Gauhati High Court

Mat.App./2/2022 on 1 April, 2025

GAHC010073942021

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

Mat.App./2/2022

Ashok Ganguly,
S/o Late Sunil Ganguly,
Resident of Sankar Dev Nagar,
PO and PS Makum JN
District- Tinsukia
.....Appellant

-Versus-

Sima Ganguly,
D/o Jagodish Chakravorty,
Resident of South Masli,
PO Bhanga Bazar, Badarpur,
District-Karimganj, Assam

......Respondent

For Appellant : Mr. M. A. Choudhury, Advocate

For Respondent : Mr. A. Dhar, Advocate

Date of Judgment : 01.04.2025

Mat.App./2/2022 Page 1
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT

(MRIDUL KUMAR KALITA, J)

1. Heard Mr. M. A. Choudhury, the learned counsel for the
appellant. Also heard Mr. A. Dhar, the learned counsel for the
respondent.

2. This appeal under
Section 28
of the Hindu Marriage Act, 1955
has been preferred by the appellant/husband Shri Ashok
Ganguly, impugning the judgment dated 11.02.2021 passed
by the Court of the learned District Judge, Karimganj, in Title
Suit (D) No. 81/2014, whereby the Trial Court dismissed the
divorce suit filed by the appellant for a decree of divorce
against the respondent.

3. The facts relevant for consideration of the instant matrimonial
appeal, in brief, are that the appellant/husband had filed a
divorce suit before the Court of the learned District Judge,
Karimganj against the respondent/wife, Smti Sima Ganguly
under
Section 13
of the Hindu Marriage Act, 1955 for a
decree of divorce and alternatively for a decree for judicial
separation on the grounds of cruelty and desertion.

4. In the plaint filed by the appellant/husband before the Trial
Court, it was averred that the respondent is the legally
married wife of the appellant and their marriage was
solemnized on 11.10.2004 at Kancha Kanti Temple, Silchar
according to Hindu rites and rituals. After their marriage, both

Mat.App./2/2022 Page 2
the parties cohabited as husband and wife at Badarpur
Railway GRP Colony, i.e., the place where the appellant was
working at that time. Out of their wedlock, a girl child was
born (Annapurna Ganguly), who was about 10(ten) years of
age when the divorce suit was filed by the appellant. The
appellant had pleaded in his plaint that after the marriage,
the respondent used to frequently go to her paternal house
and used to live with them and the parents of the respondent
used to interfere in the matrimonial life of the parties, which
caused matrimonial discord amongst the appellant and the
respondent.

5. The appellant has stated in his plaint that on 29.08.2006, the
respondent, on the instigation of her parents, instituted a
criminal case under
Section 498A
of the Indian Penal Code,
which was registered as G.R. Case No. 771/2006. In the said
case, the appellant was arrested and was detained in jail
custody. It was further stated by the appellant that ultimately
the appellant was acquitted by the Trial Court in the said case
by its judgment dated 26.02.2014.

6. It was also alleged that due to filing of the false case, the
matrimonial relationship between the parties deteriorated.
After his release from jail custody, the appellant was
transferred to Baksa and since 29.08.2006 there is no
matrimonial relationship between the appellant and the
respondent. It was further averred in the plaint, by the
appellant/husband that he tried his level best to resolve the
matrimonial dispute and asked the respondent to come to his

Mat.App./2/2022 Page 3
place but she paid no heed to the same. In the meanwhile,
the respondent also filed a case under
Section 125
of the
Code of Criminal Procedure, 1973, which was registered as
Misc. Case No. 236/2006, where she claimed for monthly
maintenance allowance for her as well as for her daughter
from the appellant.

7. It is pertinent to mention herein that the appellant also has a
son, from his earlier marriage, namely, Abhinandan Ganguly,
who was aged about 19(nineteen) years when the divorce
suit was filed. It was after the death of his first wife, that the
appellant married the present respondent.

8. The respondent/wife contested the divorce suit by filing
written statement, wherein apart from making usual defence
pleas, she has stated that the appellant/husband had a
doubtful relationship with one Sathi Das, who was the maid
servant of the appellant working in his house and when the
respondent protested against such illicit relationship of the
appellant, she was subjected to physical abuse.

9. It was also pleaded in her written statement that in respect of
the said issue a local meeting (Bichar) also took place,
wherein the appellant admitted of having relationship with the
said lady and assured not to continue the same or to assault
the respondent. However, in spite of such assurance, he
continued to do so. It was also stated by the respondent in
her written statement that again when the respondent
protested against the extra marital relationship of the
appellant on 28.08.2006, the appellant tried to pour kerosene

Mat.App./2/2022 Page 4
and burn the respondent. However, due to intervention of the
neighboring people, she could be saved. On the following day
i.e., on 29.08.2006, the respondent lodged an FIR before the
Badarpur Police Station, which was registered as Badarpur
P. S. Case No. 113/2006.

10. It was further stated in her written statement, by the
respondent that after filing of the aforesaid G. R. Case, there
was an endeavor for amicable settlement and the appellant
approached the respondent through well-wishers for the
amicable settlement of their matrimonial dispute and
accordingly, the respondent filed a "no objection" before the
Court for bail of the appellant and as such, bail was granted
to him.

11. However, even after getting bail the appellant did not take
any step for starting the matrimonial relationship again. The
respondent also contended that as she did not state anything
against the appellant in the pending case under
Section 498A

of the Indian Penal Code, the appellant was acquitted in the
said case. She has also stated that there are no ingredients of
cruelty as well as desertion in the petition filed under
Section
of the Hindu Marriage Act, 1955 by the appellant.

12. On the basis of the pleadings filed by both the parties, the
Trial Court framed the following issues:

(i) Whether the plaintiff is entitled to get a decree of
divorce as prayed for? ;

(ii) What other relief/reliefs is the plaintiff entitled?

Mat.App./2/2022 Page 5

13. In support of his case, the appellant/husband examined
himself as PW-1 and one Johar Kanti Mazumdar as PW-2. On
the other hand, the respondent/wife examined herself as DW-

1 and one Smt. Dipti Choudhury as DW-2.

14. However, after considering the evidence adducted by both the
sides as well as after considering the submissions of the
learned counsel for both the sides, the Trial Court decided
both the issues against the appellant/husband and dismissed
the divorce suit filed by him.

15. Mr. M. A. Choudhury, the learned counsel for the appellant
has submitted that the Trial Court erred in dismissing the
divorce suit filed by the appellant on the ground that it found
no evidence of physical cruelty as well as desertion by the
respondent. He submits that the Trial Court failed to take into
consideration the fact that by filing a false criminal case
against the appellant, the respondent subjected him to mental
cruelty.

16. He submits that the Trial Court was wrong in coming to the
finding that the appellant was acquitted in the G.R. Case No.
771/2006 only because of the fact that a "no objection" was
filed by the respondent to the bail application for the
appellant and the said factor influenced the decision of the
Court while acquitting the appellant.

17. The learned counsel for the appellant submits that the Trial
Court failed to take into consideration the fact that in G. R.
Case No. 771/2006, 08(eight) prosecution witnesses were
examined by the prosecution side including the respondent

Mat.App./2/2022 Page 6
and as the prosecution witnesses failed to prove the charge
against the appellant under
Section 498A
of the Indian Penal
Code, he was acquitted.

18. He submits that compelling the appellant to undergo the
rigours of the criminal trial, in which ultimately he got a
verdict of acquittal, is in itself an act of mental cruelty by the
respondent and on that ground only the appellant was
entitled to get a decree of divorce.

19.
In respect of his submission, the learned counsel for the
appellant had cited the ruling of the Apex Court in the case of
"
Rani Narasimha Sastry Vs. Rani Suneela Rani
"

reported in (2020) 18 SCC 247. The learned counsel for the
appellant had also relied upon the ruling of the Division Bench
of this Court in the case of "
Lalit Sinha Vs. Smti Sandhya
Sinha
" reported in (2022) 2 GLT 31 where the Division
Bench relying upon the above-mentioned case of "
Rani
Narasimha Sastry
" (Supra) granted the decree of divorce to
the husband on the ground that subjecting the appellant to
undergo trial in which ultimately he is acquitted would be
regarded as an act of mental cruelty by the wife.

20. The learned counsel for the appellant has also submitted that
the appellant and the respondent are living separately since
the year 2006 and this long separation has resulted into a
matrimonial discord, which is beyond repair, therefore, he
submits that this long separation is in itself a ground, which
may also be regarded as an aspect of mental cruelty and on
that ground also the appellant is entitled to get the decree of

Mat.App./2/2022 Page 7
divorce.
In support of his submission, the learned counsel for
the appellant has cited a ruling of the Apex Court in the case
of "
Samar Ghosh Vs. Jaya Ghosh
" reported in (2007) 4
SSC 511, wherein it was observed as follows:

"101.(xiv) Where there has been a long
period of continuous separation, it may
fairly be concluded that the matrimonial
bond is beyond repair. The marriage
becomes a fiction, though supported by a
legal tie. By refusing to sever that tie the
law in such cases does not serve the
sanctity of marriage; on the contrary, it
shows scant regard for the feelings and
emotions of the parties in such like
situation, it may lead to cruelty."

21. The learned counsel for the appellant has submitted that in
the instant case, the respondent and the appellant are living
separately for almost 19(nineteen) years and their marriage
has reached beyond point of repair and these aspects were
not considered by the Trial Court. Hence, he submits that the
impugned judgment of the Trial Court is liable to be set aside
and the respondent is entitled to get a decree of divorce on
the ground of mental cruelty and desertion.

22. On the other hand Mr. A. Dhar, the learned counsel for the
respondent has submitted that the Trial Court has rightly
dismissed the divorce suit filed by the appellant as he failed to

Mat.App./2/2022 Page 8
prove the grounds of cruelty and desertion as pleaded by him
in his plaint.

23. The learned counsel for the respondent has submitted that
the appellant has mainly filed this appeal on the ground that
the Trial Court failed to take into consideration that the
appellant was acquitted in the G. R. Case No. 771/2006,
under
Section 498A
of the Indian Penal Code, which was
registered on the basis of an FIR lodged by the present
respondent. However, he submits that the appellant has
suppressed the fact that on 31.08.2006, during the pendency
of the Badarpur P. S. Case No. 113/2006, corresponding to
G. R. Case No. 771/2006, the respondent filed an application,
which was registered as Petition No. 7116 dated 31.08.2006,
before the Court of the learned Additional Chief Judicial
Magistrate, Karimganj, stating therein that on account of
some misunderstanding with her husband she lodged an FIR
and at the intervention of the well-wishers, the matter has
been resolved and she want to go with her husband and as
such, the appellant was granted bail by the Court on
31.08.2006 itself.

24. The learned counsel for the respondent has further submitted
that on the same day i.e., 31.08.2006 itself, one Sathi Das
claiming himself to be the wife of the appellant also filed
another petition which was registered Petition No. 7112 dated
31.08.2006 before the learned Additional Chief Judicial
Magistrate, Karimganj, praying for bail of the appellant.

Mat.App./2/2022 Page 9

25. The learned counsel for the respondent submits that filing of
bail application by Sathi Das, wherein she claimed herself to
be the wife of the appellant itself shows that the allegation of
extra-marital affair by the respondent against the appellant
was not without any basis.

26. The learned counsel for the respondent has submitted that
while acquitting the appellant in the G. R. Case No. 771/2006,
the Court of learned Additional Chief Judicial Magistrate,
Karimganj has observed that the prosecution side had failed
to prove the charges beyond all reasonable doubt. It also took
into consideration the fact that the criminal case was filed on
account of some misunderstanding between the respondent
and the appellant, therefore, he submits that it is not a case,
where false accusations were made against the appellant by
the respondent, while filing the FIR against him.

27. The learned counsel for the respondent submits that the
circumstances were such that the respondent was compelled
to lodge an FIR against the appellant and in the judgment
passed in G. R. Case No. 771/2006, the Court of learned
Additional Chief Judicial Magistrate, Karimganj did not make
any observation that the allegations made by the informant
are false, rather the appellant was given benefit of doubt as
the prosecution side failed to prove the charges beyond all
reasonable doubt.

28. The learned counsel for the respondent has also submitted
that after release of the appellant he was transferred to Baksa
and there is no evidence to show that he attempted to bring

Mat.App./2/2022 Page 10
the respondent to her matrimonial house and therefore, the
learned counsel for the respondent submits that the appellant
has failed to show that there was any animus deserendi on
the part of the respondent to stay away from her husband.

29. The learned counsel for the respondent has also submitted
that mere long separation, in itself, may not entitle the
appellant to get a decree of divorce, unless, it is shown that
the respondent was at fault on some count and the appellant
is able to prove any of the ground mentioned in
Section 13
of
the Hindu Marriage Act, 1955 to get a decree of divorce.

30. The learned counsel for the respondent has also referred to
Exhibit-B exhibited by the respondent before the Trial Court
which is the order dated 31.08.2006 passed by the Court of
learned Additional Chief Judicial Magistrate, Karimganj in
Badarpur P. S. Case No. 113/2006, which shows that one
Sathi Das had also filed an application for bail of the appellant
Ashok Ganguly claiming herself to be the wife of the
appellant. He also submitted that from the said order itself it
would appear that as because the respondent submitted
before the Court that the matter has been amicably settled,
the appellant was granted bail in that case.

31. I have considered the submission made by the learned
counsel for both sides and have gone through the materials
on record including the records of the Title Suit (D) No.
81/2014, which was requisitioned in connection with the
instant appeal.

Mat.App./2/2022 Page 11

32. The appellant has assailed the impugned judgment in this
appeal mainly on the ground that by filing the G.R. Case
No. 771/2006 (corresponding to Badarpur P. S. Case No.
113/2006) under
Section 498A
of the Indian Penal Code, the
respondent has subjected the appellant to mental cruelty and
said fact has not been taken into consideration by the Trial
Court.

33. The term cruelty as mentioned in
Section 13(1)
(i-a) of the

Hindu Marriage Act, 1955
may mean physical cruelty or
mental cruelty.

34.
In this regard, the observation made by the Apex Court in the
case of "
Srinivas Rao Vs. D. A. Deepa
" reported in (2013)
5 SCC 226 are relevant and the same are reproduced herein
below:

"10. Under
Section 13(1)
(i-a) of the

Hindu Marriage Act, 1955
, a
marriage can be dissolved by a
decree of divorce on a petition
presented either by the husband or
the wife on the ground that the other
party has, after solemnisation of the
marriage, treated the petitioner with
cruelty. In a series of judgments this
Court has repeatedly stated the
meaning and outlined the scope of
the term "cruelty". Cruelty is evident
where one spouse has so treated the
other and manifested such feelings
towards her or him as to cause in her
or his mind reasonable apprehension
that it will be harmful or injurious to
live with the other spouse. Cruelty
may be physical or mental."

Mat.App./2/2022 Page 12

35. However, there cannot be any fix standard to judge as to
what may amount to mental cruelty. The facts of each case
have to be considered to ascertain whether mental cruelty
has been perpetrated by any of the party upon another by
any of her or his action or inaction. Though, making
unfounded, indecent defamatory allegations against the
spouse by the another spouse may amount to mental cruelty.
Similarly, filing of criminal cases on the basis of
unsubstantiated allegations by one of the spouse against
another spouse may also amount to mental cruelty.

36. However, before coming to the conclusion that the
respondent has subjected the appellant to mental cruelty, in
the instant case, the facts of the case are to be examined. In
the instant case, the respondent had lodged an FIR against
the appellant alleging that she was subjected to torture by
the appellant and it was also alleged that the appellant is
having an illicit affair with the maid of the house namely,
Sathi Das and ultimately, the appellant was acquitted of said
charges in G.R. Case No. 771/2006 by the Court of the
learned Additional Chief Judicial Magistrate, Karimganj.

37. As the appellant was acquitted of the charges levelled by the
respondent in the criminal case, it has been projected that the
appellant was subjected to cruelty by compelling the appellant
to undergo trial in a case where ultimately he was acquitted.

38. However, if we peruse the judgment dated 26.02.2014,
passed by the Court of the learned Additional Chief Judicial

Mat.App./2/2022 Page 13
Magistrate, Karimganj in G.R. Case No. 771/2006, it appears
that the learned Additional Chief Judicial Magistrate,
Karimganj, while passing the aforesaid judgment took into
consideration the fact that the present respondent while
deposing as PW-1 in the said case has deposed during cross-
examination that she had filed a petition before the Court that
matter has been amicably settled and the case was lodged
due to misunderstanding.

39. The present respondent, while deposing as a prosecution
witness in G. R. Case No. 771/2006 has deposed that her
husband was in the house of Sathi Das and when the
respondent protested to the same she was abused and
assaulted by the appellant. The Trial Court, did not make any
comment regarding the truthfulness or falsity of this
testimony, therefore, what was deposed by the respondent
cannot be treated as false merely because of the fact that the
appellant was acquitted in the said case.

40. It also appears that the appellant was acquitted in the said
case mainly because the prosecution side failed to prove that
there was demand of dowry by the appellant (accused). The
allegation of demand of dowry was never made by the
present respondent (wife) while lodging the FIR against the
appellant.

41. It also appears that the appellant was acquitted as the
prosecution side failed to prove the charges under
Section
498A
of the Indian Penal Code beyond reasonable doubt.

Mat.App./2/2022 Page 14

42. It is pertinent to mention herein that there is no observation
in the said judgment that the allegation made by the present
respondent (wife) that the appellant was found in the house
of Sathi Das and that the appellant assaulted and tried to
pour kerosene on her is false allegation.

43. Further, what is relevant in this case is that the respondent
while deposing as DW-1, in the Title Suit (D) No. 81/2014,
has exhibited the certified copy of the order dated 31.08.2006
passed by the learned Additional Chief Judicial Magistrate,
Karimganj in Badarpur P. S. Case No. 113/2006, which shows
that one Sathi Das claiming herself to be the wife of the
present appellant also filed a bail application praying for bail
of the appellant in the case, which was registered on the
basis of the FIR lodged by the present appellant. From the
aforesaid order of the learned Additional Chief Judicial
Magistrate, Karimganj, it appears that the allegations
regarding Sathi Das made by the present respondent in her
evidence before the Trial Court may not be considered as
absolutely false allegation.

44. In the rulings cited by the learned counsel for the appellant,
the lodging of criminal cases, on the basis of unsubstantiated
allegation against the husband, was regarded as an act of
mental cruelty. However, that does not mean in every case,
where a case under
Section 498A
of the Indian Penal Code
results into an acquittal, the act of lodging of such case by
the wife against the husband, would be treated as mental
cruelty within the meaning of
Section 13(1)
(i-a) of the Hindu

Mat.App./2/2022 Page 15

Marriage Act, 1955
, irrespective of the facts and
circumstances of the said case.

45. It is pertinent to note that in G.R. Case No. 771/2006, the
appellant was tried for charges under
Section 498A
of the
Indian Penal Code and he was acquitted because the
allegation of the demand of dowry, which is required for
proving of such charge, was not made in this case.

46. As discussed hereinabove, there was no allegation regarding
demand of dowry by the respondent/wife against the present
appellant/husband. The main allegation against the appellant
was that he was having illicit relationship with one Sathi Das
and when the respondent objected to the same, she was
assaulted by him.

47. There is no finding in the judgment passed by the learned
Additional Chief Judicial Magistrate, Karimganj, in G. R. Case
No. 771/2006 that the allegation levelled against the appellant
by the present respondent was false allegation. The appellant
was acquitted of the charge under
Section 498A
of the Indian
Penal Code mainly due to the absence of the demand of
dowry, which is an essential ingredient for commission of an
offence under
Section 498A
of the Indian Penal Code.

48. In view of above, this Court is of the considered opinion that
the facts of the instant case are not such so that mere lodging
of the FIR and acquittal of the appellant, on the failure to
prove the essential ingredient of the demand of dowry, in G.
R. Case No. 771/2006, may be regarded as an act of mental
cruelty by the respondent, so as to grant the appellant a

Mat.App./2/2022 Page 16
decree of divorce under
Section 13(1)
of the Hindu Marriage
Act, 1955.

49. As regards, the long period of continuous separation being
regarded as an element of mental cruelty, there is no doubt
that such a long period of continuous separation between the
appellant and the husband may result in a situation where
matrimonial bond can be regarded as beyond repair,
however, if the respondent (wife) is not found to be at fault
for such long separation, the said long separation, in itself,
may not be regarded as an act of cruelty by her.

50. Further, such a long separation, in absence of animus
deserendi, on the part of the respondent would also not
amount to an act of her deserting the appellant. In the
instant case, it appear that after getting bail in G.R. Case
No. 771/2006, the appellant was transferred to Baksa and
thereafter, he went to the paternal house of the respondent
wife, where she was living, only on two occasions and there is
no evidence to show that he made an effort to take the
responded with him to Baksa.

51. Thus, the mere fact that the respondent and the appellant are
living separately since 28.08.2006, in itself, may not amount
to desertion by the respondent, if the appellant fails to prove
that the respondent intended to desert him. The appellant has
not been able to show the animus deserendi on the part of
the respondent to dessert him, so as to justify the grant of
decree of divorce, on the ground of desertion, to the
appellant.

Mat.App./2/2022 Page 17

52. In view of the reasons mentioned and the discussions made
in the foregoing paragraphs, this Court does not find any
infirmity in the conclusion arrived at by the Trial Court in the
impugned judgment that the appellant has failed to prove the
ground of cruelty and desertion as required under
Section 13

of the Hindu Marriage Act, 1955 and rejecting the prayer for
grant of the decree of divorce to the appellant.

53. This appeal is, therefore, found devoid of any merit and
accordingly, same is dismissed.

JUDGE
Comparing Assistant

Mat.App./2/2022 Page 18