BHASKAR BHATTACHARYA, J. - (1.) THIS first appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the judgement and decree dated 31st August, 1999 passed by the learned Judge, Family Court in Matrimonial Petition No. 150 of 1995 thereby allowing an application for grant of divorce.
(2.) THE respondent herein filed in the Family Court a petition under Section 13(1)(ia) of the Hindu Marriage Act thereby praying for divorce and the case made out by the respondent may be summed up thus : (a) The respondent was working as an employee of South Eastern Railway and pursuant to the negotiation between the parents of the parties, they were married on 27th February, 1989 according to the Hindu rites and thereafter they started residing as husband and wife at premises No. 120, Adyanath Saha Road, P. S. Lake Town. (b) To the surprise of all, it was found that even on the very first day after the marriage, the behaviour of the appellant was not of the kind one expects from a new bride. She was insolent and discourteous and ill-behaved with all and created embarrassing situations by terrorising the members of the family of the in-laws. (c) The matrimonial home comprised of a self-contained unit of a building belonging to the father of the respondent and ever since the appellant came to her matrimonial home, her parents, cousin-brothers, uncles and most of the relatives used to visit her and they used to quarrel and abuse the respondent and his mother. (d) Ultimately, the appellant while she was in her family way voluntarily left and abandoned the matrimonial home on 23rd October, 1991 and was admitted in a Nursing Home at Calcutta and after the birth of the child, the respondent requested the appellant to return to the matrimonial home; but she refused and started causing harassment to the respondent by visiting his Office and casting aspersions against him, as a result, the superior officers of the respondent and his colleagues entertained a very bad impression about the respondent. (e) The respondent repeatedly visited the appellant at her father's house and requested her to return with the minor daughter and the uncle of the respondent, the maternal uncle and his cousin brothers had gone to the residence of the appellant on innumerable occasions and requested her to come back with the child but she turned down their request. (f) Although, the appellant refused to come, strangely enough, she initiated a Matrimonial Suit being Matrimonial Suit No. 103 of 1993 in the City Civil Court at Calcutta for restitution of conjugal right and thereafter moved an application under Clause 13 of the Letters Patent, 1885 and Section 24 of the Code of Civil Procedure in the Extra Ordinary Original Civil Jurisdiction of the High Court for transferring the said suit to the High Court. The said suit was transferred to the High Court but ultimately, the suit was dismissed after recording an order that the husband was willing to take back the wife. (g) Thereafter, in the last week of October, 1993 the appellant went to the residence of the respondent along with her close relations and created a scene and thereafter collected all her clothes, winter garments etc. which she left in the matrimonial home long back. Even thereafter, the respondent requested her to return but the respondent was harassed and driven out. Despite such a situation, the respondent had signed the admission form as the father and guardian of the daughter for the admission of the School on the request of the appellant. (h) The appellant was a very solvent person. She had independent source of income as a Physical Instructor at Sadhana Yoga Bayam Samity, Garpar, Sukhia Street, Calcutta. She also earned money as private Messeur-cum-physiotherphist. Besides, she had inherited a Ration Shop and a whole sale stationary shop from her deceased father and that is the cause of her rude behaviour. The aforesaid acts of the appellant amounted to cruelty. Hence the suit. The suit was contested by the appellant by filing written statement thereby denying the material allegations made in the application for divorce and her defence may be summarised thus : (i) After the marriage, the parties lived as husband and wife at 120, Adyanath Saha Road, Calcutta till 23rd October, 1991. At the time of marriage, the appellant was given Golden Ornaments such as Bangle, wristlets, Boutee, Ring, Ear Ring, chain etc. and also silver ornaments such as waist chain, vermilion Box etc. and also garments such as silk, synthetic, and printed sarees and also furniture such as cot, almirah, dressing table with cushion, water-filter and other utensils valued about Rs. 80,000/- as per demand of the family members of the respondent and the respondent was also given golden ring, watch, golden bottom, garments valued at Rs. 30,000/- as per their demand. (ii) Some days after the marriage, the respondent began to torture the appellant physically and mentally. He abused and assaulted the appellant now and then without any reason. The appellant always behaved politely with the members of the family of the in-law's but in spite of that, the respondent at the instigation of his mother and sister ill-treated the respondent in various ways. (iii) In June, 1989 the respondent assaulted the appellant in such a manner that she became senseless. In August, 1989 at the house of her aunt, the respondent pushed the appellant from the stairs of first floor and consequently, she fell down to the ground floor and sustained swelling injury. In January 1990 the respondent kicked the appellant and drove her away from the house and closed the door and for the above reason, a complaint was lodged before the Lake Town Police Station but at the intervention of the local people and neighbours, she again returned back to her matrimonial home. In December, 1990 the respondent again assaulted the appellant without any reason. (iv) The appellant tolerated all these mental and physical tortures of the respondent with the hope that good sense would prevail upon the respondent in future and in 1991 the appellant became pregnant and at that condition the appellant became seriously ill. (v) The appellant's father got her admitted in Federation Nursing Home where the appellant gave birth to a female baby on 20th November, 1991 and after the delivery, the appellant was taken to her father's house with the baby. The appellant as well as her father several times requested the respondent and his mother to take her back to the matrimonial home but they did not take any steps on the plea that the appellant gave birth to a female baby. When the respondent and his mother refused to take her back, the appellant was compelled to file a matrimonial suit bearing No. 108 of 1993 in the City Civil Court at Calcutta for restitution of conjugal right against the respondent and on transfer of the matter to the High Court, the same was disposed of by directing the husband to take back the appellant to the matrimonial home. The respondent gave undertaking to the Hon'ble High Court, Calcutta through his advocate that he would not misbehave with or torture the appellant in future in any manner. (vi) In view of the order of the Hon'ble High Court and the undertaking given by the husband, the appellant went to her matrimonial home along with the baby on the same date namely, 20th September, 1993 and lived with the respondent for only ten days. During the said period the respondent in violation of the Court's order again assaulted and tortured the appellant as because she filed the matrimonial case against him and also on the plea that she gave birth to a female baby. (vii) The respondent and his mother did not provide sufficient food to the appellant and even did not arrange for milk or baby-food for the child. Finding no other alternative, the appellant with her baby came back to her father's house and since then she had been staying there.
(3.) A rejoinder was given by the Husband to the said written statement filed by the wife and in the rejoinder, the husband alleged that the wife refused to return even after her imposed terms and conditions were fully met by building an additional room and kitchen in his house for which he had to incur huge expenditure and take loan. Instead of returning to the matrimonial home, she chose to take back all the jewelleries in the presence of the Family Court-counsellor and the receipts were filed before the Court. The other allegations made in the written statement were also denied.;