- (1.) Marriage is an Institution, responsibility to preserve the institution would lie upon the couple having equal responsibility to maintain it. The couple before us got married on October 14, 1989 according to Hindu Rites and Customs. They started living together maintaining the matrimonial relationship until the discord that culminated in a matrimonial litigation filed on March, 30, 2010 in the court of the Learned District Judge, Howrah being Matrimonial Suit No.276 of 2010. The husband alleged in the plaint, his wife, the respondent above named, committed adultery. According to the husband, on an unspecified day when he returned from his place of work at about 2- 00 P.M. he found one of his colleagues, Kalyan Chakraborty, a police man present in his house. He saw his wife and Kalyan Chakraborty in a compromising position in their bed room. The husband would again say, he tried to pacify his wife so that she would discontinue "illicit link". She was not convinced. She left the house on August, 16, 2008 deserting the husband.
(2.) On these two allegations the husband filed the suit for divorce. From the available records we are not sure why the respondent did not contest the proceeding. The fact would remain, the husband got the suit heard ex parte. The Learned District Judge was, however, not convinced with the evidence that was led before him. The husband examined himself. He was consistent on his stand. He however improved his case by providing particulars of adultery by deposing, he saw them once in compromising position on June, 16, 2005. His wife deserted him on August, 16, 2008. He did not explain what had happened during interregnum. He also deposed, he came to know from his mother, his wife used to visit her paternal place in his absence. He also deposed, his wife took back her "Stridhan". They had no issue out of the wedlock.
(3.) The learned District Judge, Howrah in his judgement and order dated June, 27, 2010 observed, a solitary incident, as deposed, could not be a ground for divorce. The relevant extract is quoted below: "This is a case for divorce on the ground of adultery. Perused the examination in chief and also the examination on oath. It is very difficult to brand the wife as living in adultery with Kalyan Chakraborty relying on the oral evidence of her husband, P.W.-1 who has already animosity against her. He deposed that in the year 2005 he saw his wife Dipti Mondal and Kalyan Chakraborty shared in the same bed. If it is true it is very difficult to believe that the present petitioner lived with that lady up to 2009 without lodging any complaint to any authority. Thus the prayer for divorce on the ground of adultery is not convincing to me and the petition as such is fit to be rejected and I do that." Hence, this appeal by the husband. Learned Counsel appearing for the husband/ appellant in support of the appeal contended, love was lost, the couple started living separately for last seven years. Wife deserted the husband. Wife did not contest the proceeding at all. Hence, the learned Judge erred in rejecting of the prayer for divorce. He would rely upon two decisions, Virupaxi vs. Sarojini and Anr., 1991 AIR(Kar) 128 and Arun Kumar Bhardwaj vs. Smt. Anila Bhardwaj, 1993 AIR(P&H) 33. Per contra, Learned Counsel appearing for the respondent/ wife would contend, the husband examined himself. He mentioned about a solitary incident as referred to above. He also deposed, his mother was staying with them. The mother was not called to adduce evidence. Learned Counsel would also say, the learned District judge, Howrah did not have territorial jurisdiction to entertain the divorce suit. The marriage was consummated in Belgharia, the wife was staying at Belgharia. Hence, in fitness of things, the learned District Judge 24 Paraganas (North) should be the appropriate forum. He would rely upon the decision in the case of Mrs. Agnes Cecillia Gome (Gannon) versus Lancelot Ashby Gome,1964 69 CalWN 740 and in the case of Smt. Pushpa Devi Vs. Radhey Shyam, 1972 AIR(Raj) 260. The learned Counsel appearing for the respondent would also press for an appropriate alimony. We were told, the wife had been getting alimony at the rate of Rs.8000/- per month at present. Before we go into the discord, we must record, the effort we made once again to settle the discord. We called the couple, we tried to persuade them to have re-union. The husband, a police officer, would say, he would be killing himself, rather than accepting his wife once again. The wife was, however, agreeable to go back. Let us first discuss the law on the subject as held in the precedent. Three Judge Bench of our Court, while deciding the wife's petition on the charge of adultery (Mrs. Agnes Cecillia Gome (Gannon) versus Lancelot Ashby Gome, observed, "it is not necessary that there should be direct evidence of adultery; as it is not easily available, rather direct proof is very rare. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery. But circumstantial evidence must be sufficiently strong and conclusive." ;