Nripendra Deka vs Smt. Labanya Deka

AM Bujor Barua, J

1. Heard Mr. A. Khaleque, learned counsel for the appellant. Also heard Mr. M.A. Sheikh, learned counsel for the respondent.

The appellant and the respondent were married in the year 1983 and out of their wedlock, threedaughters were born, all of whom are major and in

the meantime, the eldest daughter is also married. The other two daughters are also of marriageable age. The appellant worked as a telephone

mechanic in the BSNL and he had retired from service in the year 2011.

According to the appellant, the respondent wife started demanding more money for herself fromthe year 2005, but as the cost of living as well as

education of the children was very high, the appellant could not afford to provide any further money to the respondent, which resulted in a quarrel

between them. The appellant further tries to make out a case that in order to augment the family income, he had purchased a plot of land at Datalpara

in Guwahati and had constructed an Assam type house thereon by taking loan with the intention that he would rent out the house for the purpose of

augmenting his income. But the respondent insisted that they shift to the new house and live thereon and this had resulted in a further burden on the

appellant. The appellant also states that he had requested his wife to live with him in his official quarter, but she refused and instead begun to roam

around and freely mixed up with other people and when objected, the respondent ill treated the appellant and had refused to live with him.

In the aforesaid circumstance, the appellant preferred the FC(Civil) Case No.458/2009 underSection 13(1)(ia) of the Hindu Marriage Act, 1955

seeking for a divorce.

In the proceeding before the Family Court, the appellant took the stand as indicated above andcontended that because of the constant ill treatment

and mental torture by the respondent, it became impossible for him to live in the house and out of fear of his life, he was compelled to live on his own.

Although he had left the house, the appellant stated that he continued to pay the maintenance to the respondent and their daughters and it is the

respondent who refuses to come and live with him. It was also contended before the Family Court that on 07.06.2009 at about 8.30 p.m, the

respondent along with her brother and some unknown anti social elements forcibly entered his residential house and tried to kill him. Allegations were

also made that the respondent had taken away some household items. It was also alleged that the appellant had no physical relationship with the

respondent and she willfully deprived him from his conjugal rights by denying to cohabit with him for the last three years.

In the proceeding before the Family Court, the respondent took the stand that the divorceproceeding was initiated to avoid payment of maintenance

and that the appellant has been maintaining an illicit relationship with another woman namely, Rupali Kalita. A stand was taken that on 07.06.2009,

both the appellant and Rupali Kalita were caught red handed in their BSNL quarter and accordingly, All Women P.S. Case No.52/2009 was

registered under Section 498(A)/494 IPC. Because of such illicit relationship, the appellant always tried to avoid the respondent and their three

daughters and had neglected to maintain them. A further allegation was made that in the year 2006, the appellant intended to marry another girl

namely, Kiran Kalita who is the sister of the respondent. But although the respondent did not agree such marriage but the appellant claimed her sister

to be his second wife and had also filed a case for restitution of conjugal rights with her sister which was numbered as FC (Civil) Case No.250/2006.

The respondent also took the stand that she had never deserted the appellant as alleged and that the appellant is required to maintain her and the three

children as they have no income of their own.

In the proceeding, the respondent as DW-1 deposed that she had entered into a marriage withthe appellant in the year 1983 as per Hindu rights and

rituals and out of the wedlock, three daughters were born. The respondent deposed that the appellant had been maintaining an illicit relation with

another woman namely Rupali Kalita and both of them were caught red handed in his BSNL quarter on 07.06.2009, which resulted in All Women P.S.

Case No.52/2009. The respondent also deposed about the intention of the appellant to marry her sister Kiran Kalita and also that the appellant used to

present her sister as his second wife and had filed a case for restitution of conjugal rights with her sister resulting in FC(Civil) Case No.250/2006. The

son-in-law of the appellant and the respondent while deposing as the DW-2 had stated that the respondent is a very noble person, but it was the

appellant who had refused to come and stay with her. One of the daughters namely Dolly Deka while deposing as DW-3 had stated that the appellant

used to inflict mental torture on the respondent. The other daughter namely Gitanjali Deka who deposed as DW-4 also reiterated as to what was

deposed by DW-3.

In the above circumstance, one of the issue before the Family Court was as to whether therespondent had inflicted any cruelty on the appellant and

more so, in view of the institution of All Women P.S. Case No. 52/2009 under Section 498(A)/494 IPC. The learned Family Court upon perusal of the

materials on record arrived at its conclusion that no cruelty was inflicted by the respondent.

Being aggrieved by the judgment and order dated 09.08.2016 of the learned Family Court, thepresent appeal has been preferred by the petitioner. In

the appeal, the learned counsel for the appellant mainly urges upon that the appellant was acquitted in the proceeding resulting from All Women P.S.

Case No.52/2009 under Sections 498(A)/494 IPC and therefore, such acquittal by itself is an indication that cruelty was meted to him by instituting the

proceedig. In order to appreciate the contention of the appellant, the order of acquittal dated 24.09.2012 in GR No.5309/2009 is examined. It is taken

note of that in the said order, the Court was of the view that the appellant was a man of bad character and that he had filed a case before the Family

Court claiming another lady to be his second wife. It was also taken note of that another woman was found in the house of the appellant and she was

in a disarranged condition and had tried to hide herself under the bed. Accordingly, the Court had concluded that the proceeding under Section 498(A)

was as a result of the aforesaid occurrence. But as the occurrence did not constitute an offence under Section 498(A) IPC, therefore, the appellant

was acquitted. The said judgment clearly reveals the conduct of the appellant as regards his affairs with the other woman. On a proper consideration

of the aforesaid conclusion in the case under Section 498(A), it cannot be said that the appellant was honourably acquitted and that by filing the said

case cruelty was inflicted upon him by the respondent. In fact, if the conclusion of the Court is taken into consideration, as regards the involvement of

the appellant with other woman, it can also be concluded that it was the appellant who had inflicted cruelty on the respondent. The further ground of

the appellant that he was not allowed to cross-examine, was also given consideration by perusing the order-sheet in the proceeding before the Family

Court.

By the order dated 29.05.2015, the appellant had made a prayer to adjourn the proceeding so asto enable him to cross-examine the defence

witness as he was suffering from illness. Accordingly, the next date for cross-examination was fixed on 06.07.2015. On 06.07.2015, the appellant was

absent without steps, whereas, the respondent was present along with the witnesses. Accordingly, by the order dated 06.07.2015, as the appellant was

absent without steps, the cross-examination of the defence witnesses was closed. In view of the order dated 29.05.2015 and 06.07.2015, it cannot be

construed that the appellant was prevented from cross-examining the defence witnesses.

In view of the above, both the grounds urged upon by the learned counsel for the appellant arefound to be unsustainable and accordingly, the

appeal is found to be devoid of any merit. Appeal is accordingly dismissed.