Decided on April 17,1970



- (1.) THIS appeal is at the instance of Sm. Anuka Gupta (Wea chatterjee) against her husband, the respondent Karunakar Gupta, who obtained a decree for divorce in matrimonial Suit No. 3 of 1986 of the 17th court of the Additional District Judge at Alipore, 24-Parganas, on the ground of desertion and cruelty, under section 27, clauses (b) and (d) respectively of the Special Marriage Act, 1954.
(2.) THE petition was presented before the judge by the husband-petitioner now the respondent on 23. 9. 65, who was then the Vice-Principal of a Calcutta Girl's College having to his credit indian and foreign academic degrees. The wife-appellant is an M. A. B. T. and was at the relevant time the Head Mistress in a Girls' School. The respondent-husband and the appellant-wife were married under the provision of the special Marriage Act, 1872 as amended by Act XXX of 1923 in October, 194. 4. The Special Marriage Act XLIII of 1954 came into force on and from 1st of january, 1955 replacing the earlier Special Marriage Act. The wife-appellaint before marriage was a Brahmin white the husband-respondent was a Baidya, the husband's paternal residence is at rashbehari Avenue. After their marriage the couple did not reside at the paternal house of the husband lost the intercaste marriage might not be approved by the senior members cf the husband's family. Sometime in 1945 the husband brought the wife to his ancestral dwelling bouse at 213, Rashbehari avenue. At the ancestral dwelling house the wife could not pull on well with the husband's sister and trouble and unhappiness went on. A male child was born out of their wedlock to the husband and wife in July, 1946 but still the husband and the wife continued to have strained feelings. Sometime in July, 1951 the wife came to a hostel for prosecuting her studies for the M. A. Examination. In 1952 the husband left for England for securing a Doctorate. At that time the wife resided with her brothers at Howrah. In 1955 the husband came back to Calcutta with a Doctorate from the. London school of Economics. In the same year the wife left for Santiniketan for studying B. T. After coming back from santiniketan the husband lived with the wife for a few months at a rented house in flat at the Improvement Trust buildings, Singhee Bagan. In August 1956 the husband and the wife again came to the husband's ancestral dwelling house at Rashbehari Avenue to reside there. They got in the ancestral dwelling house at Rashbehari Avenue 2 living rooms, bath rooms and kitchen etc. to reside. Since 1946 the husband had been receiving cruel treatment from the wife who abused and at times anssaulted him. In 1960 the wife refused to have any cohabitation with the husband and from August 1960 the wife refused to cook for the husband. The husband was, therefore, obliged to take his meal with his elder brother living on the first floor of his paternal dwelling house at Rashbehari Avenue. When the husband was suffering from typhoid in April, 1962 the wife did not nurse him wherefor the husband was taken to his brother's flat for proper nursing. On the- ground of wife's desertion for a period of three years immediately preceding the presentation of the petition for divorce and on the ground of wife's cruelty, the husband prayed for a divorce against the wife under section 27 clauses (b) and (d)respectively of the Special Marriage Act, 1954.
(3.) THE wife opposed the husband's petition for divorce by a written statement denying the material allegations made in the husband's petition. She, on the other hand, alleged that since the solemnisation of the marriage she had been receiving cruel and indifferent treatment from the relatives of the husband who acquiesced in the same. The husband also meted out cruel treatment to the wife. In the evening the husband used to visit the rooms of his brother and used to come back late at night. The wife came home tired after her work in the school and the husband returned late at night. Wife had to close the door of her bed room. On one occasion when the wife had to go to a Nursing Home for an operation, the husband did not visit her. The wife alleged that the petition for divorce, or in the alternative, for judicial separation, should be dismissed as prayed for by the husband. The following issues were framed : 1. Has the petitioner got any cause of action for the suit ? 2. Is the suit barred by the principles of estoppel, waiver and acquiescence ? 3. Is the petitioner entitled to get a decree for divorce, or in the alternative, for judicial separation ? issues Nos. 1 and 2: These two issues were not pressed at the time of trial and those were found by the learned Judge in favour of the husband-petitioner now respondent in this appeal. Issue No. 3 : For the husband-petitioner now the respondent in this appeal he himself deposed as P. W. 6 while his elder brother P. W. 2 Kalyan kumar Gupta, his pupil P. W. 3 Parimal adaaryya and his son P. W. 4 Gautam gupta deposed. D. W. 1 Santi sarbadhikari, D. W. 2 Arun Kumar chattopadhyay brother of the wife, now the appellant, D. W. 3 the wife herself, deposed. One Sm. Kamala mukherjee, the petitioner witness No. 7 and one Dr. Sisir Kumar Mukherjee, petitioner witness No. 5 are the two other material witnesses examined by the petitioner-husband now the respondent in this appeal. Accepting the evidence of husband-petitioner P. W. 6 and his brother P. W. 2 and his pupil p. W. 3 and his son P. W. 4, the learned jrudge held:-"from the evidence of these witnesses I am satisfied that the petitioner was abused and assaulted by the respondent. " Relying on the evidence of P. Ws. 3, 4 and 5, the teamed Judge held :- "from the evidence discussed above, I am satisfied that the respondent treated the petitioner with mental cruelty which was extremely injurious to his health and peace of mind. " The learned Judge found that the last act of cruelty complained of took place in 1961 as proved by P. Ws. 1 and 3 and that as there was no evidence that from 1961 to 1965, upto the date of presentation of the petition for divorce, the parties had resumed cohabitation, the cruelty of the wife now the appellant was not condoned by the husband, now the respondent in this appeal.;

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