R.P. Gupta, J. -
(1.)The appellant is husband of the respondent. Having failed in his petition for obtaining divorce on the grounds of cruelty from his wife in the court of Additional District Judge (Sixth Court), Midnapore, vide judgment dated 30th June, 1970, he approached this court in appeal for the same relief. The divorce petition was filed on 1st Sept., 1987. The parties were married on 2nd July, 1983 (17th Asher, 1390 B.S.) according to Hindu Law and Customs in Village-Salmabad, Police Station, Pataspur where the respondent used to reside with her parents. The petitioner was at that time residing in Garho, Radha Nagar, Police Station, Belda. However, at present he resides in Digha, P.O. Siksha Sadan, Dist. - Madnapore where he is employed as a teacher in a school. At the time of marriage also, the petitioner was working in Sikaha Sadan High School in Digha, D.J. This school is far from his village Salmabad. So he used to reside as a paying guest in the house of one Baikunt Nath Kar at Digha, D.J. As he found it convenient, even after marriage he used to stay at Digha, D.J. in the House of Shri Kar from Monday to Saturday. He would go to his village every Saturday. He would return to Digha on Monday morning. That was his routine. The assertions of cruelty made by the petitioner-appellant against the respondent were that the marriage between them was not happy, that respondent is a cruel lady by nature that she refused to cohabit with the petitioner-appellant at any time except on the night of Fullsajya; that on consultation with the specialist doctor, he learnt that she had some physical defects; that the respondent became displeased on knowing her physical defects and was misbehaving with the petitioner-appellant, that she used to abuse him, that she used to behave rudely with appellant's mother and brother and never did any household work, that she visited the house of neighbours and relatives without anybody's permission and on being questioned by his mother, she would abuse her in filthy language; that she threatened to commit suicide, if any agitation was done against her wishes, that she kept contact with persons who are inimical to the petitioner and raised false doubt about appellant's character, that she refused to live in the village home and demanded that she should be taken to the place of work with the appellant, that the appellant was unable to take her to Digha because there was no sufficient room there with the appellant, that in the year 1984, appellant's father died, the father and brother of respondent came at Sradha Ceremony and threatened the appellant in various ways asking him to follow the advice of the respondent and put pressure on him to take the respondent to his place of work and at that time, when the appellant expressed that he had no sufficient place in Digha, the respondent began to allege falsely that the appellant was a characterless man and threatened to teach him a lesson and that in July, 1986, the respondent verbally asserted before the Head Master of the Digha D.J. Siksha Sadan High School that the appellant had been leading an illicit life with Smt. Renu Bala Dutta, at the house of Baikunt Nath Kar and, that is why, he was refusing to keep her (respondent) at his place of work, that the respondent herself and through her supporters began to spread various false and scandalous allegations against the appellant in the village, that on 24th June, 1986, the respondent sent for the appellant, by a false message of mother's illness at Radha Nagar, and when respondent reached there, he was detained by the respondent and she and her party, exerted pressure on him and threatened to kill him and got a paper written and signed from appellant; that this gave mental shock to the appellant who filed a petition for divorce being Matrimonial Suit No. 126 of 1986 in the Court of District Judge, that on receiving notice of that suit, the respondent who is a worker of Mahila Samity, managed a social boycott of the appellant, and, in this way, the appellant was not even allowed to cultivate his lands in his village, that under such pressures, the petitioner was compelled to write a reconciliation letter on 13th July, 1986 at P.S. Belda at the dictation of the respondent and her brother and other supporters and he was compelled to withdraw the divorce petition, that thereafter the appellant left the house of Baikunt Nath Kar and began to live in the school Hostel while the respondent was still residing in Village Radha Nagar, that she would misbehave with the appellant's mother and brother; that in the month of Aug., 1986 the respondent came to Digha and complained to the Head Master of the school that the appellant was not keeping good relationship with her, that the Head Master made arrangements in a portion of his own house for the appellant & respondent to live together, that the respondent lived in that house only for a few days and then went away to her parent's house and, thereafter on 2nd Oct., 1986, she along with her brother and other associates came to the school of the appellant and in the presence of assistant teacher, Head Master and students insulted and abused the petitioner in filthy languages, such as 'characterless', 'lewd' etc. and the respondent's brother dragged the appellant by catching hold of his shirt, that the respondent submitted an application to the Head Master on 23rd Oct., 1986, with false allegations against the appellant; that the appellant was mentally depressed and disheartened by such cruel behaviour of respondent and her supporters; that on 23rd Feb., 1987, again 'the respondent and her brother and other supporters came to the school of the appellant and they abused the appellant in filthy language in the presence of assistant teachers of the school and others and that the petitioners- respondent falsely alleged that appellant had illicit connections with Rankala Dutta and the respondent and her supporters dragged the appellant and beat him up and thus insulted and humiliated him; that the respondent lodged a false complaint against the petitioner to the managing committee and to teachers; that this spoiled the peace and discipline of the school and the teacher's Council and the Head Master and the management expressed their displeasure and the appellant was led to think of committing suicide; that in this pressure, the appellant was mentally so disturbed that he sent his resignation from the post of teachership on 24th Feb., 1987, however, his resignation was not accepted and he withdrew his resignation on 8th April, 1987 by a telegram on that day and also moved an application on 10th April, 1987 for withdrawing his resignation. The resignation was allowed to be withdrawn by the Managing Committee as they found that the allegations against the appellant were false. It was further asserted that the respondent had been torturing the mother and brother of the appellant in Village Radha Nagar, and the respondent and her brother and other supporters would even beat them, that the respondent holds meeting of Mahila Samity from time to time in petitioner's house in the village and they shout slogans against the appellant and threatened to murder him. It is asserted that in this manner, the respondent has been insulting and humiliating the appellant and has indulged in character assassination of the appellant and has ruined his honour and prestige and the appellant suffers from mental agony.
(2.)The wife had controverted all the allegations of cruelty against husband. She has not disputed that after marriage, she started residing at Radha Nagar while the appellant used to work at Digha and he used to visit Radha Nagar at week ends. She, however, asserted that the appellant never showed any warmth towards her and expressed ill-feelings towards her. He made her mentally unhappy and ignored her and never offered conjugal warmth to her and even rebuked her alleging that she was unhealthy and sick. After some weeks, the appellant stopped coming to Radha Nagar even on Saturdays a number of times. She became anxiety-ridden. She made enquiries about the appellant with the help of her brother and father and they learnt about his having illicit connections with Renubala Dutta, a married daughter of Baikunt Nath Kar (who had deserted her husband). The respondent confronted Appellant's mother about this information, but the Appellant's mother kept quiet and so the respondent believed. the information as true and became aggrieved at her plight and mentally broke down. She asserts that at the time of Sradha Ceremony of her father-in-law, she had, in fact, requested the appellant not to spoil her life and to take her to Digha and to live with her as husband and wife. The appellant rejected this request. At this, she confronted the Appellant with her information about him and Renubala Duna. The Appellant became enraged and threatened never to live with respondent as husband and wife and even confessed his illicit connections with Renubala Dutta and as living with Renubala Dutta; the respondent broke down with sorrow and informed her father and brother about these matters and they persuaded the appellant to take her to Digha, but he would not agree. At this, there was exchange of hot words and altercations between them. Some relatives of the appellant came to know of all these happening at that time. The villagers came to know of it. The father and brother of respondent felt extremely insulted and mentally shocked at the conduct of the appellant. They took the respondent to their home. After some period, she went to Digha to her husband. The appellant became agitated and ordered her to leave at once, asked her to reside at Radha Nagar, as there was no place for her in the house at Baikunt Nath Kar. When the respondent stressed that she should be kept at Digha, the appellant became extremely angry and abused her in filthy language and drove her away. Her brother was with her at that time. So, she was compelled to meet the Head Master of the School and apprised him of her sorrows. And she returned to her father's house. Few days later, she went to Radha Nagar and began to live there. The Head Master tried to persuade the appellant to mend his ways about his wife and to keep his wife or the matter may draw notice of the school authorities and other teachers. The Head Master made arrangements for the stay of appellant and respondent in a portion of his own house at Digha. The appellant then came to Radha Nagar to take the respondent with him. The relatives of the appellant and his neighbours had come to know of the conduct of the appellant and were displeased with him and bore disrespect towards him due to his own doings. They did not believe the appellant's promise to rectify his character and asked him to give a written promise to her to mend his ways. So, the appellant gave a written promise on 24th June, 1986. The respondent believed in the promise of the appellant made at that time. However, an returning to his place of work, the appellant again fell under the influence on Renubala Dutta and lodged quite false complaint to SDO and SP against the respondent and started a suit for dissolution of marriage in the court of District Judge, Midnapore. After this, the relatives of the appellant reminded hint of promise and they met him at P.S. Belda in the presence of officer-in-charge of Belda Police Station. Then the appellant gave written promise on 30th July, 1986 that he would have a normal conjugal life with respondent. He promised to take her back with him after finding residence as soon as possible. Then, the appellant left the house of Baikunt Nath Kar and began to live in a hostel, but made no effort to find a house to take the respondent with him. At last, on Aug. 1986, the respondent went to Digha and met the Head Master of the school and sought his.help. The Head Master called the appellant and offered to him that he live with the respondent in a portion of the house of the Head Master. The appellant had thus to agree to this suggestion and the parties started living in a portion of the house of the Head Master. The Head Master found out a residence for them, but the appellant suddenly disappeared from his place of work. In these circumstances, she had to return to her father's house. She gave an application to the Head Master-stating the conduct of the appellant. The school authorities felt extremely dissatisfied with the conduct of the appellant and wanted to start proceedings against him. At that stage, the appellant, confessing his guilt, tendered his resignation from his job of his own accord. However, his resignation was not accepted and the school authorities gave him another chance of leading an honest normal life with the respondent. The appellant gave written promise to the school authorities to cut off all connections with Renu Bala Dutta and undertook to lead a normal conjugal life with his wife. So, the school authorities allowed him to join duties again in the school. It is, however, urged by the respondent that he could not cut off connections with that lady and filed his present divorce petition on false grounds.
(3.)The main issue which arose for adjudication before the trial court was whether the wife had treated the husband with cruelty. This issue was decided against the husband-appellant after considering the pleadings and the evidence of ten witnesses produced by appellant and four witnesses examined by the respondent wife. The ld. Additional District Judge examined the alleged cruelty under Five Heads :
(i) rude behaviour of the wife towards the appellant and his relatives.
(ii) completely avoiding sexual intercourse with her husband except on the first night.
(iii) raising unreasonable accusation of the adultery with Renu Bala against the husband by the wife.
(iv) instigating the neighbours and relatives of the appellant against. him by making false allegations and thus leading to social boycott of husband and his family by neighbours and relatives.
(v) Making false complaints to the Head Master and colleagues of the appellant and to the school authorities, thus humiliating the appellant.
The ld. Additional District Judge found total absence of any evidence on the allegation of rude behaviour of the respondent towards appellant's relatives. He considered the evidence of the appellant (PW 1) and his brother Tusar Kanti Guchhait (PW 9). The evidence was that after the wife was examined by a doctor namely Dr. P.L. Kajhi of Contai, she started behaving harshly towards the appellant. The wife had denied any examination of her by the doctor and had denied any physical defects in herself. The doctor was not produced in evidence. No prescription of the doctor was brought on record nor any report of the doctor was produced. The appellant alleged that all the documents were with the wife. That was an easy way to explain away non-producing of the documents, even if they did not exist. The ld. Additional District Judge noticed that even if this allegation of the husband (about documents being with wife), was correct, he could examine the doctor to show that the wife was examined. The trial Court thus found the allegation of physical defect in the wife or her examination by the doctor as unfounded. The evidence of these witnesses about wife's harshness towards the husband or other relatives was disbelieved. The second ground of cruelty i.e. denial of conjugal rights of the husband, was also found not proved on fording that. Pleas of both sides are contradictory, on this aspects and each is putting. blame on the opposite side. However, the trial court also noticed from a letter exhibit 'A' written by the husband to the wife about fifteen days after marriage, that the husband had been having sexual relationship with wife and had expressed strong desire for further sexual relationship on coming to the house. The trial court observed :
"If the wife really resisted the advances of her husband to have sexual intercourse, then the petitioner would not have written a letter like exhibit 'A' (an admitted document)".
The trial court was also persuaded by the fact that the wife, all through, wanted to reside with the husband; she would not have so desired, if she wanted to avoid sexual relations with the husband. She even resided in the house of her father-in-law while the husband not visiting her. On the third aspect of unfounded allegation of illicit connection between husband and Renu Bala Dutta, the trial court, on a consideration of documentary or oral evidence, came to conclusion :
"In the facts and circumstances of the case, we find that the wife raised bona fide allegations, touching the character of her husband as she had reason to believe the involvement of her husband with the woman-Renu Bala Dutta."
In reaching this conclusion, the ld. trial court was persuaded by several circumstances appearing in evidence :
(i) The husband avoiding to go to his wife at Radha Nagar on flimsy ground, even as early as after a month of marriage (letter exhibit A 1, dated 27th Aug., 1983, written by Husband and Wife along with oral evidence was relied upon).
(ii) Exhibit 'D1' letter dated 27th Dec., 1986 written by husband to some members of staff of his school, admitting that he did not have normal relationship with his wife and was not giving her proper respect and promising to normalise the relationship in future.
(iii) The fact that the wife vas trying again and again to live with husband at Digha and he was resisting on flimsy ground of non- availability of house after a few days living with wife.
(iv) Undertakings dated 24th June, 1986 and 20th May, 1987 (Exhibit 'B'and Exhibit 'D') in writing given by husband mentioning that he (husband) would severe all connections with Renu Bala Dutta. The undertaking were in his own writing and signed by him and 1st one was given to the relatives and neighbours of the husband. The second writing was given to the Managing Committee of the School where he was an employee.
On the fourth allegation, also the trial court found, after going through the evidence of the witnesses, that it was not established that the wife instigated the co-villagers and relatives of the husband to humiliate the husband or his family and the trial court observed
"We have got the impression that because of the peculiar behaviour of the petitioner towards his wife, the co-villagers and agnates of the petitioner might be agitated and might resort to social boycott in order to create some kind of social pressure on the petitioner to lead normal life with his wife. But, for that, we cannot come to hasty conclusion that the respondent was in any way responsible for these incidents and in this way it cannot be said for a moment that these incidents would constitute mental torture on the petitioner."
Regarding the last item of cruelty also the trial Court found against the husband. The trial Court said that if the aggrieved wife goes to the authorities concerned to complain of her husband, she cannot be held liable for committing cruelty on such husband. The Court observed :
"We have seen from the entire facts and circumstances that poor wife had enough reason to make the complaint before the Head Master and before the School authority." The trial Court held as unbelievable and false, statement of some of witnesses of the husband that he was abused and physically assaulted by wife and her relatives in the School area in the presence of his colleagues and students. That was held to be a concocted evidence. No colleague, teacher or student was examined as witness. The respondent had examined the Head Master herself and the Head Master did not support any such incident and spoke of sudden disappearance of the husband from the accommodation supplied by him to the couple. Thus the petition was dismissed by the trial court.