Smt. Aparna Das (Sarkar) vs For Appellant(s)

Mr. K. Nath, Adv. Mr. Rajib Saha, Adv. HON‟BLE MR. JUSTICE S. TALAPATRA HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY Order 10/03/2022 [S. Talapatra, J.] Heard Mr. K. Nath, learned counsel appearing for the appellant as well as Mr. Rajib Saha, learned counsel appearing for the respondent. This appeal under section 19(1) of the Family Courts Act, 1984 arises from the judgment dated 27.07.2018 delivered in T.S.(Divorce) 37 of 2016 by the Judge, Family Court, Udaipur, Gomati District, Tripura. By the said judgment dated 27.07.2018 which has been challenged under this appeal, the Judge, Family Court, Udaipur has dismissed the petition for granting decree of divorce having observed as follows: “Another question which revolves in our mind is that as to why the respondent started leaving matrimonial home frequently after few months of their marriage. It is not that immediately after marriage she started leaving her matrimonial home. Why after few months? There is no allegation made by the Petitioner as to any illicit relationship of the respondent. So, again and again the question comes to surface as to why she used to leave her matrimonial home frequently. She alleged that she was being tortured both mentally and physically by the Petitioner over the demand of dowry. For this reason she filed a criminal case u/s 498-A of IPC against the Petitioner. Admittedly, the said case ended in compromise. So, the allegation of torture made by the respondent cannot be ruled out straight away. In fact, I find no ground to disbelieve the respondent as the veracity of the respondent could not be shaken. So, the overall circumstances as discussed above, indicates that the Petitioner himself is at fault. According to Section 23(1)(a) of the Hindu Marriage Act, 1955 the Petitioner cannot take the advantage of his own wrong. So, the Petitioner cannot be granted divorce on the ground of cruelty. Hence, Issue no.I is decided in negative against the Petitioner. Next comes Issue no.II, i.e. the question of „desertion‟. The essence of „desertion‟ under Hindu Marriage Act is the forsaking the abandonment of ones spouse by the other without reasonable cause and excuse. In the instant case it has been already established that there are sufficient reasons for the respondent for living separately from the Petitioner. It has also been established that the Petitioner has been giving maintenance allowance according to the order of this court u/s 125 Cr.P.C. The fact that a husband makes a maintenance allowance to a wife whom he refused to maintain or neglected to maintain is no answer to a charge of „desertion‟. The plea of the Petitioner is that for a long period like (4 years) the Petitioner and the respondent have been living separately and according to the Petitioner such long separation made the relationship between the Petitioner and the respondent dried. Here, I am of different opinion as the „separation‟ may be as long as 50 years but if the Petitioner himself is liable for such long separation, he must not be allowed to take the advantage of his own wrong otherwise, the very purpose of the Hindu Marriage Act will be frustrated. Hence, issue no.II is also decided in negative and against the Petitioner.” Thereafter, the Judge, Family Court has inferred that in view of the findings, as noted above, the relief as sought by the appellant in the petition cannot be granted. From the petition that was filed for granting divorce on the ground of cruelty and desertion under section 13(1)(ia)&(ib) of the Hindu Marriage Act, 1955, the appellant has alleged, inter alia, that after his marriage with the respondent which has been solemnized on

04.10.2010, the respondent started behaving as if she was a guest in the family of the appellant. The respondent started insisting the appellant to be Ghar Jamai meaning the resident husband. But, since the appellant did not agree, the respondent started misbehaving with him and finally, she left the matrimonial home. On 05.01.2012, the respondent left the matrimonial home and never came back. It has been alleged that the respondent has filed one complaint under section 498A of the IPC in the R.K. Pur Womens Police Station and on the basis of the said complaint, a specific police case under section 498A was registered and investigated. On completion of the investigation, a police report was filed against the appellant. It has been stated that the respondent had initiated a further proceeding under section 125 of the Cr.P.C for having the maintenance from the appellant and that was allowed by the Judge, Family Court, Udaipur with a direction to the employer to recover the maintenance allowance every month from his salary. Thereafter, a proceeding [under Section 127 of the Cr.P.C.] was also initiated by the respondent for enhancing the maintenance allowance. The respondent by filing a written statement denied all those allegations leveled against her and categorically stated that it is the appellant who was not discharging his marital obligations and duties. She has further stated that she never asked the appellant to be Ghar Jamai as alleged or otherwise. She has also denied that continuously since 2012 she had been living separately. In Para 12 of the written statement, the respondent has stated as follows: “The opposite party [the respondent herein] informed the matter to her parents and the parents of the opposite party expressed their inability to fulfill the illegal demand of the petitioner. The petitioner and his relatives thereafter always used to torture both mentally and physically on demanding the said cash dowry.” She has however admitted that she filed a complaint under section 498A of the IPC and initiated the proceeding under section 125 of the Cr.P.C for justice and maintenance. Mr. Nath, learned counsel has initially submitted that institution of the complaint under section 498A and acquittal of the appellant from the charge itself is sufficient proof of cruelty. Hence, the Judge, Family Court has committed a serious illegality by not appreciating that fact. Mr. Nath, learned counsel has further submitted that the respondent is unwilling to restitute the conjugal life and that is the reason why she has been living separately from the appellant from 2012 by depriving him from the right of cohabitation. For this purpose, Mr. Nath, learned counsel has brought us to the judgment of the trial court. According to him, the acquittal is without any blemish. For this purpose, he has taken us to the finding as recorded in the judgment of acquittal, which reads as follows: “In the result, I find, the prosecution has failed to prove its case of the offence punishable under Section 498A of IPC against accused namely Sri Bijan Kumar Sarkar and, therefore, the accused namely Sri Bijan Kumar Sarkar is acquitted from the liability of the offence punishable under Section 498A of IPC. The accused is set at liberty forthwith.” Mr. Nath, learned counsel has further submitted that this appeal deserves to be allowed by granting the decree of divorce. But, when this Court querying Mr. Nath on the statement made by the appellant [PW-1] to the effect that “Once she left the matrimonial home and filed criminal case against me and my mother which was settled on compromise.” He had no answer and incidence of such compromise has been recorded in the cross examination by the trial judge i.e. the Judicial Magistrate First Class, Court No.1, Gomati District in the following manner: “In cross-examination P.W.3 stated that at present dispute has amicably been settled between her daughter and her husband with the intervention of their well wishers and she was present in the said settlement and now her daughter is residing peacefully with her husband and she has no grievance against her son in law.” Similarly, the respondent has also stated in her cross- examination which has been recorded by the Judicial Magistrate First Class, Court No.1, Gomati District in the following manner: “In cross-examination P.W.2 stated that at present the dispute has been amicably been settled between her and her husband with the intervention of their well wishers and now she is residing peacefully and she has no grievance against her husband and she does not like to proceed further with the case.” Mr. Nath, learned counsel has further contended that this cannot be taken into consideration as the appellant has suffered the derogation in the estimate of the society. Mr. R. Saha, learned counsel appearing for the respondent has taken us to one part of the deposition of DW-1, the respondent herein, where she has stated as follows: “I still visit the house of the petitioner but I cannot stay there due to continuous dispute. The petitioner also visits our house. There is still relation between me and the petitioner. I am still willing to continue my matrimonial relation with the petitioner.” DW-2 has also corroborated that part of the statement of the respondent. We have scrutinized the records and re-read the entire evidence available therein and appreciated the submissions extended by the learned counsel for the parties. It appears to us that the appellant has failed to prove the grounds such as cruelty and desertion. His endeavour to prove went haywire. The appellant [PW-1] has admitted that on the basis of the compromise by the respondent [DW-1] did not state anything in the trial. This was so done by the respondent with hope of restitution of conjugal life. The trial court, has accordingly, acquitted the appellant. In the considered opinion, we are of the further view that such acquittal cannot be utilized for establishing cruelty against the other spouse. Moreover, we do not find any evidence relating to desertion as the element of animus has not been proved. That apart, the statement of DW-1 as quoted above, has not been confronted during her cross-examination. Even she has denied that she is not willing to continue with the matrimonial relation. On overall assessment of the evidence as noted above, we do not find any merit in this appeal. Accordingly, the same stands Draw the decree accordingly. Send down the LCRs JUDGE JUDGE dismissed. thereafter. Sabyasachi G