Subal Ch. Madak vs Sudipa Madak (Smti.)

A.P. Singh, J.—This appeal u/s 13(1)(i-a) of the Hindu Marriage Act has been filled for challenging the judgment and decree dated 25.6.93 passed by the learned District Judge, Cachar, Silchar whereby he has dismissed Appellant title Suit No. 9/1984 which was brought by him for seeking a decree for the dissolution of his marriage with Smti. Sudipa Madak, the Respondent.

Grounds stated by the Appellant in support of his demand for the decree of dissolution of marriage were (1) cruelty, a ground as per Section 13(1)(a) and discretion, a ground for dissolution of marriage u/s 13(1)(b).

The trial Court after examining the evidence available on record as tendered by the Appellant found that none of the two grounds on which the Appellant wanted the marriage to be annulled were made out it therefore dismissed the suit.

Shri S.R. Bhattacharya learned Senior counsel who has appeared on behalf of the Appellant alongwith Shri B.K. Talukdar, in support of the appeal contended that the learned District Judge committed illegality in dismissing the suit. According to Shri Bhattacharya, there existed sufficient material on the record of the case which would clearly prove existence both the grounds justifying passing of the decree of divorce as was desired by the Appellant. He accordingly prayed that the judgment and decree under appeal may be annuled and a decree for the dissolution of the marriage as prayed by the Appellant in his plaint may be passed.

Shri B.W. Phira, Advocate has appeared on behalf of the Respondent. According to Mr. Phira there existed no material whatsoever to substantiate the charge either of cruelty or of desertion against the Respondent hence, the appeal is liable to be dismissed.

Shri Bhattacharya drew my attention to the statement made by the Appellant given on oath in the trial Court and contended that by the said deposition the Appellant has successfully established both the grounds.

I have perused the judgment under appeal, the plaint and the written statement filed by the parties as also the statement on oath made by the Appellant as P.W. 1 in the trial Court. Having considered the entire material available on the record; I am of the considered opinion that no interference is called for by this Court in this appeal and the appeal deserves to be dismissed.

So far as the ground of desertion is concerned according to the Appellant''s own case as set up by him in the plaint and in his deposition as P.W. 1 the desertion had taken place after the expiry of about 14 months from the date of his marriage with the Respondent. The date of marriage according to the Plaintiff/Appellant himself is January, 1982. If 14 months period is added from January, 1982 it is to be believed that the Respondent posted company of the Appellant after or in March 1983. It is alleged that despite repeated endeavours made by the Appellant the Respondent did not return back to his home. The suit for the dissolution of marriage which has given rise to the present appeal was filed by the Appellant on 12.3.1984. Thus, filing of the suit by the Appellant is within one years period from the date of the alleged desertion by the Respondent. A suit for dissolution of marriage on the ground of desertion cannot be filed until the alleged desertion has continued for a period of not less than 2 years immediately proceeding the date of presentation of the suit. Thus the suit on the ground of desertion having been filed before the expiry of 2 years period from the date of the alleged desertion was not maintainable. Hence the suit so far the ground of desertion is concerned was rightly dismissed.

Shri Bhattacharya however tried to cull out a distinction to save the suit. According to him the ground of desertion was added in the plaint by way of an amendment of the plaint in March 1989. Therefore contends Shri Bhattacharya that so far the grounds of desertion is concerned the suit will be deemed to have been filed in the year 1989 after the amendment for introduction of this ground was allowed. This according to Shri Bhattacharya will be well beyond the period of 2 years from the date of the alleged desertion of the Appellant by the Respondent hence the suit on the ground of desertion will be competent.

I am not at all persuaded by this argument of Shri Bhattacharya. Even if it be so that the ground of desertion was introduced as an additional ground for the dissolution of the marriage in the year 1989 this would not make any difference. Introduction of a new ground in the suit by way amendment relates back to the date of the filing of the suit. The words the date of presentation of petition used in the section would relate to the date of the presentation of the plaint of the suit and not to the date of presentation of the amendment application for introduction of the new ground of desertion. The argument is misconceived and is accordingly rejected.

So far as the ground of cruelty which was allegedly perpetuated by the Respondent as against the Petitioner is concerned, it is to be seen that both in the averments of the Appellant in the plaint and also his statement on oath as P.W. 1 which is the only evidence tendered by the Appellant in the suit in support of his case there exists no factual allegation which may amount to cruelty. From the averments made by the Appellant in para 5 of the plaint a ground of misconduct/misbehaviour on the part of the Respondent towards the Appellant and his family members can at the most be made out. Apart from that there is nothing in the said para of the plaint or in any other paragraph of the plaint which may suggest commission of cruelty by the Respondent towards the Appellant. In this context, it will be relevant to reproduce herein certain relevant portions from the plaint especially from para 5 thereof which according to Shri Bhattacharyya deals with the ground of cruelty.

But unfortunately from the month of Falgaon 1388 B.S. the Petitioner noticed considerable change in the behaviour conduct, taking and dealings of the Respondent. She started picking up quarrel with the Petitioner and his other members of the family on one pretext or other disturbing mental peace as well as the peace of the family. The Respondent also started using foul and abusive language to the Petitioner and to his old parents and also ill behaving with them without any reason or cause whatsoever. Whenever the Petitioner tried to desist the Respondent from her much conduct and behaviour and to correct her she became abnormally aggressive towards him and exhibited seriously irresponsible conduct. Further, die Respondent was in the habit of going alone to the house of Bhanu Das @ Subal Sakha Das her sister''s husband at Hailakandi Road without informing the Petitioner or his father and/or mother or any other member of his family causing anxiety, etc. to the Petitioner and to his parents and other family members. The said Bhanu Das also used to visit the house of the Petitioner frequently and was on number of occasions seen talking with the Respondent in private. The Respondent, on various dates left the house of the Petitioner with the said Bhanu Das without taking any permission and/or informing anybody. In such circumstances whenever the Petitioner went to the house of Bhanu Das to take the Respondent back to his house he had to face ill treatment and ungentle behaviour of Bhanu Das and on all such occasions the Respondent unfortunately enjoyed the humiliation of her husband. Further, the Respondent on all such occasions never returned to the house of the Petitioner without staying 3/4 days in the house of Bhanu Das. The aforesaid conduct and behaviour of the Respondent and the constant worries and anxieties of the Petitioner considerably affected the mental peace of the Petitioner as well as the peace of his family and made his life miserable. The Respondent all though neglected to perform her duties and responsibilities as wife. The Petitioner belonged a well known family. The above mentioned conduct, action and behaviour of the Respondent lowered the prestige, status and reputation of the Petitioner in particular and his family in general.

In other following paragraph of the plaint the Appellant has only repeated his allegations in para 5 of the plaint which have already been extracted herein above. Most interesting part in this respect is Appellants deposition on oath in which he has not spoken anything about cruelty by the Respondent to him or to his family members. Shri Bhattacharya has not been able to point out a single statement from the oral deposition of the Appellant which may fell within the purview of cruelty. There exists no ground of cruelty on which the decree for the divorce could be granted to the Appellant.

In the above fact situation, in my opinion, the learned District Judge was absolutely right in turning down the ground of cruelty on which the Appellant had sought dissolution of his marriage with the Respondent. Mere use of the word ''cruelty'' in the plaint or in the oral deposition by Plaintiff would not create a ground of cruelty for dissolution of marriage until necessary facts which constitute cruelty are specifically alleged and proved by tendering evidence. Though there exist some facts which tend to suggest allegation of misconduct or mischievous behaviour on the part of the Respondent towards the Appellant and his family members but those allegations remain bare insinuation which have been denied by the Respondent in her written statement. Those allegations thus needed to be proved by evidence but the Appellant has failed to prove them. In the absence of cogent proof of the facts so alleged by the Appellant no decree for the dissolution of marriage on the ground of cruelty could be passed. In my opinion, the learned District Judge has done nothing wrong in the appraisal of evidence and in recording the findings against the Appellant. The Appellants suit was rightly dismissed by him.

I find no scope for interference by this Court with the impugned judgment and decree of the learned District Judge. The appeal has no merit which is accordingly dismissed. Since the appeal was not contested by the Respondent, there shall be no order as to costs of this appeal.