- (1.) THIS appeal is at the instance of a wife in a proceeding for divorce under section 13 of the Hindu Marriage Act and is directed against the judgment and decree dated 15th July, 1998 passed by the learned Judge, Family Court, calcutta, in Matrimonial Suit No. 66 of 1995, thereby granting a decree for divorce on the ground of cruelty.
(2.) THE case made out by the respondent in the application for divorce may be summed up thus: (a) The parties were married according to Hindu Customs and usages on 2nd june, 1986 and in such wedlock, a male child was born on 20th April, 1989. (b) The relationship between the parties started to be strained since six month after the marriage due to arrogant, insolent and disrespectful behaviour of the appellant towards the father and elder brothers of the respondent. The appellant started creating pressure upon the respondent by not cooperating in the domestic work and cooking in the joint family consisting of his father and the members of the family of his elder brothers and she further created pressure to compel him to be separated from his elder brothers and old father. (c) The appellant not only refused to adjust herself but also started abusing the elder members of the family. The desperate conduct of the appellant became so wild, that to satisfy the whim of the appellant, the respondent along with the appellant separated from the joint family against his free will in April 1987 and this fact shocked the father of the respondent so much that he died on 9th May, 1987. The respondent did not approve the above conduct of the appellant, although, he thought that after above step for separation from the joint family, the appellant would calm down and give up her arrogant and cruel nature and conduct. There was, however, no change in the nature and conduct of the appellant even after such separation from the joint family. (d) Soon after the birth of the child, he became seriously ill and when the condition of the child further deteriorated, the respondent shifted him to the Institute of Child Health at 11, Biresh Guha Street, Park Circus and by god"s grace, he recovered. (e) After the child recovered from the illness, the appellant suddenly started saying that whatever immovable property the respondent had should immediately be transferred in the name of the son and she continued her pressure upon the respondent to take step and as the respondent did not agree, she started abusing him in most filthy language within the hearing of his elder brothers. (f) The appellant also threatened the respondent by saying that she would kill him by mixing poison with the food so that she and the son might become the owners of the share in the joint property and that she would get service of the respondent in his office on compassionate ground. (g) The appellant became so cruel and desperate that she started keeping the son always away from the respondent and he was not allowed the company of the son on the ground that unless the respondent agreed to her proposal of transfer of the property she would not allow the son to go with him. (h) The respondent thought that the conduct of the appellant would be changed after the birth of the child but there was no change of the conduct of the appellant and on the contrary, the respondent not having accepted her illegal demand, she became more and more desperate and cruel in her conduct and often refused to cook food for him, as a result, he had to take his food in the office canteen and hotel. (i) The appellant gradually changed her mode of torture upon the respondent and started falsely accusing him of maintaining illicit connection with the wife of his elder brother for creating pressure upon him to submit to her illegal demand. Whenever the respondent protested against the appellant"s act and conduct she used to throw utensils, as a result, he was injured but out of shame, he did not disclose such fact. The physical and mental torture gradually increased so much that he had become apprehensive of his life and limbs at the hands of the appellant. (j) The mother and the brothers of the appellant who were regular visitors supported her conduct and the brothers of the appellant used to threat the respondent that they would drive him away from his own house. (k) The ornaments of the joint family of the respondent were partitioned amongst the respondent and his elder brothers in April 1991. The respondent got his share of the ornaments mentioned in the separate list annexed to the application. On seeing the precious ornaments, the appellant applied physical force upon the respondent to grab those ornaments. The mother and the brothers of the appellant also created pressure to handover the ornaments to the appellant. Under threat of dire consequences from the appellant and her brothers, the respondent agreed to keep those ornaments in a locker in Bank and he hired a locker in 1991 in joint names of the respondent and the appellant in the Bank of India, bowbazar Branch, Calcutta, with the instruction of operating the same by "either or the survivor". The key was taken away by the appellant from the respondent and she opened the locker whenever she liked and took out ornaments. In the locker, separate lists of those ornaments of the respondent and those of the appellant received from her father"s house were kept. (l) The appellant with vindictive motive, even went to the respondent"s office at New Secretariat Buildings with her brother, Khokan, in March 1993 and in presence of his colleagues, she abused him and made wild and false allegation against the respondent and threatened by saying that she would file criminal case alleging torture against him involving his elder brothers and other members of the family. (m)The respondent became scared at the desperate attitude of the appellant and he reported the conduct of the appellant and her brothers and mother to his colleagues and superior officer and lodged a written complaint against the appellant at Hare Street Police Station on 23rd March, 1993. The respondent also lodged written complaint at local Muchipara Police station on 6th June, 1992 and 20th April, 1993. (n) The appellant adopted all possible means to create pressure upon the respondent to submit to her unlawful demand and on occasions, threatened the respondent by saying that she would pour kerosene oil on herself and would set fire and involve him and his brothers and others in criminal case and would spoil his career. The aforesaid acts on the part of the appellant amount to cruelty.
(3.) THE suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint and the defence of the appellant may be summarised thus: (1) Soon after the marriage, the appellant discovered that the respondent used to go out with the wife of his second brother during daytime when the second brother left for his office and they used to come back between 2 p. m. and 2. 30 p. m. Sometime, the youngest daughter of his brother"s wife, who was about 4 months in 1986, used to be left in the custody of the appellant and the appellant in good faith had looked after the said child during their absence. (2)About 8-10 months after the marriage, the respondent had fallen ill and on the way of recovery of illness, one day at about 3 p. m. , he asked the appellant to prepare a cup of tea for him. When she came back from the kitchen with the tea, she did not find him in the room. She thought that he might have gone to the toilet but when after about 5 minutes there was no sign of his presence, she out of curiosity went towards the room of his second brother of the respondent where she found that the room was locked from inside but the window of the room was open and through the window, the appellant noticed that the respondent and the wife of the second brother were committing sexual intercourse. (3)The respondent was living in adultery with his elder brother"s wife and that fact was also known to the second brother but he did not take any step. (4)The respondent and the wife of his second brother on many occasions disputed the paternity of the only child of the parties in the presence of the respondent but the respondent never protested against such false allegation. It was denied that she ever threatened to kill the respondent by mixing poison in the food so that she might become the owner of the property and get service. (5)It was denied that the appellant refused to cook food of the respondent or that the respondent had to spend night on many occasions without food; on the other hand, it was the respondent, who never arranged or supplied food, medicine and clothing for the appellant and her son. The appellant got financial help to the extent of Rs. 1,000/- a month from her mother by which she arranged the food for herself and her son. (6)The respondent had the habit of taking his meal most of the time right from the beginning of the matrimonial life in the room of the second brother and in course of last 8 years, only on few occasions he used to take meal with the appellant. He used to say that he could not consume the food prepared by the appellant because of its bad test and the food prepared by the wife of the second brother was much better than that prepared by the appellant. (7)The respondent sometime in the month of March 1991 got signature of the appellant on some plain white papers stating that those will be utilised for partition of the joint ornaments of the respondent and kept the same in the bank"s locker in which the appellant in good faith had signed. The key of the locker was never handed over to the appellant by the respondent but he retained the same and it was the respondent, who himself had removed the ornaments as it appears now from the locker. It was specifically denied that the appellant along with his brother ever went to the respondent"s office in the month of March 1993 or abused him or made false allegation in the presence of his colleagues. According to the appellant, whenever she had protested against the illicit connection between the respondent and the wife of his elder brother, the respondent at the instance of his elder brother had lodged written complaint against the appellant before the police authority. (8)It was only the father-in-law of the appellant who supported her and protected her life like in his own daughter and he was aware the illicit connection of his son with the wife of his second son but he had no say in the family as he had grown old and sick. (9)The respondent was also guilty of the following instances of cruelty: (i)Hatred for the family members of the appellant particularly the mother and the brothers; (ii) Accusing the appellant of bad character and unnecessarily becoming suspicious on the appellant; (iii) Disputing the paternity of the child by saying that the child was born not in the wedlock but by her elder brother; (iv) Neglect to the appellant and the son by not providing food, medicine and clothing and also not maintaining them; (v) Nagging the appellant quite often and made her life miserable. 3. At the time of hearing of the proceeding, the respondent and three other witnesses deposed in support of the prayer for divorce, while the appellant and her brother gave evidence in opposing the relief claimed by the respondent. As pointed out earlier, the learned Family Court by the judgment and decree impugned herein accepted the case of the respondent and granted the decree for divorce on the ground of cruelty. ;