Samapti Chatterjee, J. - (1.) This appeal arises out of judgement and decree dated August 3, 2007 passed by Shri Bipin Mukhopadhyay, learned Additional District Judge, 4th Court at Midnapore, District-Midnapore (West) in Matrimonial Suit No.396 of 1995 for dissolution of marriage by passing a decree of divorce under Section 13 of the Hindu Marriage Act.
(2.) The fact of the case in a nutshell is as follows :- On 25th January, 1985 the appellant and respondent got married at Indra, Kharagpur in the house of the father of the respondent according to the Hindu rites and ceremonies. Out of that wedlock the respondent gave birth to a female child on 13th June, 1986 at the Railway Hospital, Kharagpur. During her stay at Ranaghat respondent expressed her intention to stay at her father's house and did not permit the appellant to continue the conjugal life and always treated the appellant in a cruel manner. It is further case of the appellant that the respondent had her habit to pick up quarrel with him without any reason and also with his parents. During the month of November, 1986 she did not came back to her matrimonial home at Ranaghat and she stayed at her father's place at Kharagpur and even after repeated request made by petitioner she did not cooperate with the petitioner in this regard and withdraw herself from the society of the appellant. Then the appellant filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in the learned District Judge's court at Nadia and the same was decreed ex parte on 11th September, 1989 and decree was passed on 4th September, 1989. After one year the appellant/petitioner filed a Mat. Suit being No.156/90 before the learned District Judge, Nadia for divorce under Section 13 of the Hindu Marriage Act but that case was subsequently transferred to the Court's order of learned District Judge, Midnapore as directed by Hon'ble High Court passed in C.O. No.4229/1991 as Mat. Suit No.428/1992. The suit was transferred to the learned ADJ, 2nd Court, Midnapore and there during reconciliation the suit was dismissed. But even after that as per terms of compromise of that suit respondent did not turn up to live with petitioner at his house at Ranaghat, she always insisted upon the petitioner to stay with her at her father's house at Kharagpur and respondent did not care to give proper day to day help to his ailing mother. It is also the case of the appellant/petitioner that when he used to stay with the respondent wife it was found that she did not behave properly and considering such sort of behaviour she was treated by the Doctor and medicine was administered to change her behaviour. But even then respondent used to behave in a very bad manner by using filthy language, and he had not been properly served by his wife and further appellant/petitioner had been humiliated in an undignified manner by the respondent and refused to go to matrimonial home at Ranaghat and ultimately petitioner was compelled to leave the matrimonial home on 5th May, 1995 and thereafter lodged a diary at KGP (T) P.S. on 25th May, 1996 bearing G.D. Entry No. 1214. After that the appellant/petitioner has been residing separately and under such situation he has prayed for dissolving the material tie and to pass a decree on the ground of cruelty. Denying all the allegations the respondent submitted that from 1st February, 1995 after compromise of the previous Mat. Suit both the parties began to reside at the father's house of the respondent in Kharagpur and started a happy and peaceful conjugal life and thereafter on 24th March, 1995 the respondent became pregnant but subsequently at the pressure of the petitioner, the respondent was forced to cause miscarriage or abortion of that pregnancy at the behest of the petitioner and it is further submitted that upto April, 1995 the petitioner resided with respondent in the paternal house of the respondent at Inda, Kharagpur. It is further stated by the respondent that on 5th May, 1995 the appellant/petitioner left the paternal house of the respondent and since then he has not taken any information about the respondent and her daughter. Subsequently by filing an additional written statement respondent submitted that the petitioner already second time married with a lady namely Urmila Bandyopadhyay, daughter of Sri Nirmal Kumar Bandyopadhyay of Sodepur and their marriage ceremony took place at 3, B.K. Pal Lane, Calcutta-700 030. Ceremony for Baubhat reception was arranged at 'Aheli Town Hall'., Rajabagan para, Ranaghat, Nadia on 27th February, 2001 and the hall was booked in the name of one Ganesh Sahu who is a friend of the husband of the younger sister of the petitioner, namely Tuku and thereafter, out of the wedlock a girl child was born, but petitioner suppressed that fact. Hence the present appeal.
(3.) Mr. Abani Bhushan Ghosh, learned Advocate appearing for the appellant/petitioner submitted that the learned Judge failed to consider that as per the compromise decree the respondent/wife stayed at in-laws house up to 5th May, 1995. After that the respondent/wife never stayed with the appellant/husband .;