Subinoy Dey vs Rina Hawalder

Arijit Banerjee, J

This first appeal has been preferred by the plaintiff-husband against the judgement and order dated 28 September, 2018 passed by the learned Judge, Family Court, Port Blair in MAT Suit No. 41 of 2017 (old No. 31 of 2014). By the impugned judgement and order the learned Judge dismissed the petition for divorce filed under Sections 13 (1) (ia) & (ib) of the Hindu Marriage Act, 1955.

Learned counsel for the appellant/plaintiff submitted that the parties hereto, who were both divorcees, got married in accordance with the Hindu customary rites on 18 January, 2012 in Port Blair. After the marriage, the respondent went to her maternal house as per customs on 21 January, 2012. Thereafter, there was no communication from the respondent. Being concerned, after a few days, the petitioner visited the house of his father-in-law and found the respondent in the company of her former husband, namely Abhilash. The petitioner admonished the respondent and returned to his rented house. On 31 January, 2012 the respondent informed the petitioner over mobile phone that she will not return to the matrimonial home and she was not prepared to continue with the marital relationship. The respondent has completely withdrawn from the society of the petitioner. This has caused the petitioner much mental agony and pain. The respondent has been living separately from the petitioner for more than two years and there is no chance that they will live as husband and wife in future. The respondent has deserted the petitioner and has treated the petitioner with mental cruelty. Hence the marriage between the petitioner and the respondent should be dissolved by the decree of divorce.

Learned counsel for the respondent on the other hand submitted that the parties were living together in the petitioner's rented accommodation after marriage. Sometime thereafter, the petitioner left the respondent at the latter's house at Mayabunder in September, 2013 wanting her to join her earlier job. Even after filing of the matrimonial suit in 2014 the parties resided together mostly at the respondent's house at Mayabunder. The respondent did not maintain any relationship with her ex-husband after her marriage with the petitioner. The respondent's ex-husband married the respondent's sister after the respondent married the petitioner. Even after filing of the divorce suit the petitioner and the respondent led conjugal life. That is why the respondent withdrew the maintenance case that she had filed in Mayabunder. The respondent is ready and willing to return to the matrimonial home and spend life with the petitioner. The respondent has not deserted the petitioner nor has meted out any mental cruelty to the petitioner.

The learned Judge framed the following issues:-

Whether the instant suit is maintainable in its present form and prayer?

Whether there is any cause of action to file the present case?

Whether the marriage between the petitioner and the respondent had been consummated?

Whether the respondent/wife wilfully deserted her matrimonial home?

Whether the petitioner/husband was subjected to mental cruelty by the respondent and her family members?

Whether the petitioner/husband is entitled to get the decree of divorce as prayed for?

To what other relief or reliefs if any, the petitioner/husband is entitled?

The first and second issues were decided in favour of the petitioner/appellant. As regards the third issue the learned Judge noted that PW3 Ajit Nair being the landlord of the petitioner, stated in his evidence that he had seen the respondent when she used to reside at the tenanted premises with the petitioner. The learned Judge further noted that there was no evidence that the parties hereto ever quarrelled. The parties lived together even after filing of the matrimonial suit and the respondent withdrew the maintenance case that she had filed since she and the petitioner were residing together in the house of the respondent's mother. The learned Judge held that it can be safely presumed that the marriage between the petitioner and the respondent was consummated.

As regards the fourth issue, the learned Judge discussed the evidence on record and concluded that there is no convincing evidence to hold that the respondent wilfully deserted the petitioner. As regards the issue pertaining to mental cruelty, the learned Judge referred to the decisions of the Hon'ble Apex Court in Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 and Praveen Mehta vs. Indra Jeet Mehta, (2002) 5 SCC 706 for the purpose of elucidating as to what is 'cruelty' within the meaning of Section 13 (1) (ia) of the Hindu Marriage Act. The learned Judge concluded that no particulars or details of mental cruelty has been furnished by the petitioner. Withdrawal from the society and refusal to live with the petitioner could arguably amount to mental cruelty. However, the petitioner has not been able to establish that the respondent wilfully went away from him. The learned Judge concluded that it was the petitioner who forced the respondent to stay away.

Hence, the fourth and fifth issues were decided against the petitioner, as a result whereof the suit was dismissed.

We have gone through the pleadings in the suit as also the evidence adduced by the six witnesses including the present appellant and the respondent. We have also carefully considered the impugned judgement and order.

It is elementary law that the plaintiff/petitioner has to establish his case to be entitled to the reliefs prayed for in a suit. The plaintiff must allege with sufficient clarity and details his cause of action and must adduce cogent evidence, oral and / or documentary, to establish his cause of action. The plaintiff cannot get a decree only on the basis of weakness or loopholes in the defendant's case. Even if the suit is not contested by the defendant, the plaintiff's claim is liable to be rejected if the same cannot be proved with proper evidence. In the present case, the learned Judge found that the petitioner has not been able to prove his case of desertion or mental cruelty. Apart from a bald statement in the divorce petition that the respondent has caused much mental agony and pain to the petitioner, no other particulars of mental cruelty has been pleaded. Hence, the question of establishing the factum of mental cruelty by adducing evidence did not arise. No evidence can be looked into in support of a case which has not been pleaded. As observed by the Hon'ble Apex Court in the case of Savitri Pandey, (supra), mental cruelty is conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty" postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty has to be distinguished from the ordinary wear and tear of family life.

Going by the aforesaid observation of the Hon'ble Apex Court, we are in complete agreement with the learned Trial Judge that the petitioner/appellant has not been able to establish his case of mental cruelty.

We must also keep in mind that the learned Trial Judge had the benefit of noticing the demeanour of the witnesses who deposed before him. That way, one can assess as to whether the witness is speaking the truth or not. The learned Trial Judge has disbelieved the petitioner and has found the case of the respondent to be more probable. The Appeal Court should give due weightage and respect to the assessment of the evidence on record by the learned Trial Judge. The conclusion reached by the learned Trial Judge on each of the issues is supported by cogent reasons and by evidence. We do not find any perversity or glaring error in the judgement, either of fact or of law, that would prompt us to interfere with the impugned judgement and order.

In the result, this appeal fails and is dismissed with costs assessed at Rs. 15,000/-.

(Arijit Banerjee, J)

Amrita Sinha, J

I have read the judgment of my learned Brother and I completely agree with the reasoning and the conclusion reached by him. However, I wish to add a few words to supplement the reasoning and support the judgment of my Learned Brother.

The learned court below rightly disbelieved the allegation of desertion as leveled by the appellant against the respondent wife. The specific case of the appellant is that after the marriage on 18.01.2012 the wife went to her maternal house as per the custom. It is not the case of the appellant that the wife left the matrimonial house with the intention of not returning. The appellant has miserably failed to make out any case that the respondent wife left the matrimonial house intentionally.

In the written objection the wife has categorically mentioned that the husband forcefully pushed her out of the matrimonial house and threatened her with dire consequences if she returned.

The appellant in his cross-examination admitted that in the year 2015-2016 he went to the maternal house of his wife at Mayabunder to settle the dispute. He further admitted that it was not possible for him to reside with his wife.

Upon analysis of the evidence adduced by the appellant husband the learned Trail Judge rightly disbelieved the allegation of desertion put forward by him for obtaining divorce.

It is settled principle of law that to prove the offence of desertion the deserted spouse has to prove that the deserting spouse intended to bring cohabitation to an end i.e. the animus decidendi has to be proved. Mere separation will not lead to the inference of desertion.

Moreover, the appellant/petitioner has pleaded that the marriage between the parties has not been consummated. The Hon'ble Supreme Court in Savitri Pandey (supra) specifically held that there can be no desertion without previous cohabitation by the parties. On this score also the ground of desertion raised by the petitioner fails and has been rightly disallowed by the learned Court below.

No specific allegation of cruelty has been mentioned by the appellant husband either in his plaint or in his deposition (see Ravi Kumar vs. Julmidevi (2010) 4 SCC 476). In the absence of such particulars in the pleadings, the petitioner's case of mental cruelty cannot be accepted.

The burden of proving desertion and cruelty as asserted in the plaint was on the appellant husband which he failed to discharge (see Parimal vs. Veena alias Bharti (2011) 3 SCC 545).

The learned advocate appearing on behalf of the appellant relied upon the judgments delivered by the Hon'ble Supreme Court in the cases of Bachhaj Nahar vs. Neelima Mandal & another (2008) 17 SCC 491 and Ram Sarup Gupta (dead) by L.Rs vs. Bishun Narain inter college and others (1987) 2 SCC 555 on the point that no amount of evidence on a plea that is not mentioned in the pleadings can be looked into to grant any relief. No deviation from the principal relied upon has been evidenced in the instant case and accordingly the said decisions do not come to the aid of the appellant.

In view of the aforesaid, I fully concur with my Learned Brother that the appeal is liable to be dismissed and is accordingly dismissed with costs as assessed by Brother Banerjee - J.