Tapash Mookherjee, J. - The present appeal is directed against the judgment dated 2nd March, 2009 and the decree passed by the learned Additional District Judge, 4th Court, Paschim Medinipur in Matrimonial Suit No. 73 of 2006. The Suit was for divorce under Section 13 of the Hindu Marriage Act, filed by the present Appellant and the Suit was dismissed on contest with costs.
2. The Appellant''s case in the Suit was as follows:-
3. The Appellant Soumendra Nath Ghosh and the Respondent Smt. Gitika Ghosh were married on 28.07.1991 as per Hindu Rites and Customs and the marriage was duly consummated and two children were born in the marriage. It was alleged by the Appellant that their marital life was peaceful for some years but after the birth of their second child their relations started detoriating gradually since the early part of the year 2001. The Appellant found changes in the attitude of the Respondent and the Appellant found the Respondent spending money lavishly and neglecting their children. The respondent also started misbehaviour with her mother-in-law living with them. The Respondent''s brother came and started residing with the Appellant''s family for the purpose of building up a career but within a short period he left the Appellant''s house because of which the Respondent became seriously dissatisfied with the Appellant. The Respondent also attempted to commit suicide on several occasions and according to the Appellant the Respondent was suffering from some Psychological disorder. The Appellant claimed that he tried his best to change the attitude and behaviour of the Respondent but of no result. The Respondent also started suspecting the Appellant''s moral character. Thus, the relation between the Appellant and the Respondent became seriously strained and in such situation on 29.01.2006 the Respondent physically assaulted the Appellant and his mother in presence of their children and left the house after such assaults with a threat of putting the Appellant and her mother behind the bars. The Appellant, his mother and children became scared or such threats and hence in the early hours of 30.01.2006 the Appellant with his mother and children left their house and boarded in a Hotel at Kharagpur and started searching for a suitable rental accommodation. Thus, the Appellant alleged to have been physically and mentally tortured by the Respondent and hence the Appellant filed the Suit for divorce.
4. The Respondent filed her written statement in which she denied all the material allegations against her in the plaint and contested the Suit.
5. It was the specific case of the Respondent in her written statement that she herself never subjected her husband or mother-in-law to any kind of torture or mental agony, on the other hand, she always did her best to maintain a happy and peaceful marital life with the Appellant but it was the Appellant himself who at the provocation of his mother subjected her to tortures. It was her further specific case that the Appellant developed an illicit relation with a woman who is the operation manager of a Tours and Travel Company of a foreign country and the Appellant wanted to marry her due to which the Appellant in a pre-planned manner left their matrimonial house on 06.02.2006 with his mother and thereafter started living at Kharagpur with his mother and children and filed the Suit for divorce to get rid of her. The Respondent further expressed that she was always willing and still willing to live with her Husband and children and as such the Suit should be dismissed.
6. On the basis of the pleadings five issues were framed by the Trial Court. Both the parties adduced evidence and after considering the evidence thus adduced, learned Trial Court decided all the issues against the Appellant and dismissed the Suit by the judgment dated 2nd March, 2009. Being aggrieved by such judgment the Petitioner/Husband in the Suit filed the present appeal.
7. Learned Counsel for the Appellant Mr. S.N. Mitra submitted that the Appellant and his mother staying with him were continuously subjected to physical as well as mental tortures by the Respondent due to which the Appellant was compelled to leave his own house and permanent business in such way as well, in the late hours of night on 30.01.2006 out of fear of the Respondent and it is never usual for a man to leave his own house and business in such way unless compelled by extreme circumstances. He further submitted that the Appellant in his evidence-in-chief explained in detail how he had been mentally tortured during his living with the Respondent and several instances of such tortures had been mentioned also by the Appellant but none of those facts alleged by the Appellant had been denied directly by suggestions to the Appellant by the Respondent during the cross examination of the Appellant. So, all those allegations have to be deemed to have been admitted by the Respondent. But the point has been totally ignored by the Trial Court. Mr. Mitra further submitted that the Trial Court picked up the statements of the Appellant here and there and without considering the evidence on record as a whole came to the conclusion that the Appellant failed to prove his allegations of torture and harassment by the Respondent. He further argued that the Respondent in her own nature and behaviour created their matrimonial home such a hell in which it was never possible for a husband to continue his marital life. It was his further submission that the marriage between the parties broke down irretrievably long before and divorce is the only logical solution to the miseries of the parties in the case. He has cited the following decisions in his support (1) (2016) 16 Supreme Court Cases 34, {K. Srinivas v. K. Sunita}, (2) (2013) 5 Supreme Court Cases 226, {K. Srinivas Rao v. D.A. Deepa}, (3) AIR 1961 Cal 359, {A.E.G. Carapiet v. A.Y. Derderian}.
8. On the other hand learned Counsel Mr. Soumak Bera argued that the Appellant in a pre-planned manner deserted the Respondent and within a day thereafter initiated the Suit for divorce only to get rid of the Respondent without any valid cause whatsoever. He further submitted that the children of the parties who are living with the Appellant all along since the separation have not been examined by the Appellant, so that the real pictures is not reflected before the Court.
9. Marriage between the parties is admitted. It is also admitted that the parties are living separately since long.
10. The Appellant in his evidence-in-chief alleged that on 29.01.2006 he and his old mother was assaulted physically by the Respondent in presence of their children and threatened of dire consequence by his wife and being scared, he left his own house with his mother and children at about 1.00 a.m. on 30.01.2006 and boarded in a hotel at Kharagpur and started search for a suitable rental accommodation there. The Suit was thereafter filed on the following day, i.e., on 01.02.2006. According to the Respondent, it was not on 01.02.2006 but on 06.02.2006 when the Appellant had left their home at Medinipur town. Be that as it may, the fact remains that the Appellant left his own home and business, and filed the Suit within a very short period, and thereafter never reunited with his wife. Be it noted here that the Appellant left his home with his two minor children and the minor children are still living with the Appellant. So, the most crucial point to be determined in the case is why and under what circumstances the Appellant thus left his own home and business?
11. The Appellant in his evidence-in-chief stated that initially his matrimonial life with the Respondent was peaceful but all troubles developed between them after the birth of their second issue when a serious change in the attitude and behaviour of the Respondent was noticed. The Appellant in his evidence-in-chief alleged that since the early part of the year 2001 his wife started spending lavishly and when asked not to do so, his wife become arrogant and insisted him to separate his widowed mother from them which was not acceptable to him. The Appellant alleged further that his wife started neglecting their children also and whenever his mother raised protest she was also subjected to insult and abuse by his wife. The Appellant alleged further that in the year 2004 his brother-in-law came to reside in his house in search of some occupation but subsequently his brother-in-law in his own will left his house but his wife considered it as an insult to herself as well as her parental family, by her husband. It was an allegation of the Appellant that during his illness in the year 2005 no care was taken by his wife and sometimes in the same year his wife attempted to commit suicide by taking sleeping tablets due to which his wife had to be admitted in a Hospital. It was further alleged by the Appellant in his evidence-in-chief that his wife on several occasions tried to humiliate him in presence of his employees in public places. Another serious allegation of the Appellant against his wife was that since one year prior to their separate living his wife refused physical relationship with him.
12. The Appellant raised many other similar allegations also in his evidence-in-chief.
13. The most serious allegation of the Appellant in his evidence-in-chief was that on 29.01.2006 he and his old mother were assaulted physically by his wife in presence of their children and after such assaults his wife left his house with a threatening of dire consequences which scared him and his mother and children as well, and on the same day his wife returned to his house with her sister and sister''s husband and again threatened him to put them behind the bar and after such continuous threatening he apprehended serious danger due to which he was compelled to leave his own home with his mother and children in the late hours of night and to take shelter in a hotel at Kharagpur and subsequently he along with his mother and children shifted at Calcutta.
14. None of the allegations of the Appellant in his evidence-in-chief had been specifically denied by suggestion by the Respondent during the cross examination of the Appellant. There was only one evasive denial to the effect that the Appellant filed the Suit on false pleas just to create pressure upon the Respondent, to leave his house.
15. It is a settled principle of law that if any fact is alleged by a party on oath during evidence-in-chief and not denied specifically by his adversary then such fact or facts shall be deemed to have been admitted by his adversary. The decision in A.E.G. Carapiet''s case (supra) is relied on the point. As mentioned earlier the Respondent had not disputed or denied any of the aforesaid allegations of the Appellant during the cross examination of the Appellant.
16. Appellant''s mother Smt. Chhabi Ghosh also deposed in the case for the Appellant (P.W.-2). She also alleged in her evidence that her son and she herself had been mentally tortured and physically assaulted as well, by the Respondent. She also supported her son alleging rude behaviour and aggressive attitude of the Respondent. In her evidence she categorically stated that on 30.01.2006 she was assaulted by the Respondent after which she herself as well as her son and grandchildren became scared and hence they decided to leave their house at Medinipur and accordingly they left their house at Medinipur and started residing in a rented house at Kharagpur for such fear as well as for the welfare of her minor grandchildren. We find no justification of the Trial Court''s criticising her, for her support to her son.
17. The Respondent in her evidence denied all the allegations raised against her by her husband and tried to make out a case that she had always adjusted against all the odds and hostile environment created by her husband in their matrimonial home. It was also her case that her husband had left their house along with her minor children and mother-in-law on 06.02.2006 after locking all the rooms in their matrimonial house excepting her bed room.
18. In her written statement as well as evidence, the Respondent herself raised a serious allegation against the moral character of her husband. The allegation was that her husband had been maintaining an extra marital relationship with a woman of Philippines and that her husband went to Bangkok twice to meet the woman and she found her husband keeping contact with that woman through internet also and the fact was once admitted by her husband. On such allegation, the reply of the Appellant was that he was sent to Bangkok along with some others by the company having business transaction with him. So far as such allegation is concerned, the Respondent''s claim is devoid of any logical basis. The Appellant has given convincing explanation for his visit to Bangkok and the rest of the Respondent''s allegations are surmises only. Surprisingly, the learned Trial Court believed in such uncorroborated and baseless allegations of the Respondent and come to a conclusion, also on presumption that the Appellant was maintaining illicit relation with the woman of Philippines as alleged due to which the Appellant wanted divorce. However, the Appellant has not filed the Suit for such allegation as the allegation has been raised by the Respondent in her written statement. We cannot endorse such view of the learned Trial Court. Another allegation of the Respondent was that the Appellant used to return home in most of the nights in drunken condition. There is no corroboration to such allegation of the Respondent.
19. Respondent failed to produce any supporting evidence to substantiate her allegations. Her sister was always in her support as claimed by the Appellant. But her sister was not also examined by her.
20. In one place of his cross examination the Appellant admitted that his aged wife was no more attractive to him. However, he denied the suggestion that he wanted divorce to marry a sophisticated woman as his wife lost her beauty. The Trial Court had blown the point out of proportion and came to a view that such statement of the Appellant was itself a proof of the Appellant''s ill-motive behind his Suit for divorce and according to us such a view is not correct or logical.
21. The minor children of the parties are living with their father, i.e., the Appellant since the break up of the family. But none of the children has been examined by the Appellant. Such conduct of the Appellant is being criticized. But to us, it is good for both the parties that their children have not been dragged into their matrimonial fight.
22. According to the Appellant, he left his home in the night of 30.01.2006. But according to the Respondent the Appellant left their home not on 30.01.2006 but on 06.02.2006. However, such claim of the Respondent finds no support from any other evidence. On the contrary, the Appellant''s claim has been supported by his mother. Be that as it may, it is a fact that the Suit for divorce was filed within a day after the Appellant had left his home. Appellant wanted divorce and hence filed the Suit instantly after leaving his house. What had he done, was that he wanted to establish his legal rights without waiting further within the critical situations he alleged. So, we find nothing wrong in such conduct of the Appellant. According to the learned Counsel for the Respondent, the Appellant filed the Suit for divorce in a pre-planned manner with an ulterior motive. The point whether or not the Appellant filed the Suit with a pre-plan is not important. The important in issue is why the Appellant has taken such a drastic decision having a far reaching consequences.
23. As discussed earlier, the Appellant has alleged several acts of physical and mental torture on him by the Respondent which have not been controverted during the cross examination of the Appellant. So, the allegations are deemed to have been admitted. Appellant''s allegations find support from the testimony of his mother also. But nobody came forward to support the Respondent''s causes. The Appellant as well as her mother stated that on 29.01.2006 they were assaulted by the Respondent and thereafter threatened of dire consequence by the Respondent due to which they apprehended serious danger from the Respondent and for such reasons they had to leave their own house with two minor children in the late hours of night. The claim appears to be highly probable.
24. The Respondent has assailed the decency and moral character of the Appellant which she failed to prove. However, the Appellant had not filed the Suit on such ground as stated by him. The allegation of immoral character was raised by the Respondent in her written statement. So, the fact makes no difference.
25. The Appellant left his own house and running business forever and shifted with his mother and minor children at first in a rented accommodation at Kharagpur and thereafter at Calcutta. No person having the minimum sanity will do so unless compelled by extreme circumstances. The Respondent''s answer to such situation was that the Appellant wanted to marry a sophisticated woman as suggested. The explanation does not attract us.
26. The Appellant in one place of his cross examination stated "there is no material to show that I had been tortured by my wife both mentally and physically". It is just a stray statement of the Appellant. In fact, it is not known what the Appellant understood by the word ''material''. So, the statement does not deserve the importance given to it by the learned Trial Court.
27. The Appellant in another place of his cross examination stated that "I have no desire to lower down my wife''s status in the society and till now I have no desire to terminate my relation with my wife in the society". A question arose during the hearing of the appeal as to whether such statement of the Appellant amounts to condonation of the faults and behaviours of the Respondent by the Appellant. The answer is definitely ''No''. Because, even on the date of argument in the Trial Court, the Appellant refused the proposal of reunion and the Appellant is proceeding with the appeal with all strength.
28. The Respondent filed a Criminal case under Section 498 A of the Indian Penal Code against the Appellant and the case ended in acquittal of the Appellant has informed.
29. Having regard to all the facts and circumstances of the case and the evidence on record discussed above, we have no hesitation to hold that the Appellant has been treated with cruelty by continuous mental torture and occasional physical torture as well, because of which the Appellant has left his home for ever with his mother and children.
30. The Respondent expressed her willingness for reunion and to continue her matrimonial tie with the Appellant. The parties are living separately for about long ten years and fighting the litigation since then. The mental gap between the parties must have widened further by this time and the Appellant is determined not to live with the Respondent any further. In fact, the feelings of love and understanding between the parties hare dried up and the matrimonial harmony between the parties had disrupted long ago. The marriage has irretrievably broken down beyond any repair. That apart, it does not appear that given a chance, the parties will reconcile. So, it is too late to consider the Respondent''s proposal. The refusal to grant divorce in the case will result in nothing but enhancing the mental pain, agony and uncertainties in lives of both the parties. In such circumstances, the Trial Court should have passed a decree for divorce in favour of the Appellant. The decision in K. Srinivas''s case (supra), is relied on the point.
31. During the pendency of the Suit, the Respondent filed an application for alimony pendente lite and litigation costs under Section 24 of the Hindu Marriage Act. But the said application, on consent of the parties, was kept pending for decision during the final disposal of the case which is not legal. More surprising is the fact that the learned Trial Court allowed such prayers for alimony pendente lite and litigation cost in the final judgment and order in the Suit which is completely devoid of any legal basis.
32. In view of what has been discussed above, we have no hesitation to hold that the findings and judgment of the Trial Court is not sustainable in law. The appeal is, therefore, allowed and the judgment of the learned Trial Court, dated 02.03.2009 and the decree passed in the Suit by the Trial Court are hereby set aside. The marriage between the petitioner and the Respondent solemnised on 28.07.1991 is hereby dissolved by decree of divorce Under Section 13 (1) (i a) of the Hindu Marriage Act, 1955.
33. No order as to cost.
34. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.
CAN 6800 of 2015
35. In view of the order passed in the appeal, the application for injunction being CAN 6800 of 2015 has become infructuous.
