Decided on July 07,1996


Referred Judgements :-



G.R. Bhattacharjee, J. - (1.)This appeal is directed against the judgment and decree passed by the Additional District Judge, 3rd Court, Murshidabad in Matrimonial Suit No. 67 of 1982 by which the learned trial court dismissed the matrimonial suit which was filed by the appellant husband against the respondent wife praying for a decree of divorce under Sec. 13(1)(ia) and (b) of the Hindu Marriage Act, 1955. Admittedly the parties were married according to Hindu rites on the 6th Falgun 1985, B.S. corresponding to February 1979. Admittedly a daughter was born to the parties. The husband prayed for divorce on grounds of cruelty and desertion. The case of the appellant husband is that the respondent wife always used to quarrel with the husband and his parents without any just reason and she also used to insist upon the petitioner to live separately from his family which the petitioner did not agree. It is the contention of the husband that on 12th May, 1980 the wife left the matrimonial home secretly for residing at her father's house and on 13th May, 1980 she along with her brother went to Lalgola P.S. and lodged a false F.I.R. against the husband and his parents and the husband had to surrender and apply for bail and was ultimately released on bail. It may be mentioned here that the matrimonial home of the parties is at Lalgola and the wife's father's house is at Muragachha which is about three hours journey from Lalgola as we get it from evidence. It may also be noted here that at the relevant time the husband was an employee of the J.D.R.O's office at Jangipur. The wife also filed an application under Sec. 125; Cr.P.C. against the husband for maintenance. The husband's contention is that the wife has deserted him since 12th May, 1980. It is also the contention of the husband that by lodging F.I.R. and thus initiating a criminal case and also by filing a petition under Sec. 125, Cr.P.C. for maintenance, the wife has committed cruelty for which the husband is entitled to divorce. In the application for divorce the husband has also stated that several times he went to bring back the wife to her matrimonial home but she turned down his request. In paragraph 2 of the application the husband says that in view of the circumstances that the wife has deserted him for about two years and has caused cruelty by instituting two criminal proceedings, he prays for judicial separation. However, in the prayer portion the husband prays for decree of divorce under Sec. 13(1)(ia) and (ib) of the Hindu Marriage Act. It is also to be mentioned here that in paragraph 2 of the application the husband has stated that the wife arrived at Lalgola about four days before the husband filed the application for divorce and she also threatened the father of the petitioner with the help of a few local people as the petitioner permanently resides at Jangipur where he is an employee in the office of the J.L.R.O. The application for divorce was filed in the Court of the District Judge Beharampur on 9 -9 -1992.
(2.)The suit was contested by the wife by filing a written statement. She denied all the allegations made against her. On the other hand she stated in the written statement at she was tortured in her matrimonial home by her husband, mother -in -law husband's sister and the climax of such torture reached sometime in May 1980 when she was made to go without food for days and was assaulted and manhandled on the slightest protest to their acts of violence and insult. It is also alleged in the written statement that her father -in -law left for Puri on 10 -5 -1980 and on 13 -5 -1980 the husband, his mother and his sister badly assaulted the wife as she refused to leave the house leaving the baby daughter at their mercy and on the following day, that is, on 14 -5 -1980 these three persons again assaulted her mercilessly and when she was lying unconscious in the room in which she was confined her elder brother Harihar Mukherjee arrived there and with the help of neighbors and police rescued her and she was brought to her father's house by her brother, but her daughter was not allowed to go with her. According to the case of the wife the incident was reported at Lalgola P.S. on which a police case was started and on investigation a charge -sheet was sub -mitted. It is also an admitted fact that the wife, while she was staying in her brother's house, filed an application for maintenance against the husband under Sec. 125, Cr.P.C. In paragraph 11 of the written statement it is stated that subsequently as the husband fell flat on the feet of the respondent wife's brother and mother the wife went to the matrimonial home and withdrew the criminal case as well as the maintenance case. It is also alleged by the wife in the written statement that while she had been to the husband's house the same acts of insult and oppression continued and the husband brought in his house one Tripti Chakraborty, an unmarried girl of Jangipur, who had an immoral intrigue with the husband for which the said Tripti was driven away by the people of her locality and he expressed his determination to marry her. It may be noted here that while the wife was staying in the matrimonial home at Lalgola she received summons of the divorce suit. It is also alleged by the wife in the written statement that similar ill -treatment, as was done to the wife, was also done to Asoka the wife of the husband's brother and as a result of such ill -treatment and torture and humiliation Ashoka left for her father's house with her unmarried daughter.
(3.)At the trial both sides led evidence and the learned trial Court in the impugned judgment rather found that the allegation of desertion and cruelty of the wife was not substantiated. The learned trial Court also observed that the allegation of the wife that the petitioner was involved in an illicit affair with Tripti Chakraborty will not amount to cruelty as nobody knows if the allegation was false or true. It may be mentioned here that it was argued on behalf of the husband that the false allegation of illicit affair with Tripti itself amounts to cruelty for which alone the husband is entitled to a decree of divorce. That was however turned down by the learned trial Court as noted above. The learned trial Court dismissed the suit and against such dismissal the appellant husband has preferred the person appeal.

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