Manabendra Chowdhury vs Tripti Chowdhury (Mrs.)

D. Biswas, J.—This appeal u/s 19 of the Family Courts Act, 1984 has been preferred against the judgment dated 30.4.98 passed by the learned Principal Judge, Kamrup in Case No. F.C. (Civil) 105/1995 whereby the suit filed by the Appellant for a decree of divorce was dismissed. Being aggrieved thereby, the Appellant-husband has preferred this appeal challenging the propriety and validity of the impugned judgment on various grounds.

We have heard Mr. B.R. Dey, the learned Counsel for the Appellant and Mr. J. Deb, the learned Counsel for the Respondent.

The pleadings on record and the impugned judgment indicate that the Appellant sought a decree for divorce primarily on the ground of desertion and cruelty. According to the learned Principal Judge, the Appellant has failed to prove both the allegations and, as such, a decree of divorce could not be passed under the provisions of Section 13 of the Hindu Marriage Act, 1955.

We have carefully examined the impugned judgment. In so far as the question of desertion is concerned, it would appear that the allegation of the husband is that the Respondent-wife came to Guwahati with her mOrs. -in-law on 13.10.90 and since then did not come back to his house to reside with him. But the evidence on record shows that this factum of desertion on the part of the wife, as alleged, could not be established by any acceptable reason. Rather, it would appear that in order to get rid of her, in a cleverly manoeuvre she was sent to Guwahati along with the mOrs. of the Appellant on 13.10.90 and, thereafter, no attempt was made by the Appellant-husband to take her back. The evidence of the Appellant as discussed by the learned Principal Judge shows that he had failed to explain the reasons for which the wife did not like to stay with him in Delhi. Rather, it appears from the deposition of the Respondent that the Petitioner did not come to Guwahati to take her back from her maternal house and then she, alongwith her younger brOrs. , went to Delhi after getting the news of death of her husband''s younger brOrs. . On her arrival at Delhi, the mOrs. , sister and anOrs. brOrs. did not allow her to remain in their house and, virtually, drove her out. The Appellant could do nothing to defuse the situation.

The evidence on record on the factum of desertion, if examined in relation to the ratio available in the decision of the Supreme Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, and Smt. Rohini Kumari Vs. Narendra Singh, falsify the Appellant''s claim that Respondent-wife out of her own violation with an intent to severe relation with him left his house and stayed back at Guwahati.

In so far as the allegation of cruelty is concerned, the learned Principal Judge after scrutiny of the evidence on record came to the conclusion that the Appellant-husband miserably failed to establish the charge. There cannot be any dispute that the burden of proof is with the husband-Appellant who has alleged cruelty on the part of the wife. The learned counsel for the Respondent has referred to a decision of the Supreme Court reported in Dr. N.G. Dastane Vs. Mrs. S. Dastane, According to the Appellant, certain incidents and improper behaviour on the part of the Respondent on 10.9.90 at Dehra Dun and on 19.9.90 at Mussori followed by anOrs. incident in Delhi amounted to cruelly. But the details of the incidents are not available on record. The learned Principal Judge also observed that Appellant-husband did not utter a single word in order to prove that the alleged incidents occurred on different dates at different places amounted to cruelty. In the absence of evidence to bring home the charge of cruelty and that too of grave nature supplanting as sufficient ground for divorce, it would be difficult on our part to agree with the learned Counsel for the Appellant that a case for divorce on the ground of cruelty has been made out in the instant case.

Shri Dey, the learned Counsel for the Appellant relied upon a number of judgments of the Apex Court, namely, Smt. Saroj Rani Vs. Sudarshan Kumar Chadha, ; Shobha Rani Vs. Madhukar Reddi,

The judgments referred to above have been settled by the Apex Court on different factual backgrounds. No decision can be applied in the facts and circumstances of this case as a straight-jacket formula. It is true that where it is found on the facts and circumstances that reconciliation of an estranged couple is not possible and the marriage has broken irretrievably, a decree of divorce would be the best course to make them free to settle in their own way. With the fast changes in the society, the law is also changing turning itself to the need of the time. But the fact remains that while dealing with a petition for divorce, the Court has to exercise its discretion within the parameter of the law. Section 13 of the Hindu Marriage Act, 1955 clearly provides for the grounds which could be invoked for seeking a decree for divorce. Unless the grounds are established, it would be impermissible on the part of a Court to grant a decree for divorce. Merely because a party to the marriage not willing to continue with the relationship seeks a decree of divorce, that would not by itself amount to be a ground for divorce. A decree for divorce cannot be granted except for very cogent and convincing reasons. It is found on record that the husband in this instant case with an unlimited desire to severe the relationship perpetuated cruelty on his wife and compelled her to live separately and thereafter has taken the plea of desertion. In the given circumstances the Court on the ground that the marriage has broken irretrievably cannot allow a decree for divorce as it would amount to encouraging the defaulting errant husband to reap the benefit of his own misconduct.

We have given our thoughtful consideration to the evidence on record and we are constrained to hold that the learned Principal Judge has committed no error in dismissing the petition. There being no merits, the appeal also deserved dismissal.

Before parting with the record, it is considered imperative to mention that attempts have been made by this Court on 14.9.2000 and 18.1.2001 for reconciliation of the parties. The Respondent expressed her desire to go back with her husband while the Appellant appeared determined not to take her.

Order accordingly. No order as to costs.