Debasish Chakraborty vs Triptikana Chakraborty nee Dhar

Jyotirmay Bhattacharya, J.—This first appeal is directed against the judgement and decree passed by the Learned Additional District Judge, 4th Court at Alipore on 30th April, 2012 in Matrimonial Suit No. 8 of 2008 at the instance of the petitioner/appellant (husband).

The husband filed a suit for divorce against his wife under Section 27(1)(a)(d) of the Special Marriage Act. Several allegations of cruel treatments which the husband received from his wife were mentioned in the said application for divorce. The husband has also alleged that the wife has deserted him. Thus, he prayed for decree of divorce on the ground of cruelty and desertion.

The respondent (wife) contested the said suit by filing written statement denying the allegations made by the husband in the divorce petition. Apart from denying the allegations made by the husband in the divorce petition, the wife has also stated in her written statement that the husband was cruel, ungrateful, evil in nature and utmost greedy. She also described her husband as vagabond and a roadside romeo not earning a single penny. She also alleged that her husband developed an intimacy with the private secretary-cum typist and started spending hours together staying back late in the office, in hotels and restaurants and in cozy postures.

On the basis of the aforesaid pleadings of the parties, the following issues were framed:-

"1. Is the suit maintainable in its present form?

Did the respondent desert the petitioner from his society?

Did the respondent show cruelty to the petitioner both mentally and physically?

Is the marriage between the parties has broken down beyond repair?

Has the respondent extra marital relationship with another person?

Is the petitioner entitled to get a decree as prayed for?"

Certain other additional issues were subsequently framed in the said suit. Those are as follows:-

"6. Is the petitioner involved in extra marital relationship?

Did the petitioner show indifferent to the need of the respondent?

Did the petitioner inflict mental torture on the respondent?

Exhibited documents filed by the Respondent/Wife Exhibit marked of Photo copy ''A'' to ''D''."

On the basis of those issues, parties went to trial. They have led their evidence in the suit. After considering the pleadings of the parties and also the evidence led by them, the learned Trial Judge held that the plaintiff/husband has not been able to prove that he was subjected to cruelty and was compelled to leave his own house in view of alleged torture. The learned Trial Judge also held that the plaintiff/husband has also not been able to prove that the respondent was reluctant to be mother and to lead a happy conjugal life.

After recording the above findings, the learned Trial Judge came to the conclusion that the plaintiff/husband is not entitled to get a decree as prayed for. The suit was thus dismissed.

Being aggrieved by and dissatisfied with the said judgement and decree passed by the learned Trial Judge, the instant first appeal has been filed by the husband/appellant.

Mr. Roy, learned advocate appearing for the husband/appellant submits in his usual fairness that after reading the pleadings and the evidence of the plaintiff/husband, conclusion cannot be drawn that the husband was able to prove the allegations of cruelty pleaded in the said divorce petition.

Mr. Roy, however, submits that the husband is entitled to get a decree for divorce on the basis of the unfounded allegation and/or accusation made by the wife against husband in her written statement about his involvement in extra marital relationship with his lady secretary-cum-typist and for spending hours together staying back late in the office, in hotels and restaurants and in cozy postures. He further points out from the written statement filed by the wife that the husband was described as vagabond and a roadside romeo having no penny in his pocket. This unfounded accusation and/or allegation of the wife against the husband, according to Mr. Roy, constitutes a ground of cruelty and the court below, according to him, ought to have passed a decree for divorce after taking note of such unfounded allegation made by the wife against the husband.

Mr. Roy further points out from the cross-examination of the wife wherein she stated that she has no allegation against her husband. By referring to this part of the cross-examination of the wife, Mr. Roy submits that the allegation made by the wife against her husband as mentioned above, is false and misleading and as such the learned Trial Judge ought to have passed a decree for divorce on the ground of cruelty as some unfounded allegations were made by the wife about developing extra marital relationship by the husband with his lady secretary-cum-typist.

Mr. Roy also relies upon the following decisions of the Hon''ble Supreme Court as well as of this Hon''ble Court to substantiate his submission that even if the husband fails to prove the allegation of cruelty which is the foundation of his claim for divorce in the divorce proceeding, but still then the court can pass a decree for divorce when some unfounded allegation is made by the wife in her written statement about some extra marital relationship which the husband has allegedly developed with another lady amounting to cruelty:-

(i) In the case of Malathi Ravi Vs. B.V. Ravi, (2014) AIRSCW 4283 : (2014) 2 DMC 483 : (2014) 3 RCR(Civil) 621 : (2014) 8 SCALE 54 : (2014) 7 SCC 640 ,

(ii) In the case of A. Jayachandra Vs. Aneel Kaur, AIR 2005 SC 534 : (2005) 1 CTC 215 : (2005) 1 DMC 111 : (2004) 10 JT 235 : (2005) 139 PLR 710 : (2004) 10 SCALE 153 : (2005) 2 SCC 22 and

(iii) In the case of Amarendranath Sanyal Vs. Krishna Sanyal, (1993) 1 CALLT 301 : (1993) 1 DMC 565 .

Relying upon those decisions of this Hon''ble Court as well as of the Hon''ble Supreme Court, Mr. Roy invites us to pass a decree for divorce as the wife has failed to prove such unfounded allegation made by her against the husband.

Mr. Halder, learned advocate appearing for the wife/respondent submits that though it is true that some allegations were made by the wife against her husband in the written statement about developing some extra marital relationship by the husband with his lady secretary-cum-typist, but ultimately she condoned such lapse on the part of the husband by saying in the cross-examination that he has no grievance against her husband. He further submits that even though those allegations were made by the wife against her husband, but still then no decree can be passed on the ground of cruelty unless the husband proves that he was hurt by those unfounded allegations made by the wife against him constituting a ground of cruelty for which the decree can be passed.

We have found some substance in such contention of Mr. Halder and accordingly we have scanned the entire evidence of the parties, particularly the evidence of the husband. We have seen that though the husband in his examination-in-chief denied that he developed intimacy with his private secretary-cum-typist and started spending hours together staying back late in the office, in hotels and restaurants and in cozy postures, but he never said in his evidence that such unfounded allegations made by the wife against him hurt him constituting a ground of mental cruelty for which a decree could have been passed.

Mr. Roy, however, submits that since no specific issue was framed by the learned Trial Judge concerning the allegation made by the wife against her husband about developing extra marital relationship by him with his private secretary-cum-typist, the husband could not adduce any evidence in this regard.

We feel that non-framing of any specific issue in this regard may be the reason for which the husband could not adduce evidence with regard to the allegation made by the wife in her written statement about the husband''s involvement in extra marital relationship with his private secretary-cum-typist. Thus, we feel that this is a fit case where further trial is necessary on the issue as indicated above. Accordingly, we send the suit back on remand to the learned Trial Judge for fresh hearing on the issue as mentioned below:-

"(i) Whether the allegation made by the wife in her written statement against her husband about developing extra marital relationship with his private secretary-cum-typist constitutes a ground of cruelty or not?

(ii) Whether by describing the husband as a vagabond, a roadside romeo and a greedy person the wife inflicted cruelty upon the husband constituting a ground for divorce or not?"

Thus, we send the suit back to the learned Trial court on limited remand for retrial of the aforesaid two issues only. The learned Trial Judge is thus directed to consider those two issues after giving the parties an opportunity to lead further evidence and to decide those issues accordingly.

We make it clear that the findings on the other issues which were arrived at by the learned Trial Judge are approved by this Court and as such the learned Trial Judge need not reconsider those issues afresh.

The appeal is thus disposed of by passing an order of remand under Order 41 Rule 25 of the Code of Civil Procedure with a direction upon the learned Trial Judge to return the evidence to the Appeal Court together with his findings thereon and the reasons therefor as early as possible, preferably within a period of three months from the date of communication of this order.

Since both the parties are now before us, we direct both the parties to record their appearance before the learned Trial Judge on 15th May, 2015.

Let the lower court records be sent down to the court below immediately at the cost of the appellant. Such cost should be deposited by the appellant within a week from date.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.