Decided on May 02,1996

Dilip Kumar Sett Appellant
Ratna Sett Respondents

Referred Judgements :-



S.N. Mallick, J. - (1.)In the instant Matrimonial Appeal has been preferred by the Petitioner/Appellant against the judgment and decree dated May 26, 1994 parsed by the Learned Additional District Judge, Howrah in Matrimonial Suit No. 14 of 1990 thereby dismissing his prayer for dissolution of marriage by a decree of divorce against the wife Respondent on grounds of cruelty and desertion under Sec. 13 of the Hindu Marriage Act. It is alleged in the memo of appeal that the learned Trial Judge has not properly assessed the evidence adduced on behalf of the husband Appellant and as such on erroneous findings of fact and law has dismissed the suit. The learned trial Judge in his impugned judgment has totally disbelieved and rejected the husband Appellant's story of desertion and cruelty against the wife Respondent. In this appeal the main point for consideration is whether the learned Trial Judge has rightly dismissed the Appellant's the above matrimonial suit brought, against the wife. Before coming into the merits of the appeal the facts of the case may be briefly stated in the following paragraph:
(2.)Admittedly the marriage between the parties was held under the provisions of the Hindu Marriage Act on January 26, 1973. Since then the parties have been residing at 59A, Ding Sai Para Lane at Bally. One daughter namely Pampali Sett was born to them sometime in 1976. According to the husband the Respondent deserted him immediately after the marriage and picked up quarrels with him and he has all along been ill treated by her which are acts of mental cruelty (vide para. 5 of the plaint). The acts of cruelty allegedly committed by the Respondent have been set out in the plaint as follows:
(1) The Petitioner served an Advocate's notice dated May 6, 1988 upon his wife the Respondent intimating her that as the Petitioner had been continuously ill treated by her since six months of the marriage by abusing him in filthy language the Petitioner had been advised to file a divorce suit against her and pending the said suit, she was requested to leave the matrimonial home forthwith (vide Ext. A). This lawyer's notice was cancelled by the name Advocate on instructions from the Petitioner by a letter dated June 3, 1988 (vide Ext.A1). It is the case of the Petitioner in the instant suit that he had to withdraw the same at great humiliation as he was pressurized to do so by the antisocial elements engaged by the Respondent, her brother and sister -in -law.

(2) Prior to the date of the issue of the said notice i.e. Ext. A the Respondent threatened the Petitioner with dire consequence and in fact engaged antisocial elements to take away his life and property.

(3) In March, 1989 the Respondent with the help of some local people namely one Swaraj Banerjee and others assaulted him and unlawfully assembled in front of his shop used filthy language and pre -empted him from carrying on business. This was done by her on diverse dates.

(4) The Respondent with the help of the antisocial elements tried to kidnap their daughter for which she was removed from the residence of the Petitioner. It is further alleged that the daughter was never properly looked after by the Respondent Bond accordingly she loved to stay with the Petitioner (vide para.4 of the petition).

(5) The Respondent instigated the local Mahila Samity who agitated in front of his house on May 26, 1980 at 10 p.m. at night and also during day time causing serious mental torture and cruelty based on false complaint lodged by his wife to the Mahila Samity.

(6) The Petitioner was physically tortured and he was driven out from his bed room forcibly by the Respondent with the help of some miscreants in the May, 1989.

(7) She used violence against him and kicked him in presence of some relatives and friends at Hardwar in January, 1984.

(8) The Respondent has been living separately and thereby she has deserted the Petitioner and she is still living in desertion.

(9) The Respondent in collusion with the members of the Mahila Samiti and local antisocial elements has made the life of the Petitioner 'terrible' and he has been made socially out caste.

(10) The Respondent has expressed in presence of the members of the family of the Petitioner and his friends and associates that she does not like the Petitioner and she, in fact, does not want to treat the Petitioner as her husband.

(3.)According to the Petitioner the above acts of cruelty along with desertion have caused serious injury to the mind and health of the Petitioner for which he apprehends that it is injurious and dangerous for him to live with the Respondent in the same premises. It is asserted by the Petitioner that the marriage between the parties have broken down completely and there is no chance of reunion and as such he is entitled to get his marriage dissolved by a decree of divorce on the grounds of above cruelty and desertion which he has not in any way condoned. The Respondent in her written statement has categorically and emphatically denied the above allegations made by her husband Petitioner. It is the case of the Respondent ' that although she has much love and affection for the daughter the latter has been tutored by the husband to disregard and disobey her. It is the case of the Respondent that the Petitioner withdrew his first notice dated May 6, 1988 on his own accord after realizing his own mistake. All the allegations of cruelty and desertion as noted above have been denied by the Respondent in her written statement. She states that it was the Appellant himself and not she who drove out her from the bed room on the first floor of the matrimonial home where she used to live since after her marriage. According to the Respondent, she had to pass many days without food in the house of the Petitioner nor she was given ration card by the Petitioner which was, however, handed over to her in Court below in presence of the respective lawyers of the parties. It -is the positive case of the Respondent that she has never deserted the Petitioner with any intention to break the marriage tie and that she has been living in the same house although she has been subjected to in human torture of the Petitioner and her daughter who has also been forced by the Petitioner to misbehave with her. The Respondent has alleged that during the pendency of the suit and after the order of alimony pen -dentilite Was passed by the Court below the Petitioner threw hot water on her person on January 13, 1991 for which she had to initiate criminal prosecution of her husband through local police. The husband Petitioner at that time drove her out from the bed room in the first floor for which she had to pray before the Court below for restoration of her accommodation in the said room. The Respondent has also stated that after filing the suit for divorce the Petitioner has also filed a money suit against her and her brother for damage which is still pending. According to the Respondent the Petitioner started to treat her with cruelty after his partnership' business with her cousin brother Astik Dey collapsed due to loss. The Petitioner thereafter pressed her to bring Rs. 1,50,000 from her father's house to make up the ' loss suffered by him in the said partnership business which she refused.

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