- (1.) THIS first appeal is at the instance of a wife in a suit for divorce and is directed against the judgment and decree dated 29th July, 2005 passed by the additional District Judge, Third Court, Barasat, in Matrimonial Suit No. 23 of 2002 thereby dismissed the suit for divorce filed by the wife on the ground of desertion and cruelty.
(2.) THE case made out by the appellant may be summed up thus: (a) The parties are Hindus, governed by the Dayabhaga School of Hindu Law, and they were married on 4th day of December, 1997 within the jurisdiction of the Trial Court. (b) After the marriage, initially, they lived together as husband and wife at the address of the respondent at Flat No. HC/3, Ram Krishna Sarani, baguihati. The appellant became pregnant, but due to physical assault and torture by the husband, the said pregnancy terminated on 22nd July, 1998. (c) At the time of marriage, valuable gold ornaments, furniture, clothing and household articles valued more or less Rs. 1,50,000/- were presented to the wife by her parents and other relatives but all those articles were in the custody of the respondent and the respondent refused to hand over those to the wife on her demand. The appellant was not allowed to use her gold-made ornaments when she required and those were kept in the locker of the husband's mother and elsewhere. (d) The respondent, since marriage, demanded undue demand of rs. 1,00,000/- from her old father on the plan of making of house-cumchamber and as it was beyond their capacity and she refused to meet up the demand, she was tortured, neglected and unnecessarily harassed. (e) The appellant had to give all her earnings month by month from her service in Life Insurance Corporation of India in favour of the respondent except a very small amount for her travelling expenses for office journey on the pressure of the husband and as per the direction of her mother-in-law. She was mentally tortured when she could not spend any amount for purchasing any articles of her choice and was even unable to spend any amount for her old parents. (f)Before the marriage, the respondent was suffering from Intestinal tuberculosis but such material fact was suppressed to the appellant and even after marriage, he was found to take medicine for that syndrome; the appellant was mentally shocked for such suppression of fact. (g) On many occasions, the respondent advised the appellant to dissolve their marriage-tie on mutual consent as he could not tolerate the appellant and once he disclosed that he would marry one of the sisters-in-law of his maternal uncle. (h) The respondent used to live with other women, as he was not satisfied with the appellant only. If the appellant would oppose against his bad activities, she became tortured and abused with filthy language. The respondent used to assault the appellant physically when she refused to bring the undue demand from her father and when she refused to give all her earnings month by month to her husband and/or mother-in-law. (i)Sometimes, the appellant was forced to leave her matrimonial house for fear of her life and safety and take shelter at her father's house for peace. Sometimes, he pressed her to resign from her job and to bring rs. 5,00,000/- from her father by selling his properties. (j)On many occasions, the respondent would return in the late hours of night and in aggressive mood tortured the appellant mentally and physically and he would tell the story of his new girlfriend. The respondent was not willing to live with the appellant as husband and wife since her miscarriage and he disclosed that he was not willing to be a father. (k) On 10th April and 11th April, 1999, the appellant was physically assaulted and abused with filthy languages and she was asked to leave her matrimonial house on the threat that otherwise, she would be murdered and ultimately, on 12th April, 1999 she was driven out from her matrimonial house. (l)Several diaries were lodged at different Police Stations alleging the torture, assault and misbehaviour of the respondent and a police case was started against the respondent in the Lake town Police Station under Sections 498a and 406 of the Indian Penal Code when he finally refused to handover her articles. The suit was contested by the husband by filing written statement thereby denying the material allegations made in the plaint and the case of the husband may be epitomised thus: (i)The respondent is an M. B. B. S. Doctor and at the time of marriage, he was a Research Scholar. After the solemnization of the marriage, the appellant insisted on a separate accommodation where only the appellant and the respondent would live as she was not willing to stay with her parents-in-law and brother-in-law. (ii)Few months after the solemnization of the marriage, when the appellant came to learn that the respondent once suffered from Intestinal tuberculosis, she started to neglect the respondent and refused to share bed with him. She was rather influenced by her misconceived idea about the disease like Tuberculosis and such idea led her to the belief that she would also be attacked with Tuberculosis, if she shared bed with the respondent. (iii)The appellant was an arrogant lady. When she was pregnant, the respondent requested her for taking leave from her office but she refused, as a result, the foetus was miscarried in her office. Ultimately, the respondent was compelled to take a rental accommodation at 10, S. K. Dev Road and there, he along with the appellant started living together. After the death of the father of the respondent, the mother became helpless, and she expressed her willingness to stay with the appellant and the respondent and accordingly, the respondent conveyed his mother's desire to the appellant. In reply, the appellant said that if the mother-in-law came to stay she would leave the premises. The respondent, thereafter, on several occasions tried to bring back the appellant but she refused. The respondent still expected that the appellant would realise her fault and would restore the conjugal life with the respondent.
(3.) AT the time of hearing, apart from the appellant, her father and two other witnesses, namely, Sudipta Roy and Deboprasad Saha gave evidence in support of the case for divorce while the husband himself and six other witnesses appeared on behalf of the husband to oppose the claim of the appellant. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein dismissed the said suit by disbelieving the case of the appellant.;