Debabrata Bhaumik vs Sarmistha Sau

D.N. Baruah, J.—This appeal is directed against the Judgment and decree dated 25.3.92 passed by the Additional District Judge, West Tripura, Agartala in T.S. (Divorce) 1 of 1991 dissolving the marriage by a decree of divorce.

Appellant was a private tutor of the Respondent. For that purpose he used to visit the house of Respondent''s parents. During the time Respondent fell in love with the Appellant. They decided to marry. However, there was some resistence from the parents of the Respondent Ultimately Respondent''s parents agreed. Their marriage was solemnised at the residential quarter of the father of the Respondent at Rabindra Palli, Agartala. The marriage was solemnised on 23.1.84.

Respondent''s case is that after the solemnisation of the marriage she went to the matrimonial house i.e. the house of her in-laws. Before and at the time of marriage, she had all the rosy picture of a very happy and prosperous married life. However, the picture did not remain as bright as it was. It started fading. For various reasons they could not lead a happy married life. They used to pick up quarrel and their staying together became almost impossible. According to the Respondent, some time after the marriage, she discovered that the members of the family of the Appellant were not normal in their behaviour, She learnt that the younger brother of the Appellant was a schizophrenic patient. The elder brother had been suffering from mental disorder and he was treated by the doctors of G.B. Hospital and later under Mandunku Mental Hospital in West Bengal for some time. This was not known to the Respondent before the marriage nor it was told to her by the Appellant. Respondent later also discovered that both the families were not of the same standard. Her father was a high official of the Government of Tripura. The members of her family were closely connected with various cultural activities of the State. She obtained B.Sc. (Hons.) degree in 1986 from Calcutta, University. Thereafter, she was admitted in M.Sc, classes in Calcutta. Though she wanted to stay at Agartala with her husband she was forced by her husband to go to Calcutta for studying M.Sc, Even at the time when she was a student of B.Sc. she was kept at the house of her parents against her desire. After the marriage she was not allowed to enjoy her marital life with her husband. She was subjected to various inhumane menial torture. She was never treated as wife by her husband. He rather behaved with her as a strict teacher, in Calcutta she was kept in a room alone at a dirty locality where no decent person could live. In spite of her protest she was compelled to stay there. There was nobody to look after her even at the time when she was ill. Later in 1987 she was asked to stay in a hostel where Appellant used to visit her. On one occasion the Appellant asked the Respondent to see her in a hotel where he normally used to slay. On arrival at the hotel she found her husband Appellant in a drunken condition. The Appellant compelled the Respondent to take liquor knowing fully well that she had been suffering from chronic gestitis and that she was averse to taking liquor. Even the Respondent''s in-laws did not treat her properly. After obtaining the degree in M.Sc. she returned to Agartala and was compelled to stay with her parents. At that time she was threatened by her husband as well as in-laws with dire consequences. At the persuasion of the father of the Respondent she went to the house of the Appellant with a view to staying with him, but her life was made miserable there. Because of this, she had to go back as it became almost impossible for her to live with her husband. Thereafter, both the Appellant and the Respondent began to stay separately. As the marriage did not click and as it became almost impossible for the Respondent to stay with the Appellant, the Respondent approached the District Court for a decree of divorce u/s 13(1)(ia) of the Hindu Marriage Act, for short the Act''.

The Appellant filed written statement. In his written statement he totally denied the allegations made against him. According to him it was he who gave all the encouragement for her study. He tried to give her all the facilities and comfort. He did not do anything which compelled her to live apart. There was on ground for granting a decree for divorce. The Appellant also slated in his written statement that as a loving husband he used to take her on pleasure trips to various places. In the written statement the Appellant also stated that after the marriage while the Respondent had been prosecuting her studies in B.Sc. (Hons.), she was kept in the house of the Respondent and the Appellant used to visit every week coming from his place of service at Belonia. Respondent also sometimes went there to stay with the Appellant. At the time of examination of the Respondent she used to stay with her parents. The Appellant never raised any objection to this. On the other hand he used to give company at the residence of her parents. After the marriage with the Appellant, the Petitioner used to take part in various cultural functions. He also totally denied that the Respondent was kept alone in Calcutta. By saying so, the Appellant wanted to show that he was a caring and loving husband who tried to please his wife in all possible way.

On the pleadings of the parties issues were framed and the evidence of the witnesses were recorded by the trial Court and after hearing the parties the trial Court by Judgment and order dated 25.3.92 allowed the petition granting dissolution of the marriage between the Respondent and the Appellant, Against the said Judgment the husband has filed the present appeal.

Heard the learned Counsel appearing on behalf of the Appellant as well as the learned Counsel appearing on behalf of the Respondent.

After hearing the argument of the counsel of the parties we decided to have interview with the Appellant, the Respondent and her father. On 9.1.95 we met the Appellant, the Respondent and her father. In the meeting we made an effort for reconciliation. However, the parties were not agreeable for reconciliation. The Respondent was absolutely adamant in her attitude to wards the Appellant, Her father was also of the same attitude. According to the father of the Respondent, he made all efforts to send the Respondent to the house of the Appellant but every time he failed. From the manner in which the Respondent was behaving it appeared to him that it would not be proper for him to send the Respondent to the house of the Appellant. Therefore, we were left with no other alternative than to decided the matter on merit.

The Respondent seeks a decree of divorce on the ground of cruelly both physical and mental, Now, the point to be determined in this appeal is whether the Respondent was able to prove cruelty as alleged. As per Section 13(1)(ia) any of the spouses may seek divorce on the ground of cruelty. Section 13(1)(ia) is extracted below:

Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act/may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - (i)....

(i-a) has, after the solemnization of the marriage, treated the Petitioner with cruelty; or

.... ..... ......

The word "cruelty" postulates a treatment with such cruelly as to cause a reasonable apprehension in the mind of the Petitioner that it will be harmful and injurious to the Petitioner to live with the other spouse. This word "cruelly" not only means the physical torture but also includes mental torture. The question of cruelty, however, must be determined from the whole fact and the matrimonial relations between the spouses. While determining whether any of the spouses is guilty of cruelty, their culture, temperament, status of life, state of health of the parties, interaction between them in their daily life and various other factors should also be considered. A spouse may be guilty of cruelly when there is wilful and unjustifiable interference by one spouse in the sphere of life of the other. An isolated act or omission of whatsoever magnitude may not make a spouse guilty of cruelty. The cumulative effect of behaviour between both the spouses may be relevant consideration for determining whether one of the spouses is guilty of cruelty. Again the concept of cruelly also varies from time to time and society to society. Say for instance, drinking may be taboo in one society, but it may not be so in another society. Even at the same society such a thing may be so at one time, but it may not be so at another point of time. Therefore, insistence of taking drinks may amount to cruelty in a particular society or at a particular time. In order to come to conclusion regarding cruelty especially the mental torture it must always be looked to which society a belongs.

In a recent case in V. Bhagat Vs. Mrs. D. Bhagat, the Supreme Court had the occasion to deal with a matter of divorce on the ground of mental cruelty. In the said decision the Supreme Court observed thus:

Mental cruelly in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party mental pain and suffering as would make it not possible for that party to live with the other. In other words mental cruelty must be, of such a nature that the parites cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the panics ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable'' to set out exhaustively. What is cruelty in one case-may not amount to cruelty in another case, It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

It is, therefore, necessary for a Court to determine whether there is mental cruelty entitling a Petitioner to get a decree of divorce u/s 13(1)(ia) of the Act. If the Court after considering all the circumstances comes to a conclusion that a spouse is guilty of cruelly within the meaning of Section 13(1)(ia) of the Act and the parties are not willing to continue their marital relation as it will not be possible for either party to live with the other peacefully, there would be no justifiable reason to compel the parties to live together and prolong the strained marital relation, In the light of the principles enunciated above, it is to be seen whether the Respondent - Petitioner has been able to prove mental cruelty.

Respondent as P.W.1 in her evidence slated that the Appellant was her private tutor who used to teach her at her residence. Gradually they developed intimacy and, thereafter, they were married according to Hindu rites. The Respondent''s parents were not willing to accept it, but ultimately they gave their consent to the marriage. She further stated that she did not enjoy the conjugal life with her husband and she did not get him as a good partner though he was a good teacher. After she had obtained her B.Sc. degree the Respondent was sent to Calcutta by her husband the Appellant against her will. She was compelled to stay on the top floor of a three storied bulding in a very small, unhealthy and congested room. There was no water. To letch water she had to come down to the ground door. There was none to look after her at Calcutta. Though she wanted to stay with her husband at Agartala and to prosecute her studies there itself, she was not allowed. She wanted to enjoy the conjugal life with her husband, but that was also denied. She fell ill Thereafter, she informed the Appellant but he directed her to stay in Calcutta. She returned to Agartala. At Agartala she was subjected to mental torture by the Appellant. She was again sent back to Calcutta to live in the same accommodation. When she refused to attend classes, the Appellant assaulted her, kicked her and left Calcutta leaving the Respondent alone there, Later on she managed to get a seat in a hostel where her husband, the Appellant used to visit occasionally. While in Calcutta, the Appellant used to stay at Midland Hotel. He used to take liquor. The Respondent was not habituated in taking liquor, but the Appellant forced her to take. At that time she had been suffering from gastritis. In spite of that she was forced to take liquor. The Respondent had been suffering from sceptic fever and she returned to Agartala and began to stay with her parents. Meanwhile the Appellant developed faith in "Tantra" and tried to practise on her. He also practised meditation which she did not like. The Appellant was, thereafter, posted at Befonia.

Respondent requested the Appellant to take her to his place of posting which, however, he refused. To the question put by Court, the Respondent stated as follows:

It is impossible on my part to have reproachment and even if no divorce is allowed 1 will not lead a conjugal life with the defdt under any circumstance. I tried twice with the hope that he would change, but he did not. So I do not believe that there will be any change in him.

I have prayed for a decree of divorce.

P.W. 2-the father of the Respondent in his evidence stated that the marriage between the Appellant and the Respondent was settled by their own choice and he had to give consent. However, ''Sampradan'' was done by his younger brother. After the marriage between the Appellant and the Respondent he noticed that his daughter was not happy. When he visited the Appellant''s house after 4/5 days of the marriage he saw tears pouring down her checks. First he thought that it was because of her separation from the parents. Later on, however, he learnt that his daughter was not properly treated. She was given accommodation in the same room which had been used as living room and for other purposes. This could never happen in his family. His daughter had no privacy. She used to sleep in the said room. This witness also narrated the same story regarding the Respondent''s staying in Calcutta alone in a house without proper care, etc. This witness further stated in his evidence that his daughter had been tortured.

The Appellant in his evidence tried to justify his action and he tried to show that there was no fault on his part in maintaining the matrimonial relations between him and his wife. He also stated that after the marriage, he and his wife went on pleasure trips to different places and the relationship was normal and happy. It was he who persuaded the Respondent for obtaining the graduation at Agartala and on obtaining the degree she continued her study in M.Sc. on her own in Calcutta. During those period the relationship between the parties was like that of a normal couple. Only after return from Calcutta on completion of M.Sc. the Respondent expressed her desire to stay separately from her in-laws and other members of the Appellant''s family. The Appellant within his financial limitation tried to arrange separate accommodation, but the same was rejected by the Respondent as she wanted more amenities. Respondent ultimately left the residence of the Appellant and began to live with her parents. Appellant further stated that it was the father of the Respondent who was responsible for creating bad reiationship between him and his wife, the Respondent. The approach of the father was not at all congenial for maintaining the marital relationship. In short, the Appellant tried to show that there was no fault on his part in maintaining good and pleasant relationship with his wife. He further submitted that the Respondent had hot been able to make out a case for decree of divorce u/s 13(1)(ia) of the Act According to him, evidence would amply disclose that the relationship between him and his wife, the Respondent was good and normal though there were sonic unhappy moments at times and these were only because of the immaturity of the Respondent for which the Appellant was in no way responsible.

In the above premises we have to see whether the Respondent in entitled to get a decree of divorce. From the evidence on record at least certain things are absolutely clear that there is a wide difference of age between the Appellant and the Respondent. The Appellant is an educated teacher and the Respondent though is educated, because of the wide difference of age, they are not at par so far the mental status is concerned. The evidence also indicates that there, were quarrels. Things suggested by the Respondent were not found to be acceptable to the Appellant and vice versa. The evidence further indicates that the Appellant had done certain things in the past which were not at all liked by the Respondent. She was compelled to take liquor towards which she had abhorence. She was asked to visit her husband in a hotel. Besides, Respondent''s local guardian chosen by the Appellant was not to the liking of the Respondent which the Appellant knew, but he insisted on. She was asked to visit hold by the local guardian, which she did not like. Similarly many instances are there which made the Respondent unhappy. The allegation of physical torture was also there. Besides, the Respondent made the allegation that her husband, Appellant, used to abuse her with filthy language. It is an admitted fact that the Respondent comes from a respectable family, According to her upbringing she is not accustomed to certain things which the Appellant wanted her to do. Her father being a high official of the Government, she was not accustomed to stay in an unhealthy and unhygienic place, but the Appellant insisted on her doing so. All these things made the marital relationship strained and the Respondent became unhappy. The Respondent is now living separately with her parents. For all practical purposes the marriage between the Appellant and the Respondent has become dead. In these circumstances it will not be proper for this Court to compel the Respondent to live with the Appellant, If such a direction is given by the Court the consequence may be serious.

Considering all these aspects we feel that the decree of divorce granted by the learned District Judge is justified. There is no illegality in it. Accordingly, we reject the appeal and affirm the Judgment of the learned District Judge appealed against.

In the facts and circumstances of the case, however, we make no order as to costs.

I agree.