Pradip Kumar Kalita vs Hiran Prova Kalita

D. Biswas, J.—This appeal is directed against the judgment and order dated 9.1.1995 passed by the learned District Judge, Nalbari in Divorce Title Suit No. 5 of 1991 The learned District Judge dismissed the suit filed by the appellant for dissolution of marriage by a decree of divorce.

I have heard Mr. N. Dhar, learned counsel for the appellant and Mr. H. R. A. Choudhury, learned counsel for the respondent.

There is no dispute with regard to the fact that marriage was solemnised between the appellant Sri Pradip Kumar Kalita and the respondent Smt. Hiran Prova Kalita on 3.3.1980 at village Ulabari in Nalbari district as per Hindu rites and customs. After carriage they lived together as husband and wife and a daughter was born to them in the year 1982. The appellant has been working in the Electricity Department under the Govt. of Meghalay and he left his wife in the house of his elder brother at village Sonkani. All of a sudden the wife left the house of his elder brother on 28.9.1983 and deserted him causing mental cruelty. Repeated attempts made by him to bring her back to his elder brother''s house failed and this compelled him to institute the suit for decree of divorce.

The respondent wife opposed the petition and denied all the allegations made in the petition. She further alleged illicit relationship between her husband and wife of his elder brother. Her case is that when she raised objection, she was assaulted by hoc husband and the wife of his elder brother. Besides, she alleged that there was a plot to eliminate her by poisoning and this compelled her to leave the house of her brother-in-law and take shelter in her paternal house. St is further averred that she also went to the official residence of her husband in the State of Meghalaya but her husband refused to allow her to stay there.

The learned District Judge framed the following issues on consideration of pleadings :-

Whether the wife deserted the petitioner ?

What relief or relies the petitioner is entitled to ?

The learned District Judge answered the issues in favour of the respondent wife on consideration of the evidence of three witnesses examined on each side. The learned District Judge observed that cruelty and desertion have not been specifically pleaded in the petition filed by the husband. But the circumstances described therein indicate that divorce has been sought on the ground of desertion and cruelty only.

Let us, examine whether the appellant has succeeded in establishing desertion by the respondent wife without any reasonable cause. The appellant Pradip Kumar Kalita in his evidence admitted the marriage and the birth of a daughter. According to him, he was staying in his official residence in the State of Meghalaya in connection with his service and he left his wife in his paternal house wherefrom, she disappeared and took shelter in the house of her father without any cause. He made abortive attempts to bring her back to his parental home and, even issued pleader''s notice calling her to return to her matrimonial home. He further stated that the respondent wife had filed a petition u/s 125 Cr.PC for subsistence allowance.

PW 2 Bashab Ch. Talukdar deposed that about 10 years ago he had seen the respondent wife going towards her paternal house accompanied by her mother and her minor child. PW 3 Bidya Talukdar also gave the same version.

The evidence of the appellant husband read with the evidence of PW 2 and PW 3 simply prove that the respondent wife had left the house of her in-laws along with the child. But the respondent wife in her deposition stated that there was disagreement with her husband when she noticed that he was having an affair with his sister-in-law She raised objection and for this was subjected to physical torture D. Ws Dharma Kalita and Nagendra Medhi deposed what they have heard from the respondent wife about torture and assault.

The fact that emerges from the evidence on record is that the appellant husband had left his wife in his paternal house with the minor child. He did not make any effort to take her to his official residence where he has been staying in connection with his service. He also refused to accept the wife when she visited his official residence. This shows that the appellant has not discharged his duties as a husband in taking proper care of his wife and the minor daughter. Refusal to admit them to this official residence is an indication of his bent of mind not to continue with the marital relationship with his wife. From this conduct the statement of the respondent wife that her husband had illicit relationship with his sister-in-law gains significance.

A wife has a right to insist for living together with the husband. There is no evidence on record to show that the official residence of the appellant is in such a place where a women cannot stay. The conduct on the part of the husband in refusing to admit her to his official residence and in compelling her to live in his village home with his elder brother are enough and adequate for a wife to leave the house of her husband and stay with her parents. Besides, the alleged relationship between the appellant and his sister-in-law as evinced by the respondent wife also emerges as a string ground for leaving the matrimonial home. This act of the respondent wife in staying with her father cannot be construed to be an act of desertion for the purpose of granting a decree of divorce. The attending circumstances evinced by her justify her action in taking shelter in her parental house. Under the given circumstances, this can not constitute a ground for divorce. Something more are necessary to prove the, charge of cruelty and desertion in a petition for dissolution of marriage. Rather, the conduct of the appellant m leaving his newly married wife with the minor child in the house of his elder brother in itself amounts to cruelty on his part. The plea set up by the appellant that the conduct of his wife amounts to cruelty is, therefore, of no substance.

The learned District Judge has discussed the evidence in details and came to the conclusion that no case for divorce has been made out. I find no reason to disagree with the learned District Judge. The appeal is, therefore, dismissed.