- (1.) THIS first appeal is at the instance of a husband in a suit for divorce on the ground of cruelty and desertion and is directed against the judgment and decree dated May 8, 1991 passed by the learned District Judge, Midnapore, in matrimonial Suit No. 150 1988, thereby dismissing the said suit.
(2.) THE case made out by the appellant in the suit for divorce may be summed up thus: (a) The parties were married according to the Hindu rites and customs on 13th may, 1982 at Kalighat Temple Premises, Kalighat, and the same was registered under the Hindu Marriage Act on 15th May, 1982 being case no. 579 dated May 15, 1982. (b) After the marriage, the parties came to the house of the appellant at village barhans, P. O. Garia, P. S. Sonarpur, District- 24-Parganas (South) and they last resided together in the said address at Garia within the Sonarpur police Station. (c) On 5th July, 1982, at night, the respondent told that she was not willing to live in a joint mess with other members of the husband's family and she would be happy if the appellant managed to have his transfer from the present place of posting to the District of Midnapore and particularly, at jhargram or Durgachak and in that event, she would be near to her parents and brother. She further told him that she would keep her affectionate unemployed brother, namely, Purnendu Rana, always with her and she would not be able to live without him. (d) On 6th July, 1982, the husband went to the house of his father-in-law at agaiboni with the respondent and stayed there for three days separately as the parents of the respondent did not allow the parties to live together. Thereafter, the husband returned back to his house at Garia with the respondent. (e) On 11th July 1982, the respondent suddenly told the appellant that she did not like to have any child for at least the next six years and advised him to take preventive measure. On being asked by the husband about the reason, she told him that it would not be possible to maintain and educate the children properly in a joint mess with the parents of the husband and accordingly, she would have to watch and understand the atmosphere, mode and behaviour of the members of the family of the husband and thereafter, she would decide about the birth of any issue of her own. The aforesaid decision on the part of the wife constituted cruelty upon the husband's body and mind. (f) The respondent was creating mental pressure upon the husband and she pressed him to have a transfer to Jhargram or Durgachak or Haldia in the district of Midnapore where she would live with the husband separately from the joint mess. She also told that Jhargram was near to her native village where her parents were living and Durgachak was near to C. P. T. quarter of her brother, namely, Himangshu Sekhar Rana and as such, she would be always in touch with them. The husband did not agree to her proposal as he had been, at that point of time, just transferred from birbhum to Calcutta and it was not possible for him to get further transfer from Calcutta. He also told that he being the only earning member of the family, it would not possible for him to maintain a separate establishment by his meagre income. (g) On 15th September, 1982, prior to 'viswakarma Puja', the respondent left the matrimonial house while the appellant was away in his office and she took with her all belongings including her ornaments without the consent and permission of the husband or any of the members of his family. (h) On 26th September, 1982, the husband along with his father had gone to the house of the respondent but she refused to return to the joint mess. The aforesaid refusal on the part of the respondent amounted to not only desertion but also cruelty. On the same day, the respondent and some other persons related to her rebuked the appellant using filthy language and her father threatened him with dire consequence. (i) The respondent subsequently filed the Miscellaneous Case No. 7 of 1983 before the learned Additional Chief Judicial Magistrate, Tamluk, under section 125 of the Code of Criminal Procedure claiming maintenance of rs. 400/- a month from the appellant but the same ended in compromise by which both the parties before the learned Magistrate agreed to compound the matter and the respondent agreed to come back to the husband's place. However, she avoided to come back to the husband's place on the pretext that she would first go to her father's house and after a few days thereafter, she would come back to the husband's place. Subsequently, she refused to return although the appellant had by writing letter requested her to come. (j) The respondent, afterwards, filed another Miscellaneous Case being No. 18 of 1984 under Section 125 of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Tamluk, claiming maintenance at the rate of Rs. 400/- a month. The said case ended in an order dated 10th December, 1985 granting Rs. 300/- a month payable by the appellant to the respondent. The husband moved this Court in its criminal revisional jurisdiction against the said order and ultimately, the said revisional application was dismissed. The respondent, thus, had deserted the husband for more than two years. (k) On 15th November, 1986, the husband along with his maternal uncle gone to the house of the respondent and they tried to persuade the respondent to come back but she became furious and she not only turned down the proposal but also abused them in filthy language and drove them away from their house. (l) The appellant's sister, namely, Tapati Rana @ Karmakar was married to the respondent's brother, namely, Himangshu Sekhar Rana on 17th June, 1982 but the said Himangshu Sekhar Rana had driven out the sister of the appellant by snatching all her belongings and she had been staying in the house of the appellant. The aforesaid behaviours on the part of the respondent amounted to cruelty.
(3.) THE respondent contested the suit by filing written statement thereby denying the material allegations made in the application for divorce and the defence taken by the respondent may be epitomised thus: (i) After the marriage of the respondent with the appellant, the appellant's mother began to express her serious dissatisfaction for want of sufficient dowry in the marriage and at her instance and provocation, the appellant started ill-treating and oppressing the respondent in various ways and even neglected to provide her with sufficient food and other bare necessities of life. The husband would often physically torture and assault the respondent to compel her to bring dowry from her father to the satisfaction of the appellant and his parents and ultimately, turned the respondent out of their house immediately before the 'viswakarma Puja' by snatching away all her ornaments and other belongings. The respondent had no other alternative but to take shelter in her father's house. Several attempts were made to persuade the husband and his parents to take back the respondent. However, they persistently refused to take the respondent back unless sufficient dowry to their satisfaction was given. The respondent's father had no financial capacity to meet the demand of the husband and his parents. (ii) At the time of marriage, there was no talk of dowry from either of the parties. The appellant married the respondent and the respondent's brother married the appellant's sister and neither of the parties gave any dowry but the appellant's mother was not satisfied in the matter and immediately after the marriage, she started creating trouble over the issue of dowry and at her instigation, the appellant joined hands with her. (iii) The husband and her mother even started putting pressure on the respondent's brother through the appellant's sister for dowry and ultimately, to intensify the pressure, the appellant's sister left the house of the respondent's brother and refused to come back unless sufficient dowry to the satisfaction of the appellant and his mother was paid to the appellant. The respondent was always ready and willing to lead with the appellant a normal conjugal life and entreated the appellant and his mother not to take her to task for her father's inability to satisfy the demand of the appellant and his mother for dowry. Unfortunately, the respondent failed to soften the appellant and his mother. ;