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High Court Of Calcutta
A. N. RAY, PRADIPTA RAY
KAKALI DAS GHOSH - Appellant
Versus
ASISH KUMAR DAS - Respondent
F. A. T. 002 Of 2003
Decided On : 05/28/2003
DIVORCE - CRUELTY - MENTAL - ALLEGATIONS OF IMMORAL CHARACTER - REASONABLE DEMAND FOR SEPARATE RESIDENCE - POST-LITIGATION ALLEGATIONS - IRRETRIEVABLE BREAK-DOWN OF MARITAL RELATIONSHIP - INTERPRETATION OF SECTION 13(1)(IA) OF THE HINDU MARRIAGE ACT, 1955.
Fact of the Case:
Husband filed a petition for divorce on the ground of cruelty by the wife, alleging that she made false accusations of his immoral character, frequently stayed away from the matrimonial home, and demanded a separate residence. The wife denied the allegations and claimed that she had doubts about her husband's fidelity and wanted to live separately with him due to alleged misbehavior by the husband.
Finding of the Court:
The court found that the wife's allegations of the husband's immoral character were unsubstantiated and that she had made similar allegations before the commencement of the litigation, which did not deter the husband from filing a petition for restitution of conjugal rights. The court also found that the wife's demand for a separate residence was not unreasonable, as she had expressed her willingness to return to the matrimonial home once she regained confidence in the husband.
Issues: 1. Whether the wife's allegations of the husband's immoral character constituted mental cruelty? 2. Whether the wife's demand for a separate residence amounted to mental cruelty? 3. Whether the post-litigation allegations of immoral character by the wife could be considered as a ground for divorce? 4. Whether the doctrine of irretrievable break-down of marital relationship was applicable in the present case?
Ratio Decidendi: 1. The court held that the wife's allegations of the husband's immoral character, which were unsubstantiated and had been made before the commencement of the litigation, did not constitute mental cruelty. The court relied on the principle that cruelty is a matter of subjective assessment and must be judged in the facts and circumstances of each case. 2. The court held that the wife's demand for a separate residence was not unreasonable, as she had expressed her willingness to return to the matrimonial home once she regained confidence in the husband. The court recognized the wife's right to demand a separate residence for justifiable reasons, but held that such a demand cannot be based on whims or sheer obstinacy. 3. The court held that the post-litigation allegations of immoral character by the wife could not be considered as a ground for divorce, as they had not caused the husband any unbearable inconvenience or amounted to obduracy. The court noted that the husband had not felt it impossible to live with the wife even after she had made similar allegations before his friends and relations. 4. The court held that the doctrine of irretrievable break-down of marital relationship was not applicable in the present case, as the wife was still interested in continuing the marital relationship and was not solely responsible for the bitterness.
Final Decision: The court allowed the appeal, reversed the order and decree of the lower court, and dismissed the husband's petition for divorce.
( 1 ) THIS is an appeal filed by the wife from a judgment and decree of the learned District Judge allowing a petition filed by the husband for divorce.
( 2 ) THE short facts of the married life, and the litigation, are as follows. The parties were married on 12. 12. 1994 and a son was born to them on the 3rd day of January, 1996. The wife is a single issue of her parents but the husband had two other brothers, of whom one, a police officer was unfortunately killed.
( 3 ) THE parties resided with the parents of the husband at Mangultan village.
( 4 ) THE facts clearly show that the appellant all along wanted her husband to live separately with herself and not in joint mess with her-in-laws. Sometime on or about the 1st of June, 1996, the appellant left the matrimonial home with her son. But a sort of reconciliation was made on the date of their marriage anniversary i. e. 12. 12. 1996 the wife returned to the matrimonial home.
( 5 ) THEREAFTER on the 12th of February, 1997 she finally left the house of her in-laws with her son.
( 6 ) IT appears from the evidence that she left in the early morning, and empty handed.
( 7 ) THE respondent filed on 11. 4. 1997 a petition for restitution of conjugal rights.
( 8 ) IN that petition there is no whisper of his being in any manner affected by any allegations of bad character imputed by his wife to him.
( 9 ) HOWEVER, the allegations are there that she did not leave with any good cause and that she used to return home very late in the evening i. e. at or around 8. 30 p. m. even though her school, where she was teaching, gave over as early as at 2. 30 p. m. She left the matrimonial home suddenly, without telling anybody, and never explained the late comings and absences. It was also stated in paragraph 16 of the restitution petition that the husband is very much willing to live happy and healthy normal life and that especially he is missing his only child which is causing a lot of pain to him.
( 10 ) THE appellant filed an answer to the petition for restitution of conjugal rights and a denial was made in regard to any remissness of performing any marital duties on her part. However, it was stated in paragraph 16 to her answer that: ". . . . the respondent apprehends from the previous conduct of the petitioner that he is having some illicit connection with some other woman elsewhere". She went on to state in her answer that for the purpose of regaining her confidence in him she would like to live with her husband with her parents for some time until her confidence is regained.
( 11 ) THE event which took place hereafter is a matter of the utmost importance. On the 17th of February, 1998, the respondent-husband simply sought to withdraw his petition of restitution of conjugal rights. As such on 17. 2. 1998, the petition for restitution was dismissed for non-prosecution. There was no leave taken for the purpose of re-agitating any of the grievances which the husband harboured until then; however, not taking of such leave has not been pressed either in the Lower Court or before us as a point of any very great importance and accordingly, we do not wish to place an overmuch technical importance on this. But the substance of the matter cannot be overlooked. The substance is that until withdrawal on 17. 2. 1998, the husband was ready and willing to live with his wife, and wanted her to come back to him.
( 12 ) IT seems that the husband was so rankled by the above allegation made by the wife of his unfaithfulness that he filed on 17. 2. 1998, the very day of dismissal of his petition for restitution of conjugal rights, a petition of judicial separation. One of the principal grounds in that petition was that his wife had assassinated his character.
( 13 ) A written statement was filed to the application for judicial separation by the appellant wife, no character assassination was made in that written statement. After that an additional written statement was filed wherein all
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