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Sm. Sandhya Bhattacharjee Vs. Gopinath Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 604 of 1978
Judge
Reported inAIR1983Cal161,86CWN665
ActsHindu Marriage Act, 1955 - Sections 9, 13(1), 23A and 25
AppellantSm. Sandhya Bhattacharjee
RespondentGopinath Bhattacharjee
Appellant AdvocateH.C. Ghosh and ;M.M. Mallick, Advs.
Respondent AdvocateS.N. Tagore and ;S.K. Ghosal, Advs.
DispositionAppeal allowed
Cases ReferredMinarani Majumdar v. Dasarath Majum
Excerpt:
- .....observe that the same ultimately resulted in creating serious differences between gopinath and his wife sandhya. left among unfamiliar surroundings and being mostly denied her husband's company, the newly married bride. sandhya, the appellant, fell forelorn and began to harbour resentment against gopinath's family. we do not find that gopinath on his part had done anything to assuage the feelings of resentment of his wife. the mere fact that on the occasion of durga puja for the year 1976 he might have made customary presents to sandhya's family and had arranged for her bhairi dwitiya ceremony were not sufficient consolation for sandhya, who fell that she was being deprived of her husband's company. if gopinath had shown understanding and sympathy for his wife, perhaps this matter would.....
Judgment:

Chittatosh Mookerjee, J.

1. Theappellant-wife preferred this appeal against the decision of the learned Additional District Judge, 1st Court, Howrah, dismissing her petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and also her prayer for payment of permanent alimony under Section 25 of the said Act.

2. On 11th Aug., 1975 the marriage between the appellant and the respondent according to Hindu rites was solemnised at Ramji Hazra Lane, P. S. Sibpur, Dist. Howrah. The respondent and his two brothers had their dwelling house at 19/1, R. N. T. Road, Harinabhi, P. S. Sonarpur. Dist. 24 Parganas. Since her marriage up to 26th Sept., 1976 the appellant, Sandhya, had lived in the said joint household of the respondent and his two brothers at Harinabhi. Sonarpur. The respondent, Gopinath, was an employee of Dunlop & Co. Ltd. He himself, resided in a bachelor's staff quarter of the said company at Shahgunj, Dist. Hooghly and visited his home at Sonarpur for one or two days every week. During the said period the appellant-petitioner, atintervals visited and stayed at her father's house at Sibpur, District Howrah. But there is some dispute between the parties regard-ing the total duration of her stay in her father's house. Since 26th Sept., 1976 the appellant, Sandhya, had been living in her father's house at Sibpur. According to the appellant, on 26th Sept., 1976 her husband had accompanied her up to Howrah Station and that since the said date in spite of repealed requests the respondent-husband did not make arrangement to take her back and had withdrawn from her society. On 12th July, 1977 she filed in the District Judge's Court, Howrah the instant application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which was contested by the respondent-husband. As already stated, the learned Additional District Judge, 1st, Court, Howrah dismissed the said application under Section 9 of the Hindu Marriage Act.

3. The principal point in this appeal is whether or not the respondent, Gopinath, had withdrawn from the society of his wife, Sandhya. The respondent denied that he had withdrawn from the society of his wife and according to him, his wife had deserted him without any reasonable excuse. In the instant case, undoubtedly the initial burden was upon the appellant, Sandhya, to satisfy the Court about the truth of the statements made in her petition under Section 9 of the Hindu Marriage Act, 1956. Gopinath did not plead any excuse for withdrawal from her wife's society. Therefore, the explanation to Section 9 of the Hindu Marriage Act was not attracted to the facts of the present case. After both parties led evidence, the said question of burden of proof was not of very great importance and upon consideration of the evidence adduced by the parties, the Court was to decide the case. Although the appellant. Sandhya, did not contend that because of alleged acts of cruelty upon her committed by the respondent and other members of his family, she was compelled to leave the respondent's joint house at Harinabhi, Sonarpur, at the trial she had sought to prove that during her stay at the respondent's house at Harinabhi, she was treated with cruelty. The learned Additional District Judge has not accepted this part of her case.

4. Gopinath's elder brother, Samirnath, his wife, his son and Gopinath's younger brother, Maloy used to reside in their joint family house at Harinabhi, Sonarpur. Atthe material time, Samirnath was serving as a demonstrator in the University College ofScience, Calcutta and was the head of the joint family. Gopinath's younger brother was in Government service and he was married in the year 1977. According to both Samirnath and Gopinath, all the three bro-thers used to make contributions towards the expenses of the joint family. Gopinath, P. W. 1, claimed that his contribution was about 5/6 hundred rupees per month. His elder brother, Samirnath, P. W. 2, also corroborated him. The learned Additional District Judge was not very wrong in decribing the respondent Gopinath's family as an ordinary middle-class Bengali family living in the village Harinabhi in Ihe suburbs of Calcutta. Therefore, the ladies of such a family were expected to perform ordinary household duties. If during her stay at Harinabhj, Sandhya, the appellant was required to perform some of these household duties, it could not be contended that thereby she was cruelly treated. It is not believable thai Sandhya alone used to perform these household duties while her elder sister-in-law (that is Samir-nath's wife) did not do any work. Sandhya, P. W. 2, herself had stated that her sister-in-law was elder by 5/6 years and her husband Samirnath was the karta. Therefore, it is more probable that Sandhya's sister-in-law as the wife of the eldest brother of the family was the kartri of the household and that the appellant couid not reconcile herself with a somewhat subordinate position in the family. The trial Court rightly pointed out that it was not believable that after Sandhya's marriage, the cook employed in Gopinath's household was discharged and Sandhya had to act as the cook. The learned Additional District Judge has pointed out that the appellant, Sandhya, used to intermittently visit her father's house at Howrah and in course of a year for near 4/5 months she had stayed in her father's house. Therefore, ii is not reasonably probable that only at intervals a cook used to be employed in Gopinath's family home and the cook used to be discharged whenever Sandhya returned to Harinabbi from her father's house. It is more believable that Gopinath's family at Harinabhi employed both a cook and a maidservant and that neither of them was discharged in order to make Sandhya do menial works. Tt might be that Sandhya, who came from a somewhat well-to-do family residing in an urban area did not like Ihe idea of performing household duties in Gopinath's joint family, who lived in village Harinabhi presumably because the household duties of a family residing in rural area are likely to be more onerous. Her father, P. W. 1, inhis evidence stated that his wife owned two houses and he was employed in Balmer Lawrie & Co. The respondent. Gopinath's joint family house was situated at Harinabhi near Sonarpur and Gopinath lived in a mess at Shahgunj and visited his joint family home only one or two days in a week-Sandhya, the appellant, who was newly married, presumably did not like staying at Harinnabhi and serving Gopinath's elder brother, his wife, his son and Gopinath's younger brother.

5. There is no cogent evidence of Gopinath's cruelty to Sandhya. The evidence of Urmila Pyne, P. W. 2, who was a casual witness, was rightly not accepted by the trial Court. We also agree with the learned trial Judge that there was no truth in the evidence of Sandhya that there was undue familiarity between her husband, Gopinath, and his elder brother's wife. No such averment was made in the appellant's petition under Section 9 of the Act. We deplore thati Sandhya chose to make such unfounded allegations against her husband and her sister-in-law. Presumably, she made these baseless allegations out of her resentment against her husband and sister-in-law.

6. The learned Additional District Judge has also observed that there was no truth in the allegations of the petitioner, Sandhya, that her husband, Gopinath and other members of his family had cruelly treated her which ultimately resulted in her desertion by her husband. Upon a conspectus of the entire evidence, we find that for the first 3/4 months the relationship between Sandhya and her husband. Gopinath, was peaceful (vide evidence of Sandhya, P. W. 2, and her father, Sanat Kumar Bhattacharyya, P.W.1). Thereafter, their relationship became increasingly bitter. Sandhya Bhattacharyya, P. W. 2, has spoken about their unhappy marital relations. According to Gopinath, during the short span of their married life his wife, Sandhya, was very much inclined to stay in her father's house and was reluc-tant to live in Gopinath's joint family house at Harinabhi. In this connection, reference may be made to the concluding portion of the cross-examination of Sandhya, P. W. 2. On behalf of Gopinath, it was suggested to Sandhya that she did not like Gopinath and that only for three months in a year she had stayed in her father-in-law's house. We have already referred to the fact that while his newly married wife was made to stay in Gopinath's house at Harinabhi, Gopinath continued to live in a mess at Shahgunj,Hooghly aud visited their home at Harinabhi in the afternoon of each Wednesday leaving in the morning of Friday following. Although the said action of Gopinath in keeping his wife at Harinabhi did not amount to withdrawal of his company from her within the meaning of Section 9 of the Hindu Marriage Act, 1955 but we might observe that the same ultimately resulted in creating serious differences between Gopinath and his wife Sandhya. Left among unfamiliar surroundings and being mostly denied her husband's company, the newly married bride. Sandhya, the appellant, fell forelorn and began to harbour resentment against Gopinath's family. We do not find that Gopinath on his part had done anything to assuage the feelings of resentment of his wife. The mere fact that on the occasion of Durga Puja for the year 1976 he might have made customary presents to Sandhya's family and had arranged for her Bhairi Dwitiya ceremony were not sufficient consolation for Sandhya, who fell that she was being deprived of her husband's company. If Gopinath had shown understanding and sympathy for his wife, perhaps this matter would not have come to Court.

7. In view of the foregoing facts and circumstances, it is not believable that on 26th Sept., 1976 Sandhya suddenly decided to leave Gopinath's joint family home at Harinabhi, Gopinath's elder brother, Samirnath, D. W. I, deposed that a day or two before 26th Sept., 1976 he heard exchange of words between Sandhya and Gopinath. Samirnath, D. W. 1, has deposed that on 26th Sept., 1976 at 9 A. M. he found Sandhya with suitcase and other things He came to learn that she would go to her father's house. Samirnath claimed that he had asked Gopinath to interfere. Sandhya said that she would not stay as she did not like to live in the said place. Samirnath's wife allegedly also intervened but to no effect. Samirnath, D. W. 1, further deposed that he had asked Gopinath to take Sandhya to her father's house. Gopinath in his evidence did not deny the statement of his wife, Sandhya, that on 26th Sept., 1976 he had taken her up to Howrah Station from where she alone went to her father's house. Thus, it is clear that Gopinath, the respondent, was also in an angry mood, otherwise on 26th Sept., 1976 he ought to have escorted his wife up to his father-in-law's house instead of parting company with her wife at Howrah Station.

8. We also find that after 26th Sept., 1976 Gopinath on his own part did nothing tobring about reconciliation with his wife, Sandhya, but by his own conduct denied his company to her. Although there might have been a quarrel between them, but one would have expected Gopinath to regain back his composure and to take steps for winning back her wife's affection. But instead of doing so, Gopinath had withdrawn from the society of his wife.

9. Sanat Kumar Bhattacharyya, P. W. 1, the father of Sandhya, deposed that on 26th Sept., 1976, his daughter Sandhya came to his house alone. On enquiry he had learned that Gopinath left her at Howrah Station. According to Sanat Kumar, since the said date, Gopinath or anybody of his house did not keep or take any information about her. Amongst Bengali families the father of a married daughter is likely to be much more anxious to bring about reconciliation between his married daughter who is estranged from her husband. Because, according to Bengali tradition, it is considered somewhat derogatory on the part of a married daughter to be alienated from her husband and to live in her father's house. Therefore, we believe the statement of Sanat Kumar, P. W. 1, that he went to meet Samirnath, the eldest brother of Gopinath, the respondent and their two Bhagnipalis (sister's husband), Bishnu Chakraborty and Biswanath Chakraborty, and had requested them to mediate so that Sandhya and Gopinath might live happily. Neither said Bishnu Chakraborty nor Biswanath Chakraborty, the two Bhagnipatis of Gopinath, deposed and contradicted Sanat Kumar, Sandhya's father, P. W. 1. P. W. 1, Sanat Kumar further claimed that as per evidence of the Bhagnipatis of Gopi, he had met Samirnath. Gopi had insulted him and had asked him to quit. Samir had also asked him to get out. Sanat, P. W. 1, and Sandhya, P. W. 2 both stated in their evidence that on the occasion of the marriage of Gopinath's youngest brother, Maloy, Sandhya and her father's family were not invited and nobody came to take her on the said occasion. Samirnath and Gopinath, however, deposed that in spite of invitation, Sandhya did not attend Maloy's marriage ceremony. We find that when admittedly there was no reconciliation, it was not likely that Gopinath or his brothers had made any effort to bring back Sandhya to Gopinath's house. There is another reason why we are not inclined to accept the statements of Samirnath and Gopinalh that in spite of their requests Sandhya did not come back. Samirnath in course of his cross-examination had admitted that he did not advice Gopinath to write letters to father of Sandhya. He had also volunteered that he had sent Gopinath to his father-in-law's house but besides Gopinath no one has corroborated Gopinath's alleged visit to his father-in-law's house. He admitted that he himself did not write any letter to her father. Samirnath could not give the date on which he had allegedly attempted to contact Sandhya's father over telephone. Samir claimed that in Jan., 1977 he had sent Gopinath to bring Sandhya but she had refused Gopinath's youngest brother was not examined as a witness to corroborate the statement of Samir-nath, the eldest brother, that Maloy had also visited Sandhya's father's house at Howrah. We, therefore, disbelieve the respondent's case that he and his brothers made attempts for bringing back Sandhya to their house.

10. Upon consideration of the evidence adduced by both parties we find that after 26th Sept., 1976 Gopinath, the respondent, had withdrawn from the society of his wife, Sandhya. After Gopinath left Sandhya at Howrah Station, Sandhya alone went back to her father's house. Thereafter. Gopinalh, the respondent, did not try to have re-conciliation with her. Gopinath and other members of his family turned down requests made by Sanat Kumar, the father of Sandhya, for taking her back. Although Gopinath earned a decent income, he did not ever send any remittance towards his wife's maintenance. Only after the institution of the suit under the orders of the Court Sandhya began to receive alimony pendente lite from her husband, Gopinath. Therefore, we hold that Gopinath had withdrawn from the society of his wife by not bringing her back from her father's house and by turning clown requests of her father for taking her back. We find that in the instant case there was no reasonable excuse for Gopinath not performing his obligations as the husband.

11. Section 9 of the Hindu Marriage Act has been amended by Section 3 of the Marriage Laws (Amendment) Act, 1976. The Sub-section (2) of Section 9 has been deleted and the following explanation has been added to section :

'Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the sociely'.

Sandhya, the appellant, filed the instant petition under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights. Therefore, we have already pointed out thatthe initial onus was upon her to prove that her husband, Gopinath, had withdrawn from her society. In this case, undisputedly on 26th Sept., 1976 Gopinath took her up to Howrah Station and left her there and she had proceeded to her father's house. Since the said date she had been living in her father's house at Howrah. Upon consideration of the entire evidence we have found that at least from 26th September, 1976 by not taking any steps to briny her back and by not providing any maintenance for her, Gopinath must be deemed to have withdrawn from her society. He did not plead any excuse for withdrawing from her society. But his defence was that his wife was unwilling to stay in his joint family house at Harinabhi and that she herself had left his said house and had not come back to him.

12. The decision of P. N. Mookerjee and D. Basu, JJ., in Reba Rani Sen Gupta v. Ashit, : AIR1965Cal162 , was rendered in the light of the provisions of Section 9(1) of the Hindu Marriage Act as the said provision stood before the enactment of the Marriage Laws (Amendment) Act, 1976. Further, some of the observations made by the Division Bench in Reba Rani Sen Gupta's case (supra) seems to support the case of the present appellant. In the said reported decision the wife's appeal against a decree for restitution in favour of the respondent-husband was allowed by this Court. In view of Sub-section (2) of Section 9 of the Hindu Marriage Act (which sub-section has been since deleted), their Lordships held that the burden was upon the wife to prove her defence but their Lordships held that the husband ought to be refused a decree for restitution because it was difficult to accept the husband's uncorroborated testimony on the point whether he had made attempts to bring back his wife. In the present case before us, we also have held that the respondent, Gopinath, did not make any atempt to bring his wife, Sandhya, back and had also spurned his father-in-law's requests for taking Sandhya back. In the circumstances, we hold that Gopinalh without any reasonable excuse having withdrawn from the society of his wife, she was entitled to a decree for restitution of conjugal rights. No other legal ground has been pleaded by the respondent for refusing the appellant-wife's application under Section 9 of the Hindu Marriage Act. The trial Court had fallen into an error in not considering the entire evidence relating to reasons for Sandhya's stay in her father's house since 26th Sept., 1976. The reason given by the Court below for not believing the evidenceof Sandhya's father are not sustainable. Further, we have pointed out that evidence of Samirnath was not corroborated by his two Bhagnipatis and Maloy. Therefore, Samir-nath's evidence about the efforts made by him for reconciliation cannot be relied upon.

13. The respondent, Gopinath, has filed in this Court an application under Section 23A of the Hindu Marriage Act, 1955 making a counter-claim and praying that he may be granted a decree under Section 13(1)(ib) of the said Act dissolving his marriage with the appellant Sandhya. It may be pointed out that in the trial Court the respondent husband did not make such a counter-claim under Section 23A of the Act. Further, the respondent has not proved that the appellant had deserted him. On the other hand, without reasonable excuse the respondent had withdrawn from her company and she was entitled to a decree under Section 9 of the Hindu Marriage Act. Therefore, we reject the respondent's above petition for leave to make a counter-claim against the appellant.

14. The learned Additional District Judge held that he was of the view that no order for permanent alimony under Section 25 of the Hindu Marriage Act, 1955 can be made in favour of the appellant-petitioner-wife when no decree under Section 9 of the Hindu Marriage Act had been passed in her favour. For the purpose of interpreting the words 'at the time of passing any decree or any time subsequent thereto' in Section 25 of the Act, the learned Additional District Judge had relied upon the commentaries in Mulla's Hindu Marriage Act, 14th Edition, at p. 806. It may be noted that Bachawat and Law, JJ., in Minarani Majumdar v. Dasarath Majum-dar : AIR1963Cal428 , also took the view that an order for permanent alimony or maintenance under Section 25 can be made only when a decree is passed granting any substantive relief under the Hindu Marriage Act and not where the main petition itself is dismissed. But we propose lo reverse the judgment and decree of the learned Additional District Judge dismissing the appellant petitioner's petition under Section 9 of the Act and to grant her a decree for restitution of conjugal rights. Therefore, the Court has jurisdiction under Section 25 of the Act to order payment of permanent alimony to the appellant. While allowing the appeliant's prayer for granting alimony pen-dente lite, the Court below found that she did not earn any income and did not own any property and, therefore, directed payment to her at the rate of Rs. 300/- per month. During the pendency of the presentappeal, we had directed that the appellant petitioner will continue to receive alimony pendente lite at the same rate. On the present materials on record, we hold that she is entitled to receive permanent alimony from the respondent husband at the same rate. But in case, there is any change of circumstance, either party would be at liberty to apply to the trial Court for variation, modification or rescinding the order under Section 25 as the said Court may deem just. Therefore the order under Section 25 shall be deemed to have been made by the trial Court.

15. We, accordingly, allow the appeal, set aside the judgment and decree of the trial Court and allow the appellant's petition under Section 9 of the Hindu Marriage Act, 1956 for restitution of conjugal rights with the respondent. We also order under Section 25 of the Hindu Marriage Act. 1956 that the appellant will receive from her husband permanent alimony at the rate of Rs. 300/- per month according to English Calender with effect from today until the same is rescinded, varied or modified in accordance with law by the Court of first instance.

16. There will be no order as to costs.

Sharma, J.

I agree.


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