Judgment:
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a wife in a proceeding for divorce on the ground of cruelty and is directed against the judgment and decree dated 28th April, 2004 passed by the learned Additional District Judge, Tenth Court, Alipore, in Matrimonial Suit No, 20 of 1995 thereby granting a decree for divorce.
2. The respondent before us filed a proceeding under Section 13(1)(la) of the Hindu Marriage Act, 1955 thereby giving rise to Matrimonial Suit No. 116 of 1993 claiming divorce on the following allegations:
(a) The parties were married according to Hindu customs on 9th March, 1970 and in the said wedlock, four issues, three daughters and one son, were born.
(b) After the marriage, the parties lived together as husband and wife at the residence of the husband at village Kalikapur (Uttar), P.O. Dakshin Barasat. Police Station Joynagore.
(c) The husband was art employee of Central Bank of India. He was very adjustable man and always used to try his best to adjust with not only his wife but also all the family members.
(d) The wife was adamant and obstinate lady. Since 1980, she used to quarrel with her husband and disobey the husband in various ways with the help and inspiration of her father, brother, sister.
(e) The husband tried his best to. adjust with his wife for the sake of his children but it was unfortunate that the wife misguided them against their father in various ways and taught them to disobey their father from the very childhood.
(f) With the conspiracy and instigation of the wife, her father, brother and other associates came into the house of the husband in the month of July, 1992 with an ulterior motive and assaulted the husband mercilessly but narrowly he escaped and saved his life. He was medically treated and on the basis of such incident, an FIR was lodged in the local police station and a criminal case was started against the father and brother of the wife and they were charge-sheeted. The said case is still pending.
(g) After the said incident, the ill-treatment and the misbehaviour of the wife became intolerable day-by-day. Off and on, with the instigation of the brother and other relatives, the wife always demanded money from the husband and while he failed to pay such amount of money, the wife with the help of her brother and other relatives started torturing both physically and mentally.
(h) The wife on several occasions without taking any consent used to go out from the house and spend the whole day outside and if the husband asked the reason, the wife picked up quarrel with the husband and abused in most filthy language.
(i) On several occasions, the husband was assaulted by the wife with the help of her brother and antisocial for which the husband sustained severe injuries on his body and for the sake of peace he was bound to leave his house and to stay at different places for considerable period for maintaining his duties and neverthelss, he sent money to his wife and children for their maintenance regularly.
(j) The husband to save himself lodged several diaries to the local police station being G.D. Entry No. 962 dated 19th April, 1992, 120 dated 2nd June, 1992, 326 dated 6th July, 1992, 1074 dated 23rd August, 1092, 943 dated 17th June, 1993,772 dated 15th June, 1993, 2214 dated 27th November, 1994 and 1832 dated 20th November, 1994.
(k) The wife instigated her brother and father for committing breach of peace, as a result, the husband was compelled to file a petition under Section 107 of the Code of Criminal Procedure against his father-in-law and brother-in-law. Being satisfied, the learned Magistrate was pleased to admit the petitioner and to ascertain the facts, called for report from the officer -in-charge concerned. After, such enquiry, the police submitted report which was in favour of the husband and the case was registered as M.P. Case No. 373 of 1992. The husband was compelled to file another application under Section 107 of the Cr. P.C. against the wife apprehending breach of peace which was registered as M.P. Case No. 798 of 1993.
(l) With the intervention of friends, well-wishers and relatives, the husband returned back to his house several times and as per their instruction, tried to maintain his wife and their children as per his capability but the wife begain to misbehave and she with the help of some designed brain tried to slow-poison by mixing poison in the food.
(m) The wife on 2nd June, 1992, 22nd August, 1992 and 15th June, 1993 assaulted the husband with the intention to kill him, as a result, the husband was medically treated and thereafter, he lodged General Diary before the police station. The husband lost his sexual life with his wife for a long time and he decided as there was no physical, mental or social life with his wife there was no need for continuance of marital relationship with the wife. Hence the suit.
3. The suit was contested by the wife by filing written statement thereby denying the material allegations made in the plaint and the defence of the wife may be summarised thus:
(1) The husband caused inexpressible torture on the wife for which she was compelled to make an FIR against the husband.
(2) The parties were married in the year 1970. Unfortunately the sex urge of the husband exceeded the limit but as the devoted wife she endured the same and allowed the husband to have sex as and when demanded, as a result, four children were born. After the birth of the last child the wife requested the husband to resist himself and look after the welfare of the children already born. The wife wanted to check the husband's unusual lust for cohabitation to avoid birth of further child though she did not ask him to stop it altogether. Unfortunately, the husband became Furious and started torturing the wife.
(3) The husband might have made false allegations to the neighbours or police in order to conceal his own misdeeds and the allegations, if at all made against the wife, were purposive and ill motivated without any of truth in it.
(4) It was denied that the father or brother of the wife or anybody ever assaulted the husband in July, 1992 or at all.
(5) The husband by his cruel and gruesome conduct made the lives of the wife and her children miserable. He used to abuse the wife in filthy language and beat her. Relation between the husband and the wife became bitter due to misconduct of the husband and not of the wife. The various General Diaries, mentioned in the application for divorce, are all calculated to cover up his misdeeds. The allegations in Ceneral Diatries are all false.
4. At the time of hearing of the suit four persons gave evidence in support of the petition for divorce while the wife, her father, one of the daughters, one Joydev Mondal, and one Suchitra Das, a member of a voluntary organisation of women gave evidence in support of the wife.
5. The learned trial Judge on consideration of the materials on record came to the conclusion that the plaintiff had proved cruelty on the part of the wife and, thus, granted a decree for divorce.
6. Being dissatisfied, the wife has come up with the present appeal.
7. Mr. Bhattacharya, the learned advocate appearing on behalf of the wife, has attacked the finding of the learned trial Judge by making fourfold submission.
8. First, Mr. Bhattacharya contends that the learned trial Judge ought to have stayed all further proceedings of the suit without delivering the judgment as the husband failed to pay full amount of maintenance even in accordance with the orders passed in the proceedings.
9. Secondly, Mr. Bhattacharya contends that his client filed several documents in the Trial Court but she was not given opportunity to prove those documents and for that reason, the suit should be remanded back to the learned trial Judge. In this appeal, the appellant filed an application for taking additional evidence in support of her defence in the suit but we rejected such application with the finding that those documents produced before us were irrelevant for deciding the issue involved in this appeal.
10. Thirdly, according to Mr. Bhattacharya, the learned trial Judge erred in law in passing a decree for divorce on the ground that the wife made baseless allegations against her husband because in this case, no such allegations were made in the written statements and at the same time, mere inability on the part of the defendant to prove the defence version by production of sufficient amount of evidence does not authorise the Court to pass a decree against the defendant.
11. Lastly, Mr. Bhattacharya contends that the learned trial Judge totally overlooked the fact that it was the husband who inflicted torture upon the wife and as such, there was no wrong on the part of the wife in lodging criminal complaint before the police and thus, the learned trial Judge erred in permitting the husband to take advantage of his own wrong. He, therefore, prays for setting aside the judgment and decree passed by the learned trial Judge.
12. Mr. Shyamal, the learned advocate appearing on behalf of the respondent, has, on the other hand, opposed the aforesaid contentions of Mr. Bhattacharya and has supported the judgment and decree passed by the learned trial Judge and has prayed for affirming the decree passed by the learned trial Judge.
13. Therefore, the first question that arises for determination in this appeal is whether the learned trial Judge ought to have stayed the hearing of the suit on the ground that the husband did not comply with the order of maintenance passed in the proceedings.
14. We do not, for a moment, dispute the proposition of law that a matrimonial Court, for non-compliance of the order of payment of alimony pendente lite, can stay the matrimonial suit if the defaulting party is the petitioner and even dismiss the proceedings if the default is intentional and at the same time, strike out the defence of such party if such party is defendant. In this case, as it appears from record, the wife at the time of trial alleged non-compliance of the order of payment of alimony pendente lite but the moment, the husband by filing written objection alleged overpayment of the amount, the wife did not press further for payment and participated in the trial and even, no application was filed praying for stay of the suit. In such circumstances, we find no substance in the first contention of Mr. Bhattacharya that we should set aside the decree for divorce passed on merit on the aforesaid ground. Even in this appeal, in the past, when order was passed for payment of alimony pendente lite, no such allegation was made complaining non-payment of alimony in the past. We, therefore, find that the first point taken by. Mr. Bhattacharya is devoid of any substance.
15. The next question is whether the wife was deprived of any opportunity to prove documentary evidence.
16. It appears from records that the wife produced some documents at the stage of trial but never tried to prove those documents. If a party after filing some documents does not endeavour to prove those in accordance with law, he cannot complain before the Appellate Court alleging want of opportunity. In this case, we find from the order-sheet of the Court below that the wife never prayed for adjournment for the purpose of bringing any witnesses to prove those documents nor was any such prayer refused; similarly, the learned trial Judge did not refuse to mark any documentary evidence as exhibit in spite of tendering the same. Thus, we find ,no substance in the second submission of Mr. Bhattacharya that his client did not get any opportunity of proving any documentary evidence or that any documentary evidence adduced on behalf of his client was improperly refused to be admitted in evidence.
17. The next question is whether the inability of the wife to prove her allegation of bad moral character of the husband can enable the Court to grant a decree for divorce although no such allegation was put forward by the husband as a ground in the petition for divorce,
18. It is now settled law that unfounded and baseless allegation of a spouse in the matrimonial proceedings in defence can afford a ground of divorce although such ground is not mentioned as a ground of divorce in the petition. The law is equally settled that such allegations made in defence in order to be ground of cruelty must be 'established' to be 'baseless' or 'unfounded'. We are quite alive to the position of law that if a plaintiff is unable to prove his case, his case is simply dismissed and similarly, a defendant may not be able to prove his defence for sufficient amount of evidence, but in order to grant a decree against a defendant in a matrimonial suit not on the basis of plaint allegations but on the ground of false defence allegation of bad moral character so as to take the shape of mental cruelty, such allegations in the defence must be 'proved to be false or baseless.'
19. We, therefore, proceed to consider whether in this case the allegations taken in the defence has been proved to be false or baseless. '
20. In this case, in the written statement the wife did not make any allegation about any extra marital relationship with any person. Her sole allegation was of physical torture and according to her, the husband was dissatisfied with the dowry presented at the time of marriage and that was the reason for physical torture. Her further allegation was that the husband had excess demand of sex but in spite of that she accepted the situation and after the birth of the fourth child in the year 1983 she asked him to be restrained in her sexual advancement. In cross-examination, she, however, admitted that in her application under Section 125 of the Code of Criminal Procedure she alleged involvement of the husband with other woman although she did not know the said girl. The D.W. 2, a member of the Mahila Samity, however, stated in her evidence that the wife complained before them about illicit relation of the husband with a lady whose name she did not know. She stated that the said lady was the wife of the priest although she had no personal knowledge. The wife further stated in her evidence that the husband did not like her and wanted to marry a fair-complexioned girl. She further stated in her evidence that the husband used to return home late in night and on her protest, he used to inflict physical torture. In our opinion, the aforesaid allegation of extra-marital relation was totally a baseless allegation. If really there was any such relation with anybody and that too, with the wife of the local priest, the wife would definitely know her name and she would not answer in cross-examination that she did not know who the girl was and she would definitely disclose such fact in her written statement pointing out that the said incident was the cause of the alleged physical torture upon her. Even in the subsequent complaint to the police on the basis of which a criminal proceeding under Section 489-A of the Indian Penal Code had been initiated against the husband during the pendency of the suit, there is no allegation of any illicit relation with anybody. It may not be out of place to mention here that the husband was in jail custody for fifteen days in connection with the said Criminal case before he was granted bail. From the aforesaid fact, it is proved that the said allegation of extra marital relation was a deliberate false one only to humuliate the husband who is an employee of a nationalised bank. Therefore, this is not a case of mere inability of the wife to prove an allegation but is one of a baseless allegation of which there was no trace in the pleading and which has been proved to be false from the conduct of the wife. Such false allegation is itself a ground of divorce on the ground of cruelty. We, therefore, find no substance even in the third contention of Mr. Bhattacharya.
21. The last question is whether the case made out in the petition for divorce has been proved.
22. In this case, the husband was aged 47 years at the time of deposition in the year 1997. Therefore, he was born in the year 1950. It appears that he was married at an early age of 20 in the year 1970 even before he got any employment. The fourth child of the parties was born in the year 1983. The wife has admitted in her cross-examination that after the birth of the fourth child, there had been no physical relationship between them lest another child was born which she did not like. In the year 1983, the husband was 33 years old and from that time, the wife on the apprehension of birth of a further child totally deprived the husband of her company. The husband, on the other hand, alleged that from the birth of the fourth child, the wife with the help of her father and brothers started torturing him and tried to kill him as a result a criminal case had been filed where charge had been framed against them and the said criminal case was pending. It appears from evidence that huge numbers of General Diaries were lodged against the wife, her father and the brothers and even proceedings under Section 107 of the Code of Criminal Procedure were initiated against them. The wife tried to establish that the house where the husband was living was constructed from the money given by the father of the wife by but such fact has been falsified and it has been proved that the husband constructed the said house by taking loan from his office. The father of the wife appearing as P.W. 5 stated that he had not seen any assault against his daughter but had heard it from her daughter. He denied the allegation of assault inflicted against his son-in-law at his or his son's instance. The brother of the wife, against whom the husband made allegation of physical torture did not appear to deny such allegation nor was any explanation given for avoiding the witness box. From the' aforesaid fact it is established that the wife could not give any plausible explanation for not giving her 33 years old husband physical company who, even according to her, had an extra urge of sex. The defence of apprehension of birth of another child taken by the wife did not appeal to us as in this modern age of science, the devices of birth control are not unknown to the parties when they are residing in the suburbs of Kolkata and the husband is a bank employee. It is now settled by the Supreme Court that for granting a decree on the ground of mental cruelty, such cruelty need not be intentional. Even for unintentional act of cruelty on the part of a spouse, which is proved or admitted, a decree for divorce can follow. (See : Suman Kapur v. Sudhir Kapur reported in : AIR 2009 SC 589). In our opinion, such act of deprivation of conjugal right on the part of a wife towards her husband is the worst form of cruelty a wife can inflict upon her husband, because being fully conscious that a law-abiding and honest husband has no other alternative endorsed way of gratifying the urge of sex than in the company of his wife, she denied conjugal right to her husband. After depriving her husband of his legitimate right, the wife had no compunction in inventing a deliberate false plea of extra marital affairs involving the husband with somebody not known to her at the time of trial without taking such plea in the written statement and that as well, through the lips of a total outsider, a member of the local Mahila Samity, the D.W.2.
23. We have found that the relationship between the parties had deteriorated to an extreme stage where the wife by lodging complaint under Section 498-A of the Indian Penal Code made arrangement of the jail custody of the husband for 15 days knowing well that the husband being an employee of a nationalised bank would face proceedings before the employer which may lead to suspension or even dismissal although no credible evidence has been adduced before the Court in justification of the allegation contained in the complaint on the basis of which such proceeding had been initiated. The husband, even after being deprived of the company of the wife from the year 1983, waited for long 10 years and in the long run, filed the proceedings in the year 1993, which is continuing for the last 16 years. After the arrest in the criminal proceedings in the year 1995, the husband has left his own house constructed through loan from his employer and had been staying with his nephew. Although Mr. Bhattacharya tried to convince us that at the old age of 59, no purpose of the husband would be served by getting a decree for divorce, we are not at all impressed by such submission. It is true that his days of youth, the most precious gift of the almighty to the living beings, would not come back and we will not be able to restore those days but at least, he would be able to breathe his last breath peacefully which otherwise would be an unfeasible expectation if the relationship between the parties subsists.
24. The learned trial Judge, in our opinion, on consideration of the materials on record rightly passed a decree for divorce
25. All the points taken by Mr. Bhattacharya having failed, we dismiss this appeal and affirm the judgment and decree passed by the learned Trial Judge.
Tapan Kumar Dutt, J.
26. I agree.