Decided on July 03,1996


Cited Judgements :-



S.N.MALLICK, J. - (1.)The present appeal has been preferred by the husband-petitioner whose prayer for a decree of divorce against the wife-respondent on ground of desertion and cruelty made in Matrimonial Suit No. 638 of 1983 renumbered as Matrimonial Suit No. 19 of 1985 has been dismissed by the learned Additional District Judge, 2nd Court Alipore, 24-Parganas by the judgment and decree dated 30-4-1987 passed in a contested trial. The learned Additional District Judge has dismissed the suit on categorical finding that the present appellant i.e. the husband petitioner has failed to prove both the grounds of desertion and mental cruelty by cogent and reliable evidence. It has been contended in appeal that the learned trial Judge has not at all considered the evidence on record and the facts and circumstances of the case according to law and has wrongly dismissed the appellant's suit for divorce. The point for consideration in this appeal is whether the learned trial Judge has rightly dismissed the matrimonial suit on both the above grounds by refusing to grant a decree for divorce under S. 13 of the Hindu Marriage Act.
(2.)The facts of the case may be briefly stated in the following paragraph :-Admittedly the appellant married the respondent on 11-12-1967 according to Hindu rites and customs at 3/2A B.T. Road, Baranagar in the latter's patrimonial home. A very cryptic case for divorce has been made out in the plaint by the petitioner. In para 3 of the petition for divorce it is stated that the respondent has been working as a school teacher at Calcutta against the will of the the appellant deserting him without showing any reasonable ground for such withdrawal from the society of the husband. In para 5 it is stated that the appellant after serving a notice upon the respondent filed a suit for restitution for conjugal rights in the Court of the learned District Judge, Nadia at Krishnanagar which was Matrimonial Suit No. 48 of 1975. The suit was disposed of as the respondent agreed with the proposal of the petitioner, inter alia that she would live with him after tendering resignation to the school where she was working. In paras 7 and 10 of the petition it is stated that the respondent did not comply with her own assurance and without tendering resignation as was agreed by the respondent she started living with one Gajendra Nath Banerjee own uncle of the petitioner at Ramlal Agarwal Lane since November, 1977. It is the petitioner's case that he and the respondent lived as husband and wife till June, 1977 sometimes at the residence of the petitioner at Palassy, sometimes at 58, Deshpriya Park West Calcutta-29 and sometimes at the respondent's father place at B.T. Road. According to the petitioner the respondent has deserted him on and from July, 1977 for a continuous period of not less than two years immediately preceding the presentation of the petition for divorce and the respondent has been living in adultery with Gajendra Nath Banerjee which is a mental cruel by to the petitioner. On these two allegations of desertion and mental cruelty the petitioner filed above matrimonial suit in the Court of the District Judge, Alipore on 17-8-1983 i.e. after a lapse of more than six years.
(3.)The respondent's case as made out in the written statement filed on 18-4-1985 is primarily emphatic denial of the allegations made by the husband in his petition for divorce. The specific case of the respondent is that after marriage the respondent was taken to Bethuadahari, Nadia at the house of one Digendra Mukherjee a relation of the petitioner wherefrom after a few days she came to her father's house at Calcutta. Thereafter she was taken to the quarters of the petitioner in Ambika Jute Mill at Belur where she spent from sometime in January, 1968 till March, 1968 with occasional visits to her father's house at Calcutta. In the month of April, 1968 she received a letter dated 2-4-1968 written by the petitioner himself demanding divorce on false allegations. It is the case of the respondent that during her stay at Belur she found on Insurance Policy taken out by the petitioner after their marriage which was standing in favour of one Itu Mukherjee. As she enquired of the husband regarding the said policy the latter became furious and beat her mercilessly. Anyway, after receiving the said letter dated 2-4-1968 (vide Ext. A (3)) the respondent came to the petitioner's quarters in Ambika Jute Mill at Belur and asked him about the reasons for issuing such notice at which the petitioner became violent and abused her in most filthy language. Although the respondent was carrying at that time the petitioner drove her out from the said quarters and she was compelled to come back to her father's house and in spite of repeated request the petitioner never came to see her or to take her back and in fact did not keep any contact with her. Under the circumstances the petitioner was compelled to take up a job in Chandapara Balika Vidyalaya, Bongaon and started to stay there in the teachers hostel although she was carrying at that time. After sometime she was admitted to R.G. Kar Medical Hospital at Calcutta where she delivered a male child and the petitioner although informed, never came to the hospital and spent a single farthing for her medical treatment. The petitioner was requested to take her to his place from her patrimonial home but he did not respond. After much persuation the petitioner, however, took her to Palassy at the end of March, 1969 where she stayed there in her in-laws' house for about two months. The petitioner during her stay at Palassy visited her only on two occasions and he and his mother used to treat her with cruelty. At the instance of Gajendra Nath Banerjee the uncle of the petitioner, the brother of the respondent took her back to her father's house at Calcutta. The respondent thereafter took a job in a local school at Calcutta in the year 1969 but the petitioner filed a matrimonial suit in the Krishnanagar Court (i.e. Mat. Suit No. 48 of 1975 as referred to in para 5 of the petition) which was compromised and the respondent to maintain family peace, agreed to resign and actually submitted resignation. But observing the attitude of the petitioner and his living in adultery with Itu and others she was compelled to withdraw the same. Thereafter the petitioner again disassociated himself from the respondent and changed his service in another concern. Subsequently the respondent came to know that the petitioner had joined the Indian Oxygen Ltd. and was putting up in a hotel named Hotel Gautam in Calcutta. The respondent thereafter met the petitioner there and lived there as husband and wife and during such stay she gave birth to a female child on 5-2-1975 in the R.G. Kar Hospital, Calcutta. The petitioner did not bear any expenses for her there. The respondent thereafter came back to her father's house as the petitioner refused to live with her. Thereafter the respondent being accompanied by one Ardhendu Chowdhury a friend of the petitioner went to the petitioner's flat at 58, Deshpriya Park (East) and found that the petitioner was living there with the said Itu Mukherjee. The petitioner on seeing the respondent and his friend became angry and insulted them and also drove out the respondent from his flat. On being given no entry at the Deshpriya Park flat the respondent came to her father's house and thereafter being accompanied by Gajendra Nath Banerjee uncle of the petitioner she again went to Deshpriya Park flat towards the end of June, 1971 and forcibly lived there for a few days. At Deshpriya Park residence the petitioner assaulted his uncle and forcibly sent the respondent to Palassy with his uncle. As the said uncle-in-law was about to retire from service requiring him to vacate the official quarters at Palassy the respondent requested the petitioner to take her back which was not heeded to. As at that time the uncle-in-law was seriously ill, a flat was hired at Ramlal Agarwal Lane at Calcutta to nurse him. At that time the respondent came to know that the petitioner had left the service of Indian Oxygen and had joined the Indian Jute Mill Association. She contacted the petitioner without any effect. Thereafter on the recovery of her uncle-in-law from illness the respondent along with her brother, sister-in-law and the said uncle-in-law went to the quarters of the petitioner at Barrackpur and found the petitioner living with Itu Mukherjee. On being interrogated by the uncle-in-law the petitioner became furious and struck him because of which he fainted. It is the petitioner who deserted the respondent and not she who allegedly deserted the former. She is still willing to maintain marital relationship with him. According to the respondent the petitioner has withdrawn himself from her society and has been living in adultery. It is the specific case of the respondent that at the instance of the petitioner she used to live with the uncle-in-law who has brought up the petitioner and maintained him and his mother since the death of the petitioner's father. The mother of the petitioner lived with the said uncle-in-law till her death and the petitioner himself had always asked the respondent to live with him and to nurse his uncle who maintained them and who saved them from their death and said that the uncle was their god father. The respondent emphatically denied the allegation of adultery levelled against her with Gajendra Nath Banerjee who is like her father and being an elderly person and a patient the respondent stated that the allegation of adultery is absolutely false and motivated. It is the petitioner who is living in adultery and he became angry as the uncle demanded the money from him which was his money kept in fixed deposit. The respondent asserts that there are correspondences to that effect. It is further stated by the respondent that since November, 1979 she has been living in her parent's house and the tenancy of Ramlal Agarwal Lane which was taken in the month of November, 1977 has already been given up.

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