Court:CALCUTTA HIGH COURT
Bench: JUSTICE S.K. Mukherjee & Rabin Bhattacharyya
DILIP KUMAR BISWAS Vs. SUSMITA BISWAS Decided on 27 January 1995
Lived together with husband for only 7 days, and was unable to justify cause for living apart. Desertion of embarrassing length proved.
This appeal is directed against the judgment and order passed by the learned 12th Court of Additional District Judge at Alipore in Matrimonial Suit No. 45 of 1989, allowing the dismissal of the suit on contest with costs when this appeal for reversal of the judgment and decree.
2. Through the medium of this Appeal, the husband-appellant seeks to challenge the judgment and decree passed by the learned Court below in Matrimonial Suit No. 45 of 1989.
3. The respondent is an employee under the State of Bihar, who had undergone a marriage with the appellant on 26.2.82, according to Hindu rites, in Calcutta. After the solemnisation of marriage, both the spouses lived together as husband and wife, the duration of which never skipped over 7 days. The appellant made ceaseless endeavour to bring her back from the State of Bihar for due performance of conjugal obligations; but the respondent turned a deaf ear to the entreaties of the husband-appellant. Even, the husband-appellant had to rush to Bihar with the object of including her to matrimonial life. The respondent was inexorable in her attitude and kept her ringers crossed to perform conjugal obligation. Letters passed between the parties which did not fetch any result, though swelled in number. The appellant, thus, became the victim of desertion for the calculated move of the respondent as she did not agree to his request. In the predicament, the appellant-husband had to rush to Court to secure relief under Section 13(1)(ib) of the Hindu Marriage Act, 1955.
4. The wife-respondent forestalled the claim of the husband in her written statement. Her matrimonial action did never countenance any hostility. She was a votary of martial life which she never desired to rupture. But the sole and the whole object of marriage was to appropriate her income by her husband, the appellant, which the wife-respondent could not bear. She did not commit any matrimonial misconduct as he was all eager to perform conjugal obligations, although, there was disparity of income between the appellant and the respondent.
5. The learned Court below framed 5 issues and dismissed the suit holding that the desertion has not been proved, when this Appeal for reversal of the judgment and decree. The point that fell for decision of the Court in appeal is, if the conduct reflected by the respondent constituted desertion.
6. A considerable amount of debate ensued as to the desertion alleged by the husband and denied by the wife who lives far behind the marital home. But we are of the view that there is no scope for debate, since there is no pitfall in the legislation and the judicial precedents verging on desertion galore.
7. Mr. Bhattacharjee has developed a sensitive argument that the evidence both latent and patent is so overwhelming which warrants a decree in favour of the appellant-husband. To gain ground of his claim, he has taken us through the plaint, written statement, evidence and the judgment. According to him, marriage was an idle parade as would be evident from the evidence and circumstances. To enrich his claim he has candidly submitted with all force that the respondent is an employee of the Bihar State Government but that does not stand as an insurmountable bar to perform conjugal obligations. It is glaring from the evidence of the parties that the respondent spent 7 days in the marital home out of these long years. She is sought to have exploited the service, as the spring board, to thwart the claim of her husband.
8. The explanation furnished by the respondent is unwholesome. The finding of the learned Court below, as argued, that the appellant knew at the time of marriage that she was an employee of Bihar State Government may be a weighy factor to stay away from marital home at Narkel Danga within Calcutta. The above, at any rate, affords no irresistible conclusion that marital obligation could be kept suspended or adjourned for all time to come. Such obligation cannot be sacrificed at the altar of service.
9. It is apposite to mention that she admitted that she could avail herself of two and half months vacation or leave. Apart from that, she has casual leave etc. In the background of the accepted testimonies, she could live with him in the marital home. The question of reciprocity would have been of immense consequence has she been little alive to conjugal life.
10. It is suggestive of the fact that she had no honest intention to perform the conjugal obligations even during leave or at any point of time. At least, some part of the conjugal obligations could have been accomplished during leave or holidays of each year had she been diligent and sincere in her effort to keep the pecker up. Cohabitation was, therefore, brought permanently to an end.
11. The long plea of the respondent, as argued by Mr. Bhattacharjee, that she would not be available to Calcutta for performance of conjugal duties as found by the learned Court below for service at Bihar does not fit in within the evidence and circumstances. Resignation from service would certainly become an extraneous factor should she spend the holidays or leave with her husband.
12. Mr. Chowdhury, has argued with much emphasis that the petition filed by appellant-husband for desired relief is devoid of intention to desertion disentitling her to relief. We cannot pursuade ourselves to agree to the submission of Mr. Chowdhury, as paragraphs 3, 5, 6, 8 and 9 to the petition for relief unfurl with certitude the intention of the respondent to bring the cohabitation to its permanent end. The word desertion might not have been sued in the petition for relief but its presence is found in the body of the petition itself.
However, we extract paragraph 5 which inspires confidence about the intention of the wife-respondent to bring the marital life to an end :
that after one year back when the respondent did not turn up at the house of the petitioner then the petitioner himself went to the respondent and requested her to come and live with the petitioner to maintain conjugal life also but the respondent again states that she will come very soon.
13. The passage extracted from the petition proves in no uncertain terms that the respondent had least intention to resume marital life which was alive only for 7 days.
14. Mr. Bhattacharjee has next contended that the respondent has cultivated a convenient plea that the appellant had much passion for her money than her. According to record, she was a woman of means. He has submitted that the finding of the learned Court below about the Exts. ‘A to CI’ are wholly untenable. The Exts. only flush the insatiable longing of the husband to meet with her wife and to lead a conjugal life in Calcutta which the wife-respondent did not allow to succeed. The plea that he was more after her income to maintain his family is a ruse. We have gone through the letters with rapt attention but we are unable to find from them that the letters were written solely and wholly for remitting money by her to the appellant-husband. There are other tangible matters which should not escape the attention of the Court among which the performing of conjugal obligation in Calcutta was one. It also transpires from the Exts. and the evidence that only paltry sum was sent by her to the appellant-husband and there was no evidence on record that tons of money were sent from Bihar to Calcutta to spend the livelihood of the appellant-husband which included amongst others-his family members.
15. P.W. 1 never disputed in his evidence that he did not receive any money from her. Exts. ‘E & D’ prove such receipt of money from her.
16. We are of the view, upon hearing both the learned Counsel, that a wrong interpretation has been made by the learned Court below about those exhibits. The exhibits, both overtly and covertly, prove that idea behind resignation could never be attributed to exploit her pecuniary sources or pecuniary ability. The Exhibits ensure with accuracy that the appellant requested the respondent to provide him with some money where revival of conjugal obligation longed for was not a claptrap. Nor they stand on different pedestal.
17. May be in Exhibit A/2, he asked for accommodation but that does not sound for a moment that the appellant ever wanted to bargain the marital relationship with pecuniary assistance. Even, Ext. 1 /3 does not provide any tangible material that he wanted to engulf the income of her wife. To assure her presence in the marital home, as an integral part of her conjugal duty, for which, he had much matrimonial bent of mind which cannot be considered in isolation as in most of the Exhibits, he pined for resumption of state of cohabitation. Accommodation of money which is trivial in nature can never be used as the means to snap the marital tie.
18. In the aforesaid background, the findings of the learned Court below, “one thing may be mentioned here that from these letters Ext. A. (A/1, A/2 and A/3) addressed to the respondent by the petitioner, it will not appear that the petitioner has been feeling mentally lonely and deserted or has been finding himself helpless for want of the presence of the respondent” are not legitimate.
19. We are afraid that we are wholly unable to subscribe to the view of the learned Court below. He has missed the wood for the tree. In the context, the letters written by the appellant, as argued by Mr. Bhattacharjee, to her go a long way to prove that it was an ex parte act of the appellant to instal her into marital home.
20. This animus to instal her in the matrimonial home cannot be bristled with suspicion and doubt.
21. In the background of the above, we have least doubt that the respondent conducted herself in a manner which attributed to desertion. In relation to the conduct of each other there is no spell of doubt that there was not only the factum of physical separation but also the animus deserendi of which the respondent was main architect.
22. In our view, the wife has taken an unreasonable attitude, the enormity of which has generated separation in all respect. In the instant case, the respondent is the deserting spouse who could not satisfy the just cause for her living apart. Reliance has been placed on Bipin Chundra v. Prabhavati, AIR 1957 SC 176; Kamal Kumar v. Kalyani, 1987 (2) Cal.LJ 126=1988 (2) HLR 25 (Cal.) and Sachindra v. Kalpana, 1988 (2) Cal.LJ 165=1988 (2) HLR 507 (Cal.).
23. The facts of Bipin Chandra, as considered by the Apex Court prominently dealt with desertion which could be inferred from facts and circumstances of each case, though the case manifestly dealt with the standard of proof. The second case of our High Court has been reiterated and discussed by their Lordships in Sachindra v. Kalpana founded on onus and the living apart of the other spouse on the ground of reasonable excuse, but it is discernible from all the decisions under reference that primarily it is the onus of the party charging his or her counterpart with the matrimonial offence of desertion. In our view, the appellant-husband has been successfully able to satisfy the Court that the desertion was made without any just cause. In the instant case, there could be no room for doubt and in view of the ratio decidendi emerging from the decisions under reference that the wife was the erring spouse who wanted to take advantage of her own wrong. She cannot be allowed to succeed. The case of the appellant-petitioner squarely and fairly verged on Section 13(1)
(ib) of the Hindu Marriage Act, 1955. The intentional desertion has been protracted to its dangerous and embarrassing length which brings the case of the appellant-petitioner within the fold of the aforesaid section entitling him to a decree of divorce.
24. In the premise, the contentions raised by Mr. Bhattacharjee survive and the contentions that of Mr. Chowdhury do not hold the field. Accordingly, we accept the contentions of Mr. Bhattacharjee and reject that of Mr. Chowdhury.
25. We cannot agree with any of the findings of the Learned Court below. Accordingly, we reverse all the findings and substitute the same by our own reasoning , as indicated above.
In the result, the appeal succeeds. Hence ordered that the appeal and the same be decreed on contest but considering the circumstances without cost. The marriage between the Appellant and the Respondent dated 26.2.1982 is hereby dissolved by a decree of divorce.
S.K. Mukherjee, J.—I agree with the conclusions.
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