Court:CALCUTTA HIGH COURT
Bench: JUSTICE Dilip Kumar Seth & Subhro Kamal Mukherjee
SMT. KAKALI DAS Vs. DR. ASISH KUMAR DAS On 11 February 2004
Cruelty : Mental Cruelty: Wife asserted husband had illicit relationship with many women : It was for wife to prove such allegations : It was not for husband to prove allegations of wife were false : Baseless allegations of cruelty by one spouse against other constitute mental cruelty of gravest character to warrant divorce.
This is an appeal against judgment and decree dated February 21, 2003 passed by the learned District Judge at Port Blair, District Andaman in Matrimonial Suit No. 5 of 1998.
2. By the impugned judgment and decree the learned District Judge decreed the suit filed by the husband, the respondent in this appeal, on contest, but without any order as to cost and granted the said plaintiff a decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and consequently, the marriage between the parties stood dissolved.
3. Being aggrieved the wife-defendant has come up with this appeal before this Court. This appeal was taken up for hearing in the Circuit Bench at Port Blair, by consent of the parties, however, the records of the appeal have been transferred to Calcutta for disposal.
This case has a chequered history. The marriage between the parties was solemnised according to Hindu rites and customs at Port Blair, District Andaman on December 12, 1994. The couple was blessed with a male child. The child was born in the wedlock on January 3, 1996.
4. On April 11, 1997 the husband filed an application under Section 9 of the Hindu Marriage Act,. 1955, inter alia, praying for a decree for restitution of conjugal rights against the wife. The said application was registered as Matrimonial Suit No. 6 of 1997 in the Court of the learned District Judge, District Andaman.
5. On August 1, 1998 the wife filed her written statement in the said Matrimonial Suit No. 6 of 1997. It was alleged by the wife that on February 4, 1997 the husband attempted to kill her by strangulation. She, however, managed to escape from the cruel clutches of the husband and took shelter in the bedroom and locked the bedroom from inside. The wife had to bear with such cruel torture by the husband as her parents went to Mainland; they, however, came back to Port Blair on February 10, 1997. The wife reported the aforesaid incident to her parents on their return from Mainland. Again, on February 11, 1997 the husband and her parents abused the wife in most filthy languages and asked her to go out from the house. It was, further, alleged that the husband was shedding crocodile’s tears and wanted to take back the wife with the intention to kill her. The wife expressed her apprehension that the husband was having some illicit connection with some other women elsewhere. It was stated further, that the wife totally lost her faith and confidence in the husband and as such she was not willing to stay with the husband unless he agreed to stay in her parents’ house for some time or till the wife regained her total confidence in the husband.
6. On February 17, 1998 the husband filed an application expressing his intention not to proceed with the said Matrimonial Suit No. 6 of 1997. The learned District Judge on the said February 17, 1998 dismissed the said suit for non-prosecution, but without any order as to costs.
7. On the said February 17, 1998 the husband filed an application under Section 10 of the Hindu Marriage Act, 1955. The said application has been registered as Matrimonial Suit No. 5 of 1998 of the said Court. The husband in the said suit prayed for a decree for judicial separation. In the plaint of the said suit the husband contended that the wife was neglecting her husband. The wife filed her written statement in the said Matrimonial Suit No. 5 of 1998 on August 13, 1998 to contest the claim of the husband.
8. On November 16, 1998 the wife filed her additional written statement in the said Matrimonial Suit No. 5 of 1998. In the said additional written statement certain allegations against the character of the husband were made. It was alleged that the husband was mixing with different women, but he terminated his relationships with those women after full satisfaction of his sexual urge. It was specifically alleged that the husband had co-habited with one Suja Philip, a Pharmacist. The said girl had to undergo abortion and to leave for Mainland to get rid of the husband. It was alleged further, that her father, who was living at Port Blair, could give out a total picture of the affairs. The wife went on alleging that the husband had relationship with one Taramoni Das and the husband was eager to have a decree for judicial separation to enable him to keep contract with other women of his choice. It was alleged that the husband earned ill-reputation in his profession as he was neglecting his duties as physician on account of illegal and illicit relationships with different women and for his unusual habit of consuming liquors. It was alleged that one Mr. N.C. Ray, Pradhan of Havlock, lodged complaint against the husband on account of his dereliction in his duties. Moreover, the husband was misusing the ambulance of the hospital for his personal gain depriving the patients.
9. The application for acceptance of the said additional written statement came up for hearing before the learned District Judge on January 4, 1999, but the learned Advocate appearing for the wife submitted that the wife did not want to press the application for acceptance of the additional written statement. In the circumstances, the learned District Judge rejected the said application.
10. On or about January 11, 1999 the husband filed an application for amendment of the plaint, inter alia, seeking a decree for divorce by dissolving the marriage between the parties. By order dated March 19, 1999 the learned District Judge rejected the said application for amendment of the plaint filed by the husband. The husband filed an application for revision challenging the said order dated March 19, 1999 passed by the learned District Judge, which was registered as Civil Revision Case No. 3 of 1999. By judgment and order dated July 8, 1999 this Court set aside the said order passed by the learned District Judge and, consequently, allowed the said application for amendment of the plaint. On July 21, 1999 the husband filed his amended plaint in the said Matrimonial Suit No. 5 of 1999. The wife on October 8, 1999 filed her additional written statement against the amended plaint.
11. The wife, however, approached the Apex Court under Article 136 of the Constitution of India praying for special leave to appeal against the judgment and order dated July 8, 1999 passed by this Court in Civil Revision Case No. 3 of 1999. On November 16, 1999 the Apex Court refused to interfere with the said order and dismissed the special leave petition filed by the wife. However, it was observed that it was open to the wife to urge before the learned trial Judge that the materials brought on record by amendment could not be looked into for granting relief to the husband and, also, as regards the maintainability of the application.
12. On December 2, 1999 the wife filed an application under Order 7 Rule 11, of the Code of Civil Procedure praying for rejection of the plaint. It was alleged by the wife that the petition filed by the husband under Section 10 of the Hindu Marriage Act, 1955, in which an alternative prayer for a decree for divorce was allowed by way of amendment, was liable to be rejected.
This Court on June 6, 2000 in Civil Revision Case No. 6 of 2000 upheld the order passed by the learned District Judge rejecting the said application under Order 7 Rule 11 of the Code of Civil Procedure filed by the wife.
13. By judgment and decree dated December 18, 2002 the learned District Judge dismissed the said suit on contest with cost holding, inter alia, that the suit was not maintainability and as such the plaintiff was not entitled to get any relief.
14. The husband preferred an appeal challenging the said judgment and decree dated December 18, 2002 passed by the learned District Judge in Matrimonial Suit No. 5 of 1998, which was tendered under FAT No. 1 of 2003. By judgment and decree dated January 13, 2003 a Division Bench of this Court set aside the judgment and decree of dismissal passed by the learned District Judge and remanded the suit for disposal on merits on the basis of evidence already on record. The Division Bench, inter alia, held that the learned District Judge erroneously refused to enter into the merits of the suit for divorce.
15. By judgment and decree dated February 21, 2003 the learned District Judge decreed the said suit on contest, but without any order as to costs and granted the husband a decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. While decreeing the said suit the learned District Judge came to the following findings:
(a) The suit was maintainable in the present form.
(b) The husband has failed to establish his allegations that the wife deserted her matrimonial home on her own accord.
(c) It was palpably clear that making allegation of illicit relationship without any basis or foundation was itself sufficient ground to pass a decree of divorce. The husband, therefore, established his case of mental cruelty by sufficient and cogent evidence.
(d) On careful examination of the documents it could be found that the wife made some statements, which assassinated the character of the husband and the husband was put to extreme humiliation. In the circumstances, the husband was entitled to get a decree for divorce on the ground of cruelty.
The wife preferred an appeal against the said judgment and decree dated February 21, 2003 in Matrimonial Suit No. 5 of 1998 and the appeal has been tendered under FAT No. 2 of 2003.
16. By judgment and decree dated May 28, 2003 a Division Bench of this Court allowed the appeal and, therefore, the suit for divorce was dismissed. The husband filed an application for review, inter alia, seeking review of the said judgment and decree dated May 28, 2003 passed by the Division Bench in FAT No. 2 of 2003. On September 8, 2003 a Division Bench of this Court allowed the said application for review and, inter alia, directed a rehearing of this appeal on merits. Consequently, this appeal has come up for hearing before us.
17. Mr. Bimal Kumar Das, learned Advocate, appearing in support of the appeal, argued that the learned District Judge erroneously decreed the suit in favour of the husband. It is submitted that the wife made the aforesaid allegations touching the character of the husband, as she was provoked to make such allegations inasmuch as the husband in the plaint made certain allegations against the behavioral pattern of the wife. The husband wrongly provoked the wife by making wild allegation of unbecoming behaviour against her. Therefore, the husband could not take advantage of his own wrong, Mr. Das, further contended that the learned District Judge ought not to have decreed the suit, as there were sufficient materials on record to establish that the husband condoned the conduct of the wife. Finally, Mr. Das argued that allegations made by the wife against the husband were not sufficient for the husband to obtain a decree on the ground of mental cruelty as such allegations were made out of suspicion that was created by the conspiracy of the circumstances and, moreover, when the husband failed to prove that such allegations of infidelity made against him caused mental torture to him. Mr. Das in course of his submissions cited the decisions in the cases of Dr. A.R. Aruna Kumar v. Smt. Nalini, I (2003) DMC 505 (DB)=AIR 2003 Kar. 25; Paras Ram v. Kamlesh, AIR 1982 P & H 60; and Swapan Kumar Ganguly v. Smt. Smiritikana Ganguly, I (2002) DMC 433 (DB)=AIR 2002 Cal. 6.
18. In catena of decisions, namely, Smt. Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, AIR 1985 Cal. 431, Nemai Kumar Ghosh v. Smt. Mita Ghosh, AIR 1986 Cal. 150; Harendra Nath Burman v. Smt. Suprova Burman, AIR 1989 Cal. 120; Smt. Santana Banerjee v. Sachindra Nath Banerjee, AIR 1990 Cal. 367; and Amarendranath Sannyal v. Smt. Krishna Sannyal, 1993 (1) CHN 213, various Division Benches of this Court settled, as a proposition of law, that unfounded or baseless allegation of adultery by one spouse against the other constituted mental cruelty of the gravest character to warrant divorce. Allegations made in the written statement itself and in the deposition could and should be taken note of in matrimonial proceedings without driving the petitioner to another proceeding on the ground of such cruelty. While ordinarily a lis has to be determined on the cause of action accruing on the date of initiation of the lis, but it has been well-settled that it has been open to a Court, including a Court of Appeal, to take notice of events, which had happened after the institution of the suit and to afford relief to the parties where it has been necessary to do so in order to shorten litigation or to do complete justice between the parties.
19. The Apex Court in the case of V. Bhagat v. Mrs. D. Bhagat, II (1993) DMC 568 (SC)=AIR 1994 SC 710, observed that mental cruelty could broadly be defined as that conduct, which inflicted upon the other party such mental pain and suffering as would make it not possible for that party to live with the other and the parties could not reasonably also be expected to live together or that the wronged party could not reasonably be asked to put up with such conduct and to continue to live with the other party. It was, also, considered to be not necessary to be proved that mental cruelty was such as to cause injury to the health of the wronged party.
20. The decision in V. Bhagat (supra) has been approved and followed in a recent Supreme Court decision in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, I (2003) DMC 685 (SC)=III (2003) SLT 227=(2003) 6 SCC 334. The observations of the Apex Court in Vijay Kumar (supra) are as under :
“In V. Bhagat v. D. Bhagat it was observed that mental cruelty in Section 13(1)(ia) 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 and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was “suffering from mental hallucination”, that his was a “morbid mind… for which he needs expert psychiatric treatment”, and that he was “suffering from pranoid disorder”, etc. and that during cross-examination several questions were put to him suggesting that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though held the allegations levelled against the wife were not proved, the counter-allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well.”
21. In the light of the principles enunciated by the Apex Court as also by this Court, we may now examine whether the allegations made by the wife in her written statement and in her deposition amount to mental cruelty to the husband within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955.
22. In the matrimonial suit under Section 9 of the Hindu Marriage Act, 1955, which was registered as Matrimonial Suit No. 6 of 1997, the wife, inter alia, made the following allegations against the husband:
“Once the petitioner caught the throat of the respondent in a drunken condition on 4th February, 1997 and started pressing the throat of the respondent at 11 p.m. and the respondent resisted the acts of the petitioner and she managed to escape from the cruel clutches of the petitioner and came out of the drawing room and entered into her bed room and locked it from inside…. That the contents of Para 16 are false, motivated with an ulterior intention and motive by the petitioner and pouring crocodile’s tears and wants to take the respondent into his fold by hook or by crook and to end her life. Further the respondent apprehends from the previous conduct of the petitioner that he is having some illicit connection with some other women elsewhere. Consequently, the respondent has totally lost her faith and confidence in the petitioner and as such at this stage it is not safe to the respondent to follow with the petitioner. It is further submitted that the respondent is willing to join with the petitioner if he stays with the respondent in her parents’ house for some time till the respondent regains her total confidence in the petitioner and then the respondent is willing to live with the petitioner anywhere.”
23. The said matrimonial suit was not proceeded with, but the husband filed an application under Section 10 of the Hindu Marriage Act, 1955, for judicial separation giving rise to the present suit. The plaint of the present suit was amended and husband prayed for divorce on the ground of mental cruelty. In the present suit the wife on November 16, 1998 filed an application for acceptance of her additional written statement. In the said additional written statement the wife, inter alia, made the following allegations:
“17B. The petitioner have an absolute misconduct as learnt by the respondent after marriage. Before the marriage of the respondent, he was in the habit of mixing with different women for a very particular period and all these ladies were subsequently kicked out by the petitioner after full satisfaction of the sexual satisfaction of the petitioner. The respondent has the occasion to learn that the petitioner cohabited with another girl namely Suja Philip, who happened to be a Pharmacist and who remained under the clutches of the petitioner for some time. The petitioner went to such a length that the said girl had to undergo the processing of abortion by doctor very known to the petitioner. Subsequently, the said girl had to leave India to get rid of the company of the petitioner. Her father is still living at Port Blair, who can give out a total picture during hearing.”
“17C. The petitioner was also in touch with another girl Taramoni Das by name and he underwent some untidy relations with that girl.
Thus petitioner has caused damage and mischief to several girls including myself and now he very illegally prayed for judicial separation with me presumably for coming in contract with other girls as per his choice. The petitioner himself is wholly misconceived and does not have any cause of action.”
“17F. The petitioner earned a very ill-reputation in his own service as a doctor on the grounds that he did not discharge his duties properly due to illegal and illicit connection with different girls and for his unusual habit of consuming liquors. That was why complaint was lodged against him by Mr. N.C. Ray, Pradhan of Havlock, who is very much conversant with the mal-activities of the petitioner. The said N.C. Ray, a man of repute and now holds some better responsible assignment in Zila Parishad.
Moreover, he has been badly misutilising the services of the ambulance of the hospital for his personal gain depriving the patients who are actually meant to use the vehicle.”
24. The husband deposed in the present suit as plaintiff’s witness No. 1 and in course of his deposition he expressed his agony over the accusations made by the wife concerning his alleged illegal connection and co-habitation with other women. He deposed that he felt mentally humiliated and shocked. He contended that his wife propagated against him with allegations of his bad character including illicit relationships with several women including Suja Philip and Taramoni Das. It is stated that the wife made such allegations not only in presence of the relations, but also in presence of the outsiders. He categorically stated that he could not condone the cruelty inflicted upon him by his wife. The relations of the husband deposed as plaintiff’s witness and they corroborated the statements of the husband. One Arun Srivastava deposed as plaintiff’s witness No. 8. The witness was a lecturer at Dr. B.R. Ambedkar Government Polytechnic. He said that the wife told him that her husband was having a bad character and he had illicit connections with many women including Suja Philip and Taramoni Das.
25. The wife deposed as defendant’s witness No. 1 and she stated that she came to know about the illicit relationship of her husband with the said Suja Philip, a Pharmacist working under her husband, and the said Taramoni Das, a nurse working under the husband, from one N.C. Ray, who was the Pradhan of the Havlock Panchayat and one Saraswati, who was her friend. She stated that she was not willing to live with her husband. She stated that she made those allegations of extra-marital relationship of her husband without making any inquiry, but only on the basis of informations received from the said N.C. Ray and Saraswati. However, she admitted the contents of her written statement filed in the Matrimonial Suit No. 6 of 1997, which has been exhibited as Exhibit 5 in the present suit and stated, further, that the statements made in the said written statement were true to her knowledge. The additional written statement filed in the present suit by the wife was not pressed, but the said additional written statement has been exhibited as Exhibit 3 in the present suit. She, however, admitted in her deposition that the said additional written statement was prepared and filed in Court under her instructions and the statements made therein were true to her knowledge at that time. She stated that she signed the same after going through the contents thereof. Ultimately, she said that she did not know if the husband had any relationship with any woman.
26. We hold, in agreement with the learned District Judge, that the wife made allegations assassinating the character of the husband without any basis of foundation and as such she treated the husband with cruelty. The allegations were made against the husband touching his character allegedly on the basis of information received from the said N.C. Ray and the said Saraswati, but she took no step to examine either the said N.C. Ray or the said Saraswati. In the additional written statement, particularly in Paragraph 17B, she stated that the father of Suja Philip was still living at Port Blair and he could give a total picture during the hearings, but she took no step to examine the father of the said Suja Philip. On the contrary, the husband produced an independent witness in plaintiff’s witness No. 8, who deposed categorically that the wife made such unfounded allegations against the character of the husband to him.
27. On facts, as discussed above, the questions of taking of advantage of one’s own wrong by the husband does not appear to have been established on the alleged ground to provocation. Allegations made in the pleading could not be termed as source of provocation for making wild allegations and one could not be allowed to take shelter of provocation for neutralising the effect of the allegations resulting into mental cruelty.
28. We are unable to accept the contentions of Mr. Das, learned Advocate, appearing for the appellant that the wife made the said allegations, as she was provoked. She not only made allegations concerning the character of the husband in the earlier Matrimonial Suit No. 6 of 1997 but repeated those allegations in her additional written statement. There has been no condonation of the conduct of the wife by the husband. The husband categorically stated that he was unable to condone the conduct of the wife.
29. The decision in the case of Dr. A.R. Aruna Kumar (supra) by Mr. Das is distinguishable on the facts inasmuch as in the said decision it was found that the allegations made in the written statement in the said case were not so serious as those made against the husband in V. Bhagat’s case (supra) and that the allegations were not disputed by the husband. In the case in hand, the wife failed to prove the allegations made against the husband, but the husband proved that such allegations caused mental cruelty to him. With respect, we are unable to follow the observations in Dr. A.R. Aruna Kumar’s case (supra) that false allegations of unchastity made against the wife had to be viewed seriously by the Court, but such allegations made against the husband could not necessarily create similar impact as we are bound by the decisions of the earlier Division Benches of this Court and that in V. Bhagat’s case (supra) the Supreme Court, also, did not make any such distinction. Moreover, we are of the opinion that in this case the husband has successfully proved that by imputing false and baseless allegations against him the wife caused mental cruelty to him. With respect we are, also, unable to accept the view in Paras Ram’s case (supra) that before an allegations of cruelty could be deemed as legal cruelty it must first be proved by the husband as factually false. The wife asserted that the husband had illicit relationships with many women. It was for her to prove such allegations. It is the general rule that he who asserts a fact or claim has to prove it. It is called burden of proof. The burden of proof is on him, who asserts it and not on him, who denies. The husband claimed that he had no illicit relationship with any woman. It was not for him to prove that the allegations of the wife are false. It was for the wife to prove such allegations as alleged by her in her pleadings. We reiterate the views expressed by the earlier Division Benches of this Court that the baseless allegations of cruelty by one spouse against the other constitute mental cruelty of the gravest character to warrant divorce.
30. The reliance placed by Mr. Das in Swapan Kumar Ganguly’s (supra) is misplaced one. In this case the decree has not been prayed for on the ground that marriage has been irretrievably broken down. In this case the decree has been passed on the ground that the wife treated the husband with cruelty.
31. In Swapan Kumar Ganguly (supra) it has never been held that even if the husband has been able to establish a ground for divorce still a decree could be refused taking into consideration the sentiment of the wife that marriage has been a protection to her in our society.
32. We do not find any infirmity in the judgment and decree passed by the learned Trial Judge granting a decree for divorce in favour of the husband.
The appeal is, thus dismissed.
33. Since this is an appeal arising out of a matrimonial suit and as we are affirming a decree for divorce, we direct the parties to bear their respective costs throughout.