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Sm. Kanak Lata Ghose Vs. Amal Kumar Ghose - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 667 of 1965
Judge
Reported inAIR1970Cal328
ActsHindu Marriage Act, 1955 - Section 13; ;Evidence Act, 1872 - Section 114
AppellantSm. Kanak Lata Ghose
RespondentAmal Kumar Ghose
Appellant AdvocateAmarendra Mohan Mitra and ;Arunendra Nath Basu, Advs.
Respondent AdvocateRabi Ranjan Ghose, Adv.
DispositionAppeal allowed
Cases ReferredChhaya Debi v. Lahoriram
Excerpt:
- .....case in paragraph 6 of the written statement in the present suit is that with her arrival at the naihati house on june 2, 1958 an uproar of disapproval came from almost every member of her husband's family, that she was greeted with leer, that during her short stay of four days there she was subiected to incessant tortures and humiliation, that filthy and objectionable remarks were passed against her, her brothers and maternal uncle and that the members of her husband's family neglected to provide her with proper food and dress. her further case is that on the night of june 3, 1958 the husband charged her that she was not the actual bride selected for him, that the marriage with her was solemnised by fraudulent change of bride, that she was otherwise unfit to be his wife, that it was.....
Judgment:

A.C. Sen, J.

1. The present appeal arises out of a suit for dissolution of marriage instituted by the respondent husband against the appellant wife. It is directed against the judgment and decree dated April 7, 1965 passed by the Additional District Judge, 11th Court, Alipore in Matrimonial Suit No. 8 of 1964.

2. The husband made an application under Section 13 of the Hindu Marriage Act, 1955 praying for a decree of divorce dissolving the marriage between the petitioner husband and the respondent wife on the ground that the wife had failed to comply with the decree for restitution of conjugal rights directing her to return to her husband and perform marital duties for a period of two years after the passing of the decree. The said application for divorce was registered as Matrimonial Suit No. 8 of 1964. The said suit has been decreed by the trial Court. The wife has,therefore, preferred this appeal against the decree for divorce passed against her.

3. The facts of the case are as follows; The marriage between the parties took place on June 1, 1958. The wife was taken to the family dwelling house of the husband at Naihati on the next day and she stayed there upto June 6, 1958. On that day, she came away from her husband's place escorted by her elder brother and since then she has never gone back to the husband's place.

4. During the brief period of the wife's stay in the family dwelling house of the husband there was some estrangement of feeling between the husband and the wife. The husband made an application on June 25, 1958 under Section 12(b) of the Hindu Marriage Act read with Section 5(ii) of the said Act for annulling the marriage on the ground of the wife's insanity and the said application was registered as Title Suit N,o. 178 of 1958 in the Court of the District Judge, Alipore. The husband further alleged that she had a defective leg and that she was not the girl selected by the eldest brother of the hus-band as his bride.

5. The suit was contested by the wife. She was medically examined and found to be not insane. After the submission of the medical report the husband applied for the withdrawal of the suit. He was allowed to withdraw the suit but was saddled with costs assessed at about Rs. 240.

6. After the said suit had been withdrawn, there was exchange of letters between the parties, which further embittered the relation between them. Eventually on May 14, 1959 the wife made an application for maintenance under Section 488 of the Code of Criminal Procedure. There was further correspondence and ultimately the husband instituted a suit for restitution of conjugal rights on July 13, 1959 on the allegation that he was willing to take back the wife but that the wife was not returning to him. The said suit was dismissed by the trial Court but on appeal this Court allowed the appeal, set aside the decree of dismissal and decreed the husband's suit to the extent 'that the wife do return to the plaintiff's house, though not necessarily at Naihati, as mentioned in the plaint and render him coniugal rights.' The said appeal was allowed by the High Court on December 14, 1961 but the execution of the decree was suspended for three months in order to enable the relations and well wishers of the parties to bring about reconciliation between them. It seems there was no reconciliation during the aforesaid period of three months and the wife too did not return to her husband's place for two years.

7. The present suit was, therefore, instituted by the husband on January 24, 1964 asking for a decree for the dissolution of the marriage on the ground of failure on the part of the wife to comply with the decree for restitution of conjugal rights for more than two years. The only question for determination is whether the plaintiff is entitled to a decree for divorce on that ground.

8. The suit for the restitution of conjugal right, being suit No. 14 of 1960 (Matrimonial) of the Court of the Additional District Judge, 24 Paraganas, was decreed by this Court on appeal by the husband on the ground of giving a fair trial to the offer made by the husband respondent. That suit was instituted by the husband on the allegation that he was willing to take back the wife but that the wife was not returning to him. Their Lordships did not go into the merits of the wife's allegations of cruelty during the four days of her stay in the husband's house immediately after the marriage which took place on June 1, 1958. Their Lordships, however, did not find anything definite on the record 'to indicate against the bona fide of the husband's offer' to take back the wife or of the suit for the restitution of coniugal right or of the attempt at reconciliation during the said suit for the restitution of conjugal rights. As their Lordships thought that the attitude of the husband might have changed and that there was nothing on record to show that the offer of the husband to take back the wife was not genuine, they decreed the suit without entering into the merits of the allegations made by the wife in order to give a fair trial to the offer made by the husband.

9. Their Lordships allowed the appeal, set aside the decree of dismissal passed by the trial Court and decreed the suit only to this extent 'that the respondent (wife) do return to the plaintiff's (husband's) house though not necessarily, at Naihati, as mentioned in the plaint, and render him conjugal rights.'

10. Before their Lordships, the husband gave the assurance through his learned Advocate, that he would treat his wife kindly, if she went back to him and give her all the honour and prestige, due to a wife in his family. Their Lordships expressed the hope that the husband would keep his above assurance.

11. Their Lordships further directed, for allowing the parties some time to reconcile themselves to each other and to make proper approaches and attempts at reconciliation before the decree was enforced, that the execution of the decree, as provided by law, should remain suspended for a period of three months from the date of the decree. Their Lordships expressed the hope that, within that periodof three months the parties and their well wishers would so conduct themselves that the way of approach and reconciliation might he made smoother and easier and might ultimately prevent two fruitful lives from being blasted.

12. Their Lordships further directed that the interim maintenance at the rate of Rs. 50 per month, already ordered by the High Court in favour of the wife, would continue to be payable during the aforesaid period of three months. The wife was awarded costs of the appeal as well as the costs of the trial Court and the husband was directed to pay the amount of the costs within the aforesaid period of three months.

13. The concluding portion of the 1udg-ment delivered in the above appeal, being F. A. No. 667 of 1965, as noted above, makes it clear that the suit for restitution of coniugal rights instituted by the husband was decreed primarily with the ob-ject of giving a fair trial to the offer made by the husband to take back the wife. The wife was asked to return to the husband's house, 'though not necessarily at Naihati.'

14. In order to appreciate the significance of the words 'though not necessarily at Naihati' it is necessary to state certain facts. The family dwelling house of the husband is at Naihati. The wedding took place on June 1, 1958 and the wife was taken to the family dwelling house of the husband at Naihati on June 2, 1958. Her case in paragraph 6 of the written statement in the present suit is that with her arrival at the Naihati house on June 2, 1958 an uproar of disapproval came from almost every member of her husband's family, that she was greeted with leer, that during her short stay of four days there she was subiected to incessant tortures and humiliation, that filthy and objectionable remarks were passed against her, her brothers and maternal uncle and that the members of her husband's family neglected to provide her with proper food and dress. Her further case is that on the night of June 3, 1958 the husband charged her that she was not the actual bride selected for him, that the marriage with her was solemnised by fraudulent change of bride, that she was otherwise unfit to be his wife, that it was not possible to live with her as husband and wife and that the husband behaved with her with utmost indifference and coldness. Her further grievance is that when on June 6, 1958 her elder brother, Susil Kumar Dey, went to the Naihati house to arrange for her customary return to her father's place within the marriage week, the eldest brother of the husband and his mother and other relations madedirty aspersions and accusations against her brother and maternal uncle in whose house the marriage was celebrated and they forced her to leave the Naihati house wrongfully retaining the gifts and presents including saries, ornaments and garments, which she received from them as also their other friends and relations.

15. The wife resisted the present suit inter alia on the allegations of cruel treatment meted out to her during her short stay in the family dwelling house of her husband and adduced oral evidence in support of cruelty. The trial Court dismissed the suit on a finding that there was cruelty. The Division Bench of the High Court did not enter into the merits of the wife's allegations of cruelty during the four days of her stay in the Naihati house, but used the words 'not necessarily at Naihati' in directing the wife to return to the husband's house. Obviously those words were used because of her allegations of cruelty in the Naihati house.

16. Their Lordships in directing the wife to return to her husband's house not necessarily at Naihati obviously meant that the husband should take necessary steps to make it possible for the wife to return to the husband's house. Their Lordships felt that the wife's return to her husband's house would be much easier if the matrimonial home was set up by the husband in a house other than the husband's family dwelling house at Naihati. It is for this reason that their Lordships used the words 'not necessarily at Naihati.' If the wife is made to return to the family dwelling house at Naihati, naturally she will feel highly embarrassed after all the allegations of cruelty and insult made by her not only against the husband but also against the other members of her husband's family. Their Lordships therefore, intended that the husband would shift to a different house from the family dwelling house at Naihati in order to give a fair trial to the offer made by him to take the wife back.

17. The husband too gave the assurance that he would treat his wife kindly if she went back to him and that he would give her all honour and prestige due to a wife in his family. This assurance he gave on his own behalf; he could not have given any assurance on behalf of the other members of his family. This also shows that he expressed his willingness to live with the wife in a separate house and not in the family dwelling house at Naihati The family dwelling house at Naihati cannot be called the house of the husband. The father of the husband was alive when the High Court allowed the application for restitution of conjugal rights. The father of the husband died in March 1964, so till then the father of the husband wasthe Karta of the family. The elder brother of the husband is still alive and lives in the family dwelling house at Naihati. Hence the family dwelling house of the husband cannot, strictly speaking, be called the house of the husband. In the special facts and circumstances of the present case, the husband should have shifted to a separate house in order to make it possible for the wife to return to her husband's house as per direction given by the High Court.

18. It is true that the direction in the decree for restitution of conjugal rights also contemplates wife's return to her husband at the Naihati house. Even then, in view of what happened in the past, the initiative for the wife's return to the Naihati house should have been taken by the husband. It was the duty of the husband to assure the wife after the disposal of the suit for restitution of conjugal rights that on her corning to the family dwelling house at Naihati she would be properly received not only by the husband but also by the other members of the husband's family.

19. It should be remembered that the husband instituted a suit for obtaining a decree for nullity of marriage some two or three weeks after the marriage on the allegations that fraud was perpetrated upon the husband by solemnising his marriage with the wife instead of the girl actually shown to the husband and his people before the marriage, that the wife was suffering from hereditary lunacy and that she was lame. The wife was medically examined and found to be normal. The husband ultimately withdrew the suit, but he was directed to pay costs. The husband must have instituted the suit for nullity with the tacit consent of the members of his family. That being the position her embarrassment in returning to the family dwelling house of the husband at Naihati can easily be imagined. Besides, even in normal circumstances, a Hindu wife is not expected to go to her father-in-law's place unless escorted by the husband or any other responsible member of the husband's family. In any event, either the husband or the father-in-law or the mother-in-law sends a message to the paternal home of the wife for the return of the wife to her father-in-law's place. It is not usual for a Hindu wife to go to her father-in-law's place of her own accord without being asked to do so by the father-in-law or the mother-in-law or the husband. Even if nothing unpleasant happened in the past, even if every thing proceeded normally, it was the duty of the husband in the instant case to arrange for the return of the wife to her father-in-law's place if the husband wanted the wife to join him In the Naihati house and if he had no in-tention of setting up a separate matrimonial home.

20. It may also be pointed out that the suit for restitution of conjugal rights was decreed by the High Court solely for the purpose of giving a fair trial to the offer made by the husband to take back the wife. Hence, it was incumbent upon the husband after the disposal of the said suit by the High Court to keep open that offer by reiterating it after the passing of the decree. It was not the intention of the High Court that the husband would merely stand by and watch the situation after obtaining the decree for restitution of conjugal rights. The High Court intended that the initiative taken by the husband in filing a suit for restitution of conjugal rights on an offer to take her back should be maintained even after the passing of the decree. Hence unless we find that husband offered to take her back even after the passing of the decree for restitution of conjugal rights, made appropriate arrangements and took necessary steps to facilitate the wife's return to him either in family dwelling house at Naihati or in a separate matrimonial home we cannot say that the wife failed to comply with the decree for restitution of conjugal rights.

21. In the instant suit the husband admitted in his cross-examination that he made no enquiry about his wife after the High Court decree, that he did not send any letter to her asking her to come to him and that he made no attempt to bring her to his house. That being the position, he cannot be heard to say that the wife failed to comply with the decree for restitution of conjugal rights.

22. The wife has said in her examina-tion-in-chief that she was always ready and willing to live with her husband in compliance with the High Court's decree for restitution of conjugal rights, though she was not willing to live in her husband's house at Naihati. She has further said that she sent her husband two letters under certificate of posting intimating her willingness to live with him. The copies of these two letters have been marked as Exts. E and E(1). She has said that she gave the letters to her younger Dada Kalipada Babu for posting. She has not said that these two letters were actually posted by Kalipada Babu. Kalipada Babu in his cross-examination has said that these two letters written by the wife were posted by his Dada. The learned Judge of the trial Court thinks that there is contradiction between the evidence of the wife and her younger Dada Kalipada Babu regarding the posting of these two letters written by the wife. We, however, think otherwise. The learned Judge says that the wife in her evidence has said that she had given to her brother the originals of threeletters for posting. The learned Judge is entirely mistaken. The wife has not said that she gave to her brother the originals of three letters for posting. She has simply said that she 'gave the letters' to her younger Dada Kalipada Babu for posting. By the word 'letters' she evidently meant the two letters mentioned by her earlier. Kalipada in his deposition has said that he himself sent a letter to the husband and that he himself posted that letter. As to the two letters written by the wife his evidence is that they were posted by his Dada. There is really no contradiction between his evidence and that of the wife regarding posting. He does not say that the two letters written by the wife were not handed over to him by the wife for posting. It is quite possible that though the two letters written by the wife were handed over to Kalipada for posting they were actually posted by the Dada of Kalipada. The wife has not said that her two letters were actually posted by Kalipada. No question was put to the wife during cross-examination regarding the posting of the two letters written by her. In our opinion, there is no discrepancy between the evidence of the wife and that of Kalipada on the question of the posting of the two letters written by the wife.

As to the posting of the letter written by Kalipada there cannot be any question of discrepancy, because the wife has said nothing about that letter. It is difficult to believe that all the three certificates of posting, Exts. F, F(1) and H dated respectively 16-7-1962, 22-1-1963 and 22-7-1963 were obtained from the Post Office without actually posting the letters mentioned therein. The certificates having been given by the postal authorities in the ordinary course of business must be presumed to be genuine unless the presumption is rebutted by cogent proof. The contents of the certificates must be presumed to be true unless they are proved to be false. No evidence has been adduced on behalf of the husband that the certificates are forged or spurious. Therefore, it must be taken that the three letters, copies whereof have been marked as Exts. E, E(1) and G, were duly posted according to the tenor of the certificates Exts. F, F(1) and H. Under Section 114 illustration (f) of the Evidence Act it must further be presumed that the three letters, two by the wife and one by Kalipada were received by the husband in due course. A reference may be made in this connection to the case of Chhaya Debi v. Lahoriram, (1963) 67 Cal WN 819 at p. 834, where under similar circumstances, their Lordships of the Division Bench held that the certificate of posting not only raised the presumption that the letter was dulyposted but also the presumption that the letter was received by the addressee.

23 A presumption, however, may be rebutted. In the instant case no attempt has been made to rebut the presumption of posting. As to the receipt of the said letter, the husband no doubt has said in his cross-examination that he got no letter from the wife after the decree. He has not said in so many words that he did not receive any letter whatsoever from Kalipada. He has simply said that Kalipada did not send 'such letter' to him, meaning thereby a letter saying that the wife be with the husband if the husband resided elsewhere. Ext. G, being the copy of the letter written by Kalipada contains the following request in the concluding sentence: 'However, considering the mental condition of the widowed mother and seeing that Kanak's life is going to be frustrated. I request you to oblige us by soon taking Kanak away to some place other than Naihati'. The husband, however, has denied the receipt of any letter containing such request. Therefore, it may be taken that the husband has denied the receipt of any of the three letters in his cross-examination. Is this denial sufficient to rebut the presumption in favour of receipt under Section 114 illustration (f) of the Evidence Act? Not only is the husband a highly interested witness, his conduct before and after the passing of the decree for restitution of conjugal right makes it highly probable that he has suppressed the truth in regard to the receipt of the aforesaid three letters. We cannot attach any importance to his denial and we hold that he actually received the aforesaid three letters, copies whereof have been marked as Exts. E, E(1) and G.

24. No adverse inference can be drawn against the wife or Kalipada for not taking the precaution of sending these three letters by registered post. They might have acted imprudently by sending the said letters under certificate of posting, but from that it cannot be inferred that the story of sending the said letters by certificate of posting is a myth.

25. As to whether any attempt was made to bring about reconciliation between the husband and the wife by Kalipada and other relations of the wife we are inclined to accept the evidence on behalf of the plaintiff rather than the evidence on behalf of the husband. Kalipada, the elder brother of the wife, said as follows on the question of reconciliation : 'with my bhagnipati (sister's husband) Pankaj Ghose I twice went to the plaintiff's house at Naihati. The first occasion was after Bejoya, 1962 and the second occasion is 1st week of December, 1962. On the 1st occasion no male member of the house came out but on thesecond occasion we met Kamal Babu, elder brother of the plaintiff. Before we could make any suggestions for reconciliation to him he told us not to tease them over Kanak Lata and said nothing would be done out of court. So we came back'. There was no cross-examination on this point. It may be remembered that the execution of the decree for restitution of conjugal right was kept suspended for a period of three months in the hope that 'within this time the parties and their well-wishers will so conduct themselves that the way of approach and reconciliation may be made smoother and easier and may ultimately prevent two fruitful lives from being blasted'. It is highly probable that in deference to the wishes of their Lordships the relations of the wife approached the husband and his relations to bring about reconciliation between the two. We find no reason to disbelieve what has been stated by Kalipada regarding his visit to Naihati along with his sister's husband, Pankaj Kumar Ghosh, sister's husband of the wife being witness No. 3 for the wife fully corroborated the statement of Kalipada regarding their visit to the house of the husband at Naihatl twice in 1962 with a view to bringing about reconciliation between the husband and the wife, he was however cross-examined on this point.

25A. Kamal, elder brother of the husband, however, denied in his cross-examination that Kalipada and Pankaj had seen him in his house and that he told them no settlement out of court could be made. We are not inclined to believe Kamal Babu on this point.

26. We, accordingly, hold that initiative was taken by the brother and sister's husband of the wife to bring about reconciliation between the husband and wife, but that they got no response either from the husband or his relations.

27. From the above discussion it is clear that it cannot be said that the wife has failed to comply with the decree for restitution of conjugal rights passed by a Division Bench of this Court on December 14, 1961 in F.A. No. 236 of 1961 (Cal.). The appeal is, accordingly allowed, the judgment and decree of the trial Court is hereby set aside and the petition for divorce filed by the husband is dismissed. The wife will get her costs from the husband throughout.

28. Any amount paid by the husband to the wife towards the litigation expenses shall be taken into consideration in assessing the costs to be paid by the husband to the wife.

Bagchi, J.

29. I agree.


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