Subhas Sinha vs Kanti Sinha

H.K. Sema, J.—Heard Mr. R.P. Sarma, the learned Counsel for the Appellant as well as Mr. B. Sinha, the learned Counsel for the Respondent.

This appeal is directed against the judgment and order dated 9.5.95 passed by the learned Principal Judge, Family Court, Kamrup at Guwahati in case No. F.C. (Civil) No. 140/92 dismissing the divorce suit filed by the Appellant u/s 13 of the Hindu Marriage Act, 1955.

The ground for divorce was desertion and cruelty.

We may, at this stage, point out that it is found from the record that even before the learned Family Court, the learned court below tried to solve the problem by re-conciliation without any result. Before this Court also, on several occasions, both the parties were summoned in the chamber and endeavor was made to have a reconciliation so that the parties live as husband and wife unitedly and lovingly. Last occasion which we tried our best to effect a reconciliation in the Chamber was on 7.11.2000 which has failed miserably and that is why the matter was posted for hearing before this Court. Even at this stage when the matter was listed before this Court on 16.1.2001, we kept the appeal heard in part and directed the parties to once again try to effect the compromise. Today also, the Respondent/wife is agreeable to stay with the Appellant as husband and wife, but the Appellant totally refused to accept the Respondent as his wife. Having left with no Ors. alternative, we now proceed to decide the appeal on merit.

As already pointed out, the parties seeking a divorce u/s 13 of the Hindu Marriage Act, 1955, is under obligation to establish two grounds for which the divorce is sought. The two grounds are (a) cruelty and (b) desertion, as pleaded.

Before the trial court, Appellant has examined himself and PW2 and 3 to establish cruelty and desertion. The learned trial court rejected the testimony of the Appellant as PW 1, as his statement is not consistent and does not inspire confidence. The testimony of PW 2 has been rejected because she being the sister of the Appellant is an interested party. So also from the testimony of PW 3, one Smti Jonali Chetia has been rejected on the ground that she is said to have been a paramour of the Appellant and the root cause of the family dispute. That PW3 is a paramour of the Appellant has been revealed from the Annexure-C, the letter written by PW3 to the Appellant, the contents of which are quite sentimental. So also from the deposition of DW 2 and 3 who were impartial witnesses and belonged to Manila Samity that the PW 3 often roams around with the Appellant an even goes to the office by riding in the same scooter. DW 2 and 3 are the neighbours of the Appellant. In their testimony they say that they had witnessed physical torture to the Respondent by her husband and in two occasions with their own eyes which happened in their presence. DW 3 also saw threatening on the wife with a dao by the Appellant. This clinching evidence being deposed by an impartial body like a member of Mahila Samity who happens to be the neighbour of the Appellant is creditworthy and cannot be brushed aside. It also appeared in the evidence that the Appellant once had executed a bound u/s 107 CPC to behave himself in connection with a case (Misc. Case No. 356/92) on a complaint filed by the Respondent with regard to assault and cruelty meted to the Respondent.

In the light of the facts and circumstances as stated above would clearly show that in fact it is the Appellant who is committing cruelty to the Respondent. The Respondent is not seeking a divorce. Despite the aforesaid physical as well as mental torture sustained by her, the Respondent is even now ready to live with her husband as already stated. However, the Appellant is adamant not to accept her as his own wife.

In the background of the aforesaid facts, we are clearly of the view that the Appellant has miserably failed to establish the ground of desertion and cruelty, as pleaded in the divorce suit.

Before parting with the record we also reject one of the submissions made by Shri RP Sarmah, the learned Counsel for the Appellant. He has cited a decision of a case reported in A.V. Janardhana Rao Vs. M. Aruna Kumari, After going through the aforesaid decision, it is not applicable in the facts and circumstances of the case in hand inasmuch as the decision relates to the judicial separation in different context.

In the result there is no merit in the appeal and the same is hereby dismissed.