Sudipta Nath, S/o. Late Indreswar Nath vs Mrinalini Sarkar, W/o. Shri Sudipta Nath

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 854

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
R.M. CHHAYA, SOUMITRA SAIKIA, JJ.
Shri Sudipta Nath, S/o. Late Indreswar Nath - Appellant
Versus
Smti. Mrinalini Sarkar, W/o. Shri Sudipta Nath - Respondent
Mat. Appeal No.21 of 2019
Decided On : 25-11-2022

Advocates Appeared:
For the Appellant : Mr. U.B. Sarma.
For the Respondent: Mr. A. Sarma, Legal Aid Counsel.

Headnote:
Family Courts Act, 1984 – Section 19 – Hindu Marriage Act, 1955 – Section 28, 13 – Appeal – Alternate relief in divorce proceeding – Appeals from decrees and orders – Marriage between appellant husband respondent wife was solemnized Hindu rites and rituals at Chakitup Nagaon – Case of appellant that after marriage both of them stayed at residence of appellant and attempted to cohabitate – Case of appellant that respondent refused to cohabitate with him and that instead of giving birth to a child respondent often suggested appellant to adopt a child – Appellant also alleged that respondent misbehaved with parents of appellant – Held, Appellant has also admitted fact that appellant – Respondent as a married couple made attempts to conceive a child but failed – Upon re-appreciation of the evidence as a whole appellant has failed to prove that there was unilateral denial on part of the respondent to bear child – Contention raised before us that allegation of ill treatment towards appellant and his mother are not denied stands proved also deserves to be negated – Court opinion that learned Family Court has correctly appreciated evidence on record and has rightly came to the conclusion that appellant has failed to prove cruelty as provided has rightly been dismissed petition – Merits fails dismissed.

JUDGMENT :

R.M. Chhaya, J.

Feeling aggrieved and dissatisfied by the judgment dated 03.12.2018 and decree dated 15.12.2018 passed by the learned Principal Judge, Family Court No.II, Kamrup (M), Guwahati in F.C. (Civil) Case No.618/2015, the original petitioner/appellant has preferred this appeal under Section 19 of the Family Courts Act, 1984 read with Section 28(1) of the Hindu Marriage Act, 1955.

2. The following facts emerge from the record of the appeal.

The marriage between the appellant/husband and the respondent/wife was solemnized on 08.02.2014 as per Hindu rites and rituals at Chakitup, Nagaon. It is the case of the appellant that after the marriage both of them stayed at the residence of the appellant and attempted to cohabitate. It is the case of the appellant that the respondent refused to cohabitate with him and that instead of giving birth to a child, the respondent often suggested the appellant to adopt a child. The appellant also alleged that the respondent misbehaved with the parents of the appellant. It is further the case of the appellant that the parents of the respondent were also informed about the behaviour of the respondent and ultimately without permission of the appellant, the respondent left her matrimonial home on 08.05.2014 on the pretext that her mother was ill. It is further the case of the appellant that thereafter he came to know from the discussion with his parents and the parents of the respondent had with each other that the respondent was suffering from some gynecological problem since last seven years and was undergoing treatment at Nagaon. The appellant has further contended that on 28.06.2014, the respondent again went to her parental house and returned back to her matrimonial home on 07.08.2014. It is also the case of the appellant that the respondent’s parents took her to gynecologist in the month of October, 2014 and after various tests, a minor surgery was advised which was declined by the respondent. According to the appellant, the respondent was not interested in giving birth to any child. It is also the case of the appellant that on 14.02.2015, the respondent informed the appellant that a new child is born in a poor family at Kachuwa, Nagaon and the natural parents of the child are ready and willing to give the said child in adoption. It is further the case of the appellant that as the appellant refused to do so, the respondent abused him in filthy language. It is alleged by the appellant that the respondent again ill treated the family members of the appellant and ultimately on 05.03.2015, the respondent left the matrimonial home and since then she has been staying with her parents.

3. As the record unfolds, attempts were made for reconciliation but as the same failed, the appellant filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “1955 Act” for the sake of brevity) on the ground of cruelty and prayed for dissolution of marriage.

4. On notice being issued, the respondent/wife filed her written statement and while denying the allegations made in the above mentioned petition, it was alleged in her written statement that the appellant/husband and his mother treated her with cruelty. The respondent also contended that she never suggested to adopt a child instead of giving birth to a child. According to the respondent, on the contrary, the appellant was not much interested in giving birth to a child. The respondent also contended that she never laid down any condition before the appellant, as alleged, and never went to her parental house without informing her in laws. The respondent also denied of taking any gynecological treatment. The respondent also contended that in fact the appellant took the respondent to three different doctors and all of them prescribed different treatments and no proper treatment was suggested by any doctor. It is the case of the respondent that she requested the appellant to take her to All Indi