Calcutta High Court (Appellete Side)

Sri Debabrata Chakraborty vs Smt. Rina Chakraborty on 24 December, 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. 191 of 2005

Sri Debabrata Chakraborty
Versus
Smt. Rina Chakraborty

For the Husband-Appellant: Mr. Sambhunath Roy,
Mr. M.M. Bhattacharya,
Ms. Sarmistha Roychowdhury,
Mr. Surojit Roychowdhury.

For the Wife-Respondent: Mr. Ajoy Debnath.

Heard on: 04.12.2008.

Judgment on: 24th December, 2008.

Bhaskar Bhattacharya, J.:-

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

conjugal right and in the alternative, for divorce on the ground of cruelty and is
directed against the judgment and decree dated 9th June, 2005 passed by the

learned Additional District Judge, Third Court, Alipore, in Matrimonial Suit

No.34 of 1997, thereby granting a decree for restitution of conjugal rights.

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

thereby praying for a decree of divorce.

The appellant before us filed in the Court of District Judge, South 24-

Parganas, a suit being Matrimonial Suit No.34 of 1997, under Section 22 and/or

alternatively under
Section 27(1) (d)
of the Special Marriage Act, 1954 for a

decree for restitution of conjugal rights with further prayer that in the event the

wife-respondent was found to oppose the prayer for restitution of conjugal rights,

a decree for divorce should be passed on the ground of cruelty. The said suit was

subsequently transferred to the Third Court of Additional District Judge, Alipore,

and was renumbered as Matrimonial Suit No.665 of 1997.

The case made out by the appellant in the aforesaid suit may be summed

up thus:

a) The parties were married on 10th February, 1981 under
Special Marriage

Act
and in the wedlock, a male child was born on 15th June, 1990.

b) The appellant is a government servant and working as a Stenographer

Grade-I and is attached to the Directorate of Rationing, Food & Supplies

Department, Government of West Bengal. The wife-respondent is also a
steno-typist and at the time of presentation of the Matrimonial Suit, had

been working in the Calcutta Municipal Corporation in its Head office and

was attached to the Personnel Department.

c) The appellant, in order to live and lead a happy matrimonial life, built a

house with his own money by taking loan from the Government of West

Bengal sometime in the year 1992, the address of which is described in

the cause-title of the application. The respondent, although was an

earning member of the family of the appellant, never contributed a single

farthing in the family except paying salary of the two part-time maids.

She never contributed a single copper towards the construction of the

building. She had her bank accounts but never kept the pass-books in

the matrimonial home. The respondent had shown a little interest in the

matter of upbringing the child in a decent manner. At least thrice in a

week, she used to go to her mother's house at Sobha Bazar without

making arrangement for the appellant's basic and minimum requirement

of food, cooking and tiffin etc. and the appellant had to arrange those of

his own and there were occasions, when the husband had to go to his

office without food and took lunch in a hotel in his office-locality.

d) The respondent is a peculiar type of woman and used to return to the

matrimonial home from her office always at about 9/9.30 P.M. and if the

appellant enquired of the reasons for coming so late, the respondent used
to shout at the top of her voice and in the process, the appellant was put

to embarrassment and was lowered in the estimation of the neighbours.

e) On or about June 20, 1996 the respondent went to Thakurpukur Police

Station and gave a statement that the appellant died early in the morning

by taking overdose of sleeping pill. The police rushed to investigate the

matter and were deceived and they left the place after rebuking the

respondent.

f) The respondent was a nagging lady and persuaded the appellant to

transfer the house property in her favour and the appellant, to pacify her

illegal demand, tried to explain that since he had taken loan to construct

the building, he would not be in a position to make any conveyance in her

favour as the property remained mortgaged with his employer. The

respondent not being a lady of good understanding or amenable to

reasons, became furious over the matter and filed a complaint under

Section 498A
of the Indian Penal Code and also started other criminal

cases against the appellant.

g) For the initiation of the proceeding under
Section 498A
of the Indian

Penal Code, the appellant suffered tremendous mental agony, worries and

anxieties, particularly, due to the fact that the appellant was a

government servant. However, the appellant was fortunately enlarged on

bail. Simultaneously with the filing of the charge-sheet, the appellant in

that behalf had also to move this High Court and in the process spoiled
much of his time and energy and the financial involvement in that regard

was also to a huge extent.

h) The respondent also filed case under
Section 94
of the Criminal

Procedure Code and with the help of search warrant, she took away

everything from the house of the appellant including the articles

belonging to the appellant. The resultant effect of the said incident was

that the appellant had no utensils to cook. The respondent was so rude

and vindictive that she took all the bedsheets, pillows etc. and the

appellant had to sleep on the floor for quite a few days. Subsequently,

the appellant on production of vouchers could recover 3/4 items out of

the seized articles.

i) The appellant not only bore all the educational expenses of the child but

also paid the expenses for the chartered car and that of crèche and

provided tiffin and other snacks when the occasion permitted. The

respondent created all sorts of problem in school and crèche while the

appellant went there to visit the child. She even issued letter to the

school, crèche and the police station to stall such visit.

j) There was no justification on the part of the respondent to withdraw

herself from the society of the appellant.

k) The respondent poured venom into the ears of the son and whatever

tiffin, food, snacks, etc. were offered by the appellant, she cautioned the
son that he should not consume those. The respondent created problem

when the appellant went to visit the crèche to take information about the

son. She started shouting and hearing her shout, the local people

assembled there, although, they all showed sympathy to the son and the

appellant. The respondent had also the habit of writing letters to the

headmistress of the school asking her not to allow the appellant to talk

and visit the child after school is over or at tiffin hours.

l) In the event the respondent resisted the relief of restitution of conjugal

right, the appellant should be entitled to get a decree of divorce on the

ground of cruelty mentioned in the application.

The suit was contested by the respondent by filing written statement

thereby denying the material allegations made in the plaint and the specific case

made out by the respondent in her written statement may be summarized thus:

a) The appellant never wanted to live and lead a happy matrimonial life but

he wanted to keep the respondent as a maidservant of the house and

used to constantly beat her. She was ultimately driven out from the

matrimonial home.

b) The appellant has venereal diseases and used to mix with different

women and even did not spare a maidservant. The respondent was driven

out of the matrimonial home just for creation of obstruction in the

adulterous relation of the appellant with a maidservant in the presence of

the child which the respondent vehemently opposed. The respondent did
not permit such type of adulterous relation within the knowledge of her

only son.

c) The appellant used to reside in a colony-house and had taken huge sum

of money from the mother of the respondent. Even the first matrimonial

home was provided in a rented house for which the entire advance money

and all other expenses had been borne out by the mother of the

respondent. The respondent provided huge sum of money from her

mother for building the house and she was compelled to pay her entire

salary in the hand of the appellant.

d) The appellant used to snatch the entire salary from the respondent and

in consequence thereof, she used to live like beggar and last of all, at the

time of being driven out from the matrimonial house, she was penniless

and faced immense trouble. If the cost of construction of the building was

assessed by an Engineer, from such assessment, the real expenses of the

construction of the house would come out and from the said assessment,

it would be clear whether the same was built up out of loan amount or

whether there was any contribution by the respondent.

e) The appellant had different sources of money and had got ability to make

and create money from his office and acquired huge sum of illegal

amount which was utilised to meet the cost of his bad habits. The

appellant made arrangement for the respondent to leave her matrimonial
house every week so that the appellant could take the chance of bringing

women during her absence.

f) It was absolutely false that the respondent used to come back at about

9/9.30 P.M. or that she ever raised her voice at the top.

g) After being tortured and injured, the respondent was compelled to

complain to the police station, as a result, the police started a case under

Section 498A
of the Indian Penal Code. The appellant on several

occasions attempted to murder the respondent by a chopper (Bonti). The

appellant is in the habit of mixing with number of women and most of the

days, he used to return at the late night and when the respondent asked

for explanation, she was seriously beaten.

h) The appellant was not satisfied with the company of his wife but always

intended to attach himself with other women. He had illegal relation with

a schoolmistress, maidservants and had contacted various venereal

diseases. The respondent would file an application before the learned

Trial Court to check up the appellant whether he had been affected by

any venereal disease.

At the time of hearing of the suit, the appellant alone gave evidence while

the respondent also was the sole witness opposing the application.

The learned Trial Judge by the judgment and decree impugned herein

gave a decree for restitution of conjugal rights on the ground that the wife was
willing to go back. The learned Trial Judge, however, did not consider the

question of cruelty, as according to him, the main relief having been granted, no

question of giving alternative relief arose. The learned Trial Judge pointed out

that although various allegations of cruelty were made, the application for divorce

was not amended to include those facts as ground of divorce.

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

Mr. Roy, the learned advocate appearing on behalf of the appellant,

vehemently contended before us that the learned Trial Judge refused to exercise

jurisdiction vested in him by law by not considering the question of grant of relief

of divorce on the ground of cruelty. Mr. Roy submitted that his client prayed for

restitution of conjugal rights only to give a chance to the wife with specific

averment that if such prayer was opposed by the respondent, he would pray for

divorce. Mr. Roy submits that in fact, his client, in evidence specifically prayed

for the relief of divorce as the wife did not accept the suggestion of restitution of

conjugal right as would appear from the fact that the reconciliation failed.

Mr. Roy submits that although the learned Trial Judge has not

considered the question of cruelty, this Court should on the basis of evidence on

record consider the question whether the activities on the part of the respondent

amounted to cruelty.

Mr. Roy next submits that the respondent in her written statement

having made specific allegations against the husband imputing his moral
character and has even made allegations that his client was suffering from

venereal diseases, but having failed to substantiate such allegations by leading

any evidence, the Court should on such ground alone pass a decree for divorce

on the ground of cruelty. Mr. Roy submits that unfounded allegations involving

moral character made in the written statement enables the Court to pass a

decree for divorce on the ground of cruelty. He, therefore, prays for decree of

divorce instead of that of restitution of conjugal rights granted by the learned

Trial Court.

Mr. Debnath, the learned advocate appearing on behalf of the respondent,

has opposed the aforesaid contentions of Mr. Roy and has contended that the

present appeal is not maintainable in view of the fact that the main relief

contained in the application was granted by the learned Trial Judge. According to

Mr. Debnath, if the main relief is granted, the plaintiff cannot be aggrieved in

anyway and cannot prefer any appeal for claiming the alternative relief by

abandoning the main relief.

Even on merit, Mr. Debnath submits that the plaintiff having failed to

prove the allegations of cruelty made out in the plaint by adducing any

corroborative evidence, there is no just ground of granting a decree for divorce on

the ground of cruelty. According to Mr. Debnath, if the plaintiff failed to prove

his case made out in the plaint, he cannot get a decree on the ground that the

respondent had failed to prove the allegations made in the written statement.

Mr. Debnath further contends that in this case the main ground of cruelty
alleged in the plaint being that his client had initiated a proceeding under
Section

498A
of the Indian Penal Code, so long that proceeding is not disposed of, it

cannot be ascertained whether the allegations levelled against the husband was

baseless or not. Therefore, Mr. Debnath continues, in the present appeal, there

is no scope of granting any decree of divorce on the ground of initiation of a

proceeding under
Section 498A
of the Indian Penal Code.

Mr. Debnath further submits that the moment his client got back all the

articles through the help of police by issue of search warrant, she did not proceed

with the other criminal proceeding initiated under
Section 406
of the Indian

Penal Code. According to him, for mere initiation of the other proceeding under

Section 406
of the Indian Penal Code no decree for divorce can be granted. He,

therefore, prays for dismissal of the appeal.

Therefore, the first question that arises for determination in this appeal is

whether the main relief prayed for in the suit having been granted, the plaintiff-

husband was entitled to get a decree for divorce on the ground of cruelty which

was taken by way of alternative relief.

As indicated above, in the plaint, the husband first prayed for a decree of

restitution of conjugal right with the rider that if the wife opposed the prayer, he

should be granted a decree for divorce on the ground of cruelty on the basis of

allegations already made in the plaint. The wife has specifically opposed all the

prayers contained in the plaint and has in her written statement not only denied

those allegations but also defended her action and at the same time, made
serious allegations against the husband regarding his moral character indicating

that he was maintaining adulterous relation with various ladies including the

maidservants and had gone to the extent of making allegation that the husband

was suffering from venereal diseases and maintained such stance even at the

time of trial by appearing as a witness. The learned Trial Judge, as it appears

from the judgement impugned, recorded that the husband did not deny such fact

in his examination-in-chief or by giving suggestion to the D.W.-1 in her cross-

examination. Such finding is a perverse finding of fact inasmuch as the husband

in his examination-in-chief specifically denied those facts (See pages 49-50 of the

paper book) and at the same time, gave specific suggestion to the D.W.-1 that

those allegations were false (See pages 83-84 of the paper book).

The learned Trial Judge after recording the submissions of the learned

counsel for the parties held that as the wife had not opposed the prayer of

restitution of conjugal right and was willing to go back to the house of the

plaintiff, he was inclined to pass the decree for restitution of conjugal right and

found no necessity to enter into the question of cruelty as, according to him, the

main relief claimed in the suit had been granted. According to the learned Trial

Judge, in spite of the various allegations made in the written statement against

the husband involving moral character, the husband not having amended the

plaint by specifically praying for the relief of divorce on those allegations, those

allegations cannot be considered in this proceeding particularly when the court

granted the decree for restitution of conjugal right.

In our opinion, the aforesaid reason assigned by the learned Trial Judge

is not in conformity with the law of the land for the following reasons:

First, in this case, the first prayer for restitution of conjugal right was

subject to the condition that the wife would not oppose the said prayer. In this

case, in the written statement the wife did not plead that she accepted the fact

that without just cause she left the husband's house but on the contrary,

justified her action and in addition to those pleas, made allegations involving

moral character of the husband. There is even no plea in the written statement

that in spite of cruel behaviour of the husband she was willing to return. The fact

that the endeavour of the learned Trial Judge for reconciliation failed indicated

that even at that stage, she was not willing to return. Therefore, the parties went

on trial on contested hearing even for the purpose of granting the relief of

restitution of conjugal right. The moment such contested trial started, it should

be presumed that the defendant was opposing even the first prayer of restitution

of conjugal right by maintaining that due to cruel behaviour of the husband she

was entitled to live separately and such prayer being conditional, the plaintiff

without further amendment of plaint was entitled to press the issue of cruelty as

a ground of divorce. If she was really willing to go back without opposing the

prayer of restitution of conjugal right, there was no occasion for filing written

statement opposing the prayer of restitution of conjugal right and contesting the

suit by giving evidence. After contesting the suit and leading evidence disputing

the allegations and making counter-allegations, if the wife offers to return for the
sake of "welfare of the son" such plea must be held to be a pretended concession

for the purpose of frustrating the relief of divorce even after committing cruelty.

As pointed out by the Apex Court in the case of
Vijaykumar Ramchandra Bhate

vs. Neela Vijaykumar Bhate
reported in AIR 2003 SC 2462, if a defendant after

making false allegation against the other spouse withdraws such allegations by

making amendment of the written statement, such withdrawal of the allegation

will not absolve the defendant of his liability which he has already incurred by

making false allegation and on that ground the Court can grant a decree for

divorce.

Secondly, in a matrimonial suit, even if the plaintiff is unable to prove the

allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree

for divorce if it appears that the defendant in the written statement has made

unfounded allegations of bad moral character of the plaintiff which are proved to

be baseless and for that reason, the plaint is not required to be amended

incorporating an assertion that those allegations are baseless.

Therefore, the learned Trial Judge refused to exercise jurisdiction vested

in him by law by not considering whether the plaintiff had established cruelty

from the materials on record to enable him to get a decree for divorce.

Since all the materials are available on record and the proceedings are

pending for a longtime, we have, in exercise of power conferred under
Order XLI

Rule 24 of the Code of Civil Procedure
, decided to consider such question and

accordingly, we invited the learned counsel for the parties to argue on the
question whether the husband on the basis of materials on record is entitled to

get a decree for divorce on the ground of cruelty.

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

the materials on record, we find that the wife has undisputedly initiated two

criminal proceedings, one under
Section 498A
of the Indian Penal Code and the

other, under Section 406 of the Indian penal Code. The proceedings under

Section 498A is still pending while the other one has been dismissed as the wife

did not take any further step in the matter. In her defence, the wife has alleged

that the husband took money from her mother and used to force her to pay her

salary while the husband has totally denied such allegations. The wife has

admitted that she lodged several diaries before the police station and also told

the members of the local club alleging the torture of the husband. She has

further stated that due to physical torture of the husband she was injured and

such injury was treated by a doctor and due to such injury she could not attend

her office. The husband, on the other hand, stated that the wife never paid any

amount except the salary of two maidservants and although she had bank

accounts, she never kept those pass books in the matrimonial home. The wife in

this case has not examined any of the club people to whom she reported the

incident of physical assault nor did she examine the doctor who allegedly treated

her. She even did not examine her mother in support her allegations that huge

amount of money was paid to her husband by her mother to purchase the peace

in the family. She even by producing her bank accounts could easily substantiate
her defence showing the monthly withdrawal of money from the accounts. She

refused to produce materials showing that she really took leave from her office

due to physical assault on her on the basis of the medical certificate of the

doctor.

In her written statement, she alleged adultery against her husband and

pressed the same in evidence. Such fact has been denied by the husband. She in

her written statement alleged that the husband was suffering from venereal

diseases and that she would apply for examination of the husband by a doctor.

The husband in her examination-in-chief denied such fact and thereafter, the

wife did not utter anything about such allegation in her examination-in-chief and

also did not pray for medical examination of the husband.

From the aforesaid facts it is clear that the wife in spite of making serious

allegations against the husband involving moral character did not even try to

prove such fact by bringing the witnesses who could throw light on the veracity of

the allegations. We are quite alive to the position of law that mere inability on the

part of the defendant to prove the allegations contained in the written statement

does not authorise the matrimonial court to pass a decree for divorce on the

ground that those allegations were baseless; but if the defendant, in spite of

availability of the competent witnesses to lend support to the allegations, decides

not to examine them without just cause, the Court is entitled to presume that

those allegations were baseless by drawing adverse presumption for not

producing the best evidence available to her.

In this case, in spite of full knowledge that the husband is a government

servant, the wife made complaint under
Sections 498A
and
of the Indian

Penal Code and the husband was compelled to take bail. It appears that the wife

did not proceed with the case under
Section 406
of the Indian Penal Code and

the same was dismissed. But for filing of such criminal case, the plaintiff was

harassed. Similarly, there is no sufficient reason assigned by the wife

demonstrating why she would not bring any corroborative evidence of physical

torture when she was treated by a doctor and she told such incident to the local

club members. Similarly, she could easily by production of her bank accounts,

indicate her monthly withdrawal and thus, falsify the claim of the husband that

she only used to pay the salary of the two maidservants. No body from her

paternal side has come forward to support her case of demand of dowry and

harassment alleged against the husband and payment of Rs.50,000/- by her

mother could be easily proved by production of passbook of the bank. She

although asserted in her written statement that she would apply for medical

examination of the husband showing presence of venereal diseases, after the

denial of such fact by the husband in his examination-in-chief she forgot to take

such step.

All the aforesaid facts prove that the husband has not only proved the

ground of divorce pleaded in the petition of divorce but at the same time, for
making false and baseless allegations in the written statement against the

husband, it is a fit case to grant a decree for divorce.

In the case of
Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar

Bhate
, referred to earlier, the Supreme Court held that the act of levelling

disgusting accusations of unchastity and indecent familiarity with a person

outside the wedlock and allegations of extramarital relationship constituted grave

assault on the character, honour, reputation, status as well as the health of

other spouse. Such aspersions of perfidiousness attributed to the other spouse

viewed in the context of an educated Indian person and justified by the Indian

conditions and standards, would amount to a worst form of insult and cruelty

which is sufficient by itself to substantiate cruelty in law, warranting the claim of

a party being granted divorce.

The learned Trial Judge, thus, erred in law in passing a decree of

restitution of conjugal right in the facts of the present case by refusing to exercise

jurisdiction vested in him by law on the erroneous idea that the main relief

having been granted there was no scope of granting the decree of divorce.

We, therefore, allow this appeal by setting aside the judgement and

decree passed by the learned Trial Judge and grant a decree for divorce on the

ground of cruelty.

Since the only son of the parties is living in the custody of the wife we do

not propose to disturb such custody. However, the husband is directed to pay the

maintenance of the said son at the same rate at which he is presently paying by

virtue of the interim order passed in this appeal, however, on condition that the

son should come and stay with the father for a day in every week. If the son

refuses to keep relation with the father by staying with him for a day in every

week, in that event, no maintenance should be paid as he has attained majority

and his mother is quite capable of maintaining him.

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

costs.

(Bhaskar Bhattacharya, J.)

I agree.

(Rudrendra Nath Banerjee, J.)