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HIGH COURT OF CALCUTTA
A. C. Sen, Bagchi
KANAK LATA GHOSE - Appellant
Versus
AMAL KUMAR GHOSE - Respondent
A. F. O. D. 667 Of 1965
Decided On : SEPTEMBER 09, 1969
HINDU MARRIAGE ACT, 1955 - SECTION 13 - RESTITUTION OF CONJUGAL RIGHTS - FAILURE TO COMPLY - DIVORCE - WIFE'S FAILURE TO RETURN TO HUSBAND'S HOUSE - HUSBAND'S FAILURE TO TAKE NECESSARY STEPS TO FACILITATE WIFE'S RETURN - WIFE'S WILLINGNESS TO LIVE WITH HUSBAND - WIFE'S LETTERS EXPRESSING WILLINGNESS - PRESUMPTION OF RECEIPT - HUSBAND'S DENIAL OF RECEIPT - INSUFFICIENT TO REBUT PRESUMPTION - NO FAILURE TO COMPLY WITH DECREE - DIVORCE PETITION DISMISSED.
Fact of the Case:
The husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955, alleging that the wife failed to comply with the decree for restitution of conjugal rights directing her to return to him and perform marital duties for two years after the passing of the decree. The wife resisted the petition, alleging cruelty during her brief stay in the husband's house and adduced evidence in support of cruelty. The trial court dismissed the petition, finding that there was cruelty. The husband appealed.
Finding of the Court:
The High Court held that the wife did not fail to comply with the decree for restitution of conjugal rights. The court found that the husband did not take necessary steps to facilitate the wife's return to his house, despite her willingness to live with him. The court also found that the wife sent letters expressing her willingness to live with the husband, and that there was a presumption of receipt of those letters, which the husband's denial was insufficient to rebut.
Issues: 1. Whether the wife failed to comply with the decree for restitution of conjugal rights. 2. Whether the husband took necessary steps to facilitate the wife's return to his house. 3. Whether the wife was willing to live with the husband. 4. Whether the wife sent letters expressing her willingness to live with the husband. 5. Whether there was a presumption of receipt of those letters. 6. Whether the husband's denial of receipt was sufficient to rebut the presumption.
Ratio Decidendi: 1. The court held that the wife did not fail to comply with the decree for restitution of conjugal rights because the husband did not take necessary steps to facilitate her return to his house, despite her willingness to live with him. 2. The court found that the husband did not make any enquiry about his wife after the High Court decree, did not send any letter to her asking her to come to him, and made no attempt to bring her to his house. 3. The court found that the wife sent two letters under certificate of posting intimating her willingness to live with him, and that there was a presumption of receipt of those letters under Section 114 illustration (f) of the Evidence Act. 4. The court held that the husband's denial of receipt of the letters was insufficient to rebut the presumption, as he was a highly interested witness and his conduct before and after the passing of the decree for restitution of conjugal right made it highly probable that he had suppressed the truth in regard to the receipt of the aforesaid three letters.
Final Decision: The appeal was allowed, the judgment and decree of the trial court were set aside, and the petition for divorce filed by the husband was dismissed. The wife was awarded costs from the husband throughout.
( 1 ) THE present appeal arises out of a suit for dissolution of marriage instituted by the respondent husband against the appellant wife. It is directed against the judgment and decree dated April 7, 1965 passed by the Additional District Judge, 11th Court, Alipore in Matrimonial Suit No. 8 of 1964.
( 2 ) THE husband made an application under Section 13 of the Hindu Marriage Act, 1955 praying for a decree of divorce dissolving the marriage between the petitioner husband and the respondent wife on the ground that the wife had failed to comply with the decree for restitution of conjugal rights directing her to return to her husband and perform marital duties for a period of two years after the passing of the decree. The said application for divorce was registered as Matrimonial Suit No. 8 of 1964. The said suit has been decreed by the trial Court. The wife has, therefore, preferred this appeal against the decree for divorce passed against her.
( 3 ) THE facts of the case are as follows; The marriage between the parties took place on June 1, 1958. The wife was taken to the family dwelling house of the husband at Naihati on the next day and she stayed there upto June 6, 1958. On that day, she came away from her husband's place escorted by her elder brother and since then she has never gone back to the husband's place.
( 4 ) DURING the brief period of the wife's stay in the family dwelling house of the husband there was some estrangement of feeling between the husband and the wife. The husband made an application on June 25, 1958 under Section 12 (b) of the Hindu Marriage Act read with Section 5 (ii) of the said Act for annulling the marriage on the ground of the wife's insanity and the said application was registered as Title Suit N,o. 178 of 1958 in the Court of the District Judge, Alipore. The husband further alleged that she had a defective leg and that she was not the girl selected by the eldest brother of the hus-band as his bride.
( 5 ) THE suit was contested by the wife. She was medically examined and found to be not insane. After the submission of the medical report the husband applied for the withdrawal of the suit. He was allowed to withdraw the suit but was saddled with costs assessed at about Rs. 240.
( 6 ) AFTER the said suit had been withdrawn, there was exchange of letters between the parties, which further embittered the relation between them. Eventually on May 14, 1959 the wife made an application for maintenance under Section 488 of the Code of Criminal Procedure. There was further correspondence and ultimately the husband instituted a suit for restitution of conjugal rights on July 13, 1959 on the allegation that he was willing to take back the wife but that the wife was not returning to him. The said suit was dismissed by the trial Court but on appeal this Court allowed the appeal, set aside the decree of dismissal and decreed the husband's suit to the extent "that the wife do return to the plaintiff's house, though not necessarily at Naihati, as mentioned in the plaint and render him coniugal rights. " The said appeal was allowed by the High Court on December 14, 1961 but the execution of the decree was suspended for three months in order to enable the relations and well wishers of the parties to bring about reconciliation between them. It seems there was no reconciliation during the aforesaid period of three months and the wife too did not return to her husband's place for two years.
( 7 ) THE present suit was, therefore, instituted by the husband on January 24, 1964 asking for a decree for the dissolution of the marriage on the ground of failure on the part of the wife to comply with the decree for restitution of conjugal rights for more than two years. The only question for determination is whether the plaintiff is entitled to a decree for divorce on that ground.
( 8 ) THE suit for the restitution of conjugal right, being suit No. 14 of 1960 (Matrimonial) of the Court of the Additional
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