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Sm. Bijoli Choudhury Vs. Sukomal Choudhury - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 64 of 1976
Judge
Reported inAIR1979Cal87
ActsHindu Marriage Act, 1955 - Sections 10(1) and 13(1)
AppellantSm. Bijoli Choudhury
RespondentSukomal Choudhury
Appellant AdvocatePrasun Chandra Ghosh and ;Nagendra Mohan Saha, Advs.
Respondent AdvocateB.K. Ghosh, ;Ranjit Kumar Ghosal and ;Rabindra Nath Dutta, Advs.
DispositionAppeal allowed
Cases ReferredLachman Utamchand Kirpalani v. Meena
Excerpt:
- chittatosh mookerjee, j.1. on february 27, 1963 the respondent sukomal choudhury, had married the appellant, bijoli choudhnry, according to buddhist rites at p 12/1, dihi serampore road, p. s. beniapu-kur, calcutta. on 23rd november, 1972 the respondent-husband presented a petition under section 10 of the hindu marriage act in the district judge's court, alipore praying for a decree of judicial separation. the present appellant contested the said case. the learned additional district judge, 2nd court, alipore by his judgment dated 7th july, 1975 granted a decree for judicial separation on the ground that the appellant had treated her husband respondent herein with cruelty within the meaning of section 10(1)(b) of the hindu marriage act. according to the learned additional district judge,.....
Judgment:

Chittatosh Mookerjee, J.

1. On February 27, 1963 the respondent Sukomal Choudhury, had married the appellant, Bijoli Choudhnry, according to Buddhist Rites at P 12/1, Dihi Serampore Road, P. S. Beniapu-kur, Calcutta. On 23rd November, 1972 the respondent-husband presented a petition under Section 10 of the Hindu Marriage Act in the District Judge's Court, Alipore praying for a decree of judicial separation. The present appellant contested the said case. The learned Additional District Judge, 2nd Court, Alipore by his judgment dated 7th July, 1975 granted a decree for judicial separation on the ground that the appellant had treated her husband respondent herein with cruelty within the meaning of Section 10(1)(b) of the Hindu Marriage Act. According to the learned Additional District Judge, she had also deserted her husband for two years or more within the meaning of Section 10(1)(b) of the said Act. The appellant wife has presented this appeal against the said decision of the learned Additional District Judge, 2nd Court Alipore. During the pendency of this appeal the Marriage Laws (Amendment) Act, 1976 was enacted which inter-alia made several amendments in the Hindu Marriage Act, 1953. The respondent husband has filed an application in this Court for amendment of his petition/plaint filed in the Court below inter-alia for inserting a prayer that a decree of divorce be granted to him under Clause (ia) and (ib) of Sub-section (1) of Section 13 of the Hindu Marriage Act, The said application of the respondent husband has been heard along with the appeal preferred by the appellant wife. We have to consider whether or not the learned Additional District Judge has correctly found that the appellant wife after solemnisation of the marriage had treated her husband with cruelty and whether or not she had deserted him for a continuous period of not less than two years immediately preceding to presentation of the petition under Section 10 of the Hindu Marriage Act.

2. Both the appellant and the respondent, as already stated, are Buddhists and their families came from the district of Chittagong. The respondent husband in his evidence stated that when he was aged five, both his father and mother had died. He was brought up by his grandmother and then by his aunt. According to the appellant wife her farher used to give monetary help to her husband even before he married her. The respondent husband however did not admit the said fact But even according to him, he had started living in the house of his prospective father-in-law three months before his M. A. examination. In November, 1962 the respondent had passed the M. A. examination in Pali language and he stood first in the first class. On 27th March, 1963 the marriage between the parties took place at the residence of the appellant's father at Dihi Serampore Road, Calcutta and the respondent continued to live in his father-in-law's house.

3. The respondent husband in paragraph 6 of his petition under Section 10 of the Hindu Marriage Act had claimed that the marital life of the parties had started quite happily and their days were passing normally except for minor differences of views over small matters. He had further averred in his petition under Section 10 of the Act that in or about the year 1965 the appellant slowly had a change in her behaviour. She became arrogant about her father's status in society in comparison with his family and his social status. She showed her undue superiority complex and vanity. She tried to subdue him with an air of superiority. In the year 1966 the appellant had become pregnant. She did not allow the doctors and nurses to examine her condition and abused and misbehaved with them. The baby was seriously injured during delivery and died six days after. After this, according to the husband, his wife showed landslide change in her behaviour for the worse. She became nagging and on every word or act of the petitioner would find fault with him and abused him'. She was full of Uncontrollable rage and used filthy abuses. The husband further alleged that she did not hesitate to raise her hands on him. The husband in his petition also alleged that he used to impart occasional coaching to a girl student. His wife used to suspect him of being immorally involved with the girl student and on this account abused and insulted him. Even while he was teaching the girl student, the wife had also stood in the way of her husband from visiting Harvard University in U. S. A. for doing research work. He was not allowed to take up a post in the Benaras Hindu University.

4. The husband in his petition further alleged that his wife under sadistic cravings had drugged him and he had become sick with severe infection in his stomach. The doctors had given up hope of curing him. He was shifted to a rented house where his relatives arranged for his treatment. His wife was brought there against her will but she had misbehaved with his relatives and had left him on her own accord with positive intention of not returning again. Thereafter, the husband was allegedly cured by means ot a supernatural drug. The husband claimed in his petition under Section 10 that he had always hoped that with the passage of time his wife would understand his difficulties and would mend her habits and manners. He had patiently waited but his hopes were shattered. She and her men had threatened him time and again unless he would agree to go back to his father-in-law's house. She had tried to vilify and humiliate her husband on many occasions by going to his college and residence with her associates and hired goondas propagating and throwing insults against him. She had maliciously written offensive letters to the college authorities and other persons levelling false accusation. He was thereby humiliated. She had published offensive leaflets levelling false accusation against him. The respondent husband in his petition under Section 10 inter alia averred that from the conduct of his wife he had a reasonable doubt that if he lived with her, it would be harmful and injurious both for his mind and body. Hence he had been compelled to apply for judicial separation. The husband in his petition had also alleged that his wife had established an illicit relation and intimacy with one Debabrata Chakraborty. The said allegation however, was not ultimately pressed and Mr. B. K. Ghosh, learned advocate, for the respondent in this appeal, also submitted that his client does not wish to make any submission in respect of the said allegation against the appellant. The trial Court allowed the husband's prayer for amendment of the petition under Section 10 containing the alleged particulars of mental cruelty of his wife. The respondent husband had examined one Sambhu Nath Chatterjee as P. W. 1 and himself as P. W. 2. He had proved some letters written by his wife Bijoli. The appellant wife had examined her sister and herself. She had also produced some letters to rebut the case against her. The learned Additional District Judge believed the evidence given on the husband's side, found that the wife was guilty of mental cruelty towards her husband, The learned Additional District Judge did not record any finding of physical cruelty against the wife and in fact at the trial the husband did not attempt to prove the said kind of cruelty. The learned Additional District Judge held that the real trouble had started when the husband started coaching a girl student named Lipika and the wife had falsely alleged that there was an improper or immoral relationship between her husband and Lipika. The wife by making false allegations about his conduct and behaviour had shocked her husband. The learned Additional District Judge further held that it was for the wife to prove that her husband had been living in adultery with Sarbani Chatterjee, daughter of Sambhu Nath Chatterjee, P. W. 1. The learned Additional District Judge held that the said allegations to be absolutely a myth and that the wife with a view to damaging the reputation and character of her husband had cooked up the said story. The wife had made false allegations against her husband by writing letters, making representations and by circulating leaflets. Therefore, she was guilty of acts of cruelty within the meaning of Section 10(1)(b) of the Hindu Marriage Act. The learned Additional District Judge also found that the wife had deserted her husband in the year 1967.

5. We may proceed to examine the evidence adduced in the case in the light of the probabilities and surrounding circumstances. Admittedly, the respondent Sukomal was given shelter in the house of the appellant's father some time before he appeared in the M A. Examination and after his marriage with the appellant on 27th March, 1963 the parries had lived at the residence of the appellant's father. At the beginning the wife's behaviour towards her husband was good, even according to her husband but he alleged that about one and half years after their marriage his wife changed her behaviour. One and half years from the date of their marriage would be about the last quarter of the year 1964 But no credible reason was given by Sukomal for this change of attitude of his wife apart from his vague allegations of her exhibiting a superiority complex towards him because of differences in their social status. In fact, in his petition under Section 10 of the Hindu Marriage Act, the husband had alleged that from the year 1965 his wife had begun to misbehave. According to the evidence given by him his father-in-law was a Clearing Agent of the Customs Department but there was no precise evidence about the financial condition of the wife's family. There was no evidence that Bijoli's fattier compared to her husband enjoyed a high social status. There was no reason for considering Sukomal as inferior in any way. He was holder of a 1st Class Master's degree. In April, 1964 he was offered admission to the Graduate School of Arts and Science of Harvard University (vide Ext. 1). In November, 1964 the respondent was appointed as a Lecturer in the Government Sanskrit College. Therefore, it was highly improbable that his wife would have ill-treated him and in fact in the year 1965 when he was no longer an unemployed person. Some relatives of the respondent husband lived at Jalpaiguri and both the husband and the wife several times had visited them. The plaintiff busband did not attempt to prove the allegations in paragraph 10 of his petition under Section 10 of the Hindu Marriage Act that his wife had demonstrated with unusual vanity and superiority complex and had quarrelled with the members of his family or that she used to despise or hate them. In fact, apart from examining Sambhu Nath Chatterjee, P. W. 1, in whose tenanted house the husband had (been) allegedly living as a paying-guest in the end of the year 1967, no relative of the two parties was examined as a witness to prove that Bijoli had ill-treated her husband and his relatives. Therefore, there was no corroboration of these vague and general statements made by the husband in course of his evidence that his wife used to display a superiority complex and that she used to abuse and insult him. The parties had recently married, both were young and the husband who was a qualified person had secured a Lecturership in the Government Sanskrit College. While the husband was doing research work his wife was still a college student. We find no cogent reason has been given why Bijoli would behave so unnaturally with her husband. Therefore, we are not prepared to believe that after one and half yean of their marriage the wife had changed her behaviour or that she used to abuse and slight her husband. It was the case of both parties that on 7th December, 1966 the appellant wife had given birth to a child at Chittaranjan Hospital and the child unfortunately died within a few days. Within two days of the birth of the said child the respondent husband had left Calcutta for appearing in an interview at Patiala. He had returned after the death of their child. The respondent Husband did not examine any doctor or any hospital staff to corroborate his allegation that his wife used to assault even the doctors who came to examine her during her pregnancy. We also find that it was utterly improbable that his wife did not co-operate with the doctors at the time of the delivery of her child.

6. It appears from the evidence that there were differences between the husband and the wife when the husband began to coach a girl student named Lipika Bose. According to the husband from the end of 1966 he used to coach Lipika at his father-in-law's house. His wife used to suspect his illicit connection with the said student. His wife had uttered abusive language in the presence of the said girl student. Mr. B. K. Ghosh, learned advocate for the respondent, has pointed out that the husband, P. W. 2, was not specifically cross-examined with reference to his said statements in examination-in-chief and therefore, the said part of the case was not traversed. We find that during the cross-examination of Sukomal it was suggested that he was in love with Lipika and one day he had disclosed to his father-in-law about his intention to marry her. Both the appellant and her sister during their evidence had spoken about the same. In our view, it was improbable that the respondent would seek permission of his father-in-law for marrying second time. Further, even assuming that the respondent husband had any tender feelings towards Lipika, it was unlikely that he would misbehave with his said pupil in the very house of his father in-law. This part of Bijoli's case against her husband appeared to be an embellishment. It is more probable that the appellant wife had objected to the respondent husband coaching Lipika and it was likely that between the two there was some bad feeling. But there was no evidence that Bijoli had ever assaulted him. There is also no evidence worth the name that her act and conduct had caused reasonable apprehension in Sukomal's mind that it would be harmful and injurious to live with his wife. Further, according to the evidence of the respondent he had given up coaching Lipika within a month. Lipika had married in the year 1970. The respondent husband had continued to lave in his father-in-law's house till his illness some time in the year 1967. Therefore, we are unable to believe that due to misbehaviour of his wife over Lipika incident he was compelled to leave his father-in-law's house. The appellant wife might have been jealous and might have objected to her husband to coach a young girl student. But, there was no corroboration of Sukomal's evidence that his wife Bijoli had committed acts of mental cruelty towards him. Occasional misunderstanding and difference of opinion between the two spouses are not uncommon. But they are generally only passing phases in conjugal life.

7. In the year 1967 Sukomal left the Dihi Serampore Boad house not because of his wife's treatment but because he claimed that he had become seriously ill. We also reject the utterly improbable story that the husband had become ill in the year 1967 because his wife had administered some poison to him. The doctors who might have examined him did not testify in the case. There is no definite evidence about the nature of his illness. It may be that the husband had suffered from some stomach ailment which according to him was allegedly cured by a Deiva medicine. But we disbelieve that Bijoli had tried to poison her husband. In 1967 after he became ill the respondent husband went to Jalpaiguri and on his return he first lived with his maternal grand uncle at Howrah. Thereafter, the husband and the wife and his aunt resided in a tenanted flat at Patipukur. P. W. 2 in his evidence did not explain what he meant by the words 'she did not co-operate with me nor did she do any household work'. Even according to him when she lived in the Patipukur residence there was no incident. Therefore, there was not even any allegation by the husband that during their residence at Patipukur his wife had committed any of mental or physical cruelty towards him. He had even denied the suggestion in the course of his cross-examination that his wife used to live in a separate room or that he had cruelly treated and assaulted her during her stay at Patipukur. According to Sukomal his wife voluntarily went away. We need not consider whether or not it was true that it was the father of the appellant (who) used to provide rationed articles at the Patipukur residence. Since some time in the year 1967 the husband and the wife had lived separately. The husband in his evidence admitted that he did not inform his wife or her father about his whereabouts. According to the evidence adduced in this case that after his wife left Patipukur residence the respondent husband shifted to an accommodation in Beniatola Lane. He became acquainted with Sambhu Nath Chatterjee (P. W. 1) and his family. Some time in the year 1969 the respondent and Sambhu Nath Chatterjee and his family began to live in the different portions of the same house in Beniatola Lane. According to Sambhu Nath Chatterjee, P. W. 1, the respondent lived in one room and his food used to be supplied by the landlord. P. W. 1 and his family lived in one room in the ground-floor and one room in the first floor. Subsequently, the respondent began to be provided with food by the P. W. 1 on payment. Both the respondent and Sambhu Nath Chatterjee and his family shifted to a house in 40-C, Biplabi Pulin Das Lane, Badurbagan. The tenancy was in the name of the respondent and Sambhu Nath Chatterjee was a sub-tenant under him. Thereafter, Sambhu Nath Chatterjee and his family shifted to a flat at 48, Green Avenue, Santosh-pore. The respondent also began to live in the same house as a paying quest of Sambhu Nath Chatterjee. The husband denied that there was any immoral relationship between him and Sarbani Chatterjee, a daughter of Sambhu Nath Chatterjee. On the other hand, both, the wife Bijoli and her sister, D. W. 1, had alleged that Sukomal had illicit relations with Sarbani. The learned Judge of the Court below has not believed the evidenca given on the side of the wife that one day very early in the morning she, accompanied by several others had visited the Badurbagan flat where Sambhu Nath Chatterjee and his family and also the respondent husband were then living. The party found an adult girl sleeping in the bed of Sukomal. On the occasion Bijoli, the appellant, visited Badurbagan flat of her husband she found the doors of bos room open. This part of her story was improbable. It was not very likely that an unmarried girl like Sarbani belonging to a Bengali middle class family would openly sleep with the husband of another woman while in the adjoining room other members of her family were living. At the same time, it was somewhat unusual that after refusing to live with his wife, Sukomal had begun to reside within the same house with Sambhu Nath Chatterjee and his family. We are not prepared to believe that Bijoli and her companions had threatened and abused her husband and that the same should be designated as cruelty. According to Sukomal, P. W. 2, when his wife went to Badurbagan fiat Mr. P. C. Ma-jundar, who was his teacher and the then Secretary of the Post Graduate Arts Department of the Calcutta University also accompanied her. It was more reasonable and probable to hold that Bijoli accompanied by late P. C. Majumdar and some others went to Badurbagan flat of her husband in order to persuade him to return and again live with her. Mr. B. K. Ghosh, learned advocate for the respondent, submitted that according to the evidence given on the side of his client there were two incidents on two different dates at Badurbagan. On one occasion there was a hulla created by Bijoli and her men as claimed by Sukomal and Sambhu Nath Chatterjee, P. Ws. 1 and 2. It appears from the evidence of Sukomal, P. W. 2, that on one occasion his wife accompanied by some girls went to his Badurbagan fiat and they had uttered abusive language in the presence of many persons in the locality. We are not prepared to believe that Bijoli had acted in a manner which might have caused apprehension about the safety of Sukomal. After alt Sukomal had admittedly declined to return to his father-in-law's house and to live with his wife. He was living with Sambhu Nath Chatterjee (P- W. 1) and his family which included Sarbani, who was young and unmarried. It would be reasonable and probable to hold that when his wife Bijoli accompanied by some others went to Badurbagan residence of Sukomal and had requested him to return but Sukomal declined to return. There might have been arguments and exchange of words between Bijoli and Sukomal. Even Sambhu Nath Chatterjee had merely stated that the wife of Sukomal with 6/7 men had come to Badurbagan Street and had created the hulla. Sambhu Nath Chatterjee was then in bed. He did not elaborate what he meant by hulla and he did not also state that Bijoli and her companions had held out threats. Admittedly, over the said incident no diary was lodged in the local police station. No other resident of the locality deposed on Sukomal's side. At least on one occasion Mr. P. C. Majumdar who was the Secretary of the Post Graduate Department of the Calcutta University and who was a teacher of Sukomal went with Bijoli to his Badurbagan flat. It would be utterly improbable that a man like Mr. P. G. Majumdar could have been a member of a party which held out threats to Sukomal.

8. Mr. B. K. Ghosh, learned advocate for the respondent, submitted that Bijoli used to insult her husband and there was enough evidence of her mental cruelty towards him. He submitted that the decree passed by the court below should be upheld. In this connection he relied upon several passages from Tolstoy's The Law and Practice of Divorce and Matrimonial Causes (6th Edn.) 1967. According to the said learned author cruelty which is a ground for dissolution of marriage may be de-fined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such a danger. Section 10(1)(b) of the Hindu Marriage Act gives substantially the same meaning of the expression 'cruelty'. The question of mental cruelty should be answered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status of the parties, environment of the parties etc.

9. Mr. B. K. Ghosh, learned advocate for the respondent, submitted that the trial court ought to consider the cumulative effect of the conduct of Bijoli towards her husband throughout their married life. She slighted her husband whenever he raised his voice and Bijoli abused and insulted him. She was suspicious, created scenes when her husband began to coach Lipika. Therefore, Sukomal reasonably apprehended danger and injury if he continued to live with her. Therefore, he was compelled to live separately. But one should bear in mind that in the Hindu society a wife is generally expected to be unswervingly faithful to her husband and the wife in her turn demands from her husband similar fidelity. In our view, there was no sufficient evidence of any mental or physical cruelty on the part of Bijoli so as to justify the passing of a decree either for judicial separation or for divorce.

10. The burden of proof was upon the husband who was the petitioner in the court below. The learned Additional District Judge wrongly placed such burden of proof upon the wife. The learned Additional District Judge also committed a serious error of procedure by overlooking that the material part of the Snkomal's evidence was not corroborated by his friends, relatives or neighbours, Sambhu Nath Chatterjee, P. W. 1 also spoke about the 'hulla' on one occasion when Bijoli and her companions came to persuade Sukomal to return to her. It is well settled that the courts are reluctant to find cruelty on the evidence of the petitioner, unless there is corroborative evidence to support his allegations, but corroboration is not essential, though it is in practice required unless its absence can be satisfactorily accounted for (vide Tolstoy's The Law and Practice of Divorce and Matrimonial Causes, 6th Edn. pages 66-67).

11. We have already observed that in this case there is no corrohobration of the evidence of Sukomal, P. W. 2, that one and half years after his marriage with Bijoli her attitude had changed or that she had become cruel towards him. Neither any relative nor any acquaintance of the parties came forward to corroborate his evidence regarding Bijoli's conduct towards him up to the period 1967. In fact, Sukomal did not even allege that during their stay at the Patipukur flat Bijoli had been guilty of acts of cruelty towards him. It appears from the evidence that parties did not thereafter live together and Sukomal began to live at different addresses without disclosing the same to Bijoh'. Bijoli repeatedly requested him to take her back and to return to their matrimonial home. Sukomal did not even allege that he had made even enquiries about his wife or that even offered to set up a separate household where he could live with Bijoli. He did not maintain her. There is also no documentary evidence to corroborate the case of Sukomal against his wife during the period 1964-65 to 1969. There was no reliable evidence that Snkomal's health during this period was unpaired by the conduct of his wife.

12. We are unable to hold that the documentary evidence produced by Snkomal in the court below amply corroborated his case against his wife Bijoli. Tolstoy in his aforesaid book at pages 62-63 points out that temperaments of the two-spouses and the mental and physical condition of the petitioner must be considered in deciding whether the respondent's conduct amounts to cruelty in the particular case; but if, after taking everything into consideration, the respondent's conduct is inexcusable, his disability will not prevent it from amounting to cruelty' The learned author in another passage dealing with 'unjustifiable conduct* has observed that 'provocation may reduce the quality of the respondent's act so that it does not amount to cruelty; so, in the case of nagging, the res pendent's conduct must at least be inexcusable after taking into account the petitioner's conduct which might have provoked the nagging'. Before we consider the effect of this correspondence, it may be borne in mind that these letters were written by Bijoli only after Sukomal had persistently refused to resume conjugal relations with her. Thus, these letters which appeared to have been written by her in the desperation must be considered in the background of Sukomal's own conduct Since sometime in the year 1967 Sukomal was refusing to live with his wife and he was living in the same house with Sambhu Nath Chatterjee and his family. In the middle of the year 1971 Bijoli had written these letters to others complaining about her husband Exts. 2A, 2B and 2C all bear the date 7th September, 1971. Bijoli in her letter Ext. 2 (a) requested Dr. H. C. Chatterjee, Head of the Department of Pali, Government Sanskrit College, to prevent her husband Sukomal Choudhnry from visiting Colombo. She in general terms complained that her husband had forsaken her and was also cruel to her and, therefore, he should not be permitted to leave India. Bijoli in her two other letters Exts. 2 (b) and 2 (c) addressed to two other professors of the Government Sanskrit College made complaints about her husband. No doubt, she used strong words but in no sense this could be treated as instances of her acts of cruelty. She had stated that she had been deserted by her husband. She suspected his fidelity. She wanted justice against her husband's 'anti-social acts'. She also stated that she was ready to take extreme steps to vindicate her rights. We are not prepared to view these letters as instances of cruelty towards her husband because Sukomal himself had already abandoned her and since 1967 had repeatedly refused to live with his wife Bijoli. Sukomal appeared to have already made an irrevocable decision not to live with her. Thus, already the breach between the husband and the wife was complete, we fail to sou how the imputations made by Bijoli in her letters which were exhibited in case would be treated as instances of her cruelty.

13. It is in evidence that in September, 1972 Bijoli had filed an application under Section 488 of the Criminal Procedure Code for maintenance from her husband. On 19th August, 1972 the learned Magistrate had allowed the said application. She also made a lengthy complaint against her husband to the Director of Public Instructions, Government of West Bengal. The Director of Public Instructions Government of West Bengal, had forwarded the same to the Principal of the Government Sanskrit College (vide Ext. 3). The Principal of the said College had requested Sukomal Choudhury to attend a meeting with the Deputy Director of Public Instructions on the subject (vide Exts. 3 and 4). The printed pamphlet allegedly circulated by the appellant Bijoli was dated even later. e. g., 6th Otober, 1972. Sukomal in paragraph 25 of his petition under Section 10 of the Hindu Marriage Act filed on 23rd November, 1972 stated that the cause of action arose on 27-2-1963 as also on 11th May, 10-12-68 and continued on 27-9-1971, 5-4-1972 and also on other various dates and was continuing day to day at P12/1, Dihi Serampore Road, Calcutta. Further, Sukomal in his said petition under Section 10 had alleged illicit relation between his wife Bijoli and one Debabrata Chakraborty. Debabrata Chakraborty, however, was not made a co-respondent and Sukomal did not even attempt to prove this part of his allegations. It is not necessary for us to consider whether the imputations contained in the writings of Bijoli injured the reputations of her husband but at the same time we may point out that in the facts of the case the said letters cannot be considered as evidence of her cruelty towards him. They last lived together at Patipukur flat, the conclusion would be that he had deserted her and since 1967 had been living at different addresses without disclosing his whereabouts to her, Bijoli had repeately requested Sukomal to come back and live with her but Sukomal had refused and was persistently avoiding her. She was in a desperate condition.

14. For all these reasons, we hold that the respondent failed to establish that his wife was guilty of facts of cruelty.

15. On the findings made by us the case of desertion against the appellant must fail. Sukomal having refused to live with her since the year 1967. he cannot contend that that Bijoli had deserted her. To avoid his wife he had concealed his residential address from his wife. Since 1967 he did not maintain her. He requested her to live with him. Even in the cause title (plaint/petition of the present case) Sukomal did not state his residential address. The respondent has neither proved the factum of desertion by his wife, the present appellant, nor the intention on her part to bring their cohabitation permanently to an end. In other words, acts attributable to animus deserendi of the appellant have net been established (see Bipinchandra Jaisinghbai Shah v. Prabhavati : [1956]1SCR838 ; Lachman Utamchand Kirpalani v. Meena, : [1964]4SCR331 ).

16. In view of our findings made herein before it is unnecessary for us to consider whether Sukomal had condoned the alleged acts of cruelty of Bijoli allegedly committed in the year 1966 by resuming co-habitation with her. According to Mr. B.K. Ghosh, learned advocate for the respondent, Lipika incident look place before Bijoli became pregnant and gave birth to a child on 7th December, 1966. According to Mr. Ghosh, Lipika incident took place in the end of the year 1966. Further, according to Mr. Ghosh, Bijoli was again guilty of acts of cruelty in the year 1971-72. Mr. Ghosh, learned advocate for the respondent, further submitted that in this case Bijoli had throughout continued her acts of cruelty. Therefore, even, if it be assumed that her cruelty over Lipika incident was condoned by her husband Suko-mal after fresh acts of cruelty were committed by her, the condoned cruelty had revived and, therefore, Sukomal was entitled to bring a matrimonial proceeding against her in respect of all her acts of cruelty. In this connection, Mr. Ghosh, learned advocate for the respondent, relied upon a passage occurring at page 77 of Tolstoy's The Law and Practice of Divorce and Matrimonial Causes, 6th Edn. But, in view of our foregoing findings it is not necessary for us to consider this question of condonation. We have found that Sukomal failed to prove by satisfactory evidence that his wife was guilty of cruelty or desertion within the meaning of Clause (a) and (b) of Section 10(1) of the Hindu Marriage Act. When Sukomal has failed to prove his case, his prayer for passing a decree for dissolution of marriage under Clause (ia) and (ib) of sub-section (1) of Section 13 of the Act cannot be granted.

17. We, accordingly, allow this appeal set aside the judgment and decree of the court below and dismiss the petition under Section 10 of the Hindu Marriage Act of the respondent Sukomal Choudhury. The amendment application filed by the respondent is also rejected without costs.

18. In the circumstances of the case, both parties will bear their respective costs throughout.

B.C. Ray, J.

19. I agree.


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