Sri Sunil Sinha vs Smt. Baby Sinha

This is an appeal from the judgment dated 12.02.2013 passed by the Additional District Judge, North Tripura, Kamalpur in Title Suit (Divorce) No. 01 of 2012. By the said judgment the petition filed by the appellant under Section 13(1)(ia) and 13 (ib) of the Hindu Marriage Act for dissolution of the marriage between the appellant and the respondent by a decree of divorce was dismissed. Apparent it is that the petition was filed on the ground of cruelty and desertion.

By the impugned judgment, the Additional District Judge, North Tripura, Kamalpur as he then was dismissed the petition as filed by the appellant observing that there was no reliable evidence that the respondent-wife treated the appellant or his family inmates with cruelty. Even the ground of desertion has not been accepted as the respondent clearly expressed her intention in the court below and also in her written statement that she was ready to restitute the conjugal rights.

The bare minimal fact that would be necessary for appreciating the grounds in this appeal is that the marriage between the appellant and the respondent who are governed by the Hindu rites and customs as prevalent in their community, was solemnised on 04.12.2004. The respondent filed a complaint against the appellant for treating her with cruelty and on the basis of the said complaint, a police case was registered under Section 498A of the IPC. The appellant has stated that on 06.10.2006 a female child was born in the wedlock but the appellant was not allowed to see their child as the child was born in the paternal home of the respondent. The appellant has asserted that the respondent used to illbehave with the appellant and stated that she had shared once that she was given her marriage against her will. She had clearly declared that she did not like the inmates of the appellant''s family "as they were of low status and uneducated and uncultured". There are several occasions when the appellant requested the respondent to behave properly with his family members. There had been occasions when the respondent cursed the parents of the appellant to meet early death. Such rude behaviour with the appellant was a daily affair. The respondent used to stay most of the time in the parental home. The appellant had tried to take their assistance for mending her behaviour. The appellant was posted away from the home-place and whenever he visited, every time there was situation which tormented him emotionally. In one occasion, when the appellant''s mother asked the respondent to prepare meal for one of the friends of the appellant, she straightway refused by responding that she was not a maidservant. When the sister-in-law of the appellant tried to interfere with, the respondent abused her. More often than not, the respondent used to threaten the appellant that she would send his inmates to prison. On 09.09.2005 a meeting was called by Mohanpur Gram Panchayat and the appellant and his family members were asked to attend the said meeting. In the said meeting, the respondent promised that she would not attempt suicide as she had done earlier and would live a peaceful conjugal life but such words did not survive for long. The appellant was indicated to be the "ghar jamai" meaning to stay along with the in-laws forever. Several instances have been given in the petition. On 21.11.2005 at the instance of the respondent, Kamalpur P.S. Case No.64/2005 (corresponding to GR 231/2005) was lodged against the appellant and other inmates. On that date, the police arrested the appellant''s mother and the sister-in-law. At that time, the appellant was posted at Khowai (Singhicherra TSR camp) and from there when the appellant communicated with his maternal uncle, then he came to know that the mother and the sister-in-law of the appellant were arrested and the warrant of arrest had been issued against him. The appellant having gathered such knowledge, rushed to aid his mother and the sister-in-law. There was an agreement that the respondent would not press the police case further, but it was decided that for next 5(five) years the appellant shall maintain good relation with the wife and in-laws. Such conditions of agreement are available in the resolution dated 26.11.2005. Under mitigating circumstances the appellant had to accept such humiliating conditions. On 06.10.2006 one female child was born as stated, but when the appellant went to see his baby he was resisted by the respondent and her relatives. In the petition, the appellant has asserted that since 2006, the respondent has been living separately, completely severing the matrimonial obligations. In that back ground, the petition for dissolution of marriage was filed.

The respondent by filing an exhaustive written statement has denied the allegations, but admitted that she filed a complaint against the appellant under Section 498A of the IPC on 21.11.2005. The respondent has categorically stated as follows:-

"In regard to Para (t) of the petition of the petitioner that the ground of cruelty and desertion by the opposite party is false and denied, rather it is created by the petitioner for willful ill motive or illegal relationship with boudi Basaya Sinha and as such, the petition is not maintainable."

The respondent has further stated in Para 9(e) as under:

''....after solemnisation of their marriage, the OP/Respondent went to their matrimonial home at Tingharia by night of marriage and enter into sleeping room called "KHATALGA", the petitioner never entered into the room for the night. Mentionable that, it is the customary of the Bishnupriya Society to spend the night of marriage at the room KHATALGA and enjoy the conjugal rights. Rather the opposite party/Respondent seen that the petitioner spend the night at the room of elder brother''s wife Smt. Bisaya Sinha and it continued for some days.

Needless to mention, the Opposite Party/Respondent spared no pains and left no stone unturned to make frequent visits to her parents house and stay there to serve the petitioner and his ralatives including his parents as a good Hindu housewife could normally do within her possibilities in the situation'' [sic].

It has been also asserted that despite her husband''s animus to withdraw permanently from the matrimonial relation the respondent had bonafide intention and desire to resume matrimonial cohabitation etc.

The court below having appreciated the evidence has observed that physical violence is not the sole ingredient of cruelty, but in the spread, the mental cruelty is inalienable collateral.

By the judgment dated 12.02.2013, as stated, the prayer for divorce has been dismissed for lack of reliable evidence.

Mr. A. Lodh and Mr. S. Debnath, learned counsel appearing for the appellant has submitted that the marriage has irretrievably broken and for more than 10 years the appellant and respondent had been living separately. From perusal of the averments and the statements made in the inquiry it would be apparent that serious and reconcilable matrimonial discord has surfaced. That apart it is on the record that there were attempts made for reconciliation and reconstruction of marriage by the local Panchayat etc. But both the appellant and the respondent have failed to come out of the stalemate and give their marital relation a fresh lease of life.

There is no evidence of worthy of credence that the respondent made any sincere stride to reconstruct the marriage. When we very candidly asked the learned counsel for the parties to make a very concrete statement whether the appellant and the respondent can live together by restoring normalcy in the marital life both the counsel for the appellant as well as, the respondent have categorically stated that the relation for all purposes is dead and no life can be infused in it. Under any condition the respondent will not come to the matrimonial home and she would also not stay with the appellant. At this point of time we made an inquiry into the financial resource of the appellant so that the appellant may be asked to deposit onetime alimony if the court is of the view of granting divorce by liberating parties free from the matrimonial obligation and allowing them to explore future relation. From the inquiry it has surfaced that the appellant is working as the Rifleman under the 6th Bn. TSR(IR-2) and his gross monthly salary is Rs.37,072 as on 11.09.2017 when a certificate in this regard was issued by the competent authorities.

We have keenly perused the records of the evidence and heard extensively the submission of learned counsel, Mr. Lodh, learned counsel for the appellant and Mr. Biswas, learned Sr. counsel for the respondent. We are of the firmly opinion that there is no chance of retrieval of the marital relation between the appellant and the respondent. They are now suffering consequential distress of a dead marriage. It has been broken irretrievably. Even though irretrievable breaking down of marriage is not as yet available as the ground of divorce but the continuance of a dead marriage as earlier decided by this court generate immense cruelty which pushes the relation deteriorate further. As such, this court is of considered view that the petition for granting decree of divorce as filed by the appellant may be granted if the appellant pays a sum of Rs.8.00 lakhs as one time lump sum alimony in favour of the respondent as measure of alleviating contemplated hardship.

It is accordingly ordered. But it is further clarified that the said judgment would not come into effect unless the said quantum of alimony is paid to the respondent. Such payment shall therefore be made within a period of 6(six) months from today.

This court has taken a conscious decision that a decree be issued only after having the receipt of payment from the appellant. If the payment is not made by the appellant within the said stipulated period, this appeal shall stand dismissed.

In view of what has been observed above, the appeal stands disposed of. Decree be drawn accordingly.

Send down the L.C.Rs thereafter.