Prasenjit Mandal, J.@mdashThis first appeal is at the instance of the wife/respondent of a matrimonial proceeding and is directed against the judgment and decree dated September 24, 2003 passed by the learned Additional District Judge. Third Court, Barasat, District North 24 Parganas, in Matrimonial Suit No. 43 of 2001. whereby the learned Trial Judge decreed the suit on contest but without costs.
2. The plaint case in short is that the appellant was married to the respondent on March 9.1988 according to Hindu rites and customs after negotiation. The marriage was consummated. Immediately after the marriage the respondent noticed that the appellant was suffering from drowsiness and failed to act or react promptly and he noticed a mark of operation in the lower abdomen of the appellant. On enquiry, the appellant admitted that she had to undergo a surgical operation in the lower abdomen due to appendicitis. But at the time of negotiation such fact of operation was not disclosed at all to the respondent. The respondent requested the appellant not to take any tranquiliser in vain. Even the appellant claimed superiority in respect of standard or style of living of the respondent in comparison with that of the respondent. The appellant holds a post graduate degree in Political Science and she is an employee of the P.W.D., Purta Bhavan, Salt Lake City, Government of West Bengal. The respondent is an employee of the Indian Bank, Kolkata. After the marriage, the appellant attended office at Salt Lake from her matrimonial home at Kanchrapara, but she was in the habit of returning to the matrimonial home at late hours. This habit was even continued when the appellant was transferred to the office at Kalyani. On being enquired into the matter, the appellant reacted sharply by stating that she being an educated modern lady was not supposed to give any answer to anybody. Such conduct of the appellant shocked the respondent as he did not expect such behaviour at all from the appellant. It also revealed that during her pregnancy, she started residing at her fathers house at Lake Town and she was admitted to N.R.S. Hospital. On receiving such information, the respondent rushed to the hospital and came to know that the appellant gave birth of a male dead child, but the respondent was kept dark about the health condition of the appellant. Even the dead child was not shown to him. After discharge from the N.R.S. Hospital, Kolkata, she came to her matrimonial home, but she was found addicted to tranquiliser and she showed disrespect towards the respondent. Even she refused to have sexual cohabitation with the respondent. She took her ornaments away to her parents house on the occasion of marriage ceremony of her brother held on March 3, 1990. But on return she did not bring her ornaments and on being asked the appellant told that her ornaments had been kept at her parents house. In that way, the appellant removed her belongings to her fathers house gradually. Ultimately, on return from the office on March 27, 1991, the respondent noticed that a letter written by the appellant addressing the respondent was left disclosing the fact that she was leaving the matrimonial home forever alleging torture upon her. Immediately, the respondent rushed to the house of the appellant to bring her back but she refused to come. She disclosed that she was transferred again to Purta Bhavan, Salt Lake, and that it was not possible for her to go to her matrimonial home at Kanchrapara. On April 4, 1991, the appellant lodged a false G.D. Entry at Bijpur Police Station against him and the O.C., Bijpur Police Station requested the respondent to solve the problem between the two and to bring her back. The respondent went to bring her back in vain. He lodged a G.D. entry dated April 17, 1991 to that effect with the O.C., Bijpur P.S. Then on April 9, 1992, the respondent received a letter from the appellant which laid down the claim of Rs. 30,000/- by the respondent as she paid the said amount to the respondent for making fixed deposits. Thereafter, she initiated a criminal proceeding u/s 406/498A of the I.P.C. and a search warrant was executed on January 17, 1993 when the respondent and other members of his family remained busy in observing death anniversary of his father. Thus the appellant committed cruelty and desertion towards the respondent. So the respondent prayed for dissolution of the marriage in the matrimonial proceeding.
3. The appellant contested the said matrimonial proceeding by filing a written statement contending, inter alia, that the allegations levelled against her were not at all true. The finalisation of their marriage was held after negotiation and the father of the appellant fulfilled all the demands of the husband with regard to gold ornaments, furniture and immediately after the marriage she took transfer to Kalyani and she was not at all late in returning to her matrimonial home as alleged. She took tranquiliser as prescribed by her doctor brother on account of tremendous agony and tension suffered by the torture inflicted upon her by the husband. Though she underwent a surgical operation before the marriage, but it was not an obstacle for ongoing peaceful conjugal life. The respondent took her to Dr. D.C. Dutta at N.R.S. Hospital and thereat, she gave birth of a dead male child and the entire fact was within the knowledge of the respondent and at the time of operation the respondent was very much present and Dr. Dutta himself disclosed of the mishap when he came out from the operation theatre. The respondent kept all the belongings of the appellant into his custody with a motive to grab those articles and he subjected the appellant to torture and forced her to write on a plain paper about the fact that she had removed all her ornaments to her fathers house. Even he assaulted the appellant in presence of his sister, Sulekha. She was subjected to torture and insult in various ways. Being afraid of her life, she left the house on March 27, 1991. So, the suit should be dismissed.
4. In the matrimonial proceeding, the husband examined himself only on his behalf as P.W. 1 and the wife also examined herself as D.W.1 only. Beside that certain letters and other documents have been marked exhibits on behalf of the respondent.
5. Upon consideration of the evidence on record, the learned Trial judge decreed the suit granting the decree of divorce against the appellant. Being dissatisfied, the appellant has preferred this appeal.
6. Mr. Chatterjee, learned Senior Advocate for the appellant, contended that the marriage between the parties was held after negotiation. At that time the respondent was a diploma holder in the Engineering Branch and he was an employee of the Indian Bank; whereas the appellant held a post graduate degree in Political Science and was an employee of the P.W.D., Purta Bhavan, Salt Lake City, Government of West Bengal. He submitted that the adjustment between the parties could not be held because of different of status of the two families. The marriage between the parties was held on March 9, 1988 and the appellant was transferred to Kalyani on her prayer and she attended the office from her matrimonial home and there was no delay in returning home as per evidence on record. But the Trial Court did not consider the evidence of the D.W.1 that the wife did not subject the respondent to cruelty at all. But, in fact, it is the respondent who subjected the appellant to cruelty and for that reason, the appellant had to lodge a criminal case against the respondent. He also submitted that the learned Trial Judge did not consider the fact that the appellant was compelled to file a criminal case against the respondent. He also contended that taking of tranquiliser, on the advice of her brother who is a renowned doctor in the branch of Neurology, could not be a ground of cruelty and she took tranquiliser only on the advice of the doctor brother. He also contended that the finding of the learned Trial Judge that after leaving the matrimonial home by the appellant on March 27, 1991, the respondent went to bring her back, was not correct at all. The allegation relating to refusal of sexual cohabitation was false and so, the suit should have been dismissed.
7. On the other hand, Mr. Ghosh, learned Advocate for the respondent, supported the judgment and decree passed by the learned Trial Judge.
8. Upon taking into consideration the submission of the learned Advocate of both the sides and on perusal of the materials on record, we find that admittedly, the parties were married on March 8, 1988 according to Hindu rites and customs after negotiation. Admittedly, the respondent is a diploma holder of the Engineering stream and is an employee of the Indian Bank, Kolkata 700001. Admittedly, the appellant holds a post graduate degree in Political Science and is an employee of the P.W.D., Purta Bhavan, Salt Lake City, Government of West Bengal. Admittedly, the parents house of the appellant is at Lake Town, Kolkata and the matrimonial home of the appellant is at Kanchrapara. Admittedly, after the marriage, the appellant attended her office at Salt Lake from her matrimonial home at Kanchrapara and on her request, she was transferred to Kalyani in December, 1988. Admittedly, the appellant was again transferred to at Salt Lake on her own request and she is still in service. Admittedly, the appellant left the matrimonial home on March 27, 1991 and began to reside at her fathers house at Lake Town. Now, the points to be decided in this appeal are :
1. Whether the learned Trial Judge was justified in decreeing the suit on the ground of cruelty and desertion
2. Whether the appellant has any justified ground to live separately at her fathers house at Lake Town leaving the house of the respondent on March 27, 1991.
9. As regards cruelty upon due consideration of the evidence on record, we find that the respondent alleged that the appellant returned to the matrimonial home from the office at 8/8.30 p.m. Admittedly, the paternal house of the father of the appellant is intervened by the place of service of the appellant and her matrimonial home. So, if arguments sake, the appellant went to her paternal house on the way to Kanchrapara, we think, there might be delay in reaching Kanchrapara from the office at Salt Lake. But, on careful scrutiny, if we consider the length of journey performed by the appellant from her matrimonial home at Kanchrapara to her place of service at Salt Lake, it was not unusual at all if the appellant returned to home at 8/8.30 p.m. The appellant gave specific statement in her deposition that while she was transferred to Kalyani office on her request, she returned to home within 6 p.m. This is not at all unusual. The respondent contended that even while the appellant was posted at Kalyani, she returned to the matrimonial home at 8/8.30 p.m. If it was so, naturally there might be unusual; but we find that the mother and other members of his family did not support such contention of the respondent. Of course, the statement of the appellant to the effect that being an educated lady she was not supposed to explain the reasons for delay, we hold, is not proper towards the respondent. The husband has the every right to know if there was any unusual delay on the part of the wife in reaching the matrimonial home. The appellant stated on oath that while she was posted at Kalyani, she visited her fathers house at Lake Town, so there was some delay in reaching the matrimonial home on that occasion. So, we are of the view that the appellant explained the reason for delay in reaching the matrimonial home. So such delay could not be treated as cruelty towards the respondent.
10. The respondent contended that the appellant underwent appendicitis operation. This is not denied at all by the appellant. But, we are of the view that there is no contrary evidence in this respect that such operation was contrary or harmful to the matrimonial life of the two parties. Such type of operation, we hold, cannot be a ground of divorce. As regards consumption of tranquiliser by the appellant, we find from the evidence on record that the appellant took the tranquiliser on the basis of the prescription issued by a medical officer. So, the consumption of tranquiliser by the appellant did not amount to cruelty at all.
11. As per evidence on record, while the appellant was carrying for seven months, she left her matrimonial home and began to reside at her fathers house and she took four months maternity leave. The appellant contended that she contacted with the respondent over telephone during that period. From the medical paper (marked Exhibit - 1), it appears that the appellant was admitted to the N.R.S. Hospital on August 28, 1989, and she delivered a still born male child on the same date. Though, the appellant stated that her husband was all along present since the time of operation up to the delivery of the still born child, yet we do not find any corroboration of such statement. On the other hand, the evidence of the respondent, we find, is convincing to the effect that on being informed he went to the N.R.S. Hospital and learnt that his wife had delivered a still born male child. He was not shown the child at all. The D.W.1 has admitted that the respondent was informed after she had been admitted to the hospital. Had the respondent been present, the question of giving information through a relation did not arise and the respondent would have shown the still born child. The respondent stated on oath that the condition of the health of the appellant was not made known to him at all. That child was the only issue born to the parties. The respondent stated that on August 29, 1989, while he telephoned, he was told from the house of the appellant that the appellant was admitted to the N.R.S. Hospital. Instantly, he rushed to the said hospital and contacted the doctor. Then he came to know that his wife gave birth of a dead male child. So such subsequent conduct of the respondent shows justification / truthfulness of his earlier statement of receiving information as to admission to the hospital. There is no other material to show that it was the respondent who took the appellant to the hospital. So this piece of evidence of the respondent appears to be convincing. It varies from person to person as to how a person will act /react in a given situation. If we hold that the respondent was informed after the appellant had been admitted to the hospital, yet such fact did not construe cruelty at all on the part of the appellant.
12. As per evidence on record, after discharge from the said hospital, she came to the matrimonial home directly. The respondent noticed no changes in the behaviour of the appellant. It is also the case of the respondent that the appellant refused to sexual cohabitation with him. She began to take tranquiliser at his house. The exhibit No. 5 is the prescription of the appellant issued by her doctor brother and exhibit No. 7 series are the tranquilising tablets bearing the remarks physician sample not to be sold.
Anyway, we have already held that the consumption of tranquiliser, on the basis of prescriptions of a doctor, does not amount to cruelty.
13. The appellant attended the marriage ceremony of her brother and for that purpose she went to her fathers house on March 3, 1990 with her gold ornaments. But at the time of return, she did not bring such ornaments with her and on this matter, the appellant gave a written statement (marked Exhibit-2a) that she left her ornaments at her fathers house. Thereafter on March 27, 1991, when the respondent came to his house from the office, he found a letter written by the appellant to the effect that she had left the house of the respondent forever due to torture upon her (marked Exhibit 2). The respondent denied that he ever assaulted or tortured the appellant at any point of time. He did not assault her in presence of his sister, Sulekha, at all. This fact of assault or torture against her is false. That the contention of the appellant is false, is proved by prompt action by the respondent that immediately after the date March 27, 1991, he rushed to the house of the father of the appellant at Lake Town in order to take her back. But she refused to come with him. In the meantime, she was transferred to Salt Lake again from her office at Kalyani and she disclosed that she would attend her office from her fathers house and she would never come back to his place.
14. As per evidence on record, on April 4, 1991, the appellant made a diary with the Bijpur P.S. against the respondent and as a result the respondent was called at the police station and he complied at once. Thereafter, he went to the appellant at her fathers residence at Lake Town, when not only the appellant but also her brother misbehaved with him. Subsequently, he lodged a diary with the Bijpur P.S. on April 17, 1991. Then, on April 9, 1992 the appellant wrote a letter to the respondent demanding return of her gold ornaments back and repayment of Rs. 30,000/- vide exhibit No. 2(b). Ultimately, she lodged a criminal case against the respondent u/s 498A/406 of the I.P.C. along with a prayer for search warrant for recovery of her articles. It is an admitted position, as per evidence on record, that such search warrant was executed on January 17, 1993 in presence of the appellant and it was a day of yearly Sradh ceremony of the father of the respondent. This was done in presence of the relatives of the respondent. Such conduct was, no doubt, an act of cruelty on the part of the appellant towards the respondent and other members of his family. The statement of the respondent that he felt insulted and suffered from mental sufferings for such conduct, can be visualised and there is nothing to disbelieve in such statement of the respondent. At the time of deposition, the appellant admitted that the criminal case lodged by her was pending. At the time of argument, we are told that the criminal case ended in acquittal on merits meaning thereby the allegation of the appellant against the respondent was not proved at all. In fact one set of xerox copy of the certified copy of the said judgment was tendered before us at the time of making argument and we noticed that the said criminal case brought by the appellant ended in acquittal on merits. Even on search, the articles of the appellant were not recovered from the house of the respondent and so, it is clear that the respondent did not keep the articles of the appellant and so, his contention that the appellant took away of her articles gradually from his house, is convincing and believable. Thus, we find that the appellant failed to substantiate the criminal case brought against the respondent meaning thereby the allegation of the appellant was false. Such conduct of the appellant amounted to mental cruelty without any doubt and it is the specific submission of the respondent that he did not condone such act of his wife. Therefore, we are of the view that the learned Trial Judge was justified in holding that the appellant treated the respondent with cruelty.
15. On March 27, 1991, on return from office, when the respondent found that his wife had left his house, he immediately rushed to her at Lake Town. But she refused to come to his house. The appellant has admitted in her deposition that the respondent went to bring her back. We do not find any ground to reject such evidence of the respondent on oath. Since March 27, 1991, the appellant has been residing at her fathers house at Lake Town and we find from the evidence on record that when the O.C., Bijpur P.S. intervened, on the allegation of the appellant, the respondent went to the house of the father of the appellant to bring her back, but she did not come back. The appellant could not show that she has any just cause to reside separately. Thus, we are of the view that the appellant deserted the respondent without any just cause since March 27, 1991. Therefore, we are of the view that the ground of desertion has also been proved.
16. Thus, on scanning of the evidence on record, we find that the deposition of the P.W. 1 is corroborated by the documentary evidence (exhibits) and the admission of the appellant. The P.W. 1 was cross-examined on various dates; but on scrutiny of his statement we do not find anything for which his evidence may be discarded. So, we are of the view that the P.W.1 is trustworthy and that his evidence can be acted upon. The P.W.1 has stated that the appellant had superiority complex and she exposed the same by her behaviour towards him. He has also stated that the appellant had no respect for the respondent. The P.W.1 has also stated that the appellant was examined by doctor D.C. Dutta without his knowledge. All such acts and the execution of the search warrant on the day of Shradh anniversary of the father of the respondent in presence of the relation of the respondent, clearly amount to mental cruelty towards the respondent. It is not the situation that the respondent is taking advantage of his own wrong. On the other hand, though the D.W.1 has admitted that she informed her parents and brother about torture upon her by the respondent and she wrote letters to her parents to that effect, the appellant neither examined any close relation nor produced the letters written by her to her parents. The fact that the appellant had left her matrimonial home on March 27, 1991, without the consent of her husband on the false allegation of torture is also an act of mental cruelty.
17. In that view of the matter, we are of the view that the learned Trial Judge was justified in granting the decree of divorce on the ground of cruelty and desertion on the part of the appellant without any just cause. Therefore, the appeal is without any merit and it should be dismissed affirming the judgment and decree passed by the learned Trial Judge.
18. Accordingly, the appeal is dismissed. The judgment and decree dated September 24, 2003 passed by the learned Additional District Judge, Third Court. Barasat, District North 24 Parganas, in Matrimonial Suit No. 43 of 2001, is hereby affirmed.
19. Considering the circumstances, there will be no order as to costs.
Bhaskar Bhattacharya, ACJ
20. I agree.
