Skip to content


Nemai Kumar Ghosh Vs. Sm. Mita Ghosh - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 83 of 1982
Judge
Reported inAIR1986Cal150,89CWN904
ActsHindu Marriage Act, 1955 - Section 13
AppellantNemai Kumar Ghosh
RespondentSm. Mita Ghosh
Advocates:Biman Kanti Bose and ;Manick Chandra Das, Advs.
DispositionAppeal allowed
Cases ReferredSm. Saroj Rani v. Sudarshan Kumar Chadha
Excerpt:
- .....1973. the respondent used to behave with the petitioner in such a suspicious manner that it caused mental cruelty to the petitioner. on the petitioner's return from orissa in feb., 1977 he stayed with the respondent for some time in his father-in-law's house and thereafter shifted to a rented house where they lived up to the first part of aug., 1977. during that period the respondent also behaved with him so cruelly and shamelessly that it became impossible for him to tolerate the same. while staying in the rented house, the respondent left the rented house keeping it under lock and key for her father's house and the petitioner was compelled to shift to her father's place and resided there for some time. it has also been stated that in this way for several years after marriage, the.....
Judgment:

B.C. Ray, J.

1. This appeal is directed against the judgment and decree passed in Matrimonial Suit No. 128 of 1980 by the Additional District and Sessions Judge, 24-Parganas, dismissing the suit with costs to the respondent holding, inter alia, that the plaintiff failed to establish cruelty and cruel treatment towards him which can be considered to be a sufficient cause for passing a decree for dissolution. It was further held that the story of desertion as tried to be set up by the petitioner was also not proved. The short facts of the case as appear from the pleadings are as follows : --

2. The plaintiff named Nemai Kumar Ghosh was married with the respondent, Sm. Mita Ghosh, according to Hindu rites on 21st Nov., 1972. It was a negotiated marriage. The plaintiff was employed in the United Commercial Bank and he was posted at that time in the State of Orissa. After the marriage the plaintiff took the respondent to the place of his service at Jharsugda where he was employed in the branch of the United Commercial Bank. It has been pleaded that both the parties lived there for some time. It has been alleged that after some time the plaintiff was surprised to see that the respondent was suffering from various complications including suspicion and she used to pass caustic remarks against the plaintiff imputing his character and also alleging that he was in illicit connection with the sister-in-law (brother's wife) knowing well that the said sister-in-law nourished the petitioner with motherly feeling. It has been stated that a female child was born to the parties on 23rd Sept., 1973. The respondent used to behave with the petitioner in such a suspicious manner that it caused mental cruelty to the petitioner. On the petitioner's return from Orissa in Feb., 1977 he stayed with the respondent for some time in his father-in-law's house and thereafter shifted to a rented house where they lived up to the first part of Aug., 1977. During that period the respondent also behaved with him so cruelly and shamelessly that it became impossible for him to tolerate the same. While staying in the rented house, the respondent left the rented house keeping it under lock and key for her father's house and the petitioner was compelled to shift to her father's place and resided there for some time. It has also been stated that in this way for several years after marriage, the petitioner had to undergo molestation and suffer cruelty and all attempts by his near relations to mitigate this ended in failure. It has been stated that in these circumstances it became impossible for him to live with the respondent and he apprehended that it would be injurious for him to live with the respondent. The respondent deserted the petitioner leaving the matrimonial home on 4th Sept., 1977 last with an intention to break the matrimonial tie permanently. Hence this application has been filed for a decree for divorce under Section 13 of the Hindu Marriage Act.

3. A written statement has been filed by the respondent wife stating, inter alia, that it was false to say that she was very whimsical and tried to exert her position unduly and unreasonably upon the appellant. She also denied that she became violent in case of any disagreement and was obstinate in trifle matters. She denied that she had any knowledge as to whether the appellant lost his father at a tender age and her sister-in-law took any initiative in getting the appellant married. It has been stated that the appellant at the instance of his sister-in-law physically and mentally tortured the respondent off and on and he preferred the company of the sister-in-law and moved with her in such a fashion that a married wife can seldom bear that. The respondent protested against this, but he refused to amend his conduct. It has been stated that while staying in the rented house, the petitioner-appellant off and on went to visit the house of the father of the sister-in-law leaving the respondent practically alone and on several occasions he would not return home and passed night at Birati. It has been further stated that she never made any point-blank allegation that the appellant had any illicit connection with the said sister-in-law. On these pleadings the learned Additional District Judge framed the following issues :

1. Is the suit maintainable in the present form?

2. Is the respondent guilty of cruelty towards the petitioner as alleged?

3. Is the petitioner entitled to a decree of divorce, as prayed for?

4. To what other relief or reliefs, if any, is the petitioner entitled?

4. After hearing the learned Advocates for both the parties and on consideration of the evidence on record, the learned Additional District and Sessions Judge dismissed the Matrimonial Suit No. 128 of 1980 holding that the allegation of mental cruelty was not proved by the petitioner at all. It was held that the further allegation of the appellant that the respondent deserted him was also not proved. Against this judgment and decree the instant appeal has been preferred before this Court.

5. Mr. Bose, learned Advocate appearing on behalf of the appellant has submitted before this Court that his main ground for divorce is that the respondent suspected him and openly stated that he had illicit connection with his own sister-in-law in spite of the fact that after his father's death when the appellant was very young it was the sister-in-law who reared him up with motherly care and affection.

It has been further submitted that the respondent off and on used to give vent to this suspicion without any foundation whatsoever and without caring to know that her sister-in-law was respected by him like his mother. It has therefore been submitted before us by Mr. Bose that the allegation of mental cruelty has been proved and the Court below was entirely wrong in not considering this Mr. Bose has further submitted with reference to the observations contained in Mulla's Hindu Law (15th Edition), pages 785-86.

'In general cruelty is in its character a cumulative charge. It is not necessary that the acts complained of must be of a certain character. The conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective if it consists of a long-continued series of minor acts no one of which could be regarded as serious if taken in isolation.......... The age, environments, standard of culture and status in life of the parties must be taken together to form a composite picture from which alone it can be ascertained whether the acts of one spouse on another should, judged in relation to all the surrounding circumstances, be found to amount to cruelty.'

6. It has also been observed there that the existence of cruelty depends not on the magnitude but rather on the consequence of the offence, actual or apprehended. Referring to this Mr. Bose has submitted that in view of the esteem with which he held his sister-in-law, the open remarks indulged in by the respondent and also the imputations made caused serious pain in his mind which amounted to mental cruelty. Mr. Bose also cited several decisions at the bar and submitted lastly that the respondent in spite of due service of notice of the appeal is not appearing in this appeal, nor she desires to contest the appeal. There is also no chance of her returning to the materimonial home and to continue the marital relations between the parties.

7. We have gone through the evidence of P.W. 1 and those of the D.W. 1 and P.W. 3, and on consideration thereof, more particularly, the suggestion of illicit connection of P.W. 3 with P.W. 1 that has been given to P.W. 3, it is clear to establish that the respondent suspected that there was some illicit connection between the appellant and the P.W. 3, whom the P.W. 1 respected as mother. This amounted to mental cruelty. It is pertinent to refer in this connection to the provisions of Section 13(ia) of the Hindu Marriage Act. The word 'cruelty' has not been defined in the Act but it has been well settled by several decisions of this Hon'ble Court as well as by the Supreme Court that this cruelty refers not only to physical cruelty, but also to mental cruelty. It is also very relevant to refer to Section 23 of the said Act. Satisfaction as used in Section 23 is not that satisfaction as required in a criminal proceeding, but it refers to the proving of the case by evidence adduced and also by the surrounding circumstances as appear from the case itself. The observations made in the case of Sm. Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary : AIR1985Cal431 are relevant in this case. There are also observations in Jyotish Chandra Guha v. Sm. Meera Guha, : AIR1970Cal266 and (Madan Mohan Kohli v. Smt. Sarla Kohli) which dealt with the legal concept of cruelty at length.

8. On a conspectus of all these decisions cited hereinbefore, it is now well settled that if any imputations against the character of any spouse is alleged either by the wife or by the husband without any foundation and the same is based on mere suspicion, even in such cases such baseless allegations of illicit relationship amount to mental cruelty and it will be a valid ground for passing a decree of divorce under the provisions of Section 13(ia) of the Hindu Marriage Act. We have already held hereinbefore on a consideration of the evidence on record that the respondent wife, since after her marriage with the appellant, became suspicious about his character and used to doubt that the appellant was in illicit connection with his own sister-in-law (elder brother's wife). This has caused serious mental pain and agony to the appellant inasmuch as it has been stated by the appellant and also pleaded in his petition that he held his sister-in-law in high esteem like his mother and it was under her care and affection that he was brought up and it was she and his elder brother who arranged his marriage with the respondent. In such circumstances, we are constrained to hold, considering the social status of the appellant who is now working as an officer, i.e. Branch Manager of the United Commercial Bank, that this behaviour on the pan of the respondent amounted to mental cruelty and it gives sufficient reasons for the appellant to think that it would not be safe for him to live with the respondent. Furthermore, it appears that the respondent after their separation since Sept. 1977, not only has no mind to patch up the differences and to return to the matrimonial home for the simple reason that she has not come up before this Court to contest the appeal even though this Court directed the appellant to serve notice of the appeal by registered post and file affidavit-of-service. Affidavit-of-service has been filed by the appellant stating that the Court's order has been complied with. But in spite of such service of notice, the respondent did not think it fit to contest the appeal. This bespeaks the mind of the respondent that she is not willing to go back to the matrimonial home even if this action becomes unsuccessful. In these circumstances, we are constrained to hold that this is a fit case where for ends of justice the application for divorce should be allowed. We are fortified by our above findings with the most pertinent observations of the Supreme Court made in the case of Sm. Saroj Rani v. Sudarshan Kumar Chadha, : [1985]1SCR303 where their Lordships have held,

'Furthermore we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife; if such is the situation it is better to close the chapter.'

9. For the reasons aforesaid, we allow the appeal, reverse and set aside the judgment and decree made by the Court below and pass a decree for divorce, as prayed for in the application for divorce.

10. There will be no order as to costs.

S.N. Sanyal, J.

11. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //