Dilip Kumar Sett vs Ratna Sett

S.N. Mallick, J.—In the instant Matrimonial Appeal has been preferred by the Petitioner/Appellant against the judgment and decree dated May 26, 1994 parsed by the Learned Additional District Judge, Howrah in Matrimonial Suit No. 14 of 1990 thereby dismissing his prayer for dissolution of marriage by a decree of divorce against the wife Respondent on grounds of cruelty and desertion u/s 13 of the Hindu Marriage Act. It is alleged in the memo of appeal that the learned Trial Judge has not properly assessed the evidence adduced on behalf of the husband Appellant and as such on erroneous findings of fact and law has dismissed the suit. The learned trial Judge in his impugned judgment has totally disbelieved and rejected the husband Appellant''s story of desertion and cruelty against the wife Respondent. In this appeal the main point for consideration is whether the learned Trial Judge has rightly dismissed the Appellant''s the above matrimonial suit brought, against the wife. Before coming into the merits of the appeal the facts of the case may be briefly stated in the following paragraph:

Admittedly the marriage between the parties was held under the provisions of the Hindu Marriage Act on January 26, 1973. Since then the parties have been residing at 59A, Ding Sai Para Lane at Bally. One daughter namely Pampali Sett was born to them sometime in 1976. According to the husband the Respondent deserted him immediately after the marriage and picked up quarrels with him and he has ail along been ill treated by her which are acts of mental cruelty (vide para. 5 of the plaint). The acts of cruelty allegedly committed by the Respondent have been set out in the plaint as follows:

(1) The Petitioner served an Advocate''s notice dated May 6, 1988 upon his wife the Respondent intimating her that as the Petitioner had been continuously ill treated by her since six months of the marriage by abusing him in filthy language the Petitioner had been advised to file a divorce suit against her and pending the said suit, she was requested to leave the matrimonial home forthwith (vide Ext. A). This lawyer''s notice was cancelled by the name Advocate on instructions from the Petitioner by a letter dated June 3, 1988 (vide Ext.A1). It is the case of the Petitioner in the instant suit that he had to withdraw the same at great humiliation as he was pressurized to do so by the antisocial elements engaged by the Respondent, her brother and sister-in-law.

(2) Prior to the date of the issue of the said notice i.e. Ext. A the Respondent threatened the Petitioner with dire consequence and in fact engaged antisocial elements to take away his life and property.

(3) In March, 1989 the Respondent with the help of some local people namely one Swaraj Banerjee and others assaulted him and unlawfully assembled in front of his shop used filthy language and pre-empted him from carrying on business. This was done by her on diverse dates.

(4) The Respondent with the help of the antisocial elements tried to kidnap their daughter for which she was removed from the residence of the Petitioner. It is further alleged that the daughter was never properly looked after by the Respondent Bond accordingly she loved to stay with the Petitioner (vide para.4 of the petition).

(5) The Respondent instigated the local Mahila Samity who agitated in front of his house on May 26, 1980 at 10 p.m. at night and also during day time causing serious mental torture and cruelty based on false complaint lodged by his wife to the Mahila Samity.

(6) The Petitioner was physically tortured and he was driven out from his bed room forcibly by the Respondent with the help of some miscreants in the May, 1989.

(7) She used violence against him and kicked him in presence of some relatives and friends at Hardwar in January, 1984.

(8) The Respondent has been living separately and thereby she has deserted the Petitioner and she is still living in desertion.

(9) The Respondent in collusion with the members of the Mahila Samiti and local antisocial elements has made the life of the Petitioner ''terrible'' and he has been made socially out caste.

(10) The Respondent has expressed in presence of the members of the family of the Petitioner and his friends and associates that she does not like the Petitioner and she, in fact, does not want to treat the Petitioner as her husband.

According to the Petitioner the above acts of cruelty along with desertion have caused serious injury to the mind and health of the Petitioner for which he apprehends that it is injurious and dangerous for him to live with the Respondent in the same premises. It is asserted by the Petitioner that the marriage between the parties have broken down completely and there is no chance of reunion and as such he is entitled to get his marriage dissolved by a decree of divorce on the grounds of above cruelty and desertion which he has not in any way condoned. The Respondent in her written statement has categorically and emphatically denied the above allegations made by her husband Petitioner. It is the case of the Respondent� that although she has much love and affection for the daughter the latter has been tutored by the husband to disregard and disobey her. It is the case of the Respondent that the Petitioner withdrew his first notice dated May 6, 1988 on his own accord after realizing his own mistake. All the allegations of cruelty and desertion as noted above have been denied by the Respondent in her written statement. She states that it was the Appellant himself and not she who drove out her from the bed room on the first floor of the matrimonial home where she used to live since after her marriage. According to the Respondent, she had to pass many days without food in the house of the Petitioner nor she was given ration card by the Petitioner which was, however, handed over to her in Court below in presence of the respective lawyers of the parties. It-is the positive case of the Respondent that she has never deserted the Petitioner with any intention to break the marriage tie and that she has been living in the same house although she has been subjected to in human torture of the Petitioner and her daughter who has also been forced by the Petitioner to misbehave with her. The Respondent has alleged that during the pendency of the suit and after the order of alimony pen-dentilite Was passed by the Court below the Petitioner threw hot water on her person on January 13, 1991 for which she had to initiate criminal prosecution of her husband through local police. The husband Petitioner at that time drove her out from the bed room in the first floor for which she had to pray before the Court below for restoration of her accommodation in the said room. The Respondent has also stated that after filing the suit for divorce the Petitioner has also filed a money suit against her and her brother for damage which is still pending. According to the. Respondent the Petitioner started to treat her with cruelty after his partnership'' business with her cousin brother Astik Dey collapsed due to loss. The Petitioner thereafter pressed her to bring Rs. 1,50,000 from her father''s house to make up the� loss suffered by him in the said partnership business which she refused.

Before taking up the ground of cruelty we like to consider the ground of desertion as has been pleaded by the Petitioner against the Respondent. In the impugned judgment the learned Trial Judge has disbelieved the Petitioner''s story of desertion. u/s 13(1)(i-b) a marriage may be dissolved by a decree of divorce on the ground that the other party has deserted the Petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition. It has been explained in the aforesaid section that "the expression ''desertion'' means the desertion of the Petitioner by the other party to the marriage without reasonable cause and without the consent or against wish of such party and includes the willful neglect of the Petitioner by the other party to the marriage and grammatical variations and cognate expressions shall be construed accordingly". We have already referred to the Petitioner''s case on desertion as given in the petition (vide para.5). There it has been the Petitioner''s case that the Respondent has deserted him immediately after the marriage picking up quarrels with him and subjecting him to ill-treatment and that she is still living in desertion. It may be noted here that the suit was filed on January 29, 1990 and the marriage took place on January 26, 1973. According to the plaint''s story the Respondent has deserted the Petitioner immediately after the marriage and the said desertion is still continuing. In order to succeed,. the Petitioner has to prove that such desertion on the part of the Respondent was without reasonable cause and without his consent or against his wish and such desertion would include the willful neglect of the Petitioner by the Respondent. But surprisingly this plaint version of desertion does not find any support in the evidence of the Petitioner himself before the Court below as P.W. 1. In his petition for divorce the Appellant has not said that such desertion was without reasonable cause and without his consent or against his wish or there was willful neglect of the Petitioner by the Respondent after the marriage. The husband was examined and cross-examined on March 16, 1992, May 2, 1992, June 3, 1992, July 3, 1992 and July 15, 1992. As per Ext.A the Petitioner admittedly gave a Lawyer''s notice to his wife for the purpose of filing a divorce suit and asked her to leave the matrimonial home forthwith. The reason for giving such notice as it appears from the evidence of the Petitioner is that the relationship between his wife and his daughter P.W. 2 Pampali was at daggers drawn and that his wife tried to kidnap his daughter forcibly with the help of the other in 1988. He explains in his evidence that he tried to set her into the right track and tried his best to convince her to behave properly with them which, however, having failed, he gave the notice as per Ext.A which in turn he had to withdraw as his wife became furious and intensified her attack. In Ext.A it was stated that the Respondent wife has deserted the Petitioner for continuous period for three years and more. No specific date has been given. The Petitioner in his evidence given on May 2, 1992 says that normal husband and wife relation between him and the Respondent had been extinguished since 8/10 years which takes us to 1982/84 if the evidence of P.W. 1 is accepted on face value. In para.3 of the petition it is stated that they have been living separately in the same house for the last 4/5 years which takes us to 1985/86. Even on the point of separate living the oral evidence of the Petitioner is inconsistent with his own pleading. The P.W. 1 further says in his chief that his wife is no longer interested to live with him as his wife and that she does not like him at all which she openly declared about 8/ 10 years back. He further says that the wife is in occupation of second floor of his premises, that he lives with the daughter on the first floor, that there is no common mess with the wife and that no cohabitation took place for the last 8/10 years. At this juncture it would be helpful to refer to sub-para No. 6 and 7 to para.5 of the petition. The question arises if the wife had deserted the Respondent in 1982/84 how she could drive him out from the bed room occupied by the husband in 1989 or could accompany the husband to Haridwar and kick him there in January, 1984 and also "on diverse date at the matrimonial home". Except this uncorroborated testimony of the Petitioner there is no evidence on the alleged attempt to kidnap his daughter P.W. 2 by the wife in 1988. Even the daughter Pampali P.W. 2 does not say anything about it. The Petitioner has however, denied the suggestion that he had pressed the Respondent from time to time to fetch a cash of Rs. 2,50,000 from his father-in-law to compensate this loss suffered in his business and that he has filed this matrimonial suit on false grounds on her refusal or inability to bring the same. In cross-examination the Petitioner has said that they had normal relationship between 1973-76 and that after 1982 he has no normal relationship with his wife even cohabitation. He has stated in his evidence that he will examine his brother, cousin sister and others namely Sudipta Sett, Adinath Sett, Debasis Sett, Mina Sett and Susanta. Dey as his witnesses. But none of them has been examinee except Susanta Dey who is P.W. 4. P.W. 4 Susanta D? / is a relation of the Petitioner. He is also close neighbour and says that there is no cordial relationship between the Petitioner and his wife and that they always quarreled which sometimes turned worse as they used abusive languages which was embarrassing to him. He does not say anything about the desertion. P.W. 5 is also a nephew of the Petitioner and lives close by. He says that there is only quarrel in the conjugal life of the Petitioner and his wife. He does not say anything of the desertion as alleged by the Petitioner. P.W. 2 has said in her cross-examination on August 25, 1992 that the Respondent threatened her with dire consequence and that they were not in speaking terms. From this witness it is also gathered that her mother is occupying one room in the second floor and kitchen and bathroom in the ground floor. She does not, however, say since when his mother has been occupying the said accommodation and why. We have got in evidence that this P.W. 2 was born sometime in 1976. She gave her evidence on August 25, 1992. She says that she has been residing with her father for about 2 years from class VIII to X. It take us to March, 1990. So according to the evidence of P.W. 2 she has been living with her father since March, 1990 i.e. immediately after the filing of the suit by the father and that at the time of giving deposition she was reading in class-X. It is also gathered from her evidence that upto class-VI she had resided with the parents and has attended local schools up to class-VI. This witness does not recollect whether she was attended by the mother during the childhood for schooling. There is no cogent evidence as to why the P.W. 2 had to be shifted at his aunt''s place at Calcutta for the intervening two years. The said paternal aunt has not been examined. As we have seen, the father i.e. P.W. 1 has only said that as there was attempt to kidnap the daughter by the Respondent she had to be shifted. But there is none and nothing to corroborate him in this regard. It appears from the evidence of P.W. 2 that she has a deported hatred for her mother and that she does not want reconciliation between the two. It must be remembered that at the time of giving evidence this P.W. 2 was in her teens and was under the control of her father. The evidence of such a person has got to be tested with utmost caution because there is every likelihood of her being tutored by her father because of her impressionable age and been under his full control. About this witness we have to say much when we come to consider tr�e ground of cruelty. But for the purpose of considering the ground of desertion the evidence of P.W. 2 does not throw much light in favour of the Petitioner. It appears from the evidence of the Petitioner that second floor of the house was constructed in 1982-83 and that the Respondent has been living there since then. It is also in his evidence that there was no water connection in the second floor nor in the kitchen and that he has arranged her bath etc. at the mezzanine floor of the house and kitchen on the second floor. This admission on the part of the Petitioner in cross-examination reveals the whole story ''desertion''. It is he who has arranged the separate living of his wife in the same house. Now he comes with a story of desertion for the purpose of getting a decree of divorce . But question is, should any Court grant such relief to a person who on his own admission has machinated to the separate living of the wife in the same matrimonial home. In this connection it would he helpful to refer to order No. 32 dated September 4, 1991 wherefrom it appears that the Trial Court directed the Petitioner to maintain flow of water and supply of electricity to the wife. It may be inferred that to suit his purpose he had disconnected the same. The P.W. 1 further says in his cross-examination that his wife had shifted to the adjoining verandah of the bedroom of the first floor only to disturb him. Against this the Respondent''s case in the written statement is that after the throwing of hot water incident on January 13, 1991 the husband Petitioner out of grudge drove her out from the room in the first floor and compelled her to take shelter in the covered verandah in front of the said room. The Respondent in her evidence has denied that she has deserted her husband and started living separately immediately after the marriage. The Respondent in her evidence before the Trial Court on July 17, 1993 has said on oath that she never drove out the husband on the bed room of the first floor but it was the husband who removed her personal belongings from the bed room and kept the same under lock and key and compelled her to sleep in the adjoining verandah. It is also her evidence on oath that she lived in the room on the first floor of the matrimonial home since her marriage and that at present she has been living in the room on the second floor of the same house. She has further clarified that she informed the learned Trial Judge as to the forcible ouster from the bed room and under the orders of the Court she was allowed to stay on the second floor of the house. This part of the evidence has not been challenged in cross-examination and we have no reason to report it. It has been long settled in law by the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alias Mota, (per Ayyangar, J.) that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other''s consent, and without reasonable cause depicting. total repudiation of the obligations of marriage. It has been held there that if a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. It has been explained there by the Supreme Court that for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to and end {animus des-erendi). So far as the deserted spouse is concerned the following two elements are essential: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It is also settled in law that the burden of proving desertion that is, the factum as well as the animus deserendi, is on the spouse who has come for dissolution of marriage. It is for him to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words even if the wife where she is the deserting spouse does not prove just cause for her living apart, the Petitioner-husband has still to satisfy the Court that the desertion was without just cause. In the instant case admittedly the wife-Respondent has not left the matrimonial home at any point of time. On the other hand, she is very much living in the same house along with the husband and her daughter. It is the evidence of the Petitioner that the second floor room was constructed sometime in 1982-82 and since then the Respondent has been living there. We have also found that the Petitioner himself has arranged for her separate. living. Furthermore, it is the evidence of the Respondent that she was driven out from the bed room on the first floor by the Petitioner during the pendency of the suit for which she approached the Court below and since then she has been residing in the second floor. There is no reason to disbelieve her. We have also found that at the intervention of the Court by order No. 32 dated September 4, 1991 the Petitioner restored the supply of water and electricity *o the wife. The Respondent has emphatically stated in her evidence that she loves her husband and daughter for which she has been residing in the matrimonial home with the sincere intention to live a happy conjugal life along with the husband and the daughter. So from her stand point she has never deserted her husband with the intention to bring the conjugal life to an end making cohabitation impossible and she has no animus deserendi. The learned Trial Judge has rightly rejected the story of desertion as pleaded by the Petitioner. From the evidence on record we are satisfied that the Petitioner has compelled the Respondent to live in a separate room on the second floor of the premises for obvious reasons. No one can shut one''s eyes to the implication of the Ext.A which shows the eagerness on the part of the Petitioner to divorce his wife from long before the filing of the instant suit (i.e. the notice Ext/A'') which, however, he had withdrawn for reasons best none to him. That the Petitioner is interested only in driving her out from the matrimonial home is manifest in his evidence given in the proceeding u/s 24 of the Hindu Marriage Act. It appears from the record that he resisted the claim of the Respondent for alimony pendente lite and stated in his evidence on oath on August 7, 1990 before Trial Court which may be quoted below:

so if my wife vacates the house then I can let out the portion which will fetch some income and from it I can pay her Rs. 600 per month.

This attitude of the Petitioner shows his real intention and lack of bona Vide. Considering the above circumstances and the evidence on record we hold that the Petitioner has failed to prove the ground of desertion beyond all reasonable doubt and the learned Trial Judge has rightly disbelieved such story.

Now we come to the second ground I.e. cruelty as alleged by the Petitioner. Regarding the acts of cruelty we have already given the list thereof as specified in the petition for dissolution of marriage. According to the Petitioner they are ten in number out of them some are purported to be physical acts of cruelty and the rest according to the Petitioner are acts of mental cruelty. Regarding the acts of mental cruelty the Petitioner/Appellant''s case is that the wife-Respondent has always picked up quarrels with him, has illiterate him and has abused him in most filthy language. It is further stated that the Respondent in collusion with the members of the local Mahila Samity and antisocial elements has made his life terrible and he has been socially outcated. About acts of physical cruelty the Petitioner''s case is that after the service of notice dated May 6, 1988 as per Ext.A the Respondent with the help of his brother sister-in-law and engaged antisocial elements against him and by use of force and violence she caused the said notice to be withdrawn on June 3, 1988 as per Ext.AI. We may take note of the fact that on the acts of cruelty as alleged by the Petitioner in para.5 of his petition no convincing evidence has been adduced by him to prove those allegations. To prove those allegations the Petitioner has examined himself his daughter P.W. 2 Pampali Sett his two nephews, P.W. 4 Susanta Dey and P.W. 5 Sandip Kumar Sett. His specific allegation regarding assault and torture is that the Respondent with the help of the local Mahila Samity, one neighbour Swaraj Banerjee and some antisocial elements committed the same. In his evidence P.W. 1 says that since after the marriage he found the Respondent insolent quarrelsome and habituated in making noise and abusing in filthy language. He has further said that her behavior with his relations were the same and she also subjected their daughter P.W. 2 to torture. In chief he further says that she created row in the locality by calling the members of the local Ganatantrik Mahila Samity as well as the members of the local club who not only insulted him at her instance but also physical tortured him. It is his evidence that they created disturbance in his business place where he was beaten on February 24, 1990 (post suit event) and he also, beaten at his residence*by them. He further says that in 1980-82 he visited Haridwar along with the Respondent where she kicked him for no reason. It is in his chief that on March 21, 1989 one Swaraj Banerjee threatened him in his shop and terrorized him at the instance of his wife, that the Respondent tried to kidnap his daughter forcibly with the help of others in 1988 and that he was mentally perturbed due to false and frivolous allegations levelled by his wife in connivance with others who has lowered his prestige before his relations and the public at large. He further says that he has never condoned the misbehavior, maltreatment and excesses committed by his wife. P.W. 2 Pampaii says that her father has been illiterate by her mother in her presence and that she has used filthy languages. She does not say anything about the alleged story of kidnapping made out by her father in the plaint or in his evidence. There is no reason for her being silent regarding the story of kidnapping her by the mother. There is thus an corroborating evidence to support the case of the Petitioner/Appellant in. this regard. Furthermore as it appears from the evidence the father mother and the daughter have been residing at the same place and according to. the father the attempt of kidnapping was made in 1988. it is not followed why the Respondent would try to kidnap the daughter when all of them were residing at the same place. In the plaint it is stated that for this attempt the daughter had to be removed. It appears from the evidence of the P.W. 2 that for a period of two years she was residing with his paternal aunt covering a period from sometime in 1988 till sometime in 1990. But the said paternal aunt has not been examined to show that P.W. 2 had to be removed to her custody or if at all she had to removed and the reasons thereof. The Petitioner in his evidence has stated that he will examine his brother, cousin brother, Sudipta Sett, Adinath Sett, Debasis Sett, Mina Sett and Susanta Dey to prove his allegations. He has also said that Swaraj Banerjee (D.W.3), Nepal Banerjee and Manick Mukherjee are his close neighbors but he will examine only Susanta Dey. Among his above witnesses he has only examined Susanta Dey who is P.W:4 who says that there is no cordial relationship between the Petitioner and his wife and that they quarrel always and during the quarrel the Respondent abused the Petitioner. In his cross-examination he has admitted that he has no knowledge to the cause of the quarrel and that he heard the quarrel from his residence. This P.W. 4 is a relation of the Petitioner. Anyway the evidence of P.W. 4 does not corroborate the Petitioner''s case of mental cruelty because from his evidence it appears both of them used to quarrel. He is, however, silent about the conduct of the Petitioner at the time of the quarrels. From his evidence it cannot be said that it was an unilateral conduct on the part of the Respondent to quarrel with her husband and to abuse him. It must be inferred that the conduct of the husband at the time of the quarrel of which the P.W. 4 and the Petitioner himself are silent must have prompted the Respondent to abusive him which is very natural in a quarrel between husband and wife. P.W. 5 is another nephew of the Petitioner. According to him there is only quarrel in the conjugal life of the Petitioner and the Respondent It is gathered from the evidence on record that the Petitioner has his brother and other relations living close to his house. But none of them has been examined to support his case. Even the witnesses named by him in his chief has not been examined except P.W. 4. There is no explanation for the non-examination of the witnesses for which and adverse presumption is to be drawn that had they been examined they would have spoken against him. D.W.3 is Swaraj Banerjee against whom specific allegations of assault and disturbance have been made by the Petitioner in his petition as well as in his evidence. He has, however, admitted an evidence that he was not assaulted by Swaraj Banerjee (vide cross-examination of the Petitioner recorded on July 15, 1992). No suggestion of assault was given to D.W.3 at the time of cross-examination. This witness has emphatically denied the suggestion that in March, 1989 he along with other persons at the instance of the Respondent cause mischief to the Petitioner''s business and committed disruptive activities on several occasions. Regarding the alleged disturbance caused by the Respondent at the business place of the Petitioner. The Petitioner has said in his evidence that he will examine the owner and employees of a sweetmeat shop situated near his business place, but none of them has been examined. None of his staff and employee has also been examined to prove this. The Respondent in her evidence has categorically denied that she has mentally and physically tortured the Petitioner with any acts of cruelty. In the absence of corroborative evidence to support the case of the Petitioner in this regard there is no reason to disbelieve her evidence in the negative. Even the Petitioner in his evidence has not said anything about the allegations made by him in para.1 sub-clause I, II, III and VI. About the alleged incident at Haridwar there is none to corroborate him. While considering the ground of desertion we have given additional reason for disbelieving this story of kicking in 1984 at Haridwar by the Respondent inasmuch as according to the Petitioner they have been living separately since 1982. In his evidence the Petitioner has said that the Respondent does not like him at all and that tie has not cohabitation with the wife for the last 8-10 years. It is in evidence that it is the Petitioner who has arranged separate living of the Petitioner in the same house. In that position it would be utter hypocrisy on his part to cry that there is no cohabitation between him and his wife for the last 8-10 years. About the role played by the local . Manila Samity evidence has been adduced by both the parties. Ext.1 and 2 series on the correspondences between the local Ganatantrik Mahila Samity and the Petitioner over his conduct to the Respondent Ext.G dated March 6, 1989 and G1 dated March 17, 1989 are the two letters written by the Respondent to the local Manila Samity regarding the ill-treatment of her husband to her. The Ext.1 and 2 series are to be considered in the perspective of the above two letters written by the Respondent. D.W.7 is Kanika Ganguli who was the secretary of the said Mahila Samity. She has received these letters as per Ext.G series and also admits to have sworn in affidavit before the local Judicial Magistrate on September 8, 1990 as per Ext.H.. All these Exts. as per Ext. 1,2 series G series and Ext.H coupled with the evidence of D.W.7 Kanika and D.W.4 Monoranjan Bhattacharjee the secretary of the local Nagarik Samity tend to show that the relationship between the wife and the husband was very much strained for which the wife approached the local Mahila Samity for he/ redress. There is nothing in evidence worth relying upon on record that the D.W.7 the secretary of the Mahila Samity or D.W.4 the secretary of the Nagarik Samity insulted assaulted or tortured the Petitioner in any way at the instance of the Respondent or that they have any reason to depose falsely against the Appellant. The Respondent has, however, sought to make out a case that she has been tortured by the husband as she failed to bring Rs. 2,50,000 from her father to make good the loss suffered by her husband in a partnership business started with her cousin bother. In that perspective she has examined her sister D.W.5 Krishna Dey who has proved certain letters written by the Respondent to her in 1986-88 (Ext.C series) disclosing that the Petitioner was demanding money to be brought from her father. There is no reason to discard the Ext.C series and the evidence of D.W.5 and the Respondent herself in this regard. This part of the evidence goes a long way to explain the conduct of the Petitioner towards the Respondent.

It may be pointed out at this stage that at the time of a hearing the Petitioner''s main grievance against the Respondent is that she is a quarrelsome lady habituated to abuse him in most filthy language for which it is impossible to live with her any more. According to the Petitioner this is an act of mental cruelty. The learned Trial Judge has disbelieved the allegation that the Respondent is a quarrelsome lady and is in the habit of using the Petitioner in most filthy language so as to mentally torture him and that such a conduct should be accepted as an act of cruelty for the purpose of granting a decree of divorce to the Petitioner. The Petitioner has used a tape recorded cassette as his trump card in this case. In his cross-examination on July 3, 1992 he says that although he has no paper to show that his wife is quarrelsome, of rough temperament always making noise and her improper treatment towards him, but he can produce a tape record of her conduct and a copy of the information lodged by his neighbors, brothers nephew etc. before O.C Bally P.S. against her. He has said that those persons will in this case and that his friend Timir Ghosh will also depose. But the said Timir Ghosh has not been examined nor any of his above neighbors and brothers has been examined. The so called petition lodged by his neighbors and brothers with the O.C. Bally P.S. has also not been produced. Anyway, he says that he has put the date en the cassette to show the date of such recording by his daughter to prove that his wife abused his brother, nephew,, niece, and son-in-law of his brother, sister and him without any reason. Material Ext.1 is the said tape record 3d cassette which was filed in the Court below on November 2, 1992. It may be remembered that the Petitioner in his evidence has referred to the existence of this cassette in his evidence on July 3, 1992. It should also be borne in mind that after production of the cassette (material Ext.1) and after it was proved and admitted in evidence the Petitioner did not reexamine him to give evidence about the contents of the cassette i.e. the episode recorded therein. It has been proved by P W.2 his daughter on being recalled on November 2, 1992. She says that she recorded the statement or utterances of her mother in the said audio cassette, that it was done in one day and in one sitting and that she also made the transcription of the recorded voice or utterances in four sheets (Ext.4) in course of two days. She, however, does not recollect the date of the recording. It appears from her evidence that it was the only cassette by which she allegedly recorded the entire episode containing the voice of her mother. She says that it was recorded in a room on the first floor while her mother aid father were on the ground floor and the first floor. About this cassette material Ext.1 she has stated in her earlier evidence that her mother used to beat her father very often that the last beating took place when she was promoted to class-X. It would be helpful to quote a few lines from her cross-examination recorded on August 25, 1992. "Even now she beats him last beating took place when I was promoted to class X. My cousin elder brother came to his rescue as he was also rudely behaved along with me. Incident of beating started when my father went to ground floor to start pump machine. She assaulted him with shoes and then chased him up to first floor where he (letter) was beaten with shoe. It was then 3-00 p.m. I recorded the incident (second phase) in the tape. It continued for some time but I cannot say its duration in terms of minutes and hours", in her further examination She has identified three voices in the cassette as per material Ext.1 which according to her is of her father, of her mother D.W.1 and their maid servant Purnima. This cassette has been played in this Court on a different tape recorder in the presence of the learned Advocates for-both the parties. It is abominable, to say the last and shocks the mount literal mind. It is full of vulgar words and abuses accusing the mode participant of illicit relation with his own niece. According to the P.W. 2 the accusation as recorded there has been made by her own mother Respondent. The Respondent in her evidence has denied such incident or hurling of abuse as recorded in the said cassette, it is in her evidence that it is not her actual voice recorded there. She has, however, identified the voice of her husband and the maid servant. It is interesting to note that the Respondent in her evidence has said that she has no grievance against her husband regarding moral turpitude and that she is not aware if he has any affairs with any lady. The cassette, however, makes emphatic reference to the illicit relationship with one Kaiu. It is curious to note that the Petitioner has produced cassette to prove his case against the Respondent but has not dared to examine himself and to give evidence about the dialogue recorded there. From the evidence on record we are convinced that this cassette is wholly unreliable and appears 1:0 be created or a manufactured one for the purpose of the suit. We have already noted that the Petitioner has said in his evidence that on the cassette he noted the date of such recording. The date as it appears on Material Ext.1 is January 4, 1990. The figure 1 in different ink has been clearly interpolated on the original figures 7. By examining the same under a magnifying glass we have found that the original date was in all probability July 4, 1990 which has been subsequently interpolated and written as January 4, 1990. From the evidence of P.W. 2 which has been quoted above we have found that on the date of recording the father was allegedly beaten with shoes by the mother and that she recorded the incident but in the tape. But when it was played on we did not find anything to suggest or show about shoe beating. It is also in the evidence of P.W. 2 that at that time her cousin brother came to rescue the Petitioner and that he was also rudely behaved along with her by the mother. In the tape we do .not find any voice of the cousin brother or of the P.W. 2 to show that they were present and resisted the Respondent and were abused by her. If we take the date July 4, 1990 as the actual date of recording then the statement of maid servant stating that she was continuing the job as it was month of Poush becomes incompatible. Furthermore, if the P.W. 2 is to be believed, it was recorded by her when she was reading in class-X. It takes us to the year 1992 and the inference becomes irresistible that either .she-is concealing the truth or the entire cassette story is a rhythm. Furthermore, at the time of hearing the tape record we have noticed that there is no variation of the voice of the participants although according to the P.W. 1 they move from ground floor to the first floor. It is all in uniform tone. The husband is unperturbed, so is the maid servant, from the beginning to the end. Such conduct is doubtful and the uniformity of the voice does not inspire any confidence in our mind for accepting the cassette on its face value. That the entire tape is created one for the purpose of the suit would be evident from the inside label of the cassette which shows its date of manufacture as January, 1991. If the cassette saw the light of the day in January, 1991 there cannot be any question of recording anything on the tape in the month of January or July, 1990. Under the circumstances this cassette should be outright rejected as a totally created and manufactured one. The entire story of the Petitioner regarding the abusive conduct of the Respondent so as to enable him to get a decree of divorce on ground of mental cruelty becomes unworthy of credence should be discarded and is accordingly rejected. It may be noted that the learned Advocate appearing for both the parties have referred to vary many decisions of the Supreme Court regarding the tests to be ensured and the. caution to be observed in the matter of accepting a tape record as on admissible piece of evidence. In view of our finding that the material Ext.1 the tape record cassette is a doubtful piece of evidence created for the purpose of the suit we do not find it necessary to elaborate on the Supreme Court decisions relied upon by the (earned Advocates in this regard. We further observe that the husband-Appellant has. not dared to give evidence for the purpose of identifying the voice of the Respondent. He has not given any evidence about the circumstances recorded in the said tape for the purpose of corroboration nor he has dared to come to depose about the actual date of its recording admittedly noted by him on the cassette which we have found to be false in reference to the date of manufacture of the cassette itself.

Shri Roychowdhury appearing for the Appellant has submitted that in view of the fact that the marriage between the parties has irretrievably broken down, a decree of divorce should have been passed by the learned Trial Judge. In the connection he has referred to a decision of this High Court in Ratnamayye Das v. Bikash Das and also to the recent decision of the Supreme Court made in V. Bhagat v. D. Bhagat. In the Calcutta case the Court after considering the facts and circumstances was of opinion that the marriage has broken down and the parties can no longer live together as husband and wife for which it was bettor to close the chapter. In the Supreme Court case divorce was granted as an "unusual solution" in "an unusual case" taking into consideration the fact that the marriage between the parties there has broken down irretrievably. From both the Calcutta case and Supreme Court case we do not get any support to the contention of Shri Roychowdhury that irretrievably break down of a marriage between the parties should itself be a ground to grant divorce even If the suit does not stand 01 merits in reference to statutory grounds. The Supreme Court has made the point very clear which may be quoted below:

Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and (2) Ratnamayee Das Vs. Bikash Das, (per M.N. Roy, J.) (3) V. Bhagat Vs. Mrs. D. Bhagat, (per B.P. Jeevan Reddy, J.) other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties.

In the Supreme Court case both the spouse were living separately for a considerable period but in our case we see that the wife Respondent has been residing in her matrimonial home along with the Petitioner and the daughter since her marriage. Irretrievably breakdown of a marriage must be apparent on the conduct of both the parties and not on the conduct of only one of them. The wife Respondent in her evidence has, however, said about physical assault and torture committed by the husband against her. She has said that she was kicked and physically assaulted by the husband and during the pendency of the suit the husband had thrown hot water on her person for which a criminal case is pending against him. But at the same time the Respondent has said in unambiguous terms in her evidence that she wants to live with the husband and daughter and that she loves both of them. There is no reason to ignore the sincerity and genuineness of this statement in view of the fact that she has been residing in her matrimonial home against all odds since her marriage. Under the circumstances we hold that the Petitioner-Appellant has also failed to prove the ground of cruelty also, both physical and mental, against the Respondent and we are of opinion that the learned Trial Judge has rightly dismissed the suit for divorce. Accordingly title appeal is dismissed with costs. The impugned judgment and decree passed by the learned Trial Judge stand affirmed.

Ram Prakash Gupta J.

I agree.