Arunabha Barua, J.@mdashThis is an appeal by an aggrieved wife, Kalyani Pal, against her husband, Ashutosh Pal, respondent, when she is dissatisfied with the ex parte judgment and decree dated 23.7.2001 passed by the learned Additional District Judge, 2nd Court, North 24-Parganas at Barasat in Mat. Suit No. 20 of 2001.
2. The husband Ashutosh Pal brought that matrimonial suit u/s 13 of the Hindu Marriage Act, 1955 against his wife, Kalyani Pal, for dissolution of marriage on the grounds of cruelty and desertion.
3. The marriage took place way back in 1970 according to Hindu Rites and Customs at Khardah, Dist. North 24-Parganas and both lived as husband and wife with two children, a son and a daughter born out of the wedlock. The respondent-husband was a Government servant, while the appellant was a teacher in a primary school.
4. According to the husband bringing that suit for divorce, he was persistently tortured both physically and mentally by the wife and for fear of life he was compelled to leave the house where he was living with the wife and children on 18.12.1985 and began to reside in a rented house at Agarpara which was near the house where the wife was residing so that he might change and correct herself. The husband brought that suit primarily on the grounds of long desertion, physical and mental cruelty, on the part of his erring wife.
5. It needs in the first place to mention that the whole grievance of the wife in preferring this appeal stems from two-fold allegations -- first, that the decree of divorce passed against her and in favour of the husband in the said matrimonial suit before the learned Additional District Judge was ex parte where no summons of the case was served upon her, whole proceeding was without her knowledge and she was denied the right of hearing; second, the learned Court below had nothing authentic before him in evidence to believe the case of the respondent-husband with regard to the cruelty and desertion on the part of the wife as alleged which could justify even a decree for dissolution of marriage ex parte.
6. The order-sheet of the matrimonial suit in question before the learned lower Court amply betrays procedural lacunae leading to the ex parte decree against the appellant-wife and consequent denial of justice to her. On 23.8.99 when the application u/s 13 of the Hindu Marriage Act was filed by the husband for the decree of divorce, 3.1.2000 was fixed for service return of summons and A/D. On 3.1.2000 the petitioner-husband filed a petition under Order 6, Rule 17 C.P.C. praying for amendment of the original petition and 29.2.2000 was fixed for hearing of the petition for amendment without giving any notice to the other side and though on 29.2.2000 the petitioner-husband was absent without taking any steps the case was automatically adjourned to 29.5,2000 for hearing of the application for amendment ex parte. There was no knowing what happened to the original return of service of summons and A/D. On 17.8.2000 only having heard the learned Advocate for the petitioner-husband praying for the amendment under Order 6 Rule 17 C.P.C. the amendment was allowed and the petitioner was directed to cause fresh service of summons through Court and registered post with A/D. On 6.12.2000 when the S. R. and A/D of the fresh service returned, the petitioner at once filed an application praying for fixing a date for ex parte hearing after accepting service return on the grounds that the A/D was returned twice with the report ''not claimed'' and ''refused'' from the postal department. It appeared to the learned Court below that the respondent-wife had an ill motive to harass the petitioner and accepting the service return of the summons having been duly served, the learned Court below (District Judge) fixed 22.2.2001 for ex parte hearing of the suit. On 22.2.2001 the learned District Judge transferred the suit to the Additional District and Sessions Judge, 2nd Court, for disposal.
7. The case finally came up for ex parte hearing before the learned Additional District Judge, 2nd Court, Barasat, North 24-Parganas on 23.7.2001 and at that time when the case was taken up for ex parte hearing, the respondent wife, Kalyani Pal, appeared and filed a petition praying for vacating the order dated 9.5.2001 by which the date for ex parte hearing of the case was fixed and the ground made out by the wife was that she did not receive any summons but that she came to know on 6.7.2001, as regards the transfer of the case to that Court and that ultimately the Court on 9.5.2001 fixed the date for ex parte hearing. The learned Additional District Judge observed that since that Court had not fixed the date of ex parte hearing following the order of the learned District Judge, at that stage, there was no scope to consider the contention of the petitioner-wife. He also found that the wife on that day also did not file the written statement and show cause for accepting the W.S. and so the learned Additional District Judge rejected the petition of the wife for vacating the order fixing the date for ex parte hearing. The learned Court below, that is the learned Additional District Judge, then proceeded to hear out the case ex parte, examined the petitioner-husband Ashutosh Pal only and briefly stating the case of the petitioner and what he had told about the cruelty and desertion as alleged, came to the finding that PW. 1, that is the husband, had proved his case and decreed the suit ex parte against the wife and declaring the marriage between the husband and wife as dissolved by divorce u/s 13 of the Hindu Marriage Act.
8. We are of the view that the way the proceedings leading to the ex parte decree without giving an opportunity of hearing to the respondent-wife to press home her own case was perfunctory and indiscrete resulting truly in denial of justice to the aggrieved wife.
9. More importantly, even though the case was taken up for ex parte rejecting the prayer of the wife to participate in the proceeding it had to be ensured by the learned Court below whether the petitioner-plaintiff could prove his case of cruelty and desertion by convincing legal evidence and that hardly was done.
10. The respondent-husband wanted a decree of divorce on the ground of desertion and cruelty on the part of the appellant-wife with the specific allegation in his petition in the matrimonial suit that he suffered constant mental torture and agony caused by the appellant-wife so much so that he had to ''escape from unnatural death and for the sake of life'', he was compelled to leave the house and began to reside in a rented house near the house of the wife where she lived with her son and daughter.
11. In fine, stating a few incidents, the petitioner finally alleged that there was sufficient grounds for a decree of divorce in his favour on the grounds of long desertion, physical and mental cruelty.
12. As we find, it was easier said than done by way of proof.
13. As a matter of fact, the word ''cruelty'' cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to surrounding circumstances brought out by the evidence on record. Whether one spouse is guilty of cruelty is essentially a question of fact duly established by convincing evidence. It is, however, well-settled that this ''cruelty'' is to be judged by taking into consideration the status of life, education, the standard of life, family background and the society or social environment in which the parties are accustomed to move. A particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.
14. As to what can be treated as "treated with cruelty" is explained by the Apex Court in
15. Let us see how the petitioner-husband was able to bring home his case of cruelty, both mental and physical and long desertion to be able to succeed in getting a decree of divorce and dissolution of marriage, even though the case was heard ex parte.
16. In this regard we might cite hereinbelow the solitary testimony of PW. 1, that is the respondent-husband, before the learned Court below :
"My wife is a primary school teacher. Upto 1984 we lived together as husband and wife. Thereafter, I left my said rented house due to torture caused to me by my wife and I alone began to reside in another rented house in same locality. Since 1996 I have been residing in my own house after raising construction. My wife has been residing in the above rented house still now with my son and daughter. Since 1983 my wife started torture upon me and she did not cook for me. I am Govt. employee. I asked my wife to live with me peacefully but she refused and as a result I filed this suit for decree of divorce on the ground of cruelty and on the ground of desertion. She also filed a complaint case against me u/s 498 I.P.C. after filing of the suit".
17. On a plain reading of this single piece of evidence by way of the deposition of the respondent-husband as PW. 1 before the learned Court below, we find that except for the husband''s own version as stated above, there was absolutely no evidence and proof about the allegations of long desertion, physical and mental torture.
18. It transpires from his said testimony that there was rather no compelling circumstances for him to leave the house leaving his wife and children at lurch except for his solitary - and vague - allegation that his wife would not cook for him. And going by the standard of proof in a case of mental cruelty as explained earlier, this piece of evidence in no way can constitute mental cruelty. Of physical cruelty the evidence is nil. Of ''long desertion'' it rather looks, it was the husband''s own act of volition to leave the house rather than an act of desertion by the wife as alleged.
19. And yet, in delivering the impugned ex parte judgment and decree dated 23.7.2000 in favour of the husband, learned Court below had mostly stated what the case of the petitioner-husband was and then relying upon the vague and scanty evidence of the PW. 1, the husband only, he straightaway came to the conclusion and finding that the petitioner as PW. 1 had proved the case.
20. Plainly, neither cruelty nor desertion has been proved as demanded of law even if it was an ex parte hearing and the learned Court below, in our considered view, fell into grave error in decreeing the suit in favour of the husband on such evidence as this.
21. The petitioner-husband in any way could not get away with a decree of divorce and dissolution of marriage against his wife just for the asking as it looks, it was done.
22. The petitioner-husband had failed to establish his case and was not entitled to get a decree of divorce and dissolution of marriage against his wife.
23. The impugned ex parte judgment and order dated. 23.7.2001 cannot, therefore, be sustained and must be set aside.
24. Accordingly, the appeal is allowed. The matrimonial suit being No. 20 of 2001 before the learned 2nd Court of Additional District Judge, Barasat, North 24-Parganas between Ashutosh Pal and Kalyani Pal stands dismissed. There will be no order as to costs.
25. Urgent xerox certified copy of this order, if applied for, be given to the parties.
Samaresh Banerjea, J.
I agree.
