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2007 Supreme(Cal) 674
High Court of Judicature at Calcutta
ALOK KUMAR BASU & JYOTIRMAY BHATTACHARYA
Asoka Mitra
Versus
Swapan Kumar Mitra
F.A. Appeal No. 57 of 1999
Decided On : 31-08-2007
For the Appearing Parties:A.K. Bhattacharyya, Amarnath Sen, Ashish Bagchi, Malyasree Matty, Papiya Ghosh, Protima Mishra, S. Chatterjee, Sanjib Dutta, Satyajit Mondal, Suranjan Mandal, Advocates.
Condonation of matrimonial offences and its effect on the ground of cruelty in a divorce proceeding.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13(1)(IA), 13(1)(IB) - DIVORCE - GROUNDS OF CRUELTY AND DESERTION - CONDONATION - EFFECT OF UNPROVED ACCUSATION AGAINST HUSBAND'S CHARACTER - ELEMENTS OF DESERTION.
Fact of the Case:
Husband filed a suit for divorce against wife on the ground of cruelty and desertion under section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955. Wife contested the suit and denied all the allegations made in the plaint. She alleged that their conjugal life was always happy and smooth until the third person intervened in between. Wife also alleged that she did not leave the matrimonial home wilfully. She claimed that on 13th June, 1986 she was physically assaulted and driven out from the matrimonial home by the respondent (husband), his sister and the sister-in-law. Learned Trial Judge decreed the suit on contest by his Judgment and decree dated 2nd April, 1998. The marriage between the parties, thus, stood dissolved by a decree of divorce both on the grounds of cruelty as well as on the ground of desertion.
Finding of the Court:
1. The husband is not entitled to get a decree for divorce on the ground of cruelty as the acts of cruelty were condoned by him. 2. The husband is not entitled to get a decree for divorce on the ground of mental cruelty as those acts of cruelty were also condoned by him. 3. The husband is entitled to get a decree for divorce on the ground of cruelty because of the allegation regarding accusation against the plaintiffs characterisation made by the appellant (wife) against the respondent (husband) in her written statement. 4. The appellant (wife) is guilty of desertion as she left the matrimonial home without the consent of her husband and also without any reasonable cause since 13th June, 1986.
Issues: 1. Whether the husband is entitled to get a decree for divorce on the ground of cruelty? 2. Whether the husband is entitled to get a decree for divorce on the ground of mental cruelty? 3. Whether the husband is entitled to get a decree for divorce on the ground of cruelty because of the allegation regarding accusation against the plaintiffs characterisation made by the appellant (wife) against the respondent (husband) in her written statement? 4. Whether the appellant (wife) is guilty of desertion?
Ratio Decidendi: 1. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. 2. In order to get a decree for divorce on the ground of making baseless allegation made in the written statement of a party, it must be clearly established that such allegation was really a baseless one. 3. The factum of separation and (2) the intention to bring cohabitation permanently to an end. These are two elements are required to be proved by the deserting spouse. Similarly other two elements, namely (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, are also essentially to be proved by the deserted spouse.
Final Decision: Appeal dismissed on contest without any order as to costs.
JYOTIRMAY BHATTACHARYA, J.
(1) THIS First Appeal is directed against the Judgment and decree dated 2nd April, 1998 passed by the learned additional District Judge, 6th Court at Alipore, South 24Parganas in mat. Suit No. 38a of 1994 at the instance of the defendant/appellant (wife).
(2) THE plaintiff/respondent (husband) filed a suit for divorce against the defendant/appellant (wife) on the ground of cruelty and desertion under section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955.
(3) THE case which was made out by the plaintiff/respondent (husband) in the said suit, is narrated briefly hereunder:
(4) THE marriage between the parties was solemnised on 17th january, 1977 at 23, Lake Road, Calcutta-29 according to Hindu rites and customs. After solemnisation of marriage, the parties lived together at their matrimonial home which was a rented accommodation at mahishyapara, P. S. Khardah, District 24-Parganas (North) along with the other members of the respondents family, viz. , his parents and one unmarried sister. Matrimonial relationship between the parties was absolutely normal for 2/3 months after their marriage.
(5) THE relationship between the parties started deteriorating when the wife started pressurising the husband for having a separate and exclusive residence for themselves. To maintain peace in the family, husband constructed a house on a piece of land purchased by his father after taking loan from his office. Thereafter, the couple started living there. On 27th April, 1979 one son was born to them.
(6) SOMETIME thereafter, husband brought his old ailing parents to the newly constructed house against the wish of the wife. This infuriated the appellant (wife) who started misbehaving with the respondent (husband) as well as the other members of his family since then.
(7) ON 30th April, 1986 evening the husband returned home and found his wife inside the room locking the door from inside. After the prolonged persuasion, she opened the door and being questioned about her conduct, the appellant (wife) became furious and started assaulting the respondent (husband) with a wooden rod. She also abused him and told that her mother-in-law had misbehaved with her and it was not possible for her to live in the matrimonial home with the mother of the respondent (husband). The respondent (husband) was mentally shocked and physically injured and he had to be treated for his injury at a nearby hospital, viz. , B. N. Bose Hospital.
(8) ON 1st May, 1986, the appellant (wife) left the matrimonial home without intimating anyone. She had been to her brothers place at southern Avenue and subsequently the appellant (wife) along with her brother lodged a complaint at the Khardah Police Station against the respondent (husband). Being called the respondent (husband) had to go to the police station. An amicable settlement was arrived at, on the advice of the Officer-in-Charge of the said police station who advised the appellant (wife) to return to her matrimonial home. Pursuant to such advice, the appellant (wife) came back to her matrimonial home.
(9) EVEN thereafter, the appellant (wife) failed to amend her behaviour and on 11th June, 1986 morning, the appellant (wife) became furious and started beating the old ailing mother of the respondent (husband)with her slippers. The father of the respondent (husband) came to her rescue, but he was also physically assaulted. Ultimately, the neighbours rescued them.
(10) ON 13th June, 1986, the appellant (wife) took all her belongings and left the matrimonial home stating that she would not return again. The respondent (husband) made repeated efforts to bring her back, but of no effect. The appellant (wife) refused to come back to her matrimonial home.
(11) DURING her stay at the matrimonial home, the respondent (husband) also failed to take proper care of her child and as a result the child suffered from mental depression due to misbehaviour of his mother. The appellant (wife) als
