V.D. Gyani, J.@mdashThis first appeal arises out of the judgment and order dated 23.7.96 passed by the Principal Judge, Family Court, Kamrup at Guwahati in F.C. (Civil) No. 125/92, decreeing the suit of the Appellant and dissolving the marriage with the Respondent husband with an order to pay permanent alimony amounting to Rs. 60,000/- to the Appellant.
Few basic facts may now be noted.
2. This appeal was listed before us on 13.11.97. The Respondent husband is facing criminal trial and despite framing of charge as back as on 1.11.93 the Trial Court not proceed for want of record which was requisitioned in haste, and even after dismissal of the suit by the Family Court, was retained delaying the progress of the criminal trial pending against the Respondent husband u/s 498A/384/506/120B IPC registered as Jalukbari P.S. Case No. 375/92. The Respondent husband filed a suit for divorce on the ground of desertion, cruelty and suspected adultery. The factum of marriage is not in dispute. The parties were married on 21st January, 1991. They lived as husband and wife at Kamakhya Colony within the jurisdiction of Jalukbari Police Station. The Respondent husband alleged that his wife, the present Appellant deserted him on 18.3.91. She used to behave very roughly with him as well as his mother. His attempts to bring her back and restore conjugal harmony failed to yield any result. It was also alleged that the Appellant was carrying an illicit affair with two unknown persons. On 18.6.91 she got herself aborted for which the Respondent husband was coerced to sign a consent letter. After abortion she left for her father''s house from the Maligaon Central Hospital. The Respondent was intimidated and threatened with dire consequences. He was beaten up by the hired goons employed by the Appellant when he went to fetch her.
3. Appellant''s case, on the other hand, was that soon after the marriage she was asked to bring Rs. 20,000/- from her father who is a retired employee. As she failed to comply with his demand she was physically tortured and treated even in an inhuman manner. Even while she was pregnant, she was kicked by the Respondent husband which resulted in profuse bleeding and ultimate miscarriage, she had to be hospitalised. She was made to fetch water from the foot hill even during her pregnancy and was confined and starved for days on. The mother of the Respondent also joined him in torturing the Appellant.
4. On the basis of the pleadings of the parties the following issues were framed:
1. Whether there is any cause of action?
2. Whether the Respondent had deserted the company of the Petitioner without just ground?
3. Whether the Petitioner criminally assaulted the Respondent and compelled her to live separately?
4. Whether the Petitioner is entitled to the decree of divorce?
5. Whether the parties are entitled to get any relief?
5. The trial Court passed a decree for dissolution of marriage on condition that the Respondent husband pay Rs. 60,000/- as permanent alimony within one month. In compliance of order dated 13.11.97 an amount of Rs. 20,000/- have been deposited with the Registry as per application dated 17.11.97. Learned Counsel appearing for the Appellant submitted that the impugned judgment is perverse, there is absolutely no appreciation of evidence and the trial Court has merely gone by its own ipse dixit. No ground is made out for the relief granted to the Respondent husband. It was also urged that it is the Appellant wife, in face of the overwhelming evidence on record who was entitled to the relief of separate residence and maintenance.
6. Learned Counsel appearing for the Respondent husband, on the other hand, maintained that the impugned judgment is well supported by evidence on record and does not call for any interference.
7. Before dealing with the rival contention as advanced at the Bar, a mere glance at the impugned judgment would go to show that it is nothing but narration of pleaded case and virtually ad-verbatim reproduction of the statement of the witnesses examined by the parties. The concluding part is to be found in the last paragraph and the discussion relating to Issues No. 2 and 3 at page 21-22. It would thus be seen that in arriving at the conclusion of desertion the learned trial Judge has merely gone by the number of witnesses ignoring the quality of evidence. It is not the number of witnesses but the quality of evidence which matters. A-mere reading of Section 134 of the Evidence Act would have convinced the learned Judge of the simple proposition of law. There is absolutely no appreciation of evidence done by the trial Court. While referring to the statements of witnesses Smt. Dhanada Athporia, Smti. Kamala Das and Smt. Pramila Das and Smti. Pratima Ray Choudhury, the learned Judge have simply referred to the fact that they have blamed the Respondent, i.e. the Respondent before the trial Court (Appellant herein). This approach on the part of the learned Judge of the Family Court is perilously bordering on perversity.
8. A mere reference to the names of witnesses as already noted above without least attempted appreciation of their evidence hardly justified the finding arrived at by the learned Judge. Simply because 3 or 4 women have blamed the Appellant, no Court can come to the conclusion of desertion on the part of the Appellant. P.W.3 Smti. Athporia is a neighbour of the Respondent husband, whom she treated as her brother. She does not speak a word about desertion. Her evidence relates to visit by some stranger along with her (Appellant''s brother-in-law). But even the trial Court has not found either adultery or cruelty to have been proved. Similarly P. W. 4 Smti. Kamala speaks of daily quarrel which used to take place between the husband and wife and according to her this quarrel is routine affairs. She does not know the reasons behind such quarrels. She claims to have seen the Appellant sitting on a cot in the house while some strangers were there in the room. In her cross-examination she has admitted that it was Appellant''s brother in-law. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him. This is the doctrine of constructive desertion. Halsbury''s Laws of England, 3rd Vol. 12 P. 246.
9. The Supreme Court in
10. Viewed from the above angle, how can it be said that the Appellant wife who is kicked by the Respondent husband while in advance stage of pregnancy resulting in profuse bleeding and eventual miscarriage, if in such condition, she straightway went to her paternal home from the hospital, by no streatch of imagination can it be said that she deserted her husband.
11. The impugned judgment, is perverse, and liable to be set aside, it is accordingly set aside. The appeal is allowed with cost, counsel fee Rs. 2,000/-.
