Sri Mridul Sarma vs Smt Gitumoni Bhattacharjee

Ajit Singh, C.J.

This appeal is by the husband - Mridul Sarma - against the judgment dated 16.6.2017 passed by the Principal Judge, Family Court, No.-II, Kamrup

(Metro), in F.C.(Civil) Case No. 118/2013, whereby the petition filed by him against his respondent-Gitumoni Bhattacharjee under Section 13(1)(ia)&

(ib) of the Hindu Marriage Act, 1955 (in short ‘Act’) has been dismissed.

Facts in short are these. Appellant husband and Respondent wife were married on 02.10.2000 and they started their married life in a rented house

first, but later shifted to the house of the father of the appellant. Out of their wedlock, a female child, Anuja Sarma, was also born on 10.1.2002.

According to the appellant, initially their married life was happy but in the month of April, 2001, the respondent deserted him. He is a jobless person

and used to stay in the house of his father along with other family members including three paternal aunts, whereas the respondent used to work in a

school.

When the respondent deserted him without any cause and started living in her parental home, the appellant out of love and affection for the daughter

went to stay in the parental house of the respondent and he continued to stay there off and on till the month of October, 2005. One day in the month of

October, 2005, the respondent abused him without any rhyme or reason, and hence he had to leave the company of the respondent. According to the

appellant, respondent stopped wearing sindur at the instigation of her mother and she expressed her desire not to live with the appellant in spite of all

his efforts, and hence, when all his attempts to bring her back failed, he filed the petition seeking a decree of divorce.

The respondent contested the suit by filing written statement stating inter-alia that the appellant is a jobless person and she and the appellant had to

depend solely on the income of her father-in-law, who was an employee in a bank. Besides, the appellant was drunkard and used to treat her in

inappropriate manner. Besides, the family members of the appellant also did not treat her well and never restrained the appellant from consuming

alcohol and in one occasion, one unmarried sister of the appellant threw one hot cup of tea on her.

Therefore, she along with their daughter had to leave the company of the appellant and stay with her father. The appellant also came to her parental

house, but later he left her alone. He was a drunkard and he also instigated her brother to drink and therefore, she had to stop him from coming to her

father’s house and stop all connections with him. She categorically denied that she refused to wear the sindur and alleged that the same is a

concocted allegation against her by the appellant. She admitted that the father and uncle of the appellant visited the house of her father once to discuss

of the marriage and asked the respondent to give divorce. According to her, the appellant never tried to contact her and never wished their minor

child, even in her birthdays or other festivals. According to the respondent, she tried to stay with her in-laws, but she was misbehaved and tortured to

such an extent that she was forced to leave her matrimonial home and as such her desertion was not willful and hence she prayed for dismissal of the

suit.

The trial court disbelieved the case of appellant and dismissed his petition for divorce. According to the trial court, he could neither prove the ground

of mental cruelty meted out to him by respondent nor that she deserted the appellant.

Having heard the learned counsel for the parties and perusing the records, we have reached the conclusion that the appeal must be dismissed. The

appellant sought for a decree of divorce on two grounds-firstly, that the respondent deserted him without any just cause, and secondly, she treated him

with cruelty. It is crystal clear from the pleadings of the appellant himself that when the respondent came out of the matrimonial home in the month of

April, 2001, he also accompanied her and started living with her in the house of her father till the month of October, 2005. This fact is also admitted by

the appellant himself in his evidence. The father of the appellant - Nripen Sarma (PW-2) has also supported this testimony of the appellant and his

aunt - Smti Himani Devi (PW-4) also corroborated the same. As such, it is clear that although the respondent came out of the matrimonial home in the

month of April,2001, both the appellant and the respondent used to stay together till the month of October, 2005 in the house of the father of the

respondent and the appellant left her company later on.

The appellant failed to show that the respondent used to abuse him or treat him with cruelty. Therefore, the appellant could not prove that the

respondent deserted him and rather it is proved to the contrary. Although, the appellant alleged that respondent did not wear sindur and thus treated

him with mental cruelty, the same could not be proved by him. It is the evidence of the respondent that the appellant was found to be in drunken state

most of the times and her father - Bimolendu Bhattacharjee (DW-2) had also corroborated this evidence. So, it is proved that it was not the

respondent, but the appellant, who treated the respondent with cruelty. In view of the above, in our considered opinion, the Family Court rightly

refused to grant the decree of divorce on the ground of cruelty and desertion. We do not find any illegality or infirmity in the impugned judgment and

decree to interfere with.

Accordingly, the appeal is dismissed.