Case: Ramchander Vs. Ananta

2. Shorn of unnecessary details the facts in brief which give rise to the appeal herein are as follows: The appellant-husband is an engineer and the respondent-wife is a draftsman, both working in the office of Andaman Public Works Department and their marriage took place on 2nd March 1994 and a son was born in the wedlock on 24.1.1996. It is an admitted fact that the respondent-wife had filed a complaint under Section 498-A IPC against the husband and it was subsequently withdrawn by her. It is also admitted fact that during their cohabitation the couple had changed their residence thrice. In 1997, the respondent-wife left the matrimonial home and started to live with her parents and upon legal notice sent by her husband she returned back to the matrimonial home. Then again in March 2003, the wife left the matrimonial home to live with her parents and has not come back since.3. The appellant-husband filed a suit for divorce on the ground of cruelty and desertion under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955. He has alleged that immediately after marriage the relationship between the spouses was not cordial and the wife did not want to live withfamily and wanted to live separately. She insulted and abused the husband calling himand the minor child asnd because of her rude behavior with landlord and neighbours they had to change the residence thrice. The wife refused to perform any household work and did not take proper care of their minor child and the husband had to bring food from outside and ultimately in the month of March 2003, she left the matrimonial home and did not return, leading to the filing of the divorce petition by the husband.4. The respondent-wife contested the suit by filing her written statement alleging that since her father was working asfamily was ill-disposed towards her and they used to taunt her for not bringing enough dowry. She has specifically denied the allegations in the plaint and asserted that she had never behaved improperly and she took good care of her child. She also leveled an allegation of extra marital affair against her husband with a woman who was working under him. According to her whenever she confronted him in this respect the husband would shout and abuse her.5. The appellant-husband besides examining himself as PW1, examined the minor child as PW2 and the servant as PW3 on his side. The respondent-wife examined herself and her mother as DW1 and DW5 respectively and further examined three persons working in municipal council as DWs 2 to 4 on her side.6. The trial court on a consideration of oral and documentary evidence held that the plaintiff-husband proved the ground of cruelty and desertion and granted the decree of divorce as prayed for. Challenging the same the defendant-wife preferred the appeal and the High Court on an elaborate consideration held that the trial court was not justified in decreeing the suit by dissolving the marriage between the spouses and allowed the appeal. Aggrieved by the same the husband has preferred the present appeal.

Reasoning: It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mentalcan be drawn and they are only illustrative and not exhaustive.11. The plaintiff-husband alleged that after their marriage the defendant-wife did not like to live in the joint family and that led to shifting to separate residence and even there due to quarrels, the wife had with the respective landlords and neighbours, there was frequent shifting of residence. According to the defendant-wife the shifting was necessitated once because the husband desired so and on two other occasions due to increase in rent demanded by the landlord and absence of sufficient quantity of water to the rented premises. Neither the family members of the plaintiff nor the landlords and neighbours of the tenanted premises were examined, and as rightly held by the courts below, there is no evidence adduced by the plaintiff to substantiate this allegation.The next instance is the allegation made by the wife in the case filed by her under Section 498-A of IPC against the husband. Admittedly the case was withdrawn by the wife and she continued to live with the husband. In fact the High Court has observed in the impugned judgment that though the date of filing of the criminal complaint is not mentioned in the plaint, from the sequence of narration of events therein it appears to have been filed prior to the birth of the child. The aberration on the part of the wife has been condoned by the husband by resuming cohabitation and they continued to live together till the date of alleged separation in 2003.15. The last instance of cruelty alleged by the husband is the allegation made by the wife that he has been involved in an extra marital affair with the daily rated mazdoor lady working under him. It is true that the defendant-wife has named the said lady with whom her husband allegedly was having an affair. The plaintiff-husband though admitted that the said lady was working under him, has specifically denied the said allegation. The courts below have concurrently found that the wife has not substantiated the said allegation. Mere failure to prove such allegation would not entitle the husband to a decree of divorce as rightly held by the High Court. The conduct of the wife that had been complained of appears to be not so grave and weighty that it can be treated to be more serious than ordinary wear and tear of married life.16. What remains to be considered is the ground of desertion alleged by the plaintiff-husband, it is averred that the defendant-wife left the company of the plaintiff in March, 2003 and date is not mentioned. The child was only 7 years old in 2003 and his testimony in this regard will not advance the case of the plaintiff. DWs 2 to 4 have testified that they had seen the plaintiff and the defendant together as spouses even during 2005. It is pointed out that there is no denial against such contention in cross examination. It is relevant to point out that DW2 is working in Marine Department and DW3 and DW4 are working in the Municipal Council and there is no reason for them to falsely depose against the plaintiff. The trial court has not indicated with any clarity in its judgment as to how the testimonies of the above witnesses were not found reliable by it. The High Court on going through their testimonies has concluded that it does not find their evidence unworthy of credence. We are in agreement with the said view expressed by the High Court. Resultantly the ground of desertion alleged is also not established.17. We also find no merit in the contention of the learned counsel for the appellant that the marriage between the plaintiff and defendant has irretrievably broken down.