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ASIT BARAN BHATTACHARYA Vs. GOURI BHATTACHARYA

Judgement

 
Court:CALCUTTA HIGH COURT

Bench: JUSTICEBhaskar Bhattacharya & Rudrendra Nath Banerjee

ASIT BARAN BHATTACHARYA Vs. GOURI BHATTACHARYA On 18 July 2008

Law Point:
Cruel behaviour of spouse although is a good defence against action of restitution of conjugal right, law does not permit wronged spouse inflicted with mental cruelty to commit cruelty against wrong doer in retaliation. If counter cruelty of different nature is proved, simply on basis of such counter cruelty, divorce can be granted.

 

 

JUDGEMENT

 

This first appeal is at the instance of a husband in a suit for divorce on the grounds of cruelty and desertion and is directed against the judgment and decree dated 4th March, 1998, passed by the Additional District Judge, First Court, Howrah, in Title Suit No. 149 of 1989, thereby dismissing the said suit.

2. Being dissatisfied, the husband has come up with the present first appeal.

3. The appellant filed a suit being Matrimonial Suit No. 149 of 1989 in the Court of District Judge, Howrah, against the respondent for divorce and the case made out by the appellant may be summed up thus:

(a) The parties are Hindu and their marriage was solemnized on 21st July, 1987 at Baruipur. The marriage was a negotiated one on the basis of advertisement given by the husband of the respondent’s mother’s sister who took initiative for the negotiation while the respondent’s second brother, namely, Subhas, settled the marriage pursuant to negotiation.

(b) Since the date of marriage, the husband found queer behaviour of the respondent’s family, particularly, of Subhas, who did not probably like the marriage for the reasons known to him and as such, on some plea or other, he was delaying the ceremony and in spite of his unnecessary interference when the marriage was ultimately solemnized, he did not like to send the respondent on the plea of her illness.

(c) Shortly after the respondent came to the house of the appellant, she by her sheer obstinacy and misconduct as well as by her nagging habits created an impression that she would like to stay with Subhas, her brother, who is a school teacher, rather than to stay at her husband’s place as she had deep love and intimacy with Subhas. She started misbehaving with the appellant and his parents and often insulted them without performing her marital duties and obligations.

(d) The respondent regularly used to leave the matrimonial home accompanying Subhas without taking any consent from her husband or parents-in-law. The husband is the only son of his parents; he is educated, and working in a Bank. Although, the husband tried to give the respondent all her comforts, due to the behaviour of the respondent, he was shocked and upset. The appellant, being a sober husband, did not like the scandal to be known to the outsiders but the respondent was induced and instigated by Subhas, who made reckless and false allegation against the appellant and his family and insulted the appellant and his parents even in presence of outsiders and the respondent actively supported them.

(e) The appellant had no demand in the marriage in any form and the small ornaments of Bronze given by her parents’ family were taken away by her while she left the residence of the husband on August 20, 1988 and only a cot, almirah and dressing table were given to him during the marriage. A son was born in the wedlock in the month of January, 1989 but the husband was not given any opportunity to love his son or the custody of the child.

(f) The husband, his parents and friends, tried to persuade respondent to return to the appellant’s house but they had to come back facing insult and threat by Subhas and the respondent refused to have any connection with the appellant. Subhas wrote a letter on the false allegation that the respondent might commit suicide if she was sent to the house of the appellant and that they decided not to allow her to live with the appellant.

(g) The following were described as the instances of misbehaviour and cruel acts of the respondent:

(i)

Not performing marital obligations;

(ii)

Commission of repeated humiliating acts causing physical and mental torture;

(iii)

Uncaring attitude towards the appellant and neglect in her duties even during the appellant’s illness;

(iv)

Commission of the acts, almost daily, amounting to deliberate insult to the husband and his parents;

(v)

Non-cooperation in any affair of the family though appellant’s old mother had to work for arrangement of cooking and all household works;

(vi)

Depriving the husband of the company of his child and refusal to keep the child with appellant’s parents;

(vii)

Deliberate acts of cruelty by using abusive filthy languages even in presence of outsiders and friends who met her to bring her good senses back.

(viii)

Threats of committing suicide and putting the appellant to unnecessary harassment;

(ix)

Sending letter through Subhas making false allegations of imaginary torture;

(x)

Refusal to accept money, sent by money order or letters, with the intention to insult and hurt the appellant.

4. The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and the defence of the respondent may be epitomized thus:

(1) The father of the respondent having died in the year 1982, the negotiation of marriage was made not only by her mother’s sister’s husband but also by her two elder brothers, namely, Mridul, a service-holder, at that time posted in Delhi and Subhas, a school-teacher and the marriage ceremony was attended by all the near relatives including the respondent’s mother’s sister’s husband. The respondent is a Graduate of the Calcutta University and she is the only sister of her two brothers who were then unmarried.

(2) At the time of marriage, the respondent was given presentation of one gold necklace, one pair of gold Bangle, three pairs of Churies of gold on bronze, one set of gold button with gold chain, two gold finger-rings, one pair of gold earrings, various utensils made of “Kansa”, a big wooden bed-sheet with beddings, wooden dressing table fitted with mirror, one steel almirah of Khaitan make, one H.M.T. wristwatch, one Aristocrat luggage, cosmetics and “Namaskari Sarees”, etc. Those are all kept in the house of the husband excepting two Churies and the earrings, which are in the custody of the respondent as she, only with those articles and some wearing clothes, was compelled to come back to her brothers’ house.

(3) It was an enormous lie that there was any illicit relationship between the respondent and Subhas, her brother or that Subhas did not like the marriage or was delaying the ceremony. The respondent was never of nagging habits and did not do any act of misconduct or obstinacy as alleged. It was an absolutely false allegation that she created any unpleasant situation with any impression that she would like to stay with Subhas or that she had deep love and intimacy with her said brother.

(4) It was equally false that the respondent used to frequently leave the matrimonial home accompanying Subhas without any consent from the husband and his parents. It was an extremely false statement that Subhas tried to create any impediment in the proposed honeymoon to Puri as alleged with the false plea of the illness of her mother.

(5) The appellant is not a sober but a very suspicious and arrogant husband and his allegations would not be credible to even any outsider. No false or reckless allegation against the husband made by Subhas as falsely stated. It might be correct that Subhas had written a letter but it was not truly or correctly interpreted in the plaint. The entire plaint consists of baseless allegations.

5. At the time of hearing of the suit, four witnesses were examined on behalf of the appellant including himself, while the respondent and Subhas appeared as witness to oppose the prayer of the appellant.

6. The learned Trial Judge, as indicated earlier, by the judgment and decree dated 4th March, 1998, was pleased to dismiss the suit on the ground that the appellant had failed to prove the grounds of cruelty and desertion.

7. Being dissatisfied, the husband has come up with the present first appeal.

8. After hearing the learned Counsel for the parties and after going through the materials on record we find that the learned Trial Judge rightly held that the suit having been filed even within one year from the date of commencement of the alleged desertion, the husband was not entitled to get any decree on the ground of desertion.

9. Regarding the ground of cruelty, we find that the parties have levelled allegations of cruelty against the other. The husband has made the allegation of abnormal relation of the wife with her own brother and according to him that is the cause why the wife misbehaved with him and the other members of his family and for that reason, the wife left the matrimonial home making false allegation of physical and mental torture upon her in her matrimonial home. The husband has even alleged that his two brothers-in-law “almost” assaulted his father and at the same time, wife used to give threat of committing suicide. It was also alleged that during her stay in the matrimonial home, the wife did not do any household work and used to misbehave with the husband and his parents without any reason and even did not care to put vermilion on her forehead or to appear before his friends or relations in a presentable dress or manner only to humiliate him before them. The allegation of the wife, on the other hand, was that not only the behaviour of the husband was of the suspicious nature but the members of the family of the husband including the husband also misbehaved with her, as a result, she was compelled to leave the family of the husband. It was alleged that she was kept half fed during her pregnancy in spite of the fact that she used to do all the household work in her matrimonial home, as there was even no maid servant in the family.

10. The husband, his father and two outsiders have given evidence in support of the case of cruelty alleged in the petition of divorce. On consideration of the evidence given by those persons, we find that the husband could not prove the allegation of the alleged abnormal relation of the wife with his own brother and that it was a mere suspicion. We find that the wife had lost her father before her marriage and at that time, her two elder brothers were her guardians. Of the two brothers, the elder one was then posted in Delhi and Subhas, the other one, was then looking after the paternal family of the wife in Baruipur. Subhas was then immature and even younger in age than the appellant. Naturally, he was very much concerned about the welfare of his younger sister. Due to his immaturity, there was some misunderstanding between the two families and such misunderstanding could not be properly tackled and dispelled by the two brothers of the wife. Subhas fanned the fire by writing Exbt.-1 wherein false allegations of even physical assault of the wife by the husband was made. In that letter, it was made plain that the family of the wife had finally decided not to send the wife any further because they were convinced that if she were sent, she would commit suicide. Subhas, as D.W.-2, however, tried to impress upon the Court that the contents of the Exbt.-l was his own opinion and not the version of his sister. In other words, he tried to explain that his sister never said that she would commit suicide if she were sent back to the matrimonial home or that the allegation of physical assault was not based on information received from his sister. He has admitted that the husband and his relatives came four times to their residence after August 20, 1988 to take back his sister. However, what prevented them from sending back the sister has not been explained. We are, therefore, unable to accept the contention of the wife that Exbt.-l was written without her knowledge and consent. It is rightly pointed out by Mr. Roychowdhury, the learned Counsel for the appellant that in spite of those four visits and writing of several letters from the side of the husband, no apology was tendered for making such false statements mentioned in Exbt.-1. The wife, on the other hand, had maintained in her evidence that she was kept half fed in her matrimonial home and that the husband physically tortured her twice although she could not mention the dates. She has further asserted that torture was inflicted in the presence of his brothers and the mother. However, the brother, as D.W.-2, has stated that on September 3, 1988, her sister for the first time told him about the torture. Such statement necessarily falsifies the allegation of the wife that she was even tortured in presence of her mother or brothers. The other brother or the mother had not come forward to support the statements of the respondent. We also do not find any reason to disbelieve the evidence given by the father of the husband and two other independent witnesses in whose presence the wife misbehaved with the husband and his father without any just reason. The fact remains that in spite of repeated efforts of the husband and his father, the wife decided not to go back and even did not answer the letters written by the husband.

11. According to the learned Trial Judge, even if any cruelty was committed before August 20, 1988, the husband by his letter written in the month of September, 1988, having addressed, her as “Tukusona” (Tuku is the nick name of the wife), writing of such letter amounts to condonation of cruelty. We are afraid, the learned Trial Judge was wrong in applying the defence of condonation in the facts of the present case. Condonation is always subject to the condition that the crueltly would not recur in future and if the same is repeated, the earlier condonation is of no avail to the wrong couple. In this case, even after the said letter, the wife in the presence of P.Ws.-2 and 3, two outsiders, misbehaved with the husband and his father and practically drove them out by describing the husband as “Rascal” and “Scoundrel”. The fact remains that she never came back nor did she convey her intention to come back nor did she apologise for her misbehaviour. There is no reason to disbelieve the said two outsiders who had no enmity against the wife.

12. We, therefore, find that there was no just reason for the wife to misbehave with the husband and his father in the presence of the P.W.-2 and P.W.-3. We also find no reason to disbelieve the allegations of non- cooperation of the wife in the household works while she was in her matrimonial home in the facts of the present case. She was definitely found to be negligent in performing her marital duties towards her husband in spite of sincere love of her husband as would appear from his letters where he repeatedly requested her to come back. We have already pointed out that the brother of the wife himself admitted that the husband went to their house four times to take her back but he was practically driven away from the house and at the same time, false allegations of physical torture, keeping her half fed in the matrimonial home and showing dissatisfaction about marriage-presents, etc. had been brought although her brother did not make such allegation in his deposition and all those allegations are found to be baseless.

13. We are not convinced by the submission that as because the husband by making false allegation of illicit connection committed cruelty towards the wife so she is entitled to inflict cruelty towards her husband of any form. Unfounded allegation of unchastity against the other spouse, no doubt, amounts to cruelty and enables the wronged one to get a decree for divorce. In this case, the misbehaviour of the wife and the blind support of Subhas to such misbehaviour coupled with writing of Exbt.-l by Subhas created an unjust suspicion in the mind of the husband that there was some abnormal relation between them which is definitely not true. In this case, the wife, however, has not prayed for divorce by way of counter-claim for making such untrue allegation. A cruel behaviour of spouse although is a good defence against an action of restitution of conjugal right, the law does not permit the wronged spouse inflicted with mental cruelty to commit cruelty against the wrong doer in retaliation and if counter cruelty of a different nature is proved, simply on the basis of such counter cruelty, a divorce can be granted. We are quite conscious that if one of the spouses, in self-defence against a physical torture of the other, causes any bodily injury to the wrong doer, such act in order to protect oneself against the act of physical violence will not amount to ‘cruelty’ within the meaning of Section 13 of the Act. However, in this case, except the part of the allegation involving abnormal relation with the brother, the husband has proved all other allegations of cruelty made in the application for divorce and at the same time, the various allegations of cruelty against the husband and his family, taken in the written statements and sought to be established by giving evidence, have been proved to be without basis. The outcome of these allegations and counter-allegations is that the parties are fighting their litigation for the last twenty years and they have spent the prime part of their life without the company of the other. The wife is definitely guilty of cruelty and it is not a case where the husband can be said to have taken advantage of his own wrong. After the receipt of Exbt.-l, he wrote several letters to the wife and visited the house of the wife to take her back and even protested against the allegations made in the said letter but there was no answer from the side of the wife and the door was closed on the face of the husband, his father and friends. Even before the trial, the wife expressed her readiness to go back only on condition of good behaviour on the part of the husband and his family. We find that there was no cogent evidence of any bad behaviour on the part of the husband or their family. The letter written by the father of the husband reflects deep concerns for the daughter-in-law who was then in her family way. The husband, in our opinion, has proved the cruelty alleged in the plaint except his allegation of abnormal behaviour towards Subhas which was nothing but an unreasonable suspicion.

14. Before taking up this appeal on merit, we tried our best to reconcile them but failed. The husband expressed in firm reluctance to condone the acts of the wife although the wife expressed her readiness to go back. We found that in view of pendency of the litigation for the last twenty years, the bitterness has reached a stage of no return. The only son of the parties is now a second year student of the degree course of Engineering in the Jadavpur University and is all along living with his mother. From the salary certificate submitted by the husband in this Court we find that he gets a monthly salary of Rs. 24,000. The husband lives with his mother in their own house and the mother is not even dependant upon him financially as she is a family pension holder after the death of her husband who was a Government servant. In such circumstances, we fix an amount of Rs. 8,00,000 as one-time permanent alimony in this case. Having regard to the fact that the son of the parties will complete the Engineering course in June, 2011, we further direct the husband to pay a sum of Rs. 36,000 as educational expenses. Let the aforesaid sum of Rs. 8,36,000 be paid by the husband within two months from today by banker’s cheque of any nationalised bank in the name of the wife to be handed over to the learned Advocate for the respondent in this Court. Until the next two months or the payment of the aforesaid amount, whichever will be earlier, the husband will go on paying the amount of alimony pendente lite to the wife at the existing rate.

We, therefore, grant a decree for divorce on the ground of cruelty as mentioned above. However, the said decree will be effective from the date the husband will pay the amount of Rs. 8,36,000 to the wife.

Appeal allowed.

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