ASHIM KUMAR BANERJEE, J. - (1.) THE appellant Golak Santra married Kakali Santra on July 11, 1988 according to Hindu rites and customs. THEy lived their marital life for about ten years when an unfortunate incident happened. Out of the wedlock two male issues were begotten.
(2.) THE dispute arose after the birth of the second male child which the husband declined to accept of his own that gave rise to a discord between the couple. On the fateful day the second child was sleeping on the cot and the respondent/wife was taking her bath. After coming from bath she found her child dead. Blood was coming through his nostril and fluid was coming from his mouth. She apprehended that her husband killed the baby. THE local people assembled and accused the husband when he had confessed of having killed the child. He was handed over to the Police. Police had drawn up a criminal proceeding under Section 302 of the Indian Penal Code against the husband. The husband pleaded not guilty and faced trial. The learned Session Judge vide judgment and order dated June 30, 2005 acquitted him of the charges as according to the learned Judge the prosecution failed to prove the charge. On perusal of the judgment we find that despite the prosecution witnesses corroborating each other on the incident the learned Judge relied on the autopsy surgeon. According to the medical officer, he did not notice any external injury on the dead body. Rather, in the right frontal bronchia white milk substance was detected. The learned Judge acquitted him of the charges. It was only after the order of acquittal, the husband filed a divorce suit on August 24, 2005 against the wife on the ground of mental cruelty. Pertinent to note, the marriage took place in 1988. The unfortunate incident happened on April 7, 2000 after about twelve years and the appellant filed the suit after seventeen years of marriage after he had been acquitted of the criminal charges. From the plaint it appears that the appellant/husband alleged that no dowry was exchanged in the marriage. There had been family settlement by which he got an immovable property by way of Deed of Gift from his mother where the couple started living together. The first male child was born on June 9, 1992. His wife was "short tempered", "idiotic type" and picked up quarrel of and on. She lost her mother when her father re-married for the second time. She did not maintain any cordial relation with her step-mother. She refused to participate in the house hold work compelling the petitioner to bring food from outside.
(3.) HER education was very poor. She had no minimum "common sense", no "independent thinking". She gave birth to a male child in February 9, 2000. However the child expired on April 7, 2000 because of respiratory problem. The husband tried to save the life of his son but in vein. The wife made a complaint against him intentionally. The local people mercilessly assaulted him alleging murder of the child. He was arrested and kept in custody for sixty-seven days. After being released on bail, he left his own house and started living with his elder brother. His son came back to him deserting his mother. He got acquittal from the criminal case. He also faced maintenance case initiated under Section 125. In anticipation that she might lodge another criminal case under Section 498A, he filed the suit for divorce. The respondent did not contest the case. The learned Additional District Judge heard the matter. The learned Judge dismissed the suit by observing that the husband failed to prove the allegation of mental cruelty. On the criminal case, the learned Judge observed that it was not an honourable acquittal. The criminal Court acquitted him for want of appropriate evidence. On the maintenance issue, the learned Judge observed, mere filing of a case under Section 125 of the Criminal Procedure Code would not amount to mental cruelty. Hence, this appeal before us.;