Calcutta High Court (Appellete Side)

Sri Subhash Chandra Das Chowdhury vs Smt. Sandhya Das Chowdhury on 18 July, 2008

Author:
Bhaskar Bhattacharya

Bench:
Bhaskar Bhattacharya

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction

Present:

The Hon'ble Mr. Justice Bhaskar Bhattacharya

And

The Hon'ble Mr. Justice Rudrendra Nath Banerjee

F.A. No. 96 of 2000

Sri Subhash Chandra Das Chowdhury
Versus
Smt. Sandhya Das Chowdhury

For the Appellant/Petitioner: Mr Dilip Kumar Mondal,
Mr Sandip Roy Chowdhury,
Mr Gurudas Mitra.

For the Respondent/Opposite Party: Mr S.S. Mukherjee,
Mr Siddheswar Chandra.

Heard on: 03.06.2008, 10.06.2008 &12.06.2008.

Judgment on: 18th July, 2008.
Bhaskar Bhattacharya, J.:

This first appeal is at the instance of a husband in a suit for divorce on

the ground of cruelty and is directed against the judgment and decree dated 23rd

December, 1998 passed by the learned Additional District Judge, Fifth Court,

Alipore, in Matrimonial Suit No.66 of 1990 thereby dismissing the suit with a

specific finding that the appellant failed to prove cruelty alleged in the application

for divorce.

The case made out by the appellant in the pleading as amended may be

summed up thus:

(a) The parties were married on 7th March, 1988 according to the Hindu rites

and ceremonies at 1/15, Mall Road, Dum Dum. On the eighth day of the

marriage, at the time of visit to the wife's house, the appellant was told by

the mother and the brother of the respondent that he was required to stay

away from his own family and start his life with his wife at the paternal

house of the respondent at Dum Dum as a domesticated son-in-law. The

appellant, however, did not agree with such proposal and such denial on

his part annoyed the respondent, her mother, brother and sister.

(b) Thereafter, the appellant took his wife to Puri on honeymoon and stayed

there for about 10 days and after returning from Puri, the wife stayed in
the house of the appellant for a few days and thereafter, left for her own

house at Dum Dum on 17th April, 1988.

(c) On or about 2nd May, 1988, the appellant went to Dum Dum to take her

back but she refused to come back by asserting that the appellant should

forget his parents and sisters and must stay at Dum Dum in their family.

Subsequently, the appellant again on 12th May, 1988, 19th May, 1988 and

27th May, 1988 went to his father-in-law's house to bring his wife back but

she did not come.

(d) On 12th June, 1988, the respondent made a false and baseless complaint

to the local Nagarik Committee; the office bearers of such Committee, after

hearing the parties and being satisfied that there was no truth in her

allegations, asked her to return to her matrimonial home but she did not

come back.

(e) On 27th July, 1988 at about 7 p.m., when the appellant was out of his

house, the respondent came along with her brother and some antisocial

persons. Although, the sisters of the appellant welcomed them, they, after

going to the first floor of the house, started abusing the members of the

husband's family in filthy language. Her brother and his antisocial

associates started beating the appellant's sisters and even did not spare

the old father of the appellant who was then aged about 76 years. One of

the appellant's sisters managed to escape and informed the local people
and apprehending the danger, those antisocial associates of the

respondent left the place and threatened that they would come again.

(f) The father of the appellant, therefore, lodged a G.D. with the Behala Police

Station on 27th July, 1988 narrating the incident. After coming back, the

appellant heard the whole incident and on the next day, he lodged a

written complaint before the local police station.

(g) During her first one-month stay in the appellant's house, the wife removed

all her ornaments that she got as presentation to her father's house and

thereafter, she approached the Nagarik Committee by making false

complaint against the husband. The Nagarik Committee initially refused to

interfere in the matter. However, for maintaining peace and with the hope

of better days, the appellant was forced to take a separate rented house at

the instigation of the respondent in her name at 48/2/1, Kabi Guru Sarani

Road, P.S.-Behala and shifted to that house on 20th August, 1988 leaving

his paralytic mother and old father and unmarried sisters. The appellant

purchased the household utensils, fan, etc. and stayed there up to March

1989.

(h) During his stay with the respondent at the rented house, the appellant

passed a very miserable life. The respondent used to come at about 9 p.m.

in the evening some time on bus, minibus and on occasions, in the cars of

others. On enquiry about her late coming, she used to answer in dirty
language. Sometimes at the dead of night, she used to turn the appellant

out of bedroom forcibly and for avoiding scandals, the appellant had to

stay outside the room sitting on the floor.

(i) During the stay at rented house, the respondent sometime kept the house

under lock and key for days together staying at her father's residence.

These behaviours of the respondent amounted to cruelty and in view of

misbehaviour of the respondent, the appellant had lost his dignity and

prestige before his friends, neighbours and office colleagues. He could not

sleep at night nor could he mix with his friends, neighbours and office

colleagues.

(j) The respondent also used to utter insulting language towards the appellant

and complain that the appellant had been living in adultery with his

sisters. Such false allegation gave great shock in the mind of the appellant.

(k) On 25th March, 1989, the respondent did not allow the appellant to enter

the house shouting that he was in illicit connection with his sisters and

that she would not stay with him and drove him out on that ground. Since

then, the appellant had been residing at her mother's house at 99,

Agarwall Garden Road.

(l) On 19th April, 1989, the appellant's mother died and in spite of giving

information, the respondent did not come to take part in funeral nor did

she take part in the Sradh Ceremony.

(m) On 25th May, 1989, the respondent came with her brother and some

associates in the house of the appellant and asked the appellant to send

the two sisters to any orphanage and the father to an old age home and

only in these circumstances, she agreed to come to the house of the

appellant. The respondent also used filthy language towards the

appellant's sisters and father. Thereafter, they left the house.

(n) After the filing of the suit, the respondent with the help of the Nagarik

Committee forcibly entered into the house of the appellant and injured the

inmates of the house. In view of such incident, a General Diary was lodged

in the local police station and subsequently, the respondent lodged

complaint under
Section 498A
of the Indian Penal Code against the

appellant and other members of the family. All of them were arrested and

subsequently, were released on bail. She forcibly occupied a portion of the

house of his father after the institution of the suit.

The respondent contested the suit by filing written statement thereby

denying the material allegations made in the plaint and the defence of the

respondent may be summed up thus:

(1) All the allegations made against the wife were false. On 8th April, 1988, the

appellant along with his divorced sister tried to set fire in her Sari as the

respondent told that there was no talk of giving dressing table at the time
of marriage. The appellant and his divorced sister began to beat her, as a

result, the respondent had fallen ill and ultimately, she left with her

brother to the respondent's house at Dum Dum on 24th April, 1988.

(2) On 27th May, 1988, the respondent went to the appellant's house at Behala

after being recovered from illness but the appellant's father and the

divorced sister forcibly drove her out from the house and threatened her

with dire consequence if the respondent came to the house of the appellant

any further. The appellant told the respondent that he would marry his

previous girlfriend after divorcing the respondent. The allegation that on

27th July, 1988, the wife and her brother and other antisocial elements

came to the house of the appellant and abused the family-members was a

false statement and the diary lodged was based on false story. It was

equally false that the respondent removed all her ornaments and clothing

to her father's house.

(3) The appellant at the rented house, on several occasions, forced the wife to

stay outside the room and tortured her. It was absolutely a false allegation

that she used to come back at late night as alleged. The respondent was

attacked with Cholera in the rented house but at that time, the appellant

left the respondent and lived at his father's house. The local people helped

the respondent from recovering from the illness. It was absolutely false to

allege that the wife ever asked the husband to send his two sisters in

boarding house and the father to an old age home.

(4) The husband had a love affair with a girl from the childhood, which was

disclosed by the husband after the marriage, and the appellant married the

respondent with an intention to grab the ornaments and the clothing of the

respondent, as she was a Central Government employee. The appellant

used to often beat the respondent. After returning from Puri, the appellant

started beating, slapping and torturing the respondent. However, the

mother-in-law of the respondent was very much kind towards the

respondent and she advised the appellant not to beat the respondent. The

appellant made several General Diaries before the local police station. Once

the appellant and his divorced sister tried to burn the respondent when

she was asleep at the house of the appellant. At the intervention of the

well-wishers of the respondent, the rented house was taken but after the

appellant physically assaulted the respondent, the members of the Mahila

Samity helped the respondent to enter the house of the appellant on 8th

March, 1990 and from that date, the parties started living as husband and

wife in the same room sharing the same bed.

(5) The respondent is a service holder being an upper division clerk at A.G.

Bengal and wants to live with the appellant as husband and wife but the

intention of the appellant was to drive out the respondent with a motive to

marry another girl and to grab the ornaments of the respondents. Even

after the institution of the suit, the parties were leading conjugal life as a

husband and wife and therefore, the suit was liable to be dismissed.

At the time of hearing, five witnesses including the appellant gave

evidence in support of the case of the appellant while six witnesses including the

respondent deposed in opposing the claim.

As pointed out earlier, the learned Trial Judge by the judgment and

decree impugned herein has disbelieved the case of the appellant and, therefore,

dismissed the suit.

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

After hearing the learned counsel for the parties and after going through

the materials on record, we find that the parties were unhappy from the very

beginning of the marriage. The allegation of the husband in this regard was that

the wife wanted to make him a domesticated son-in-law and that is the cause of

all trouble, while the wife alleged that the two sisters of the husband made her

life miserable in the matrimonial home and they even tried to kill her by setting

fire on her wearing apparel. There is no dispute that the Nagarik Committee and

the local Mahila Samity intervened at the instance of the wife and on their advice,

a separate tenanted accommodation was taken in the name of the wife in a

nearby place. Such effort, however, was not found to be successful. According to

the husband, due to cruel treatment of the wife in the rented accommodation, he

was compelled to leave the said rented house and come back to his father's
house, whereas, according to the wife, it was the husband who misbehaved with

her and left her in the said rented accommodation. The wife, however, spoke high

of her mother-in-law and stated that she used to protect her from the

misbehaviour of her son and daughters. The mother of the husband died in the

year 1989.

The suit was filed in the month of February 1990 when the wife was not

staying in the house of her father-in-law. During the pendency of the suit, the

wife with the help of the local people forcibly entered in the house of the father of

the husband and occupied one of the rooms and further trouble started leading

to the initiation of the criminal case under
Section 498A
of the Indian Penal Code

against all the members of his family and consequently, all of them were arrested

and subsequently released on bail. The said proceedings are still pending after

framing of charges. The wife in her deposition admitted that with the help of the

Mahila Samity, she got entry in the said house in the month of March 1990 and

she claimed that she had been staying in the said house with the appellant as a

husband and wife till the death of her father-in-law. There is no dispute that one

of the sisters of the husband has also died in the meantime.

The learned Trial Judge was of the view that initiation of the criminal

proceedings against the husband and the other members of the family could not

amount to cruelty as charge has already been framed and at that stage, one

could not presume innocence of the husband. Moreover, according to the learned
Trial Judge, the wife had every right to start criminal proceedings if any crime

was committed by the husband against her. We fully subscribe to the aforesaid

view taken by the learned Trial Judge. However, we, in this matrimonial

proceeding for divorce, cannot approve the action of the wife of forcefully entering

the house of the husband when a suit for divorce had already been filed against

her on the ground of cruelty. She had her rented accommodation where she was

staying and had also the paternal house at Dum Dum. She is an employee of the

Central Government and is not a helpless lady in that sense of the term and not

even dependant upon the husband in anyway. In our view, once a matrimonial

suit has been filed, the wife has no right to have a force entry in the house of her

husband against his will if she is provided with maintenance by the husband. In

the case before us, the respondent being an employee of the Central Government,

she is quite capable of maintaining herself and thus, she had no right to enter

the house of the husband by the help of the local people. The sole object of the

respondent was to frustrate the suit by contending that she had been staying in

the same room as husband and wife and she has actually taken such plea in this

proceeding. We, however, do not believe such assertion of the wife after taking

into consideration the fact that the she has initiated proceedings under
Section

498A
of the Indian Penal Code during the pendency of the suit and all the

members of the family were arrested. No reasonable person will believe the

statement of the wife that the husband is staying with her notwithstanding the

pendency of the criminal case where charge has been framed and he is an

accused person along with other members of the family. Such wrongful entry in
the house with the help of local people has definitely caused humiliation of the

husband, an employee of the defence service, in the estimation of the local people

and in the facts of the present case positively amounts to cruelty. We further find

that the wife in her written statements made specific allegation that the husband,

in order to marry his girlfriend and to misappropriate her ornaments, filed the

suit for divorce. In evidence, however, the respondent did not lead any evidence

in support of such allegation about the moral character of the husband and no

suggestion was even given in cross-examination of the husband that he had any

illicit relation with any girl. We, therefore, find that the wife has made baseless

allegation against the husband in the written statement about the desire of the

husband to marry any other lady and such act also amounts to cruelty.

Therefore, even if we hold that the husband has failed to prove that the

wife used to allege his illicit relation with his own sisters, we are satisfied that the

subsequent behaviours of the wife towards the husband definitely amount to

cruelty. It appears that on the pressure of the wife and the members of the local

Nagarik Committee, a separate rented accommodation was taken and that too, in

the name of the wife but in spite of such fact, the parties could not live

peacefully. No specific cause could be pointed out by the wife showing the reason

of the discord and the only defence taken in the written statement as regards the

desire to marry the girlfriend has not been proved. In the rented house, the

sisters of the husband were not there and therefore, they could not be blamed for

the unhappiness of the parties in that rented accommodation. The husband,
however, alleged that the respondent used to come late at night and did not cook

for the husband, which was denied by the wife. The fact that the husband used

to take lunch in his office canteen has been admitted by the wife. We find from

the deposition of the wife that she is a pathological liar as would appear from

various deliberate false statements made in course of deposition. She stated that

she came to know of the filing of the suit on 12th August, 1990 whereas it

appears from the order-sheet that she entered appearance in the suit on 26th

April, 1990 and repeatedly prayed for time to file written statement. In her cross-

examination, she stated that she lodged complaint under
Section 498A
of the

Indian Penal Code against her father-in-law and the sisters-in-law and not

against her husband although it appears that the husband was one of the

accused persons and was arrested. She further stated in one place of her

deposition that in the rented accommodation, both of them were happy and there

was no torture upon either of the parties. (See: page 112 at the penultimate

paragraph of the Paper Book). Such statement is inconsistent with her other

statements as regards the alleged misbehaviour of the husband in the rented

accommodation. She has alleged conspiracy of killing her against the sisters of

the husband and in the same breath, expressed her desire to stay with her

husband along with her sisters-in-law. She specifically stated that she never

created pressure to take any rented house but the facts remain that the said

tenancy was taken in her name and it was not the husband who of his own took

such tenancy in the name of his wife.

On consideration of the entire materials on record we, thus, find that from

the very beginning the wife and her family, took shelter under the local

organisations controlled by the political party and created pressure upon the

husband, first to become a domesticated son-in-law and then to take rented

accommodation for the purpose of living separately from the old parents and the

dependant sisters of the husband. Even thereafter, she could not be happy and

when, the suit was filed after the death of her mother-in-law, she with the help of

the local political party entered forcibly in the house of her husband and started

criminal proceedings against the husband and the members of his family.

However, in Court she took a stance that she was ready to live with her husband.

All these facts taken together will lead to the conclusion that she was intolerant

in her attitude and her aforesaid acts definitely amounted to cruelty.

We now propose to deal with the decisions cited on behalf of the wife.

In the case of
Swapan Kumar Ganguly vs. Smt. Smiritikana Ganguly

reported in A.I.R. 2002 Cal 6, it was established from the evidence on record that

the husband was guilty of physical and mental cruelty, and in such

circumstances, it was held that there was cogent ground of the wife to stay away

from the husband and thus, the husband was found to be not entitled to get a

decree for divorce on the ground of desertion. The said decision, therefore, does
not help the wife in this case where she was found to be guilty of cruelty towards

her husband.

In the case of
Chetan Dass vs. Kamla Devi
reported in A.I.R. 2002 SC

1709, the relief of divorce was claimed by the husband on the ground that the

marriage had been broken down irretrievably. It was found that the husband was

leading adulterous life and in such circumstances, it was held that the husband

could not take advantage of his own wrong. In the case before us, from the very

beginning, the wife refused to come back to the matrimonial home and when

separate rented residence was taken in her own name, she could not live

peacefully and ultimately, after filing of the suit for divorce, forcibly entered into

the matrimonial house with the help of the local people although at that point of

time, she was staying in her rented accommodation. Thus, from the aforesaid

fact, we are unable to conclude that the husband was taking advantage of his

own wrong.

In the case of
Harish Kumar Ledwani vs. Smt. Anita Ledwani
reported in

A.I.R. 2003 M.P. 197, the husband neither specifically pleaded the particulars

regarding his allegation of cruelty with him by wife, nor did he lead any

satisfactory evidence in that regard. On the other hand, the evidence on record

indicated that it was the husband who was maltreating and assaulting wife and

was thus cruel to her. In such a situation, the Madhya Pradesh High Court was

of the view that the husband could not get a decree for divorce on the ground of
cruelty. In the case before us, the particulars of cruelty have been specifically

pleaded and the subsequent events were also incorporated by way of amendment

and wife admitted in her evidence that she took the help of the local Mahila

Samity for entering into the matrimonial home during the pendency of the suit

for divorce leading to the filing of the criminal proceedings. Therefore, the

principles
laid down in

the said decision
cannot have any application to the facts

of the present case.

The decisions cited by the learned advocate for the respondent, therefore,

do not help his client in any way.

Although Mr Mukherjee as a last resort tried to impress upon us that the

divorce is a stigma on a woman in Indian society and thus, we should make

endeavour of preserving the marriage. In the case before us, the wife having been

found to be guilty of cruelty we do not find any reason to refuse the just prayer of

divorce. At this stage, we propose to rely upon the following observations of the

Apex Court in the case of
Naveen Kohli vs. Neelu Kohli
reported in A.I.R. 2006 SC

1675 in answer to the submission of Mr Mukherjee:

"Undoubtedly, it is the obligation of the Court and all concerned that the
marriage status should, as far as possible, as long as possible and
whenever possible, be maintained, but when the marriage is totally dead,
in that event, nothing is gained by trying to keep the parties tied forever to a
marriage which in fact has ceased to exist. In the instant case, there has
been total disappearance of emotional substratum in the marriage. The
course which has been adopted by the High Court would encourage
continuous bickering, perpetual bitterness and may lead to immorality.

In view of the fact that the parties have been living separately for more than
10 years and a very large number of aforementioned criminal and civil
proceedings have been initiated by the respondent against the appellant and
some proceedings have been initiated by the appellant against the
respondent, the matrimonial bond between the parties is beyond repair. A
marriage between the parties is only in name. The marriage has been
wrecked beyond the hope of salvage, public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto. To keep the sham is obviously conducive to
immorality and potentially more prejudicial to the public interest than a
dissolution of the marriage bond."

This is a case where we have decided to grant decree for divorce after

being satisfied with the ground of cruelty and not on the mere ground that the

marriage tie has broken down forever.

The learned Trial Judge, as it appears from the judgment and decree

impugned, did not look into aforesaid misconduct of the wife pointed out by us

and erroneously held that there was no wrong on the part of the wife in forcing

entry into the house of the husband during the pendency of the suit for divorce

and pendency of the criminal case after filing of charge-sheet under
Section 498A

of the Indian Penal Code rather suggested that the husband was prima facie not

innocent.

We, therefore, set aside the judgment and decree passed by the learned

Trial Judge and hold that the husband has successfully proved that the wife was

guilty of cruelty and consequently, we pass a decree for divorce on such ground.

In the facts and circumstances, there will be, however, no order as to costs.

( Bhaskar Bhattacharya, J. )

I agree.

( Rudrendra Nath Banerjee, J. )