Back
2006 Supreme(Cal) 506
High Court Of Calcutta
KALYAN JYOTI SENGUPTA, SANJIB BANERJEE, JJ.
SABITA CHOWDHURY - Appellant
Versus
DULALI MONDAL CHOWDHURY - Respondent
F. A. 27 Of 2000
Decided On : 08/11/2006
Amal Krishna Samanta, Amit Baran Das, Ashok Bera, BASUDEV GAYEN, P.B.Sahu
Cruelty, as defined under Section 13(1)(ia) of the Hindu Marriage Act, must be of such a nature that the parties cannot reasonably be expected to live together and the wronged party cannot be asked to put up with such conduct.
Headnote:
HINDU MARRIAGE ACT - CRUELTY - DESERTION - MENTAL CRUELTY - INTERPRETATION OF SECTION 13(1)(IA) - EVIDENCE - MARRIAGE IRRETRIEVABLY BROKEN DOWN - SECTION 15 - REMARRIAGE - VALIDITY OF SECOND MARRIAGE: 1. To grant a decree of divorce on the ground of cruelty, the petitioner must prove the case of cruelty with preponderance of probability. 2. Cruelty must be of such a nature that the parties cannot reasonably be expected to live together and the wronged party cannot be asked to put up with such conduct. 3. Mere allegations and accusations, without more, do not amount to cruelty. 4. Desertion requires both the factum of separation and animus deserendi. 5. The period of two years from the alleged commencement of desertion must have elapsed before a divorce petition can be filed on that ground. 6. A divorcee can remarry only when there is no right of appeal against the decree of divorce or, if there is such a right, the time for appealing has expired without an appeal having been presented or on an appeal from the decree of divorce having been dismissed. 7. A second marriage entered into during the pendency of an appeal against a decree of divorce is void if the decree is subsequently set aside.
Fact of the Case:
The husband, Monoj, filed a petition for divorce on the grounds of cruelty and desertion. The wife, Sabita, denied the allegations and counter-alleged mental and physical cruelty. The trial court found both parties guilty of mental and physical cruelty and dissolved the marriage. On appeal, the High Court set aside the trial court's decree and dismissed the husband's petition.
Finding of the Court:
The High Court held that the husband failed to prove cruelty on the wife's part entitling him to a divorce on such ground. The court found that the alleged desertion by the wife was not continuous for a minimum period of two years preceding the date of filing of the suit, which is sine qua non to maintain divorce action on this ground. The court also held that the marriage had not broken down irretrievably and that the husband's second marriage during the pendency of the appeal was void.
Issues: 1. Whether the husband proved cruelty on the wife's part entitling him to a divorce on such ground? 2. Whether the wife deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition? 3. Whether the marriage had broken down irretrievably? 4. Whether the husband's second marriage during the pendency of the appeal was valid?
Ratio Decidendi: 1. Cruelty, as defined under Section 13(1)(ia) of the Hindu Marriage Act, must be of such a nature that the parties cannot reasonably be expected to live together and the wronged party cannot be asked to put up with such conduct. Mere allegations and accusations, without more, do not amount to cruelty. 2. Desertion requires both the factum of separation and animus deserendi. The period of two years from the alleged commencement of desertion must have elapsed before a divorce petition can be filed on that ground. 3. The court must consider all relevant facts and circumstances, including the social status, educational level of the parties, the society they move in, and the possibility of reconciliation, in determining whether a marriage has broken down irretrievably. 4. A divorcee can remarry only when there is no right of appeal against the decree of divorce or, if there is such a right, the time for appealing has expired without an appeal having been presented or on an appeal from the decree of divorce having been dismissed.
Final Decision: The High Court set aside the trial court's decree and dismissed the husband's petition for divorce.
( 1 ) I have had the benefit of going through erudite draft Judgment of my learned Brother. I fully agree with the conclusion arrived at by His Lordship and the consequential order passed by him. However, I wish to add a few words of my own which are as follows : the plaintiff Monoj (now deceased) and the appellant were found to have married under Hindu rites and ceremonies. They had led their happy and modestly eventful marital life til 1981 from the date of their marriage. They had produced three children who are successful and pride of any family. Two sons are products of IIT (Kharagpur) and younger son is enviously placed in his life and working in America and elder son is also not lagging behind, he is in decent employment in the State of Andhra Pradesh. Daughter is also married with an Income tax Officer. What more a fighting and very lower middle class family could achieve during their struggling marital life? After 50's they migrated from East-Pakistan now bangladesh in quest of their destiny which fructified in this country, in a small happy family. Reality in life is that poverty keeps family united. Prosperity sometimes becomes the cause of unhappiness in the family, we find exactly what we observe just now. Trouble started as it appears from plaint when appellant got a job of primary school headmistress. The allegations of cruelty levelled by plaintiff / Monoj is that appellant started neglecting him. She used to quarrel with Monoj, did not cook food, nor washed clothes, and did not prepare tiffin. Monoj was compelled to cook his own food. His aged mother was not at all looked after, as she was occasionally visiting India from bangladesh. Appellant abused in filthy languages, insulted not only the plaintiff but his aged mother as well and this became routine affairs from 1987. Situation created by appellant in the house is so unbearable that his aged mother was compelled to leave his place. All these allegations of cruelty coupled with act of desertion of the appellant has inflicted mental cruelty on Monoj. It further appears the suit was filed not only on the ground of cruelty but desertion in march 1996, In the written statement she denied all the allegations. Appellant made counter-allegation of mental and physical cruelty inflicted on her. She alleged in her written statement that her husband's act of cruelty had reached in such a state that the family happiness disappeared, peace was shattered, and it affected the mind of the children as well, two sons stopped visiting their father. His unusual and quarrelsome behaviour was started immediate before marriage of their only daughter. Monoj initiated proceedings both, civil and criminal, for driving them out from the house.
She was compelled to leave the house because of the proceedings and physical torture inflicted upon her though she was never inclined to leave her marital home and her husband.
( 2 ) THE learned Trial Judge as it appears from the judgment found on evidence both parties are guilty of mental and physical cruelty inflicted on each other. He felt that act and conduct of both the parties were such that no marital tie could survive at the age of late fifty of the husband and early fifty of the wife. Following Supreme Court decisions as cited and discussed by my learned Brother, the learned Court below dissolved marriage by passing decree. It appears after decree of divorce Monoj is said to have married another lady. The second lady came with an application for being added as a party in view of death of Monoj. The application was not pressed because of non-appearance. We find no material except one or two sentences of statement of marriage that too without any particulars. As such we dismissed the said application. Even if it is assumed that there was marriage it appears to be violative of Section 15 of the Hindu Marriage Act. The scope of the said Section has been cited and discussed by my learned Brother in details, which I do n
