Sulekha Ghose vs Sanjit Kumar Ghose

Asit Kumar Bisi, J.—This appeal is at the instance of the Defendant/Appellant and the same is directed against the judgment and decree passed by Shri P. Bhattacharjee, learned Additional District Judge, 10th Court Alipore, 24-Parganas (South) in Matrimonial Suit No. 14 of 1989.

The Matrimonial suit leading to the instant appeal was instituted by the husband Sanjit Kumar Ghose against the wife Sulekha Ghose seeking decree of divorce on the ground of cruelty.

In a nutshell the case of cruelty as made out by the husband against the wife in the plaint may be stated as follows. The parties were known to each other and they were married according to Special Marriage Act on November 8, 1966 before the Marriage Officer at 110, Lower Circular Road, P.S. Entally, Calcutta- 14. Subsequent to the registration of their marriage the social marriage was held under the Hindu Marriage Act on January 30, 1967 and the parties started living together as husband and wife since then. One daughter was born to them on November 6, 1968. After few months the husband noticed that the wife was a lady of suspicious nature who used to make wild allegations about the character of the husband naming different ladies who were not at all known to the husband. The husband tried to make his wife understand that she should give up such suspicious habit. On several occasions the wife admitted such misconduct on her part but because of her suspicious nature she did the same thing again and again. The wife used to pick up unnecessary quarrel not only with the husband but also with the other members of his family. She did not allow the mother, brother and other relations of the husband to have any access to the house and used to insult them with ugly remarks. The wife was a whimsical lady and used to pick up quarrel with the husband without any rhyme and reason at the top of her voice. She used to humiliate the husband before the neighbours on various occasions in various places where she used to stay with her husband. To save her prestige and position the husband had to shift his residence to different places. During 1976 to 1979 when the husband was at Rourkela, the wife used to make false allegations intentionally touching upon the character of the husband and quoting the names of different unknown girls and also known ladies of the neighbourhood. In 1979 the husband was posted at Mayapore and was residing at Krishnagore. Within a few days the wife again started behaving'' with him in the same manner. She started making bad remarks mentioning the name of the landlady in her loud voice. One-day she went to bus terminus for making enquiry as to whether any other woman along with her husband used to travel in the same bus or not. Such type of conduct of the wife caused mental torture upon the husband and because of such conduct of the wife the husband was suffering from serious mental agony and depression. Ultimately the husband tried to take transfer to Calcutta and started residing in his own house at New Barrackpore in 1981. The husband used to come to Calcutta for official work. The wife started alleging that her husband had developed relation with a number of ladies. In fact the wife surreptitiously made complaint to different authorities of the localities. In 1986 the husband came to know that the wife used to go to different relatives, friends and colleagues and made false allegations against the husband. In 1987 suddenly the wife announced that the husband got a male child through another lady and had been maintaining a separate establishment in a rented house at New Barrackpore. The relations, friends and the local party men and Ganatantrik Manila Samity were informed of the said allegations. Over this matter a meeting was proposed to be held and the wife agreed to sit for a meeting with leaders of the local party who advised her not to make such type of false allegations against the husband. Thereafter the wife became more arrogant and stopped talking to the husband, giving food and providing other daily necessities. The wife started sleeping separately in another room. After being totally mentally shattered the husband asked the wife as to what was her decision and the wife replied that the husband should go to the Court instead of asking her about her decision. The wife forced the husband to transfer the house property in her name. In October, 1987 since the husband did not transfer the house in the name of the wife, the wife behaved violently beating the husband and abusing him. Thereafter the husband was transferred to Patna in 1988. He did not fail to discharge his duty of sending money for the wife and the daughter. It would be harmful and injurious on the part of the husband to live with the wife when the marriage had been irretrievably broken down and there was no chance of any reconciliation. In 1967 the wife wanted to burn herself pouring kerosene oil on her body while the parties were staying at Sodepur. On various occasions the wife through her brothers threatened the husband# with physical assault and sent her second brother to the" husband''s higher officials to lodge false, complaint against the husband. The parties had been living separately for the last one and a half years and the marital life of the parties had totally been broken down because of the cruel conduct of the wife. In the above circumstances narrated by him the husband sought a decree for divorce against his wife on the ground of cruelty.

The wife, contested the suit by filing the written statement wherein all the material allegations contained in the plaint were denied.

It had been alleged inter alia by the wife that her husband had intimacy with a number of girls whom he used to call his friends and on different occasions the husband used to invite them to his place of residence and while the time away in their company. Taking advantage of innocence of the wife., the husband brought a lady one day to the place of residence while the parties were residing at Sodepur and asked her to spend the night in the house with him in the presence of the wife. When the wife protested, the husband threatened the wife with dire consequences. In fact the husband had no good relation with his parents and separated himself from his parents prior to the marriage. The husband wanted to drive out the wife and her daughter forcibly from the house to enable him to dispose of the property and the husband having failed to achieve his sinister design filed the suit for divorce on false and frivolous grounds to put pressure on the wife to concede his unjust demand. The wife was treated by the husband, with cruelty. She was subjected to immense physical and mental torture. Still she did not give up a happy matrimonial home. At the instance of the party-men meetings were held but the persons who attended the meeting for resolving the dispute were men of the camp of the husband and they were eager to favour the husband. It was denied by the wife that she ever indulged in making false allegations against the husband in the manner as alleged and that there arose any occasion when the people of the local Committee was required to hold any enquiry of that there was any enquiry whatsoever.

The learned Additional District Judge, 10th Court, Alipore who tried the suit found the wife guilty of perpetrating cruelty upon her husband and granted decree of divorce in favour of the husband dissolving the marriage between the parties and directed the husband to pay Rs. 1,00,000.00 lakh to the wife towards her permanent alimony.

Being aggrieved by and dissatisfied with the judgment and decree of divorce passed by the learned Trial Judge the wife as Appellant has preferred the instant appeal assailing the findings of the court below. It has been averred inter alia that the learned Judge of the court below erred in law and in the facts and circumstances of the case in not applying his mind to the pleadings of the parties, and that the learned Judge of the court below erred in law and in the facts and circumstances of the case in granting divorce in favour of the husband Respondent on a misconception that the marriage between the Respondent and the Appellant had practically been broken down due to extreme cruelty inflicted by the wife Appellant inasmuch as the learned Judge failed to consider that the husband Respondent used to illtreat the wife Appellant and misbehaved with her and made her life miserable.

Two-fold are the points for decision arising in the instant appeal:

i) Were the allegations of cruelty levelled by the husband/Respondent against the wife/Appellant proved by legal and reliable evidence on record ?

ii) Whether or not the learned Trial Judge was justified in granting decree of divorce on the ground of cruelty alleged to have been inflicted by the wife/ Appellant upon the husband/Respondent.

Both the points being interlinked are taken up together for consideration for the sake of convenience and brevity.

Admittedly the marriage between the parties was registered under the Special Marriage Act on November 8, 1966 and subsequently there was a social marriage on January 30, 1967 and since after that they started living together as husband and wife at Sodepur. Indisputable is the fact that one daughter named Manasi was born to them. The allegations of cruelty as delineated in the testimony of the husband Sanjit Ghose (P.W. 1) may be summarised as follows. Two or three months after their marriage the husband noticed a suspicious attitude of his wife towards him and whenever he used to return late, the wife enquired whether he was alone or accompanied by other. The wife used to cast aspersion on the character of the husband implicating the latter with various women. The wife was in the habit of picking up quarrels with the husband and also '' with the neighbours. To lead a" happy conjugal life the husband left his father''s house at the instance of his wife and started living in a rented house but in spite of that the wife used to bring all false allegations against her husband. She used to allege falsely that her husband had illicit intimacy with some unknown girls. In 1976 P.W. 1 went to Rourkella. Going there his wife again brought false allegations against the husband stating that the letter had affairs with some other girls and the wives of his colleagues. Even after P.W. 1 shifted to new residence at Rourkella his wife continued quarreling with him till late at night and used to suspect him making false allegations as she had done earlier. In June 1979 P.W. 1 was transferred to Mayapur in the District of Nadia and started residing at Krishnagar. His wife brought similar false allegations against him alleging that he was having affairs with the landlady who was an elderly woman. In 1981 P.W. 1 came to his own house at New Barrackpore. His wife wrote letters to Gana-tantrik Mohila Samity and made verbal complaints to local C.P.I. (M) Committee and various other persons falsely alleging that he was having affairs with several girls. In 1987 his wife started falsely alleging that he was having a male child out of the wedlock through another lady. She further alleged that her husband was living with that woman at New Barrackpore. She reported such false allegations to Manila Samity. In the early part of 1987 the members of the local C.P.I. (M) Committee after being convinced that the allegations made by the wife against the husband were all false asked the wife to mend her manners and live peacefully. The wife stopped talking to the husband and did not serve him food and other necessities of life. Thereafter towards the end of 1987 the wife started putting pressure upon the husband to transfer his house in her name and as the husband did not agree, the wife became more adamant and started making false allegations against him. In month of January, 1988 P.W. 1 was transferred to Patna. From 1986 onwards the wife started threatening the husband saying that she would commit suicide implicating him with a charge of murder. In 1967 the wife tried to commit suicide pouring kerosene oil on her body. P.W. 1 further stated that it was not possible for him to live with his wife and he had not condoned any act of his wife.

P.W. 2 Pradip Neogi happened to be a Municipal Commissioner of Ward No. 1 New Barrackpore Municipality. It transpires from his testimony that he was a member of the Anchalik Committee. New Barrackpore Anchal and a member of New Barrackpore Zonal Committee of C.P.M. As per his version the wife complained to them that her husband was not behaving well with her about 2/3 years back. He went to their house and in presence of the husband, the wife and their daughter, he tried to effect a settlement. As per his version, holding the enquiry he found that the allegations of the wife were untrue. On being cross-examined he stated that he had no document to show that he went to the house of the husband to hold an enquiry. Except the oral testimony of P.W. 1 there was nothing to show that any enquiry was made on the allegations made by the wife against the husband.

P.W. 3 Asit Kumar Ghosh is the younger brother of P.W. 1. He stated in his evidence that the P.W. 1 was treated by his wife with cruelty. However his evidence fails to corroborate the testimony of P.W. 1 in material particulars with regard to the alleged cruelty.

P.W. 4 Jasho Dhara Bagchi was the Secretary of the Local Committee of Paschim Banga Ganatantrik Mahila Samity. As per her version they held the enquiry with regard to the allegations made in both the complaints addressed by the wife-Appellant to the Secretary of the said Mahila Samity and found the allegations to be baseless. Her cross-examination reveals that P.W. 3 Asit Kumar Ghose the younger brother of P.W. 1 asked her to depose in the case. It is further evident from her cross-examination that the wife-Appellant was a member of their Samity till 1987 and she was not associated with the said Samity after 1987. She had no document to show that the enquiries were made following the complaints. She stated that the dates of enquiry were not noted nor she could say the names of the persons of whom they enquired.

P.W. 5 Dipak Kumar Mitra stated in his evidence that the parties were known to him for 25/30 years. He was the Secretary of the New Barrackpore Local Committee of C.P.I. (M) party. As per his version, receiving the complaint he tried to settle the dispute between the parties and asked them to live peacefully as husband and wife. He stated that the allegations made in the complaint were found to be totally false. On being cross-examined he stated that he had not brought any document to show that they held enquiries and sittings following the complaints.

P.W. 6 Subir Ranjan Mitra and P.W. 7 Sujit Kumar Ghose came to depose on behalf of the husband/ Respondent but their evidence does not prove the allegations of cruelty by the wife/Appellant upon the husband/Respondent in any convincing manner.

D.W. 1 is the wife Sulekha Ghose. She totally denied to allegations of cruelty made by her husband against her. Her evidence further indicates that she was tortured by her husband D.W. 2 Manasi Khan, the daughter of P.W. 1 and D.W. 1, categorically stated in her evidence that she never saw her father behaving with her mother normally. She specifically denied in her evidence that her mother ever misbehaved with her father or ill-treated her father. Her evidence disproves the allegations of crueity made by her father against her mother.

In her evidence the wife Sulekha Ghose (D.W. 1) denied the allegations made by her husband (P.W. 1) against her. She stated that all the allegations by her husband against her were false. The learned Advocate for the husband/Respondent has drawn OUK attention to the letter dated June 5, 1987 (Ext. 1) sent by the wife/ Appellant to the Secretary, Ganatantrik Mahila Simity, New Barrackpore Anchalik Shakha which prima facie contained wild allegations of illicit vntimacy. of the husband/Respondent with some women named therein. He has also drawn attention to the series of letters marked Exhibits 3, 4, 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g), 4(h) and 4(i) written by the daughter Manasi (D.W. 2) to his father P.W. 1. It has been contended by the learned Advocate for the husband/Respondent that the contents of the aforesaid letters sent by the daughter Manasi to his father clearly reveal that the daughter had regard for her father who had great affection for her daughter. The letter dated June 4, 1987 (Ext. 2) sent by the daughter Manasi (.D.W. 2) to the Secretary, Ganatantrik Mahila Samity, New Barrackpore Branch, however, reveals that by the said letter Manasi informed the Secretary of the said Samity of the torture perpetrated by her father on her mother. It has been argued by the learned Advocate for the husband/ Respondent that the said letter was sent, by Manasi being turtored by her mother. He has contended that the various allegations raised by the wife/Appellant against the husband/Respondent in her letter dated June 5, 1987 addressed to the Secretary of the said Mahila Samity which is marked exhibit 1 had been proved to be unfounded and such unfounded allegations amount to cruelty inflicted by the wife/Appellant on the husband/ Respondent. In support of his contention the learned Advocate for the husband/Respondent has cited the case of Nivedita Banerjee (Smt.) v. Sanat Kumar Banerjee 1999 (2) CH.N. 625 . In the said case the wife deserted the husband and initiated a baseless criminal proceeding for which the husband suffered immensely. It is in such context a Division Bench of this Court found the wife guilty of cruelty. The learned Advocate for the husband/Respondent has cited another case Tapan Kumar Chakraborty Vs. Smt. Jyotsna Chakraborty, where the wife made allegations of illicit connection of the husband with one unmarried girl in her written statement and failed to prove such allegations. It is in such context a Division Bench of this Court held that making of such baseless allegation is cruelty on the part of the wife. In our view the ratio of the case of Navedita Banerjee (Smt.)w and the case of Tapan Kumar Chakraborty(2) has got no manner of application to the facts and circumstances of the instant case where no such allegations find place in the written statement or in the evidence of the wife/Appellant, it is to be noted in this context that in para. 9E of the plaint it had been alleged by the husband/Respondent that in 1987 suddenly the Respondent announced that the Petitioner got a male child through another lady and the Petitioner had been maintaining a separate establishment in New Barrackpore in a rented house. There is not even a scintilla of credible evidence to substantiate that any such allegation was made by the wife/Appellant against the husband/Respondent. Such allegation had been totally denied by the wife/Appellant in para. 6 of her additional written statement.

So far as the allegations contained in the letter dated June 5, 1997 addressed by the wife/Appellant to the Secretary of Ganatantrik Mahila Samity, New Barrackpore Branch (Exhibit 1) are concerned no evidence worth of credence is forthcoming to show that proper enquiry was at all held by the said Mahila Samity over the aforesaid allegations. Not a scrap of paper relating to any such enquiry is forthcoming from the said of the husband/Respondent. The evidence of P.W. 4 Jasho Dhara Bagchi who was the Secretary of Local Committee of Paschim Bahga Ganatantrik Mahila Samity, New Barrackpore fails to inspire any sort of confidence. In her evidence P.W. 4 testified that they maintained register of complaints in their office. She candidly admitted in her cross-examination that she had no document to show that enquiries were made following the complaints. She further stated that none of the local residents was willing to give anything in writing. She could not say the names of the persons of which they enquired. It has been rightly argued by the learned advocate for the wife/Appellant that on the face of such materials on record it can hardly be said that the allegations contained in the letter addressed by the wife/Appellant to the Secretary of the said Mahila Samity are proved to be unfounded. Furthermore it is worth-noting in this context that the wife/Appellant (D.W. 1) had spoken nothing ill against the husband/ Respondent in her testimony before the court below. Rather her evidence is clearly indicative of the fact that she was ready to stay with her husband and lead normal conjugal life.

The evidence of the daughter Manasi (D.W. 2), as already pointed out, supports the case of the Appellant in material particulars. There is another vital aspect of the matter. The letter addressed by the Appellant to the Secretary, Ganatantrik Mahila Samity, New Barrackpore Branch which is marked exhibit 1 is dated June 5, 1987. Admittedly the husband/Respondent lived with the Petitioner in the residence at New Barrackpore till December, 1987 and thereafter in the month of January, 1988 he left for Patna where he was posted. That being so, even if it is accepted for the sake of argument that the wife made wild allegations in the said letter dated June 5, 1987 which were found to be unfounded on enquiry as alleged, the admitted fact that the husband/ Respondent lived with the wife/Appellant several months after that before he left for Patna clearly indicates that the Respondent condoned the alleged acts of the Appellant. It is indisputable that the Appellant had no source of income of her own and for that reason the daughter used to send the letters to her father asking for money and informing the father of other necessities whenever occasions arose. But the contents of those letters sent by the daughter to her father cannot have any overriding effect on the evidence of the daughter (D.W. 2) adduced before the court below.

Having regard to the aforesaid facts and circumstance emerging from the materials on record we find no legal and reliable evidence to prove the ground of cruelty alleged to have been inflicted by the wife/ Appellant upon the husband/Respondent. The respective cases of Jyotsna Mukherjee (Smt.) v. Shri Utpal Mukherjee 1998 (1) C.H.N. 318 Subodh Chandra Saha v. Ajanta Saha (Smt.) 2000(2) C.H.N. 323 , Smt. Supriya Chatterjee Vs. Bibekananda Mukherjee, , Devram Bilve Vs. Indumati, as cited by the learned Advocate for the Respondent have no manner of application to the facts and circumstances of the case in hand.

From the materials on record we are of the view that there is no irretrievable break-down of marriage between the parties and that is evidently more so when the Appellant is willing to go to her husband to lead normal conjugal life and there is no legal and reliable evidence to prove cruelty by the wife on her husband. In V. Bhagat Vs. Mrs. D. Bhagat, the Supreme Court made the following observations in para. 16 at page 347: ''Mental cruelty in Section 13(1) (i -a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of suchva nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made''. Applying the above noted principle of law enunciated by the Supreme Court in the case of V. Bhagat Vs. Mrs. D. Bhagat, to the facts and circumstances of the instant case we are of the view that the materials on record as already discussed cannot prove cruelty as alleged by the Respondent against the Appellant.

It is settled law that disharmony or incompatibility is not cruelty and will not furnish a cause for dissolution of marriage. It has been so held by the Supreme Court in Dastane v. Dastanem in para. 34 at page 1541. The observations of Denning, L.J. in Dr. N.G. Dastane Vs. Mrs. S. Dastane, are quoted in Dastane v. Dastane (1950) 2 All E.R. 398 in para. 50 of the decision. The observations run like this: ''If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled''. Those observations were made in connection with cruelty. If the Court grants decree of divorce by opening the door of cruelty too wide because of incompatibility of temperament, the whole institution of marriage would be severely shaken.

For the foregoing reasons we hold that the learned Trial Judge was not at all justified in granting decree of divorce in favour of the husband/Respondent on the ground of cruelty as alleged. The appeal is accordingly allowed. The judgment and decree passed by the Shri P. Bhattacharjee, Learned Additional District Judge, 10th Court, Alipore, 24-Parganas (South) in Matrimonial Suit No. 14 of 1989 are set aside. The matrimonial suit is dismissed.

There will be no order as to costs.

Xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.

Tarun Chatterjee, J.

I agree.