Decided on March 21,1996

RAMA DE Appellant
TAPAN KUMAR DE Respondents

Referred Judgements :-



S.N.Mallick, J. - (1.)In this appeal the wife appellant has challenged the decree of divorce passed by the learned Trial Judge as per Judgment dated 3.4.93 in Matrimonial Suit No. 224 of 86 in the 13th Bench of the City Civil Court at Calcutta on ground of desertion under the provisions of the Hindu Marriage Act. Learned Trial Judge had dissolved the marriage after coming to a finding as follows :-
"Anyway, considering all these facts and circumstances before me I am of opinion without any hesitation that the respondent left her matrimonial home without any just reason or cause and thus made constructive desertion and as she deserted the petitioner for more than two years prior to the institution of the suit, the petitioner is entitled to get the decree of divorce accordingly".
The respondent husband brought the aforesaid suit for divorce against the appellant wife under section 13 of the Hindu Marriage Act on the grounds of living in adultery by the wife with the present respondent No. 2, desertion and cruelly. The ground of adultery was not pressed before the Trial Court by the learned Advocate for the husband-petitioner to course of his arguments and as such the issue No. 3 regarding the alleged adultery was decided by the learned Trial Judge against the husband petitioner being answered in the negative. The issue No. 6 was framed by the learned Trial Judge as to whether the appellant wife was guilty of commission of acts of cruelty towards the petitioner husband. It appears from the impugned Judgement that the Trial Judge after considering the evidence on record adduced by both the parties decided the issue in the negative against the petitioner-husband while finding that the petitioner-husband has failed to proved the charge of cruelty levelled against wife, the present appellant. Cross-objection or appeal has been preferred by the husband respondent No. 1 against the said finding of the Trial Judge before this Court. It has been submitted by the learned Advocate appearing for the husband respondent No. 1 that he challenges this finding of the learned Trial Judge on the issue of cruelty without filing any cross-objection while supporting the impugned decree for divorce.
(2.)Briefly state the facts of the case are as follows:- The appellant and the respondent No. 1 were married in Hindu form on 23.2.84 within the jurisdiction of this Court. In paragraph 5 to 9 and 11 of the petition under section 13 of the Hindu Marriage Act the husband has made various allegations against the wife for maintaining an indecent and adulterous relationship with the respondent No. 2 who happens to be the husband of one of her sisters. As ground of adultery has not been pressed so, we do not think it necessary to give details of such allegations here, but the same may be referred to at appropriate places of the Judgement while considering the allegation of desertion and cruelty. It has been alleged by the husband that the wife was in the habit of leaving the matrimonial home on various occasions with all her valuables and letters etc. without any intimation to the husband and his parents and to come back after a few days in the company of the respondent No. 2 with something each time. It is also the case of the husband that the wife on or about 10.7.84 left the matrimonial home for Puri in the company of the respondent No. 2 and came back after spending seven days there and that after coming back when she was asked to explain her conduct she begun to treat the husband and his parents with inhuman cruelty hurling insults at them in filthy languages and creating tantrum scene and that she even indulged in various nefarious acts such as putting kerosene oil in cooked food, adding large quantity of salt etc. It is also urged by the husband in his petition under section 13 of the Hindu Marriage Act before the Trial Court that the wife is also guilty of acts of extreme cruelty inflicted upon him and his parents which are numerous and cannot be stated in writing. It is further stated that on 23.7.84 the wife appellant took out all her marriage gifts, ornaments, wearing apparels and the letters etc and went away along with the respondent No. 2 without the consent of the husband and his parents and that since then the wife never came back to matrimonial home nor resumed the matrimonial relation with the petitioner. It is the case of the husband that the wife has thus deserted him more than two years immediately before the institution of the proceeding for dissolution of marriage and has refused to resume matrimonial relationship with him with any excuse reasonable or just. The case of the wife appellant before the Trial Court as made out in her written objection is that shortly after her marriage with the petitioner she was subjected to cruel treatment, both physical and mental and that she had to suffer various forms of indignities at the instance of the husband, his mother and other members of the family. According to the wife the husband neglected and refused to maintain her and that the husband is guilty of acts of cruelty towards her in collusion with his mother and created circumstances which compelled her to leave the matrimonial home on 23.7.84. It is further stated in the written objection that the husband had insisted on getting a decree for divorce on mutual consent which she persistently resisted and that she has been always ready and willing to go back to her husband and lead a very healthy and conjugal life, guarantee being given to her of her security of life and property. She has emphatically denied the allegations of adultery and cruelty as made by the husband against her.
(3.)Both the parties have adduced oral and documentary evidence in support of their respective cases. As already noted, the Trial Court after considering the evidence on record has dissolved the marriage by decree on ground of desertion under section 13(1)(ib) of the Hindu Marriage Act, referred to as the Act. It has been argued by Shri Bhattacharyya the learned Advocate appearing for the appellant that the learned Trial Judge should not have passed a decree for divorce against the appellant on ground of desertion inasmuch as there was no sufficient evidence to uphold his finding on that score. It is contended by Shri Bhattacharyya that there is convincing evidence that the wife was compelled to leave matrimonial home on 23.7.84 in the circumstances created by the husband in collusion with his mother and that she has all along been willing to live a happy conjugal life with her husband, however, without any interference from her in-laws. It has also been submitted by Shri Bahttacharyya that the husband on the otherhand had all along Insisting upon the wife to have the marriage dissolved by mutual consent through successive legal notices and he having been resisted by the wife filed the instant proceeding under section 13 of the Act for getting a decree of divorce on false grounds.

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