SMTI NANDITA BHATTACHARJEE vs SHRI MONOJIT BHATTACHARJEE

Ajit Singh, C.J.

1.This appeal under Section 28 of the Hindu Marriage Act, 1955 has been filed by the wife - Nandita Bhattacharjee - challenging the legality and

validity of the impugned judgement and decree dated 14.7.2017 passed by the Principal Judge, Family Court No.2, Kamrup (Metro) Guwahati in FC

(Civil) Case No.739/2011 allowing the respondent husband Shri Monojit Bhattacharjee’s divorce petition for dissolution of their marriage.

The respondent filed a petition for divorce on 19.12.2011 alleging cruelty and desertion against the appellant. The case of the respondent was that

he and the appellant got married on 20.1.2002 and started living together as husband and wife. A daughter was also born out of their wedlock on

7.4.2004. But soon after their marriage, differences started to crop up between them and their relationship got soured. Appellant is a short tempered

lady and used to get violent on minor household issues and even physically assaulted him. Even after their shifting to the official quarter of IIT at

Guwahati, the attitude of the appellant did not change and on 30.10.2009, appellant as usual quarrelled with him on some domestic trivial matters. And,

on the very next day, i.e. 31.10.2009, the younger brother of appellant came to the official quarter and took her and their minor daughter along with

him on the pretext of attending some religious ceremony for only two days. Though she left her matrimonial home only for two days to attend the

ceremony, she did not return and since then she has been staying separately from him. The respondent also alleged that he and his family members

made several attempts to bring the appellant back home, but she refused without any just cause. Even his father vide registered letter dated 6.12.2009

requested her to come back and he also vide registered letter dated 14.12.2009 asked her to come back home, but in vain. On 25.12.2009, the paternal

uncles of respondent, namely, Shri Bijon B Bhattacharjee and Sri Monotosh Bhattacharjee visited the house of parents of appellant and requested her

to come back, but she misbehaved with them and denied to lead a marital life with him.

The respondent, therefore, filed a suit for restitution of conjugal life and for custody of minor daughter which was registered as FC (Civil) Case

No.14/2010. During the pendency of said suit, appellant filed transfer petition No.10/2010 before this High Court and the FC (Civil) Case No.14/2010

was transferred to the court of Additional Judge (FTC) Hojai, Sankardev Nagar. During the pendency of transfer petition also, respondent claimed to

have made several attempts to bring back the appellant home but without any fruit and on the other hand, Appellant filed a petition seeking

maintenance. Respondent, however, continued to make repeated efforts to bring her home and his office colleague and neighbours also visited the

house of appellant on many occasions, but without any positive result. Respondent even wrote a letter on 3.10.2011 requesting the appellant to come

back, but she did not reply. Therefore, finding no other alternative, Respondent filed FC (Civil) Case No.739/2011 under Section 13 (1) (ia) & (ib) of

the Hindu Marriage Act, 1955 before the Principal Judge, Family Court No.2, Kamrup at Guwahati for dissolution of their marriage.

The appellant contested the suit by filing written statement alleging that the respondent used to treat her with cruelty and behaved very rudely.

Although she tolerated, but the respondent continued to treat her with cruelty by demanding money. In the year 2009, respondent demanded

Rs.50,000/- which was paid by her father and in the middle part of September, 2009, respondent again demanded Rs.1,00,000/- which her father could

not pay. Therefore, respondent started abusing her physically and also humiliated her by putting her to constant fear and loneliness. She, however,

could survive in his company in such a fearful manner till 31.10.2009 when her brother came to her house and took her to her parental house to attend

some religious ceremony. Respondent had then kept a condition that he would accept her only if Rs.1,00,000/- could be arranged and hence she had to

withdraw from his company and filed a maintenance case. She also filed a case under Section 12 of the Protection of Women under Domestic

Violence Act, 2005 against the respondent. On these pleadings, the appellant prayed for dismissal of the suit.

The respondent adduced his evidence as PW-1 and examined his family friends - Om Prakash Maji (PW-2), Chandra Bhusan Choudhury (PW-3)

and Sri KM Das (PW-4) to support his case. The appellant also adduced her evidence as DW-1, her brother Sandip Chakraborty as DW-2 and her

cousin Satyajit Chakraborty as DW-3. All the witnesses of both the parties were cross examined except the brother Sandip Chakraborty of appellant

as he did not turn up. The Family Court, after appreciating the evidence on record, held that though the respondent could not prove the allegation of

cruelty against the appellant, he succeeded in proving the ground of desertion by her and as such, dissolved their marriage on the ground of desertion.

After hearing the learned counsel for the parties and perusing the records, we find ourselves in complete agreement with the findings of the Family

Court. Respondent in his evidence has categorically deposed that the brother of the appellant came and took her on the pretext of some religious

ceremony only for two days but she did not return. Appellant although at first deposed that she went to attend the religious ceremony, later admitted

that she left the company of the respondent as she was tortured by him. Appellant although alleged cruel treatment and torture by the respondent as

well as demand of money, the allegation remains without any corroboration. Her brother Sandip Chakraborty (DW-2) did not turn up for cross

examination and as such, his evidence has no credence. Similarly, Satyajit Chakraborty (DW-3) has also admitted during his cross examination that he

does not know as to why appellant came to her parental house. Therefore, the allegation of appellant regarding demand of money and cruel treatment

meted out to her by respondent remained not proved. On the other hand, the evidence of respondent to the effect that appellant used to behave

abnormally and rudely to him as well as deserted him is fully corroborated by Om Prakash Maji (PW-2), Chandra Bhusan Choudhury (PW-3) and Sri

KM Das (PW-4). Besides, they also supported the testimony of respondent that several attempts were made by respondent to bring the appellant

home. But it is the appellant who refused to return home without any justifiable cause. On the contrary, she filed a case under Section 12 of the

Protection of Women under Domestic Violence Act, 2005 after the respondent instituted the suit for divorce. This would also go to show that the case

filed by her is a counter blast and had the respondent treated her with cruelty she would have instituted the case earlier and prior to filing of the suit of

divorce by the respondent. Appellant during her cross examination has also admitted that she seeks divorce provided the respondent pays her

Rs.40,00,000/-. She also admitted that respondent along with his friends and his two uncles also came to her parental home to take her back. She

further admitted that she received a letter of the respondent requesting her to come back to which she did not reply. Appellant also categorically

admitted in her cross examination that she has been staying in her parental home for last 7 years and during that period, none from her family went to

the house of respondent to settle the matter. This would also go to show that she is not interested in leading a conjugal life with respondent and

strengthens the evidence of respondent that she has deserted him without any justifiable cause. For these reasons, we find no merit in the appeal.

As regards permanent alimony, a joint application being I.A (Civil) No.972/2018 has been filed by the respondent and appellant stating therein that

former shall pay Rs.12,000/-per month to the latter and the amount shall be deposited every month in her bank account. This application has been filed

in terms of settlement arrived at between them. We, accordingly, direct the Respondent to deposit Rs.12,000/- every month in the bank account of

appellant. The application is allowed.

Subject to the above direction for payment of permanent alimony, the appeal is dismissed. A decree be drawn accordingly.