- (1.) THIS first appeal is at the instance of a husband in a suit for divorce on the ground of desertion and cruelty and is directed against the judgment and decree dated 30th November, 2006 passed by the Additional District Judge, First Court, hooghly, in Matrimonial Suit No. 1671 of 2001 thereby dismissing the said suit. Being dissatisfied, the husband/plaintiff has come up with the present appeal.
(2.) THE appellant before us filed in the Court of the District Judge, Hooghly, a suit being Matrimonial Suit No. 167 of 2001 thereby praying for divorce under the provision of Sections 13 (i) (a) and 13 (i) (b) of the Hindu Marriage Act and the case made out by the appellant in the petition for divorce may be summed up thus: (a) The parties were married according to Hindu rites and customs on 25th february, 1975 in the residential quarter of the father of the husband who was an employee of DVC situated at 17, Akbar Road, Quarter No. E-13, dvc Colony, Durgapur. Thereafter, parties lived together in the house of the husband sometime in the village-Kadasole, Bankura and sometime, at 17, Akbar Road and also at the place of work of the husband. The said marriage was duly consummated. (b) The husband is an engineer from R. E. College, Durgapur, passed in the year 1968 and subsequently, he got M. Tech degree from I. I. T. , Kharagpur in the year 1970 and was permanently absorbed in the service of Public health Engineering Department, Government of West Bengal. At the time of filing of the suit, he was posted at Siliguri as Superintending Engineer with effect from 17th February, 1999 of the said department. (c) The wife is a permanent schoolteacher at Serarampore Girls High School from March, 1978 under the Government of West Bengal and her academic qualification is B. Sc. (Hons.) in Chemistry, B. Ed. and she earned rs. 10,000/- a month. Previously she had been working at Gupti Para Girls high School, Hooghly as a teacher from 1971. (d) In the wedlock of the parties, a son was born on 21st September, 1977 and on getting proper education by the care and sole expenditure of the appellant, he obtained diploma in Engineering and got employment in L and t Company. No expenditure on account of the sons education was ever borne by the respondent. (e) From the very beginning of the marriage, it was found that the respondent had a habit to dislike her husband and was suspicious about him without any reason. She never loved her husband but was always intended to get more money and nothing else. (f) The appellant purchased a Pucca residential house having four rooms with varandah on 4 cottahs 5 chittaks of land in Mahesh at Srerampore by taking loan from his employer but the respondent and the son have been occupying the said house. (g) During the period of staying at the house in Srerampore, the husband used to come back from his place of work by completing his various supervisory work by late hours and sometime, at night when the respondent used to misbehave by calling the husband as swine, loafer etc. and falsely accusing him as addicted to wine and abused him with filthy language. In the last week of the month of April, 1998, the respondent and the said grown up son assaulted the appellant and had driven out from his own house and at that time, the respondent and the said son pressurized the appellant to transfer the said house to them by making a deed of transfer. The appellant was compelled to take his both meals by himself without being served and the wife even refused to offer a glass of drinking water. She even did not talk to him and threaten him to come back otherwise he would be murdered. (h) The respondent never did any household work or any work either at durgapur or at Kadasole or at Srerampore and she wanted to lead her whimsical, luxurious life without caring of the husband. (i) The joint family of the husband being big one having four brothers of his father and the husband has three brothers of his own who used to live jointly but the respondent always pressurized the husband to live separately by severing all relationship with his old father and other brothers and the members of their families. (j) The respondent is a permanent schoolteacher having sufficient income but she never contributed any of her earnings to the family nor did she care to respect the husband and his old father and other relatives. She all along misbehaved and tortured the husband by openly declaring that she would not live with the appellant as husband and wife even for a moment and for a longtime, she had been refusing to share bed with the husband and she used to say that she did not want to see the face of the appellant. (k) The appellant requested the respondent to rectify her conduct and character but in vain; on the other hand, her mental torture to the appellant had been increased. The appellant had been living separately from 28th April, 1998 continuously being separated from the said house at srerampore. From the aforesaid physical and mental torture of the respondent, it is apparent that it would be harmful and injurious to live with the respondent; but to fulfil his duties, the appellant had sent sufficient money to the respondent and the son, although both are employed and self-sufficient up to May, 2000. (l) The appellant had not condoned the aforesaid act of cruelty and desertion. Hence the suit. The suit was contested by the wife by filing written statement and thereby denying the material allegation made in the application for divorce and the defence of the respondent may be summed up thus: (1) The respondent denied the statement that she earned Rs. 10,000/- a month or that she was dependent on herself. It was also denied that the respondent had the habit to dislike and doubt the husband or that she never loved the appellant as husband. (2) It was further denied that the respondent at any point of time uttered slang language or that she called the husband as swine, loafer or addicted to wine or that she insulted him at any point of time. It was denied that the in the first week of April, 1998, the respondent and the son assaulted the appellant and drove him out or that they put pressure on the appellant to effect transfer of the house by executing deed. (3) It was denied that the wife led whimsical, luxurious life or that the conjugal life of the appellant was pathetic. It was also denied that the wife ever committed any mental torture towards the husband or that they have been living separately from 28th April, 1998 continuously. (4) The respondent had no complaint of any kind against her husband. The husband is a highly qualified man and was serving in a highly responsible capacity. Apart from his personal attainment in his educational career and service career, the appellant is also a loving husband. According to the wife, the appellant all along performed all the duties towards his wife and also his son. (5) The parties had lived a happy matrimonial life for more than two decades and only son born in the wedlock was given education by the husband. Of course, there were reasonable matrimonial wears and tears but no reason ever arose for approaching the Court for any decree for dissolution of the marriage. (6) On 26th and 27th September, 1998, the appellant stayed in the house at Mahesh. He went to market, purchased different items of vegetables and different items of fishes. The reason being that the son came from hostel only on 25th September, 1998. The appellant under his own hand prepared list for purchase of monthly groceries. The husband took his meals and went to Bankura to meet with paternal relations during Durga Puja. (7) On 4th December, 1999, the mother of the appellant died at Bankura and the appellant took the respondent at Bankura house to perform the religious rituals during mourning and also for the purpose of shradh Ceremony. The respondent stayed there till 20th December, 1999 and thereafter returned to Srerampore together. (8) The respondent never doubted the fidelity of the appellant and she never dreamed that her husband had any affair with any woman. The respondent believes in God and in her husband but it appears that the husband might have suffered a jolt that the respondent bore any suspicion about the moral character of the appellant. The respondent asserted that the appellant did not have any leak or lapse whatsoever in his personal character. (9) Even in May, 2000, the respondent stayed with the appellant at siliguri. Even till 30th May, 2000 the appellant and the respondent stayed as husband and wife and freely cohabited. On 30th May, 2000, the respondent came to Mahesh from Siliguri. The suit was, therefore, liable to be dismissed.
(3.) AT the time of hearing of the suit, the appellant himself, his father, his cousin brother and a maidservant gave evident in support of the plaint case while the respondent herself and her son deposed in opposing the petition. As indicated earlier, the learned Trial Judge by the judgment and decree impugned in this appeal was pleased to dismiss the suit on the ground that the appellant had failed to prove the allegations made in the petition for divorce. Being dissatisfied, the husband has come up with the present appeal. Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the appellant, vehemently contended before us that the learned Trial Judge in disbelieving the case of the appellant merely took note of the fact that physical torture upon the appellant had not been proved by any corroborative evidence. According to Mr. Roy Chowdhury, the wife having admitted in her evidence that the husband is a perfect gentleman and she had no allegation against her husband, the natural presumption is that in such circumstances, there was no just reason for the husband to leave the house unless the allegations against his wife and son are true. According to Mr. Roy Chowdhury, the husband being a sensible man and having retired as a Chief Engineer of the Government of West bengal, Department of Public Health, the learned Trial Judge ought to have held that no prudent man would stay away from his family and the property purchased by him unless the allegation of the husband was true. In other words, mr. Roy Chowdhury submits that no normal person, in such circumstances, will abandon his wife and son unless he himself is abnormal or of bad character. Mr. Roy Chowdhury submits that even the father of the appellant has given evidence against the grandson and, therefore, there was no just reason for disbelieving the allegation of the husband that he was physically assaulted by the wife and his son. According to Mr. Roy Chowdhury, in view of the fact that the husband is a reputed engineer and the wife is also a teacher of a school, even one instance of physical assault upon the husband was sufficient to constitute cruelty. Mr Roy chowdhury submits that there was no necessity of tendering corroborative evidence, as law does not require corroboration for the purpose of proving a particular fact. Mr. Roy Chowdhury points out that the wife has also described the husband as a perfect gentleman and did not even dare to lead any evidence of his abnormality or of bad moral character.;