Bhaskar Bhattacharya, J.@mdashThis appeal is preferred by a wife/Respondent in a proceeding under s.9 of the Hindu Marriage Act and is directed against judgment and decree dated March 18, 1997, passed by the learned Judge, Family Court, Calcutta in Matrimonial Suit No. 209 of 1994, thereby passing a decree for restitution of conjugal bright in favour of the husband.
2. the Respondent herein filed a matrimonial suit being Matrimonial Suit No. 176 of 1993 in the City Civil Court at Calcutta for restitution of conjugal right against the Appellant herein which was subsequently transferred to the Family Court, Calcutta and was renumbered as Matrimonial Suit No. 209 of 1994.
3. The case made out by the Respondent was inter alia, as fallows:
a) Parties were married on December 2, 1987 according to Hindu Rights and Customs and in the wedlock, two children, a son and a daughter were born.
b) The parties lived together at the residence of the Respondent under Kharda Police Station till November 6, 1992.
c) On November 7, 1992, the Appellant left her matrimonial home and went to her present house with her son and daughter without intimating the Respondent with all her belongings and ornaments without any reasonable excuse and since then has been reading at 26/6 Mahatma Gandhi Road, P.S. Muchipara, Calcutta-9.
d) The husband went several times to bring the wife back with their children but the wife refused to return making false allegations.
e) The husband had come to know that the wife had illicit connection with one Mr. Sunil Kumar Dutta, a practicing Doctor, acquainted with the wife''s family and under his instruction the matrimonial tie was going to break down.
4. The wife/Appellant contested the aforesaid suit by filing written statement thereby denying the materials allegation made in the application for restitution of the conjugal right and the defence taken by the Appellant was inter alia, as follows:
a) The wife was subjected torture from the very beginning of the marriage as the husband disclosed on the date of marriage that he wanted to marry another girl whom he loved and that the marriage could not take place as the Respondent''s father took huge amount of money from the Appellant''s father and by the said money, the building at Rahra was constructed.
b) The wife was tortured by her parents-in-law and the husband never restrained his parents from doing such torture. The parents of the husband used abusive language and demanded further money from the parents of the wife and the wife could not bear such inhuman torture from the parents of the husband.
c) The wife never left the matrimonial home as alleged on November 7, 1992, but the real fact was that the wife was physically assaulted by the mother of the husband and the father of the husband at that time used abusive language towards her and the husband supported his parents. The husband himself took the wife at her father''s house at 20/6 Mahatma Gandhi Road, Calcutta and thereafter he used to come to the house of the wife and stayed therefore several days. A one room flat was provided for the parties by the mother of the wife in their house and the husband thereafter suddenly stopped visiting the house and started giving registered letters from Amherst Street Post Office which was only 200 yards from the house of the wife.
d) The wife was not aware of any practicing doctor in the name of Sunil Kumar Dutta and the allegation as regards illicit connection with such a person was completely false and motivated.
e) The husband had in fact connection with a girl before marriage and the said girl''s photo was shown to the wife after marriage and the said girl was also brought to the house of the husband and in the presence of that girl the husband told the wife that he wanted to marry the said girl if the wife left the husband''s place.
f) Whenever the husband came to the house of the wife, the wife herself and her mother behaved cordially and gave all types of hospitality but the husband for the reasons known to him suddenly stopped coming and ultimately filed the suit.
5. At the time of hearing of the aforesaid proceeding the husband himself gave evidence in support of the application while the wife also disposed in opposing the prayer of the husband.
6. Ultimately by the judgment and decree impugned herein the learned Family Court passed a decree for restitution of conjugal right thereby holding that there was no just cause for the wife to live separately. Being dissatisfied the wife has preferred the instant appeal.
7. Mr. Ukil, the learned Counsel appearing in support of the appeal has contended that in the application for restitution of conjugal right, the husband having made false allegation as regards the moral character of the wife by making allegation of illicit connection with one Sunil Kumar Dutta, such act on the part of the husband amounted to cruelty and as such there was just cause for having separately. In support of such contention Mr. Ukil has relied upon two decisions, in the cases of
8. Mr. Ukil further contends that in view of the cruel behavior of the husband including his parents, the wife was compelled to leave the matrimonial house and as such it was not possible for his client to go back to Kharda residence of the husband where the father of the husband still living. Mr. Ukil, however, maintains that if the husband takes a separate residence in Sealdah area near the paternal house of the wife, his client was willing to stay with the husband.
9. Mr. Chakraborty, the learned Counsel appearing on behalf of the husband has on the other hand supported the judgment and decree passed by the learned Family Court and has pointed out that the allegation of physical torture was made by the wife against the mother of his client. According to Mr. Chakraborty, even assuming for the sake of argument but not conceding, if those allegations were true, the mother being no longer in the land of living, the, wife cannot insist of staying in the Sealdah area near her paternal house.
10. Mr. Chakraborty further contends that the decision relied upon by the learned advocate for the Appellant was not applicable to the fact of the present case inasmuch as such defence was not taken even in the trial court or in the deposition by the wife. Mr. Chakraborty submits that wife has never taken the plea that in view of such false allegation, she was not going to the husband''s place.
11. After hearing the learned Counsels for the parties and after going through the materials on record we find that all allegations of physical torture were made by the wife against her mother-in-law, who is admittedly dead. There is no dispute that the father-in-law of the Appellant is aged 80 years and the husband is the only son of his parents. Even if we accept the case of the wife, according to her own case, the husband used to come to her paternal residence where he was given a one room flat but he had suddenly stopped coming to the said flat. Therefore, all along the wife had no objection to stay with husband if the husband stayed in the paternal house of the wife. In the trial Court she specifically stated that she was willing to stay with her husband provided the 80 years old father-in-law does not stay with them.
12. As mentioned earlier, it appears from the materials on record that the allegation of the wife was against mother-in-law with further allegation that father-in-law used abusive language towards her. The said fact could not be proved by giving any other corroborative evidence. Therefore, even if we assume that the relationship with mother-in-law became bitter, she did not make any allegation of physical torture against her father-in-law.
13. Under the aforesaid circumstances we are not prepared to accept the contention of Mr. Ukil that she had just ground for not going to the husband if the husband stays with his father aged more than 80 years.
14. We also do not find any substance in the contention of Mr. Ukil that the allegation of husband as regards illicit connection with one Sunil Kumar Dutta amounts to mental cruelty and on that ground alone, she can refuse to go to her husband. As indicated earlier, in the trial Court she never took such plea, on the contrary she was all along willing to go to her husband provided husband comes near her paternal house.
15. As regards the two decisions cited by Mr. Ukil, in our opinion, those are not applicable to the fact of the present case in view of the fact that the wife in willing to stay with husband provided his father does not stay with him. Moreover, in this case inspite of such allegation of illicit connection, husband has condoned the act of the wife and is willing to take her back. In this case the allegation of the husband was denied by the wife in her written statement. The husband had. not pressed such allegation in his evidence and no suggestion had been given to husband that for such baseless allegation, wife was unwilling to come back. In her evidence the wife has admitted that there were miner altercation between them but there was no major trouble at the house of the husband and that she wanted to stay with husband but in a separate residence from his father. It will not be out of place to mention here that the wife also made allegation against her husband that he was in love with a girl but did not utter a single word about the said allegation in evidence.
16. Under the aforesaid circumstances, we are at one with the learned trial Judge that wife had no sufficient reason to live separately from the husband and it is a fit case where a decree for restitution of conjugal right should follow.
17. Therefore, we find no substance in the instant appeal and the same is dismissed.
18. In the facts and circumstances of the case there will be however no order as to costs.
Amit Talukdar, J.
19. I agree.
