Sri Lakhiram Deka vs Smti Ginima Deka

AM Bujor Barua, J

Heard Ms. M Bora, learned counsel for the appellant and Ms. P Bhattacharyya, learned counsel for the respondent.

The appellant and the respondent were married on 17.08.2000 as per Hindu rites and rituals atUttar Lenga Village in the Kamrup(R) district and out

of their wedlock they had two daughters. The appellant is working as a Grade IV in the Department of Official Language, Ministry of Home Affairs

at Chandmari Guwahati.

The appellant preferred an application under Section 13 of the Hindu Marriage Act, 1955, readwith Section 7(1) of the Family Courts Act 1984

praying for a decree of divorce. In the application under Section 13, the appellant averred that the respondent is a highly ambitious lady having an

interest to lead a luxurious life and the appellant was unable to meet her demands from the salary he gets. As the appellant was unable to meet the

requirements of the respondent, unpleasant situations were created by her. The appellant alleged that the respondent was not willing to perform the

duties of a house wife and her behavior and mood kept on changing frequently. The appellant also alleges that the respondent was having an illicit

relationship with another man and that itself was the reason as to why she behaved in different manners at different times.

The respondent in her written statement denies such allegations made by the appellant and onthe other hand, stated that the appellant had abused

her for not giving birth to a male child and also used to call their daughters to be bastards. As the respondent could not tolerate the humiliation, she

was compelled to go to her parental home and has somehow been managing the education of their daughters. The respondent also raises the allegation

that the appellant had also harassed her by demanding dowry.Â

The appellant in his deposition as PW-1 reiterated the allegations made in the petition underSection 13 that the appellant is not performing her duties

as a house wife. In the evidence, a further stand has been taken that the medical examination established that the respondent was suffering from the

psychiatric disorder of resistant schizophrenia. With regard to the allegation of the respondent having an illicit relation, it was stated that various

unknown male persons used to visit their house during the absence of the appellant. It was stated that in the month of September, 2011, when the

appellant returned to his residence during the office hours, he had found the appellant to be flirting with another person with whom she had an illicit

relation. In evidence, it was also stated that the respondent had also filed an ejahar resulting in Baihata Chariali Police Station Case No.30/2005 under

Section 498A of the IPC.

  In the cross examination the appellant was given the suggestion that he had married another woman during the sustenance of the marriage with

the respondent, to which the appellant had denied, with further suggestion that he had married one Rumi Seal (Deka), to which also the appellant had

denied. The appellant also stated in cross examination that the respondent had an illicit relationship with one Abu Bokkor Saharia.

The respondent in her deposition had stated that in order to accommodate their father-in-law,who expressed his desire to live with them, both the

appellant and the respondent started living in their village at Uttar Lenga. The respondent stated that after the marriage, the appellant started raising

demands for dowry and used to abuse her both mentally and physically for not bringing the dowry and also for being unable to deliver a male child.

The appellant also forced her to consume phenyl for which she was admitted in the Gauhati Medical College and Hospital. It was stated that the

appellant projected the respondent to be a mentally deranged person. The allegation of the respondent having an illicit relationship was denied. The

respondent also exhibited a copy of the application made by the appellant for family identity card, wherein the name of his wife was stated as Rumi

Deka.

 In cross examination, the respondent had stated that she did not receive any notice for adducing evidence in the case filed by her under Section

498A of the IPC.

Another witness for the respondent who describes herself to be a neighbor of the appellant andthe respondent had stated that the respondent had

taken good care of her father-in-law and that the appellant had developed an illicit relationship with one Rumi Seal @ Rumi Deka.

The person with whom it was alleged that the respondent had an illicit relationship, namely, AbuBokkor Saharia had deposed as the DW-4. In his

deposition, it was stated that he knew the appellant since before his marriage and that his family had also arranged for the marriage of the sister of the

appellant. The DW-4 also deposed that the appellant had physically assaulted the respondent one day in the morning and had thrown her out of the

house. On being thrown out she went to the house of the Gaonburah, but when he was not found in the residence, the respondent went to the house of

the DW-4, and was offered tea by his wife. Thereupon the said DW counseled the appellant and the respondent for a long time and had brought back

a peaceful atmosphere in the house. But inspite of the same, the appellant continued to torture the respondent. DW-4 further stated that the father of

the appellant was happy and contended with the care taken by the respondent. DW-4 stated that the allegation leveled by the appellant against him of

having an illicit relation with the respondent was false and that the appellant by saying so had hurt his dignity.

The learned Family Court upon considering the evidence on record, by its Judgment and Orderdated 16.12.2016 arrived at a conclusion that

although the appellant had taken the ground of cruelty and adultery, but failed to prove the same through any evidence. The learned Court, on the

other hand, had arrived at a conclusion that the evidence on record indicates that it is, in fact, the appellant who had treated the respondent with

cruelty.

Being aggrieved by the Judgment and Order dated 16.12.2016, the present appeal under Section19 of the Family Courts Act 1984 has been

preferred by the appellant. In the appeal also, the appellant reiterates the ground of cruelty and adultery against the respondent.

On an examination of the evidence led by the appellant, it is noticed that in respect of adultery,the appellant in his petition under Section 13 of the

Hindu Marriage Act, 1955, as well as in his examination-in-chief, had merely indicated that the respondent is having an illicit relationship with some

other man, without specifying the name of the man and also without providing any specific instance when the respondent had embarked upon an

adulterous act. It is only in the crossexamination that the appellant for the first time refers to the DW-4, Abu Bokkor Saharia. Further the evidence of

the DW-4, Abu Bokkor Saharia reveals that he was a family friend of the father of the appellant and was not a frequent visitor to their house.

An evaluation of the evidence on record does not indicate that the respondent was leading anadulterous life. In such view of the matter, the ground

of adultery urged upon by the appellant would have to be rejected.

As regards cruelty, the evidence of the appellant does not reveal any particular instance as towhen and in what manner the respondent had

inflicted cruelty on the appellant. The only evidence led by the appellant is that the mood of the respondent kept changing from time to time and further

the respondent was undergoing treatment under a Psychiatrist. The same by itself would be insufficient to hold that the respondent had subjected the

appellant to any cruelty.

In view of the above, as the appellant had failed to establish that the respondent had committedadultery and also that the respondent had subjected

the appellant to cruelty, both the grounds urged upon by the appellant in the present appeal are unfounded and not supported by the evidence on

record.

Accordingly, the appeal against the Judgment and Order dated 16.12.2016 passed by the learnedFamily Court stands rejected.