 4 and 5 of the plaint are extracted as below:-

"4. That on 22.02.2008, the respondent without having any reasonable cause and excuse after quarrel with the petitioner and their child left the house of the petitioner with minor son Akash Chanda and started to live in her paternal house. That subsequently the petitioner tried his best for rejoining conjugal life to bring the respondent in his co-habitation. But respondent each and every occasion refused to co-habit with the petitioner and reluctant to rejoin her conjugal life with the petitioner. That respondent subsequently suggested the petitioner to file a divorce case for dissolution of marriage.

That having no other alternative the petitioner filed a Divorce petition before this Hon'ble Court vide Title suit No.17 of 2010. That subsequently on request by the respondent said suit was compromised and respondent was returned to the house of the petitioner and started to live with the petitioner. That on 13.05.2011 at about 8 a.m. the respondent started in human behaviour (beating) with the children and on being protest by the petitioner the respondent left the house of the petitioner leaving all children and thereafter filed false cases against the petitioner with a moto to arrest the petitioner. Accordingly petitioner was arrested and later on enlarged on bail by the Hon'ble Gauhati High Court. That being a simple hearted person the petitioner subsequently visited the paternal house of the respondent to take her back but she flatly refused to co-habit with the petitioner. That the respondent left the house of the petitioner with all valuable belongings i.e. ornaments, LICI policies and other utensils. That the petitioner subsequently having no other alternative filed a title suit before this Hon'ble Court vide T.S. No. 66 of 2011. u/s. 9 of Hindu Marriage Act, 1955 for restitution of conjugal right. But the respondent subsequently verbally assured the petitioner that she is willing to restitute her conjugal life for which said suit was not continued by the petitioner as a result it was dismissed. That due to such ill activities of respondent the life of the petitioner and their children become spoiled. That the respondent now playing a speculative game by filing a case u/s. 125 of Cr.P.C. in the court of Chief Judicial Magistrate at Hailakandi and dragging him to contest the case by leaving the children in the rental house of Karimganj."

A reading of paragraph 4 of the plaint shows that on 22.02.2008, the petitioner wife without any reasonable cause and excuse and after a quarrel with the respondent husband and their children, left the house with the minor son Akash Chanda and started living with her parental house. In spite of the respondent husband making his best effort to have his wife rejoin the conjugal life, such efforts resulted in a failure.

In paragraph 5 of the plaint, it is averred that on 13.05.2011 at about 8.00 a.m., the petitioner wife behaved in an inhuman manner with the children by beating them and when the respondent husband protested to such behavior of the petitioner wife, she left for her parental house leaving behind all the children. Subsequently, there was also an FIR by filing some false case against the respondent husband, wherein he was arrested. A statement is made that the respondent husband was honorably acquitted in such criminal matter. Apart from the above, we do not find any further averment which may indicate of any desertion by the petitioner wife.

We take note of that the T.S (Divorce) No. 20/2015 was instituted under Sections 13(1),(ia) and (ib) of the Hindu Marriage Act, 1955 (in short Act of 1955).

Section 13(1)(i) of the Act of 1955 provides for a grant of divorce when after solemnization of the marriage, either of the party had voluntary sexual intercourse with any person other than with his or her spouse. No such averment is available in the plaint to substantiate the requirement of Section 13(1)(i) of the Act of 1955. In his evidence on affidavit, the respondent husband stated that in respect of the petitioner wife leaving the matrimonial home to her parental home on 22.02.2008 the earlier Title Suit for divorce being TS No. 17/2010 was instituted. In the said suit, there was a compromise between the parties and thereafter the petitioner wife had returned back to her matrimonial home. In other words, the assertion by the respondent husband that the petitioner wife had left the matrimonial home on 2202.2008 is a fact involved in TS No. 17/2010 and therefore, the same may be barred by the principle of res-judicata to be again made a ground for desertion in the present suit.

As regards the other averment in paragraph 5 of the plaint that the petitioner wife had left the matrimonial home on 13.05.2011 after having a quarrel with the children, from the evidence of the respondent husband as PW-1, it is taken note that after the said incident, TS No. 66/2011 was instituted by the respondent husband under Section 9 of the Hindu Marriage Act, 1955 for restoration of conjugal rights. In the said suit, there was a compromise between the parties requiring the petitioner wife to return back to her husband and accordingly, the suit was dismissed. So the averment in paragraph 5 that the petitioner wife had left the matrimonial home on 13.05.2011 for the purpose of asserting the ground of desertion may also be unavailable as the said act of the petitioner wife leaving on 13.05.2011 is also a subject matter of TS No. 66/2011 and therefore the same also may be barred by res-judicata to be made the basis for desertion in the present suit.

Be that as it may, we have perused the judgment impugned dated 10.12.2015 of the learned District Judge, Karimganj, by which divorce was granted in favour of the respondent husband. A reading of the judgment and order dated 10.12.2015 goes to show that the 1st paragraph refers to under which provision of law the suit had been instituted, the 2nd paragraph refers to the facts as sought to be narrated in the plaint, the 3rd paragraph reveals that the petitioner wife had not contested the suit in spite of summons being served upon her and therefore the suit was proceeded ex-parte, the 4th paragraph shows that the respondent husband had tendered his evidence as PW-1 through affidavit and further four other persons as PW-2 to PW-5 had also tendered their evidence. The 5th paragraph provides that upon hearing and perusal of the case record including the uncontroverted evidence of PWs, it appeared to the learned District Judge that prima-facie the petitioner wife being a legally married wife of the respondent husband had willfully and intentionally behaved with cruelty and also deserted the respondent husband. Accordingly, the suit was decreed ex-parte.

But merely because the defendant did not appear to contest the suit, does not bestow the jurisdiction upon the Court to decree the suit in the manner as it has been sought for without discussing the evidence on record and arriving at a reasoned conclusion that such evidence do establish the case sought to be made out in the suit. A decree in a suit cannot be on the basis that the evidence remained uncontroverted and therefore, without discussing and arriving at a conclusion that such evidence do establish the case sought to be made out in the suit, a suit can be decreed. We have also noticed that the records reveal an evidence on affidavit by the petitioner wife in Misc (R) Case No.35 of 2016 and the acceptability of the said piece of evidence had also not been taken into consideration.

For the aforesaid reason, we find that the judgment and decree dated 10.12.2015 in T.S (Divorce) Case No. 20/2015 would be unsustainable in law.

Accordingly, the judgment and decree dated 10.12.2015 in T.S (Divorce) Case No. 20/2015 is set aside and the matter is remanded back to the learned District Judge, Karimganj for appropriate consideration of T.S (Divorce) No. 20/2015.

Both the parties have agreed to appear before the Court of learned District Judge, Karimganj on 10.01.2022 at 10.30 a.m.

The appeal is allowed to the extent indicated above.

Send back the LCR to the lower Court forthwith.