Ashim Kumar Banerjee, J.
MARRIAGE
1. Both the parties are medical practitioners. They got married on August 11, 1995 according to Hindu Rites. The respondent/wife was a resident of Salt Lake whereas the appellant/husband stayed at Thakurpukur in the South West suburb of the city. On August 18, 1998 Atrye was born out of the wedlock. When we heard the appeal she was aged about fourteen years and studying in school.
SWEET MEMMORIES
2. In the plaint the husband made several allegations touching the behavioral and temperamental discord between them. However the evidence would depict otherwise. We get a brief idea of the matrimonial time between the couple from their contemporaneous letters and/or other documentary evidence. In June 1999 the husband wrote to the wife a long letter from his work place which was at the remote area of Bihar. It was rather an attempt to cherish sweet memories whenever they were together at Calcutta. The husband was morose and felt deserted and at the same time accepted the occupational hazard. He was also sharing his loneliness at the work place. He was missing his wife too much. We also get the same idea from other letters including the one written in 2001. He admitted his follies. He acknowledged his wife''s contribution not only for his well being but also for the well being of his family. In 2001 he writes - "Better not to write about your contribution towards myself and my family". At the end he requested his wife for an outing. In the Identity Card under CGHS Scheme, we find the picture of a happy family. Even in 2003 we find Birthday Card given to the wife on July 17, 2003. We wonder to find the Birthday Card given on July 17, 2006 a few months before filing of the matrimonial suit. We find an additional note in the card requesting the wife to take holiday, if not possible, at least half-day Casual Leave. The husband was poetic, romantic too as we find from the letters, Greetings Cards etc. tendered in evidence. In 2006 Card, the husband in his note, kept a surprise for the wife. We are told that wife too was also quite attached to the husband. Mr. Giri appearing for the wife contended before us that even today, despite litigations, the wife helped the husband by providing necessary details required for his Income Tax purpose. However, such statement from the Bar would not be safe to be relied upon. The wife had no grievance against the husband till 2007. Pertinent to note, the suit was filed in December 2006. It was a real surprise to the wife as she claimed.
DISCORD
HUSBAND COMPLAINED IN HIS PLAINT
3. Within a week soon after the marriage wife started committing mental cruelty upon him. She treated his old parents showing indignity. She soon left her matrimonial place and started residing at Salt Lake. The husband had to accept such decision to maintain the matrimonial tie. He also started leaving in his in-law''s house at Salt Lake along with his wife and child. They were together at Thakurpukur up till November 13, 2004 when she deserted the husband and thus committed cruelty. Since then the couple was residing at their respective addresses being separated from each other and there was no chance of re-conciliation. The husband also alleged about irritating tamper, cruel mentality, foul-tongue, indignity towards him and his old parents. The husband stopped at that in his original plaint filed in December 2006. Pertinent to note, even on July 17, 2006 the husband sent a Greetings Card to the wife requesting her to take leave so that he could offer her a pleasant surprise. The husband filed an amendment petition on August 27, 2007 that would change the entire scenario. We would be discussing it little later.
4. The wife filed a written statement on May 24, 2007. She denied each and every allegation made against her. They were initially residing at Sarsuna in a rented house along with her in-laws. They went for honeymoon and had a nice stay. They shifted to the new house at Sarsuna in March 1996 that was built by her father-in-law. Her younger brother-in-law Biswarup got married to Sonali that caused little change in the peaceful atmosphere when her mother-in-law started making a comparison between two daughters-in-law. They went to Digha in April 1997 and Puri in June 1997 for spending holidays. In October 1997 the wife went to New Delhi for a departmental training when the husband accompanied her. They had their holidays at Agra and Haridwar during that time. After coming back the mother-in-law started abusing her. The situation continued between October to December 1997 that caused separation from the in-law''s family when the couple took a rented flat near Behala Chowrasta. Pertinent to note, the husband was practicing at Behala and it was easy to commute there from. After giving birth to the child at a Behala Hospital she went to her parents along with the newly born baby and again came back to her Behala flat in December 1998. Couple was happy to live their conjugal life at Behala. The problem cropped up when the respondent was to join her service after spending the maternity leave. During this period, the husband also joined service at Gomo, Bihar. In such changed situation the respondent shifted to her parents at Salt Lake so that they could take proper care and attention to the newly born baby. They subsequently took a rental accommodation at Salt Lake near to her father''s place and was residing therein happily till November 2001. For want of civic amenities at the rental accommodation, they shifted to the first floor of the residence of her parents and started residing there. From December 2001 to October 2004 they enjoyed their holidays at various places including Ganga Sagar, Bhubaneswar, Puri, Shilong etc. even during their stay at the first floor of her parent''s place her-in-laws came and stayed with them. Her mother-in-law was treated at the said flat while suffering from acute pancreatitis. Her father-in-law was being treated at B.R. Singh Hospital in December 2004 when she used to frequent at the hospital. Even after December 2004 they also visited various places along with their minor girl. They enjoyed the trip. They had a nice holiday in 2006 at Simla and New Delhi.
5. In January 2006 the petitioner was transferred to Panchannagram Block Primary Health Centre 24-Parganas (South). Pertinent to note, he subsequently left his Bihar job and got employment in West Bengal Health Service. Initially, there was no problem. In April 2006 the respondent noticed an abrupt change in his behavior. The husband became extremely rude, aloof and had a desire to look younger and handsome. The wife became suspicious when the husband did not come back from his workplace for five days. On May 22, 2006 the respondent made a surprise visit to the Health Centre. Then everything became clear to her. She came to know that the husband developed an extra marital relationship with a married nurse working at the said Health Centre namely, Ms. Champa Chatterjee alias Banya. She was taken aback. She immediately informed her in-laws. On the same day Biswarup rushed to Salt Lake residence and persuaded his elder brother to desist from such activity. On July 17, 2006 being the birthday of the respondent the husband gave her a present and stayed together at night wherefrom they went to Dakshineswar in the next morning and had breakfast in the house of a common friend being a retired IPS officer at Salt Lake. The husband also gifted a wedding anniversary present on August 11, 2006. They celebrated the belated birthday of their minor daughter on August 19, 2006. Both the families and their relatives had a nice get together. On August 28, 2006 the couple again fell out and involved in a hot discussion about extra marital relationship. Even thereafter the husband used to frequent at Salt Lake residence. In October 2006, such extra marital relationship became a public issue when an unfortunate incident happened at the said Health Centre. On October 27, 2006 a patient expired at the Health Centre. The local people raised their pointer to the husband and made him responsible for the same. They also highlighted the illicit relationship between the doctor and the nurse. It came out in T.V. and newspaper. The situation was so grave that the petitioner had to go on leave and was subsequently transferred to Dholtikari Primary Health Centre, Falta. In the mean time on November 24, 2006 the petitioner accompanied Champa to his parental home and stayed there for few hours and had launch together at the said place. Even then the respondent went to her in-law''s place on December 16, 2006 for a re-conciliation. However, she could not succeed. His parents, brother and brother''s wife pleaded helplessness in the matter.
6. After getting the written statement the husband applied for amendment of the plaint and such amendment changed the entire scenario. In the application for amendment he claimed that he was subjected to mental cruelty by the wife. He claimed ignorance about any lady called Champa Chatterjee. He highlighted the temperamental disorder of the wife. He also alleged that the wife was suspicious about his relationship with his sister-in-law being the sister of the respondent. This caused frustration to him. He contended that "there was no co-habitation from 2000 onwards". He admitted to have visited occasionally at Salt Lake where he was ill treated. He also asserted that at the Simla trip the wife confined herself in a separate room. There was no physical relationship during the tour.
7. Amendment was made on August 27, 2007. We also find from the evidence that the date of amendment had a coincidence with the fact that Champa also filed a divorce suit against her husband and got a decree from the appropriate Court that possibly made the husband little hasty in having the decree of divorce.
EVIDENCE
8. On behalf of the husband none else other than the husband adduced evidence. Pertinent to note, his brother or brother''s wife did not come to support his case. We are not sure whether the parents were living at that time. The husband reiterated what he had stated in his plaint and the amendment made thereafter. He described her wife as paranoid. He also alleged desertion, as he was to lead his life alone in his work place cooking for himself without the wife''s assistance. He also alleged that he was rebuked whenever he would visit Salt Lake residence. He did not get any co-operation from his wife. They jointly purchased a Maruti Car that the respondent kept for her own use. He is however silent about the incident at Panchannagram Block Primary Health Centre. In his affidavit evidence he denied of having any extra marital relation. However, the Panchannagram Block Primary Health Centre chapter was cautiously avoided. In cross-examination he admitted to be a voter at Salt Lake. He also admitted having used the Salt Lake address in his PAN Card and other official documents. He also admitted his signature on a cash memo purchasing gents wristwatch at Titan Show Room. While confronting him on Panchannagram incident he denied to have known any lady by the name of Champa Chatterjee. On the next day of cross-examination he amended his answer to the effect that he could not recollect any such person working at Panchanngram during his tenure.
9. The respondent/wife in her affidavit evidence deposed that their conjugal life was very happy till middle of the year of 2006. It became disturbed when the husband had developed extra marital relationship with Champa at Panchanngram Block Primary Health Centre. She denied of having misbehaved with her husband or his parents at any point of time. She denied all other allegations made by the husband against her. In cross-examination, she contended that she had persuaded Champa to desist from such relationship, but in vain. She however admitted that in Simla they had two rooms, one occupied by the husband alone and the other jointly by her, her minor daughter and the sister. She contended that she purchased the Maruti Car by making payment through Account Payee Cheque.
10. One Debabrata Basu, a neighbor of the couple at the Salt Lake deposed as DW-2. According to him, since 2000/2001 the couple was residing together in the residence of her father''s house. The sister also a doctor deposed as DW-3. She denied of any suspicious behavior of her sister with regard to her relationship with her brother-in-law being the appellant/husband. According to her, since the child was minor they stayed together in one room leaving the appellant in another room. They were compelled to do so as the appellant was suffering from diarrhea. After Simla when they went to Delhi they got three-beded room. The petitioner and respondent shared one bed along with their kid and the witness occupied the other single bed.
JUDGMENT
11. The learned Judge considered the allegations and counter-allegations and judged them with the evidence so came out during trial. The learned Judge drew conclusion that the allegation of desertion by the wife since November 13, 2004 was demolished by the evidence that came out during trial. The learned Judge also came to conclusion that the discord started in the middle of 2006 when there was a change in the behavioral pattern of the appellant. Wife became suspicious and such suspicion came true during her surprise visit at Panchannagram Block Primary Health Centre. The learned Judge relied on the Apex Court decision in the case of
That the marriage life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period where the relationship has deteriorated to an extent that become of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
12. The learned Judge ultimately came to the following conclusion :-
Considering the evidence on record discussed above it appears to me that the marital relationship between the husband and the wife has not yet been irretrievable broken down with no possibility of living together again. Still there is every possibility of living together as husband and wife to lead their happy married life considering the future of their only little daughter forgiving and forgetting all the misunderstandings and mistakes. Both the husband and the wife are the best person to reconsider and to review their relation for the better future of their little daughter and so also for their own." The learned Judge declined to grant Decree of Divorce that gave rise to the present appeal.
CONTENTIONS
APPELLANT
13. Mr. Bidyut Kumar Banerjee, learned senior counsel appearing for the appellant/husband contended that the definite case of desertion being backed up by mental cruelty, would consequently follow a Decree of Divorce that the learned Judge failed to appreciate. To elaborate his submission, Mr. Banerjee relied on the evidence of the husband. He also put emphasis on a complaint made by the wife against the husband to the Chairman, District Health and Family Welfare Committee, 24-Parganas (South), West Bengal dated October 25, 2007. It also appears that the said letter prompted the Additional Chief Medical Officer, Health 24-Parganas (South) to ask for an explanation from the husband wherein the husband avoided the issue by saying that the matter was subjudice in Court. From the letter however we find that it was rather an appeal to the Committee in desperation to save the marital cord. Her complaint was rather against Ms. Champa Chatterjee whom she described as "real threat to society". From this letter we find that Champa''s nick name was Banya. She categorically stated in the said letter - "I would like to live with my husband as a family - our child deserves to have a complete family like all other children....". According to Mr. Banerjee, this letter caused mental cruelty to her client that was an additional ground. We however do not find any specific mention of this letter in the pleadings, at least, our attention was not drawn on that score. Mr. Banerjee relied on the following decisions :-
i) All India Reporter 1986 Delhi Page-60 Dr. Autar Singh Paintal -VS- Mrs. Iris Paintal
ii) 1993 I Calcutta High Court 213 Amarendranath Sanyal -VS- Krishna Sanyal
iii)
iv) 1995 West Bengal Law Reporter (Calcutta) 282 Smt. Sova Ghosh -VS- Mr. Asit Kr. Ghosh
14. Opposing the appeal, Mr. Samiran Giri, learned counsel appearing for the respondent/wife contended that the wife always tried to resolve the discord if any. However the husband was adamant. According to him, the situation was quite congenial till middle of 2006 when the husband developed extra marital relationship with Champa. The husband became eager to have a divorce when Champa also obtained a Decree of Divorce. He also submitted that the relationship was congenial as would appear from the evidence including the documentary evidence. He referred to the cash memo of the gent''s wristwatch purchased from Titan Showroom where the husband signed. Pertinent to note, the husband admitted his signature during cross-examination. Mr. Giri lastly contended that despite the grievance the wife had against the husband she was always agreeable to maintain the marital tie for the sake of a family and their lone child.
15. While giving reply Mr. Banerjee asserted that the case of desertion and mental cruelty was proved to the hilt. Even if it was held that the learned Judge was not satisfied on the issue of desertion, the issue relating to mental cruelty, could not be brushed aside. According to Mr. Banerjee, Mr. Giri did not make any endeavour to rebut the argument on mental cruelty that was based on concrete evidence.
OUR VIEW
16. We have considered the rival contentions. We have carefully considered the evidence as also the decisions cited on proposition of law on mental cruelty being plausible cause for divorce being granted. We would have to consider whether the discord was a unilateral creation of the husband or the situation was such that the parties were not able to maintain the matrimonial tie being charged with the ground mentioned in Section 13 of the Hindu Marriage Act, 1955.
17. Mental cruelty is a relative term. A unilateral behavior, that too, of the plaintiff himself or herself, would not ipso facto entitle to him or her to have a divorce. Fanciful explanation in support of the claim for divorce does not have any legal sanctity. Our marriage law would not permit a couple to saver the matrimonial tie on the drop of a hat. Irretrievable breakdown per se, is not a ground recognized in the marriage law in our country.
18. In the case of Smt. Sova Ghosh (Supra), the wife agreed to maintain the marital life and expressed such intention through letters. However in evidence it was proved that the husband was a man of loose moral. On such evidence, the High Court granted divorce to the wife. In the present case, the husband was at fault. Nothing came out in evidence against the wife. The allegations made by the husband in his plaint or the amended plaint as the case may be, did not have any evidentiary support. In short, the husband failed to prove the charges brought against the wife. On the contrary, he was guilty on maintaining extra marital relationship, at least, a charge was brought by the wife. Even then, the wife wants marital tie to remain. Our statute does not permit Court of Law to grant divorce in such backdrop.
19. In the case of V. Bhagat (Supra), the husband alleged mental cruelty. He also charged his wife committing adultery. The Apex Court granted divorce considering the peculiar facts involved therein. The Apex Court considered the allegation of the wife that all the members of the family were lunatic. The Apex Court described it as "paranoid disorder". The present situation before us would not have any resemblance.
20. In the case of Dr. Autar Singh (Supra), the learned single Judge rather observed, "the physical act of departure by one spouse from the matrimonial home, does not necessarily make that spouse the deserting spouse. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for driving out, is guilty of desertion." In the present case we find, up to July 2006 the husband was offering present to the wife on her birthday and a wedding anniversary present in August 2006. The same husband went to Court in December 2006 filing a suit for divorce. During the four or five months nothing particular happened, at least, nothing came out in evidence that would permit the court to break the tie.
21. In our view, the appellant/husband miserably failed to show plausible reason for divorce. The learned Judge very rightly declined to interfere.
RESULT
22. The appeal thus fails and is hereby dismissed.
23. There would be no order as to costs.
FOOT NOTE
24. Before parting with, we wish to record an important fact. Like all other cases we also tried to resolve the issue through negotiation. We were prompted to do so as our conscience pricked. We did so as we were morally, legally and ethically bound to do so. Section 89 of the Code of Criminal Procedure would obligate us to do so. We had a chat with the appellant/husband. We wondered as to how a qualified person, supposedly a responsible husband and a father too, would raise flimsy grounds to support his claim for breaking of tie. Pertinent to note, the wife present in Court, categorically informed us that despite all she was prepared to accept her husband for the sake of her child. She was totally against breaking of the marital tie. We adjourned the matter time to time and gave opportunity to the husband to think twice. He was however, adamant, possibly, he was compelled for other obvious reasons.
DIRECTION
25. Lower Court Record be sent down at once.
26. Urgent Photostat copy will be given to the parties, if applied for.
Soumen Sen, J
27. I agree.
