Nabajit Kr. Das vs Nirmali Das Bania

Sanjay Kumar Medhi, J

The instant appeal has been preferred under Section 28 of the Hindu Marriage Act, 1955 against the Judgment and Decree dated 17.11.2021 passed by the learned Principal Judge, Family Court, Barpeta in Title Suit (M) F.C. 03/2018. The appellant is the First Party - husband who had instituted a suit for divorce under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and by the impugned judgment and decree, the suit has been dismissed.

We have heard Shri D. Borah, learned counsel for the appellant. We have also heard Shri M. Baruah, learned counsel for the respondent.

Shri Borah, the learned counsel for the appellant has submitted that the learned Family Court had failed to appreciate the grounds taken for seeking the decree of divorce under the Hindu Marriage Act. It is submitted that grounds of cruelty and adultery were specifically taken in the petition with supporting pleadings. The learned Court had framed Issues out of which relevant Issue is with regard to the aspect of cruelty and desertion. The appellant has adduced evidence through 3 (three) numbers of PWs including himself.

It is clarified that though the Issue No. 3 was on the aspects of cruelty and desertion, the learned counsel has submitted that it is the aspect of cruelty which he would be concentrating upon. It is submitted that the appellant is a Grade-IV employee of the Government of Assam and the marriage was solemnized on 27.09.2012. It is the case of the appellant that the second party - respondent had treated the appellant with cruelty and had created an unhealthy atmosphere in the matrimonial home. She had even rebuked the mother of the appellant as well as the appellant and other family members. She was also indulging in certain activities of interacting with an unknown boy which amounted to cruelty upon the appellant.

It is the specific case of the appellant that on 24.08.2017, the respondent had left the house without any information leading to registration of a missing case and ultimately the respondent was found at her parental house. It is submitted that the activities and conduct of the respondent was such that the appellant was subjected to cruelty and therefore, the petition was filed for divorce. As regards the version of the defendant that on the fateful day i.e., 24.08.2017, she was assaulted and forcefully driven out of the matrimonial house, he has submitted that the version is not at all consistent as would be revealed from the depositions of the three numbers of defendant witnesses. It is submitted that there is lot of inconsistencies with the deposition of the respondent as DW1, her father as DW2 and the driver of a vehicle in which she was taken away from the matrimonial house as DW3. It is submitted that the inconsistencies would make it apparent that the defence taken was manufactured only to frustrate the appellant from the relief prayed for.

In support of his submission, the learned counsel for the appellant has relied upon the case of Sujata Uday Patil vs. Uday Madhukar Patil reported in (2006) 13 SCC 272. In the said case, it has been laid down that cruelty is a mixed question of fact and law which is not defined in the Act. He submits that the appellant as first party was fully able to discharge his burden on the aspect of the allegation of cruelty and therefore, the learned Family Court had erred in law as well as in facts in dismissing the suit for divorce.

Per contra, Shri  M. Baruah, learned counsel for the respondent  has submitted that the present appeal is required to be examined from the grounds taken. It is submitted that so far as the Issue No. 3 is concerned which relates to the aspect of cruelty and desertion, as per the submissions made on behalf of the appellant, the aspect of desertion is not seriously pressed and it is only the aspect of cruelty which is being harped. He submits that the incident narrated of 24.08.2017 by the first party - appellant is a manufactured one as on the said date, the respondent was forcefully driven out from the matrimonial house.

He submits that it is pleaded in the written statement as well as in the examination-in-chief that the respondent was caught by her hair and forcefully driven out whereafter she had contacted her father over telephone who had come with a vehicle to fetch her. It is submitted that apart from baseless allegations of cruelty leveled against her, an incident was manufactured to make out a case of cruelty. He accordingly submits that no case for grant of divorce was able to be made out which was correctly held by the learned Family Court, Barpeta and accordingly, the appeal is liable to be dismissed.

In his rejoinder, the learned counsel for the appellant has submitted that leaving the matrimonial house without informing itself amounts to cruelty. He reiterates that cruelty not being defined in the Act has to be inferred from the materials on record and in this case, a clear case of cruelty is made out.

The rival submissions have been duly considered and the materials placed before this Court including the records of the Family Court, Barpeta have been carefully perused.

The grounds which were urged for seeking a decree of divorce under Section 13 (1) (i-a) of the Hindu Marriage Act have been submitted to be cruelty and adultery. The aspect of desertion was also taken up.

So far as adultery is concerned, there is no such ground available to a husband to seek divorce. The only ground which can be connected is of having voluntary sexual intercourse with another person and that is not the allegation in the instant case.

As regards the aspect of desertion which requires an intention to desert which has been termed as “animus deserendi”, the learned counsel for the appellant has submitted that he was not seriously harping on the same ground and the ground which was being urged was with regard to cruelty. To examine the said aspect, the allegations made in the petition filed before the learned Family Court is extracted herein below.

“3. That, the petitioner at his residence at Keotkuchi used to stay with his mother Labanya Das, younger brother Manjit Das and sister-in- law Manorama Das. They were living in a joint family having common kitchen. After one month of the marriage the Respondent started creating trouble with the mother and other family members of the petitioner. The Respondent do not talk with the petitioner. She is anytime busy with her mobile phone. The Respondent do not do any work in home. When the petitioner and his family member told her about it she misbehave them. The Respondent intentionally has done it, so that the petitioner divorce her. The Respondent started misbehaving the family members of the petitioner, use filthy language and do not respect elders. The Respondent use to live in parental home without the permission either from the petitioner or from mother of the petitioner. The Respondent used to leave the matrimonial home and stayed at her parental house and again after remaining some days the respondent herself came back to the matrimonial home which amounts to cruelty.

That, the petitioner is a grade IV employee of Barpeta development Block, Keotkuchi Branch. The Petitioner always goes to his duty on 9.30 A.M. and came back to his home on 08 P.M. During the time of his absence, the respondent went outside the house independently. When the petitioner came to know about it, he restrained the respondent. But the respondent did not listen to her husband / the petitioner and the respondent rebuked the petitioner in return. Before five months, one day at about 2 1/2 P.M, the petitioner suddenly came to his home and saw that the respondent was talking with one unknown boy in their drawing room. When the petitioner asked the respondent about the boy, the respondent told that he is the brother of her friend. After that the petitioner came to know that the respondent frequently meet the boy in different restaurant. The respondent in many times busy with telephone. The Respondent frequently went to Guwahati by telling falsely to the petitioner that she went to her paternal house, But met the boy in Guwahati. On 24-08-2017 at about 11 A.M. by taking the advantage of no one present in the house, the Respondent left along with ornaments, clothes and cash Rupees ten thousands. On the next day, the petitioner came to know from his neighbourers that the Respondent went by a white Indica Car. On that day at night when the petitioner went to sleep to his bed, he found two joint photograph of the Respondent with the unknown boy in a money bag of the Respondent which was kept under a pillow in the bed. The petitioner immediately ranged her and asked where she was. Then the Respondent told that she was with her beloved. On 26-08-2017 the petitioner filed an FIR at Barpeta Police Station about the lost of the Respondent. After few days, the Respondent called the petitioner and told that she will divorce the petitioner which also amounts to cruelty to the petitioner.

That, the respondent has destroyed the matrimonial tie completely. The Respondent does not know how to live in a conjugal life. The behaviour of the respondent was rough and ruthless. The relation between the petitioner and the Respondent has gone to such an extent that there is no scope for reconciliation and if in such circumstances, the marital tie is pulled on, great injustice will be done to the petitioner. So, it will be better and justified that the marital tie should be broken for better future.

…”

There is no allegation which would cover the aspect of having sexual intercourse with another person and therefore, it is only the aspect of cruelty which has to be examined from the pleadings made in that regard and the evidence. There is no specific details of the allegations in the pleadings and the evidence adduced by the appellant as PW1 and two other PWs on his behalf are almost repetition of the pleadings without those being of specific nature. As regards the incident of 24.08.2017, there is a vast difference of the respective versions while according to the appellant, the respondent had left the matrimonial home without any information for which a missing report had to be lodged, it is the case of the respondent that on the same date, she was caught hold by her hair and driven out from the matrimonial house, whereafter she had called her father who had come with a vehicle and had taken her to her parental home. Both the father and the driver of the vehicle have been examined as DW2 and DW3.

The learned counsel for the appellant had tried to argue that the version of the second party - respondent with regard to the incident of 24.08.2017 is not consistent and there are also inconsistencies in the evidence of DW1, DW2 and DW3. It has also been argued that leaving the matrimonial house without knowledge itself would amount to cruelty. Even if the aforesaid submission is accepted for the sake of argument, it is a trite law that the defendant can have wavering stands while defending a case. In any case, the allegation of cruelty made by the wife against the husband would not be a relevant factor for deciding this case as the wife had never sought divorce on the said ground and the suit for divorce was instituted by the appellant - husband. The suit being instituted by the appellant, the entire burden of proving the same was on him and any counter allegation of cruelty made by the wife will not have a material bearing in the decision making process of this case.

In the case of Sujata Uday Patil (supra), it has been laid down that cruelty is a mixed question of fact and law and the Hindu Marriage Act does not define cruelty. Since cruelty is one of the specified grounds, it is the burden of the party approaching the Court with an allegation of cruelty seeking a divorce to discharge the said burden to such an extent that the same is acceptable by preponderance of probabilities. In the instant case, a perusal of the pleadings as well as the evidence of the three PWs will not bring this Court to a conclusion that the said burden has been discharged so as to make out a case for passing of a decree of divorce.

The Hon’ble Supreme Court in a recent decision reported in AIR 2023 SC 4186 [Smt. Roopa Soni vs. Kamalnarayan Soni] has made the following

observation on the aspect of cruelty under the Act of 1955.

“5. The word ‘cruelty’ under Section 13(1)(ia) of the Act of 1955 has got no fixed meaning, and therefore, gives a very wide discretion to the Court to apply it liberally and contextually. What is cruelty in one case may not be the same for another. As stated, it has to be applied from person to person while taking note of the attending circumstances.

6….

We would like to emphasize that an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both the parties. Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism.”

In the instant case, it is seen that the allegation of cruelty made by the appellant – husband, apart from being disputed, there is a different version given by the respondent – wife. The evidence on record may not be held to be conclusive to grant a decree of divorce on the aforesaid ground of cruelty. A marriage under the Act of 1955 is ultimately a sacrament which should be endeavoured to be preserved, though there may be certain friction between the parties. Of course, when a case of cruelty or any of the other grounds prescribed in the Act is clearly made out, the matter may be different. As laid down above by the Hon’ble Supreme Court, allegations of cruelty made by a husband and such allegations made by the wife are to be examined on different yardsticks depending on the facts and circumstances of the case. In the considered opinion of this Court, the conclusion arrived at by the learned Family Court, Barpeta in dismissing the suit for divorce is based upon the materials on record which consists of the pleadings and the evidence. We are therefore of the view that the impugned judgment and decree dated 17.11.2021 passed by the learned Principal Judge, Family Court, Barpeta in Title Suit (M) F.C. 03/2018 does not call for any interference.

The appeal is accordingly dismissed.

No order as to cost.

Let the records be sent back.