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2009 Supreme(Gau) 238

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
T. Nandakumar Singh and Utpalendu Bikas Saha, JJ.
Nabakumar Banik
Vs.
Smt. Amita Datta
Decided On : 03.04.2009

Headnote:

Indian Penal Code, 1860 - Section 494 - Hindu Marriage Act, 1955 - Section 13 , 13(1)(ia) , 10(1)(b) , 23 and 28 - Evidence Act - Section 3 - Suit for dissolution of marriage - Decree of divorce - Appellant/husband pleaded in application for a decree of divorce that appellant/husband and respondent/wife are Hindu by religion and marriage between them took place in house of appellant/husband at Town, , West Tripura by performing Hindu rites and rituals - After marriage, they were residing in a rented house - Since after marriage, respondent/wife was showing her arrogancy and irritated temperament even on trifling family matters - She assaulted appellant/husband physically, torn his wearing garments, mosquito net etc - Appellant/husband became at a loss to manage, respondent/wife - Though respondent/wife had no gold ornaments and other valuables of her own at time of her marriage, she even used to complain that some ornaments had been lost or stolen away by some one - Such cruel abnormal,irritating and violent behaviour of respondent/wife became more frequent while residing at Town Pratapgarh and her such behaviour put appellant/husbands tolerance at anvil of ordeal- appellant/husband further pleaded that - In year, respondent/wife was transferred – Held, In such circumstances, in Court view provisions contained under Section 23 of Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong - Let bye things be not misunderstood nor any permissiveness under law be Inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite, easy to push and drive spouse to a corner and then brazenly take a plea of desertion on part of party suffering so long at hands of wrongdoer and walk away out of matrimonial alliance on ground that marriage has broken down - It is appellant who has refused to take the respondent back - Appellant has made baseless allegation against respondent - He even went to extent of filing a complaint of bigamy, under Section 494, IPC against respondent- That complaint came to be dismissed. As stated above, evidence shows that the respondent was forced to leave matrimonial home - It is appellant who has been at fault - It can hardly lie in mouth of a party who has been at fault and who has not allowed the marriage to work to claim that marriage should be dissolved on ground of irretrievable breakdown - Accordingly, appeal is devoid of merit and same is dismissed

JUDGMENT

T. Nandakumar Singh, J.

1. Heard Mr. S. Talapatra, learned Senior Counsel assisted by Mr. D. Bhattacharjee; learned Counsel appearing for the appellant as well as Mr. P. Roy Barman, learned Counsel for the respondent.

2. This appeal under Section 28 of the Hindu Marriage Act, 1955 is directed against the judgment and order dated 25-2-2005 passed by the learned Judge, Family Court, Agartala, West Tripura in Title Suit (Divorce) No. 22 of 2001 dismissing the said Title Suit for dissolution of marriage.

3. The factual panorama, in brief, of the appellant/husband in title Suit (Divorce) No. 22 of 2001 is recapitulated hereunder:

The appellant/husband filed an application under Section 13 of the Hindu Marriage Act, 1955 (for short 'Act') for dissolution of marriage between the appellant/husband and the respondent/wife by a decree of divorce on the, inter alia, grounds as laid down in Section 13(1)(ia) and (ib) of the Act in the Court of the learned District Judge, West Tripura, Agartala. The appellant/husband pleaded in the application for a decree of divorce that the appellant/husband and the respondent/wife are the Hindu by religion and marriage between them took place on 10-11-1985 in the house of the appellant/husband at Town Pratapgarh, Agartala, West Tripura by performing Hindu rites and rituals. After the marriage, they were residing in a rented house at Manu Bazar. Since after the marriage, the respondent/wife was showing her arrogancy and irritated temperament even on trifling family matters. In August, 1991, the appellant/husband was transferred to Madhupur H.S. School and the respondent/wife was transferred to Konaban H.S. Schopl and, as such, they left the rented house at Manu Bazar and began to reside in the house of the appellant/husband at Town Pratapgarh, Agartala. Both of them were performing the daily journey to their respective schools. By their wedlock, a daughter was born in the year 1987. While residing at Manu Bazar, the respondent/wife on a few Occasions became so violent on denial of her demand for sending money to her father. She assaulted the appellant/husband physically, torn his wearing garments, mosquito net etc. The appellant/husband became at a loss to manage, the respondent/wife. Though the respondent/wife had no gold ornaments and other valuables of her own at the time of her marriage, she even used to complain that some ornaments had been lost or stolen away by some one. Such cruel, abnormal, irritating and violent behaviour of the respondent/wife became more frequent while residing at Town Pratapgarh and her such behaviour put the appellant/husband's tolerance at the anvil of ordeal.

The appellant/husband further pleaded that In the year 1993, the respondent/wife was transferred to Dukli H.S. School, Madhuban and the appellant/husband continued to serve at Madhupur H.S. School till he was transferred to Durlay Narayan H.S. School in January, 2001. Sri Chiranjib Datta, an Engineer, is the brother of the respondent/wife; his wife, Smt. Samita Datta, set up a business in stationery goods at Kaman Chowmohani, Agartala at the premises belonging to the appellant/husband. The appellant/husband had to advance some loan to Sri Chiranjib Datta at the instance and pressure of the respondent/wife. The respondent/wife made heavy pressure upon the appellant/husband to pay a sum of Rs. 1,27,000/- to Smt. Samita Datta, w/o. Sri Chiranjib Datta, who would quit the premises of the appellant/husband leaving the business. The appellant/husband had to sell his share of the house at Town Pratapgarh at Rs. 1,20,000/- and after selling his share he paid Rs. 1,27,000/- to Sri Chiranjib Datta. As a result, both the appellant/husband and the respondent/wife had to live In a rented house at Ramnagar Road No. 2, Agartala as the house of the appellant/husband had been sold. Since 1993 the respondent/wife began to avoid to share the bed with the appellant/husband and since January, 1995 she started living separately from th























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