Smt. Kajal Chowdhury vs Dilip Chowdhury

Bhaskar Bhattacharya, J.—This appeal is directed against the judgment and decree of the 8th Court of Additional District Judge at Alipore in Mat Suit No. 8 of 1998 filed by the respondent/husband dissolving the marriage between him and the appellant Kajal Chowdhury. The respondent/husband Dilip Chowdhury brought the Mat Suit No. 8 of 1998 on 20.11.1997 for dissolution of marriage between them solemnized on 30th March, 1979 according to Hindu rites and customs u/s 13(1A)(ii) of Hindu Marriage Act on the ground of desertion.

The respondent/petitioner''s case in the Court below is that after the marriage the wife Kajal Chowdhury expressed her desire to proceed further with her studies at Kolkata which was agreed by the petitioner/ husband and accordingly she began to study at her mother''s place at Deshapriya Nagar, P.S. Belghoria and she used in spend the weekends at the house of her husband. Gradually such practice of visiting her matrimonial home was stopped despite the fact that the petitioner/ husband raised a new residential house near his house at Sonarpur. In the wedlock she gave birth to a male child on 4th June, 1988 and ultimately she deserted her husband, her last visit to her matrimonial home being on 13th June, 1990. Despite repeated efforts through relatives and friends and lastly on 01.10.1994 when the petitioner/husband requested her to come back to her matrimonial home she refused and then the petitioner/husband had to file the matrimonial suit No. 1133 of 1994 before the Learned District Judge for restitution of conjugal rights. The said suit being re-numbered as Mat Suit No. 6 of 1996 in the 8th Court Additional District Judge, Alipur was decreed exparte on 03.10.1996 directing the present appellant/wife to live with the petitioner/respondent/ husband at her matrimonial home at Sonarpur. The present appellant/ wife filed an application for setting aside the exparte decree and restoration of the suit, which was ultimately dismissed for default.

Despite such decree of restitution of conjugal rights the present respondent/husband sent Its relations, friends to her and tried to bring her back to her matrimonial home, but all such attempts ended fruitlessly. Ultimately, the respondent/husband sent his friend Jagat Kishor Baidya to her place for bringing her back but she refused. The husband then sent an Advocate''s letter dated 31.05.1997 requesting her to come to the petitioner''s house and to live a happy conjugal life with the petitioner/ respondent/husband. Even after receipt of such letter she did not respond to it and thus she disobeyed the Court''s order in the decree in Mat Suit No. 6 of 1996. The respondent/husband accordingly filed the suit for a decree on divorce dissolving the marriage between him and the appellant.

The appellant/wife contested the suit by filing written statement denying the material allegations of the respondent/husband and has asserted that she had to leave her matrimonial home due to cruelty of her husband and his mother and sister etc. She has further asserted that there was no congenial atmosphere for living with the petitioner and the question of disobeying the Court''s order does not arise. It has been further asserted that the suit was filed by the respondent/husband is a step forward by him for marrying again since she had incurred dislike of him for no fault of her own.

Learned Court below framed as many as five issues and also examined the parties and another witness for each of them and ultimately the suit was decreed dissolving the marriage between the parties.

In the judgment of the trial Court it was held that the appellant/ wife did not deny in her deposition that she left her matrimonial home for the last time on 13.06.1990 and that they are not living together since that date. On analysing the evidence on record the learned Court below has pointed out that the husband was ready to accept his wife and maintain her if she willingly came to his house. It has been further observed by learned Court below that the husband succeeded to prove that there was no reasonable excuse or just cause an the part of the wife not to live with the husband in her matrimonial home and that there has been complete break dawn of the marital tie between the parties in suit and the marriage is no longer alive. Ultimately, the suit was decreed directing dissolution of their marriage.

Mr. Biswajit Basu, learned Advocate appearing far the appellant has contended that the decree for restitution of conjugal rights in the earlier Mat Suit No. 06 of 2006 was passed exparte and without any reasons for passing such decree and the appellant/wife cannot be said to be in fault for the peculiar circumstances leading to the passing of the exparte decree.

Mr. Basu has also contended that the respondent/husband has not showed any gesture to do his duty as husband calling upon the appellant/ wife to stay with him after the exparte decree of restitution of conjugal rights. It has been strenuously contended by him that the appellant/ wife did not find it safe to live with the husband even after the exparte decree as there was no congenial behavior at her matrimonial home. Accordingly, Mr. Basu has contended, that the decree of divorce following the exparte decree of restitution of conjugal rights should be set aside.

Mr. S. P. Roychowdhury, appearing for the respondent/husband has pointed out to the evidences of the husband and wife and other witnesses on record and has contended that the learned Trial Court was justified in passing such a decree while it was found that the appellant/wife was not at all eager to obey the order of the Court, passed in the decree of restitution of conjugal rights even after the respondent/husband sent his relative and friend to bring her back and also sent an Advocate''s letter asking her to comply with the Court''s order.

We have gone through the deposition of the respective parties and their witnesses carefully. Undisputedly, the marriage between the appellant and the respondent took place according to Hindu rites and Customs on 03.03.1979 at Sibaji Palli, Belghoria when the husband was living at Subhas Colony, P.S. Sonarpur. It. has been stated by the P.W. 1/ husband Dilip Choudhury that at first the wife began to stay at her mother''s place for her further studies and return to her matrimonial home at the weekend but subsequently the husband noticed that the respondent/wife started disobeying their mutual agreed arrangement and continued to stay at her mother''s place for most of the days. It is further gathered from his evidence that in the third week of June, 1993 he shifted to his newly constructed house at Rajpur Dakshin Jagaddal. In their wedlock a male child was born on 04.01.1988 but she lastly visited his house 07.06.1990 and stayed with him for six days and since then she never came back to his house.

It is further gathered from his evidence that he filed a suit for restitution of conjugal right i.e. Mat Suit No. 6 of 1996 which was decreed exparte for non-appearance of his wife, exhibit- ''1'' being the certified copy of the order. It is also gathered from his deposition that after the decree for restitution of conjugal right he himself and also his friend Jagat Kishore Baidya tried to pursuade her to come back to his place but she did not pay heed to the same. The husband sent a registered letter with A/D through his Advocate Shri Ganesh Chandra Sanyal for calling upon her to comply with the Court''s order but all such attempts proved futile. It is also gathered from his examination-in-chief dated 06.06.2000 that the wife made an attempt to set aside the exparte decree against her but such petition was dismissed for non-prosecution. Much cross-examination has been made suggesting a case of cruelty against the husband and the members of the in-laws family before the said exparte decree of restitution of conjugal rights but after passing all such decree whether it is exparte or not, such matter has attained finality and said decree cannot be reopened.

Sri Jagat Kishor Baidya, friend of the husband has also examined as P.W. 2 and it is gathered from his evidence that he tried to make a reconciliation between the appellant and the respondent and in doing so he also met the present appellant who told him that she was not ready to return to her maternal home. In the cross-examination he has asserted that he visited her house for 5-6 times. We do not find any reason to disbelieve such oral testimony.

The D.W. 1 is the appellant herself Smt. Kajal Chowdhury who has stated about ill behavior and cruelty upon her by her husband and his relatives while she was in the maternal home before passing of the decree for restitution of conjugal rights. She has admitted about the exparte decree for restitution of conjugal rights due to her negligence and she could not take proper steps for restoration of the suit. During cross-examination she has stated that she was ready to reside with her husband. In spite of her such mental condition she expressed her willingness to reside with her husband in writing. Such written document is not forthcoming to show that even after the decree of restitution of conjugal rights she expressed her willingness to reside with her husband. She has admitted the receipt of the letter dated 31.05.1997 through her husband''s Advocate. She has also admitted that she is a teacher of Belghoria Vidyaniketan Girls High School.

The D.W. 2 is Bhubaneswar Banerjee.- The appellant Kajal Chowdhury, is his friend''s sister. He has stated even in examination-in-chief that sometimes after marriage he came to learn from the elder brother of Kajal Chawdhury that she was subjected to torture and was assaulted by her husband following which she left her husband''s house and started living at her father''s house at Sonarpur. She was once taken back to her matrimonial home and again she came back to her father''s place. The witness has admitted in his cross-examination that in spite of such decree Kajal did not start living with her husband. He also did not convince her to go back to her husband''s house after suffering the decree. He also did not make any enquiry as to the story of torture and assault inflicted upon Kajal Chowdhury at her matrimonial home.

Thus on the evidence adduced from the end of the appellant/wife it appears that she tried to make out a case of torture and cruelty only before passing of the decree of restitution of conjugal rights. She could have raised such questions before the Court below while passing such decree for restitution of conjugal rights but instead of doing so she allowed the decree passed exparte against her and even did not care to proceed with the application for setting aside the exparte decree and for restoration of the suit. Mr. Basu has strenuously contended that the judgment while passing the exparte decree does not speak of any observation as to such grounds of torture, cruelty etc. at Kajal Chowdhury''s matrimonial home. But after the passing of the exparte decree which has attained the finality we find no scope to enter into grounds for passing such exparte decree.

But it can be safely said from the evidence on record that the appellant/wife by the said decree was directed to live with the husband at Sonarpur. Although it is not required for the husband to invite the wife after such decree far restitution of conjugal right to live with him as it was a direction of the Court upon her, we find that the said husband not only sent his friend the P.W. 2 Jagat Kishor Baidya to his wife for convincing her and to bring her back. While he failed, the husband sent the Advocate''s letter calling upon the wife to comply with the Court''s decree. The receipt of such letter has been admitted by the wife but she did not care to send any reply to it. All these go to show that the wife was not inclined to comply with the Court''s decree of restitution of conjugal rights and to go to her husband''s place to live with him. The husband thereafter waited for one year for his wife and then filed the suit for divorce, such lapse of one year being the condition for filing such suit for dissolution of marriage u/s 13(1A)(ii) of Hindu Marriage Act.

Mr. Basu while contending that even after the decree for restitution of conjugal rights the husband has the duty to call his wife back to his place, relied upon the decision reported in Sm. Kanak Lata Ghose Vs. Amal Kumar Ghose, In the said decision the husband had first filed a suit for annulment of marriage u/s 12B of the Hindu Marriage Act on the ground of insanity of the wife who contested the suit. She was medical examined and as per medical report she was found not insane when the husband withdrew the suit. Sometime thereafter the husband again filed a suit for restitution of conjugal rights which was dismissed by the Court of first instance and then the High Court set aside the decree of dismissal and allowed the appeal and decreed the suit to the extent ''that the respondent (wife) do return to the plaintiff''s (husband''s) house though not necessarily at Naihati as mentioned in the plaint and render him conjugal right.''

Considering this special circumstances of the case where the husband withdrew the earlier suit for annulment of marriage on the ground of physical disability and insanity of the wife a special clause was attached to the decree - though not necessarily at Naihati''. The High Court while passing such decree intended that the initiative taken by the husband in filing a suit for restitution of conjugal rights on an effort to take her back should be maintained even after passing of the decree. After such decree of restitution of conjugal rights, there was no reconciliation between the husband and wife when the husband brought the suit for dissolution of marriage. In such case, the High Court observed as follows:

"(21) In the instant suit the husband admitted in his cross-examination that he made no/enquiry about his wife after the High Court decree, that he did not send any letter to her asking her to come to him and that he made no attempt to bring her to his house. That being the position, he cannot be heard to say that the wife failed to comply with the decree for restitution of conjugal rights.

(22) The wife has said in her examination-in-chief that she was always ready and willing to live with her husband in compliance with the High Court''s decree for restitution of conjugal rights, though she was not willing to live in her husband''s house at Naihati........."

But here in this case, there was no such special circumstance found by the Court while passing such decree of restitution of conjugal rights. The decree simply directed the wife to live with the husband at her matrimonial home at Sonarpur. There is no evidence on record that the husband ever created any impediment for his wife''s return to her matrimonial home in obedience to the decree of restitution of conjugal rights. There being a defaulted attempt to set aside such exparte decree, the wife cannot also take the plea of ignorance of the decree.

However, as already mentioned, the husband showed the gesture to send his friend Jagat Kishor Baidya, P.W. 2 for taking her back. On the other hand there is no evidence that the wife ever intended to go back to her matrimonial home to live with her husband as directed by the Court. The husband undisputedly sent an Advocate''s letter to her asking her to comply with the Court''s decree. Thus this decision cited by Mr. Basu does not come to much help of his client.

Mr. Basu while opposing the decree of divorce relied upon the decision reported in AIR 2001 Supreme Court 1285 (Hirachand Srinivas Managaonkar vs. Sunanda) In the said decision there was an earlier decree of judicial separation and there being no resumption of cohabitation the husband bought the suit for dissolution of marriage. At paragraph 15 Their Lordships has observed :

"15. After the decree for judicial Separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he committed a Vrong'' within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce u/s 13(1-A) of the Act,

16........The section does not provide that once the applicant makes an application alleging fulfilment of one of the conditions specified therein the Court has no alternative but to grant a decree of divorce. Such an interpretation of the section will run counter to the provisions in Section 23(1)(a) or (b) of the Act. In Section 23(1) it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is not in any way taking advantage of his or her own ''wrong'' or disability for the purpose of such relief........"

In the present case the husband having sent his friend and Advocate''s letter to his wife for reconciliation or to comply with the direction of the Court and such attempt being proved fruitless, the husband cannot be said to have committed wrong or taken advantage of his own wrong as laid down in Section 23(1)(a) of the Hindu Marriage Act. Thus the cited decision defers from the present state of facts and does not come to much help of the appellant.

Thus considering all such facts and circumstances it appears that the ground for dissolution of marriage by divorce as provided u/s 13(1A)(ii) has been duly proved by the husband /respondent and the marriage tie having completely broken down, we find that the learned Court below was justified in passing a decree of dissolution of marriage by divorce between the parties. We do not find any reason to interfere with such judgment and decree passed by learned Court below:

Accordingly the appeal is dismissed.

There shall be no order as to costs. Urgent xerox certified copy be given to the parties expeditiously, if applied for.

Rudrendra Nath Banerjee, J.

I agree.