Judgment:
Bhaskar Bhattacharya, A.C.J.
1. This appeal is at the instance of a husband in a suit for divorce on the ground of cruelty and desertion and is directed against the judgment and decree dated 31st March, 2004 passed by the Additional District Judge, Fifth Court, Alipore, Dist.-South 24-Parganas, in Matrimonial Suit No. 52 of 1996, thereby dismissing the suit on the ground that the plaintiff had failed to prove cruelty and desertion alleged in the petition for divorce.
2. Being dissatisfied, the husband has come up with the present appeal.
3. The appellant filed in the Court of the District Judge a suit being Matrimonial Suit No. 226 of 1996 against the respondent for divorce, which was transferred to the Court of the Additional District Judge, Fifth Court, Alipore, and was renumbered as Matrimonial Suit No. 52 of 1996.
4. The case made out by the appellant may be summed up thus:
(a) The husband is a B.Sc., B.A., Calcutta University and B.E.E. of Jadavpur University and was employed in the Electrical Engineering Department of Jadavpur University as Superintendent (Technical) and part-time Lecturer in Electrical Engineering and Photography. The respondent is a graduate in pass course but at the time of marriage her guardian falsely represented that she was an Honours graduate in English.
(b) The husband, in the year 1975, married one Smt. Rita Bakshi, which was settled by negotiation of the parents, but subsequently, the Rita did not consent to the marriage and said marriage was dissolved by a decree of divorce on 25th August, 1981.
(c) In the year 1985, the husband being pressed by his old mother, elder brother and sister agreed marry again and accordingly, an advertisement was given in 'Ananda Bazar Patrika' and ultimately, the marriage between the parties was settled and had taken place on 24th April, 1985.
(d) After coming to her matrimonial home, the wife suggested that the old widowed mother of the husband should be kept in an old age home, as she was not prepared to look after the said old lady. Since the husband could not agree to such proposal she expressed dissatisfaction and resentment.
(e) The elder brother of the husband used to reside in the ground floor of 18/7, Jamir Lane house and the parties used to stay in the first floor with his old widowed mother. The elder sister of the husband with her husband resided in the second floor of the said building. The wife did not like either her mother-in-law or brother-in-law or sister-in-law and their respective families. The husband tried to impress upon the wife that in all fairness, she should adjust with her mother-in-law so long she was alive and should also be well disposed of towards her brother-in-law and elder sister-in-law who were living in separate mess in the same house but his persuasion could not make any impression upon the wife.
(f) After about a fortnight of the marriage, when the wife came back from her parents house, the husband requested the wife to take part in the affairs of the family, do the daily Puja of the family god, arrange Sandhya Arati and render some help to the appellant's old and ailing mother but the respondent sternly refused to do so, stating that she was not a maidservant in the family and he should not expect from her any such service.
(g) The respondent was found to be arrogant and posed herself to be a lady of high society; cooking and attending to normal household duties were considered to be beneath her status and dignity. Although a maidservant was provided to help her, she expected a well furnished exclusive house of her own, private car, phone, colour T.V., etc., as found in a rich family, and wished to move about as a rich society-girl and did not look after the family of the appellant who lived a plain and simple mediocre life. The respondent insisted on the appellant to engage whole-time cook and servants to show off her high-society-lifestyle.
(h) The old widowed mother of the appellant was then aged about eighty years and as such, she expected that the respondent would at least spend some of her time to look after her during the last days of her life. She was, however, shocked to find that the respondent lacked all sympathy and humane feelings for her mother-in-law. The respondent did not care to render any assistance, not even to give any company to the old lady who spent most of the time in utter loneliness and uncared conditions especially during the office hours when the appellant was compelled to remain outside being the only earning member of the family. The respondent used to get up after 8:30 in the morning and the appellant used to prepare his own tea and go to his office without getting the meals at home. He had to take meals in hotels or at his sister's place as the respondent was unwilling to cook for him. As the mother of the appellant was old she could not make the meals ready before her son would leave for office at about 9:30 a.m.
(i) The respondent was opposed to visit of any of the relations of the husband in his house. In or about June, 1985, when Sri Ratan Das, a cousin brother of the appellant, came to his house from Assam to stay for few days in search for a job in Calcutta, the respondent falsely alleged that the said cousin of the appellant had stolen her gold earrings. The respondent pressed to remove the said cousin from the house but when the appellant insisted that she must report his theft to the police for investigation she retracted, got nervous and refused to go to the police for the reasons best known to her. Subsequently, Smt. Subhadra Bahttacharyya, the respondent's brother's wife, once visited the appellant's residence when by the by she divulged that she and the respondent had remodeled their respective gold earrings for new pattern and their family knew nothing about the alleged theft.
(j) The first child of the parties was born on 24th March, 1987 and the second one was born on 30th June, 1988. After the birth of the second daughter, the respondent became more arrogant and cruel towards the appellant and his old widowed mother. Her insatiable demands for more money for her personal expenses became exacting. The appellant tried his best to meet the demands but in spite of getting money from the appellant, the respondent used to complain to others in the locality that she was deprived of all the comforts of life and that the appellant did not pay her any money for her personal or family requirement.
(k) The old widowed mother of the appellant became ill and incapacitated at the end of 1989. The respondent did not care to look after the ailing lady even casually and quite often when the appellant came back home from office and rang the electric door bell, she started harassing him by keeping him waiting at the door for long time without opening the door and being asked for such behaviour, she gave out that she was not a maidservant to open the door and the appellant should keep a darwan for that purpose. In spite of requests made by the appellant, the respondent would often leave the house with no information without caring for the old ailing widowed mother-in-law and her husband and would go out of the house and stay for days together elsewhere, at times, even without children. Whenever the appellant protested, the respondent would abuse the appellant and her mother-in-law in filthy language making false imputation against them and she would also make false complaints to the neighbours that she and her daughters were being starved in the family of the appellant and that she was being persecuted.
(l) On 20th January, 1990, the respondent called her brother, namely, Shri Biswarup Bhattacharjee and elder sister, Smt. Juthika Mukherjee, at the appellant's house who on being told about her arrogant unhelpful attitude became furious and abused and insulted the appellant and his old widowed mother and declared that the respondent must not be asked to do any duty towards the appellant and his mother as she was not a maidservant. The respondent also lodged a diary at the Gariahat Police Station on 28th January, 1990 against the octogenarian ailing widowed mother of the appellant and she was called to the police station. On hearing the condition of the appellant's widowed mother, the Officer-in- Charge, Gariahat Police Station expressed sorrow and surprise and assured the appellant that he would make proper enquiry into the complaint apparently made on flimsy ground. Thereafter, the O.C., Gariahat P.S. asked the complainant by phone and police message to see him at the police station for investigation but she did not care to turn up.
(m) The respondent started making the life of the appellant more miserable as she often went out of the house keeping the two little daughters locked up in her room without telling anybody about the place or person of her visit. Whenever questioned about such acts of cruelty to the children creating serious inconvenience and a sense of helplessness to the old mother of the appellant, she would abuse the old widowed mother and threatened to assault her with broomstick and hurl abuses and throw shoes towards the appellant.
(n) After the mother of the appellant became seriously ill in 1990, the respondent started separate kitchen arrangement in the only existing kitchen room on the first floor and did not allow the appellant to enter in his own bedroom and deprived the appellant of the use of the kitchen available there with full gas arrangement which gave him a lot of trouble to cook food for the family. The appellant had a large number of valuable books including the books of the Jadavpur University Library and other personal goods in that room, which was kept constantly locked up by the respondent, causing much inconvenience to the appellant. Moreover, she also shifted the refrigerator to that bedroom and demanded that the appellant should leave the flat with her old ailing widowed mother and should allow the respondent to live there independently and should pay the bulk of his earning for their maintenance. Since the appellant refused to comply with her dictates, she threatened the appellant and his mother with dire consequences.
(o) Gradually, the respondent crossed all bounds of decency. She started picking up quarrels every now and then with the appellant and his widowed mother on flimsy grounds and would abuse them in filthiest language and would throw at them whatever she could get handy including shoes, brooms and broken sticks. She would call the appellant as a son of a bitch and street dog and would stigmatize his character by referring to his alleged relation with both niece and sister-in-law. The respondent falsely reported to the neighbours that the appellant had stolen her gold ornaments (30 tolas) from bank locker and instigated her likeminded neighbours to insult and abuse the appellant. She also complained that the key of the locker was missing which was not true and this plea was taken only as a clever device with the expectation to strengthen her false allegations against the appellant.
(p) Being exasperated, the appellant on 24th May, 1992 told the respondent to stay happily at her mother's place so that the old ailing widowed mother of the appellant might spend the last days of her life in peace. The respondent being infuriated called one of her friendly woman, a next door neighbour, namely, Smt. Rita Sarkar of 18/8, Jamir Lane and the said woman at the instigation of the respondent started shouting at the top of her voice abusing the appellant and his brother-in-law in a most vulgar and the filthiest language. The same day the respondent and the said lady called some local young men who threatened the appellant and his relations with dire consequences if they dared to say anything to the respondent.
(q) On 6th September, 1992, the respondent brought a large number of people and party men who forced the appellant to go to the neighbour's house at 18/5, Jamir Lane on the plea of a meeting to discuss and sort out the matrimonial problem as reported by the respondent. The appellant was surprised to find all the relations of the respondent, namely, her sister and brother-in-law, brother and his wife and other relations were already present at the place. The local proclaimed leaders were also present. The respondent falsely accused the appellant and gave out before the gathering that the appellant had stolen her ornaments. The relation of the respondent and some of the people who were brought there assaulted the petitioner and they demanded that the appellant must give an undertaking that the respondent must be allowed to have separate residence with complete freedom in one room of the appellant's house and the appellant must pay to her Rs. 800/- a month for her exclusive subsistence. They forced the appellant to sign the undertaking and threatened him to be locked up in the room and to 'gherao' him for the whole night if he did not comply with their demand. The appellant since then had been paying the money regularly. In addition to the said payment he had to pay for and arrange schooling, tiffin, milk and other necessities including medicine and medical care for the daughters.
(r) At the instigation of the respondent, the local people came and threatened the appellant and at their instance the respondent took forcible possession of the only existing kitchen room in the first floor and the gas oven and cylinder, the property of the appellant.
(s) On 8th September, 1992 at about 10:30 p.m. at the instance of the respondent, 10/12 unknown persons stormed into the appellant's house without permission of the appellant and they were taken by the respondent to her room. The said persons started shouting and abusing the appellant and his relations. They threatened that the appellant and his relations should be kicked out of the house and they also threatened the minor daughters of the appellant saying that their father and uncle would be assaulted and killed. The children became nervous and panic- stricken. They also locked and bolted the common door from inside and forcibly occupied the room taken over by the respondent. The old ailing mother of the appellant seeing all these inhumane and demonical activities lost her consciousness and became seriously unwell and it took a long time to restore her after treatment of about two months.
(t) On 23rd September, 1993 the respondent started kicking on the bedroom- door of the appellant in the midnight and on opening the door the respondent threatened the appellant in extremely dirty and vulgar language and then said that she would not allow the appellant to sleep in peace. She would hire goondas to kill her enemies and would take possession of the house.
(u) Since it was not possible for the appellant to look after the ailing widowed mother all the times and the elder sister and elder brother's wife could not come to nurse the mother often due to threat, abuse and misbehaviour of the respondent, the appellant had to engage a part-time nurse to look after the mother during her last days of life. The respondent could not tolerate that the appellant should spend any money for the comfort and well being of his mother. In order to drive out the nurse, namely, Smt. Bulbul Chakraborty, the respondent started behaving with her in a vile manner. She even taunted the lady to sleep with the appellant. The lady under threat and constant insult by the respondent left the job. In the circumstances, a diary was lodged in the local police station on 8th February, 1993.
(v) The appellant had to employ a cook-cum-attendant for his mother. The said woman, namely, Sasti Mandal was also virtually forced to leave the house due to constant abuse, insult and character assassination by the respondent. Then the appellant engaged a young girl of 15/16 years for cooking, house-keeping and looking after the old widowed mother; the respondent as usual started misbehaving with her and assassination of her character and the appellant and the said girl named Rupa Kayal had to lodge diaries with the local Gariahat P.S. on 16th September, 1993. Like her predecessors, she also had to leave the job being unable to tolerate constant insult, abuses and character assassination by the respondent.
(w) The appellant had passing his life in a miserable condition. Constant abuse and threat of assault by antisocial people engaged by the respondent made his life unbearable. The continued misconduct and acts of cruelty on the appellant seriously affected the appellant's health and mind and as such, it was extremely harmful and a great security risk for the appellant to live with the respondent.
(x) There had been no cohabitation between the appellant and the respondent since October, 1988 when the respondent deserted the appellant and there was no improper delay in filing the suit.
(y) Prior to the present suit, the appellant had filed a suit for dissolution of marriage on the ground of extreme cruelty being Matrimonial Suit No. 241 of 1994, which was subsequently transferred to the 10th Court of the Additional District Judge at Alipore and being renumbered as Matrimonial Suit No. 26 of 1994. Thereafter the entire situation became more and more aggravated and the extent of mental and physical torture upon the appellant reached to such an extent that it become impossible for him to live with the respondent as husband and wife.
(z) On 30th March, 1994 at about 10 p.m. when the appellant was returning home, very much tired after the full day's work, he was surrounded by about 15 antisocial people engaged by the respondent and they claimed themselves as the local leaders. Just in front of the house of the appellant the respondent and her associates threatened the appellant to withdraw the matrimonial suit failing which they would not hesitate to take drastic action against the appellant and when the appellant refused to do so he was assaulted by the miscreants instigated by the respondent.
(aa) The said miscreants manhandled the appellant and forcibly trespassed into his house and rushed to the first floor where the petitioner lived with his 82 years old ailing widowed mother. Then the miscreants threatened to kill the appellant if not they would make him blind. They even threatened the appellant that he might not be able to come back home from his place of work, if he denied to withdraw the suit within two days. All these inhumane things happened in presence of his old ailing widowed mother, which caused too much pressure and tension for her to bear, and she expired just within three months time on 3rd July, 1994 after this gruesome incident on 30th March, 1994.
(bb) On 1st April, 1994 at about 2 p.m. when the process server of the Alipore Court came to serve the Court Notice of the aforesaid matrimonial suit on the respondent she accepted the notice and almost immediately ran out of the house to bring party men and antisocial elements with whom she had already made some unholy alliance. Those goondas rushed out into the house and broke open the door and rushed to the first floor where the appellant had been living with his old ailing widowed mother. The appellant was physically manhandled and dragged down to the street. They heckled in front of local people after that they dragged the appellant to 18/1J, Jamir Lane and compelled to him to write on a blank paper according to their dictation to withdraw the matrimonial suit stating that he would be pleased to withdraw the matrimonial suit against his wife out of his own will and without anybody's pressure because the respondent was innocent. This dictated letter was signed by some of the people present there as witnesses and finally countersigned by the respondent with the remark 'Seen'.
(cc) The appellant had to withdraw the said matrimonial suit before the Tenth Court of the Additional District Judge, Alipore.
(dd) The appellant was the joint holder of a bank locker in the UCO Bank, Ballygunge Branch, Calcutta in the form of 'either or survivor' with the respondent and the rent for the said locker had all along been paid by the appellant himself from his own personal savings bank account. The appellant never operated the said bank locker personally but the respondent herself according to her own whims and desires operated the said locker as and when required and the appellant never accompanied her to the bank. The respondent always complained before the local people and the neighbours that the appellant and his mother connived to have removed huge quantity of her gold ornaments from the said locker but surprisingly she never reported the theft to the local P.S. On hearing such allegations, the appellant got terribly shocked and surprised because the key of the locker always remained under the custody of the respondent and the appellant was quite sure that he never operated the said locker. But to prove his honesty and innocence to the people at large he still required the bank's written statement and certification to that effect, which the bank refused to give in spite of repeated written requests. The appellant thereafter wrote several letters to the said UCO Bank requesting the bank to inform the appellant the name of the persons who had operated the said locker all along. Surprisingly, the bank never replied to such letters. The appellant thereafter served legal notices through his advocate but in spite of receipt of such legal notices the bank authority did not reply. As a result, the appellant filed a complaint case before the learned District Consumers' Dispute Redressal Forum and in the written statement, the bank authority certified that the said locker had been operated all along by the respondent only and no other person and further the respondent requested by a letter to the bank not to inform the appellant about the operation of the said locker which fact itself puts a big question mark on her honesty and integrity. The bank also submitted a photocopy of that letter as a plea for not giving the details so far. The appellant had all along paid the rent for the said locker regularly from his own personal account so he had right to obtain such vital, important statement.
(ee) The respondent along with her brother in order to humiliate the appellant went to Jadavpur University Electrical Engineering Department on 23rd August, 1995 at about 11:30 a.m. where the appellant works for gain and the sole object of the respondent was to create pressure upon his friends and senior professors by making scandalous comments. Fortunately, most of the professors are aware about the honest and clean character of the appellant and they paid no heed to the respondent and they requested the respondent not to come to the university with such ill objects henceforth.
(ff) The respondent had taken away the gold ornaments weighing about 6 to 7 bharies such as (1) one pair bala - 2 bharies (2) gold necklace - 1 bhari 2 annas (3) Earring one pair - 4 annas (4) one iron churi (with gold plating) (5) one ring.
(gg) The appellant has not condoned the guilt of the respondent and there was no collusion between the parties.
5. The respondent contested the suit by filing written statement thereby denying the material allegations made in the plaint and her defence may be summed up thus:
(i) The family of the respondent is a very respectable one. The respondent came to know from the neighbours that the appellant's first wife was a good and decent housewife and the said wife lived with the appellant for few years but for reason not known, the appellant filed a divorce suit and got an ex parte decree.
(ii) After coming to the house of the appellant, the respondent accepted her mother-in-law as her own mother and used to take utmost care of her and in daily life's need.
(iii) Initially the mess of her sister-in-law was common with her family and the entire food for both the families used to be cooked by the respondent herself without any help or assistance from other members of the family. The mother-in-law used to supervise the kitchen work but her sister-inlaw never used to enter into the kitchen. The above system continued for few years; thereafter, the sister-in-law, all of a sudden, separated the cooking arrangement from the respondent's cooking arrangement. When the respondent requested her not to separate the mess, the sister-in-law paid no heed to that request of the respondent.
(iv) Since the day of her entry in the matrimonial home, the respondent had taken the entire household work as her duty and till the date of presenting the written statement, she had been performing her duties as an abiding housewife. The appellant used to go out from the house in the morning and return in the house at night and he never had any interest in the family matters and never cared to look into the need of the family. Whenever he used to stay at home, he remained absorbed with the books and personal work.
(v) There was no bad relation between the respondent and Ratan Das and it was the appellant who compelled the said Ratan Das to leave the house.
(vi) The respondent had given birth to two daughters. The appellant had keen expectation of a son. When the respondent failed to give birth to a son, the appellant was aggrieved and all his anger had fallen upon the respondent. Day by day, the appellant started behaving cruelly towards his wife.
(vii) The appellant's behaviour was cruel towards the respondent's mother, brother, sister and sister's daughter if they came to visit the respondent. On two occasions, the appellant abused the brother and sister's daughter in filthy language when the respondent was taken seriously ill and was bed ridden. The appellant at that time asked the brother and sister's daughter of the respondent to get out of his house as because they had requested the appellant to allow them to take the respondent at Salt Lake at her sister's residence for the immediate treatment.
(viii) It was false that the two daughters of the parties were kept under lock and key.
(ix) Since the year 1990, the appellant shifted his bed to the adjacent room and also had removed all the furniture, including almirah, bookcase etc., in the said room, and did not allow the respondent and his daughters to enter in his room. The children are always afraid of their father.
(x) The appellant had beaten the respondent with shoes repeatedly on 24th May, 1992 in the presence of the children who started crying loudly and at that time, the appellant threatened the respondent to kill her. The neighbouring people rescued the respondent from such assault with shoes.
(xi) Regarding the allegations of earlier Matrimonial Suit No. 26 of 1994, are all matters of record and all allegations beyond the records were denied.
(xii) At the time of her marriage, her parents and relatives gifted to her some gold ornaments weighing about 35 bhories and after the marriage, she brought all those ornaments in her husband's house and entrusted those with the appellant. In the same year, the appellant subscribed a locker in UCO Bank, Ballygunge Branch with a direction to operate the same by both the appellant and the respondent (either or survivor). Thereafter the appellant and respondent jointly visited the bank and kept the entire gold ornaments of the respondent in the said locker. The respondent's knowledge was that the locker was operated 3/4 times since its opening till the filing of the suit. On each time of operation, both the appellant and the respondent jointly went to the bank's vault for removing the ornaments or for keeping the same inside the locker. Although the locker was operated by both the parties, she was directed by the appellant to sign the locker register and the locker was last operated in January, 1996 when both the parties entered the vault for keeping some of the gold ornaments in the said locker which were taken out at the time of the respondent's cousin's brother's daughter's marriage. Thereafter, the appellant did not allow the respondent to operate the locker for taking out the ornaments and thus, deprived her from using her gold ornaments. The key to the locker had been kept under custody of the appellant. Whenever she requested the appellant for taking out some of the gold ornaments from the locker the appellant took the plea that the key was missing but never lodged any general diary.
(xiii) In the year 1991, on a day the respondent visited the UCO Bank and met the locker-in-charge, one Sushil Babu, informed the respondent that that the appellant gave direction to stop operation of the locker. After returning in the house, the respondent enquired about the same from the appellant in the presence of his elder sister when both of them threatened that the respondent would not get back her ornaments. The suit was, thus, liable to be dismissed.
6. At the time of hearing of the suit, apart from the appellant, Sambhu Nath Mukherjee, Jugal Krishna Pramanik and Debraj Banerjee deposed in support of the plaint case while apart from the respondent her brother and mother gave evidence in opposing the prayer.
7. As indicated earlier, the learned Trial Judge by the judgment and decree impugned in this appeal has dismissed the suit on the ground that the appellant failed to prove the allegations made in the application for divorce.
8. After going through the judgment passed by the learned Court below we find that the learned Trial Judge did not believe the allegations of torture allegedly made by the wife on the ground that the husband failed to examine his elder brother, elder brother's wife, elder sister's husband and other inmates of his house to substantiate the allegation made by him against the respondent. The learned Trial Judge has further found that it was the duty of the husband to examine Sasthi Mondal, Bulbul Chakraborty and Rupa Kayal or other local people to prove his allegation against the respondent. The learned Trial Judge was of the view that on the mere allegation of the husband on oath which has been denied by the wife, the alleged torture by the wife against the husband had not been proved and thus, there was no necessity of discussing the deposition of D.W.2, namely, the brother of the wife.
9. After going through the materials on record we find that apart from those allegations and counter-allegations regarding the use of filthy language, personal assault by the wife upon the respondent or misbehaviour towards her mother-inlaw, it has been established from the evidence that the brother and sister of the wife on 28th January, 1990 made a complaint before the local police station against the husband and his mother-in-law. Such fact has been admitted by both the wife and by her brother in cross-examination. In examination-in-chief, the D.W.2, the brother of the wife, did not specify the allegations that he and his sister made before the police against the appellant and his mother. We find from his evidence that on 28th January, 1990 he went to his sister's house to take the respondent who was then ill to Salt Lake but she was not allowed to go. He denied that on that day he assaulted the husband and his mother.
10. The said brother never complained in his evidence that there was any incident for which there was occasion for making complaint against the husband and his mother. The husband, on the other hand, stated that in view of that complaint, he and his mother were called at the police station and subsequently, the police was satisfied that the allegation was baseless.
11. In our opinion, when a complaint was made before the police officer against the husband and his octogenarian mother, a duty is cast upon the respondent and her brother to explain what was the allegation made against those persons particularly when they did not disclose the actual allegations levelled against the husband and his mother.
12. From the aforesaid fact we find that the respondent failed to discharge her initial onus of proving that no baseless allegation was made against her husband and her mother-in-law when it is admitted that a complaint was made before the police. If any baseless complaint has been made for which the husband and his mother were called at the police station and ultimately, such allegation had been proved to be false, such fact definitely amounts to mental cruelty when the husband is a lecturer of the Jadavpur University.
13. Secondly, it has been established from Exbt.4 series that the husband was compelled to pay a sum of Rs. 800/- a month exclusively to the wife apart from other expenditure of the family and those were borne out by the receipts where apart from the respondent, at least two of the persons of the local Nagarik Committee used to put their signatures on the receipts as witnesses for sometimes. The aforesaid fact indicates that at the instance of the wife, the Nagarik Committee intervened in the matter and compelled the husband to pay the said amount. The P.W.4, Debraj Banerjee, one of the members of the Nagarik Committee, whose signature appeared from two of the receipts (29th September, 1992 and 1st November, 1992), has appeared as a witness for the husband and has asserted that on the allegation of the wife the Nagarik Committee intervened but subsequently, they found that the allegations were baseless. The wife in her evidence stated that she did not know Debraj Banerjee although Debraj Banerjee's signature is appearing as witness from the two of the receipts signed by her. Apart from the aforesaid fact, it appears that in the presence of huge members of the persons of the locality, the husband was compelled to write that his wife was innocent. The husband has stated that at the instigation of the wife he was tortured by those persons. The wife has endorsed the said document by putting her signature with the remark 'seen'. In such a case, onus shifts upon the wife to bring those persons who figured as witness in the document showing the circumstance in which she called them and to justify her innocence. The wife has admitted that she knew Rita Sarkar, a close-door neighbour, and Rita Sarkar has also figured as witness in the said document. The moment it is established from the evidence adduced by the husband that he was compelled to write such a document and the wife fails to prove that the allegations against her husband were correct by bringing those persons, it has been well established that without just reason the husband had been compelled to write such document at the instigation of the wife. Even the brother of the wife appearing as D.W.2 did not allege that the appellant ever tortured his sister or did not pay maintenance. His only allegation was that the appellant did not permit her sister to go to the Salt Lake on January 28, 1990 to attend a family function when she was ill.
14. Thirdly, it appears that the wife made false allegation against the husband as regards removal of her ornaments form the bank locker, as would appear from the evidence of Debraj Banerjee, P.W.4. It appears that such allegation was false as would appear from the evidence produced before this Court by way of additional evidence. It appears from the order of the District Consumers' Dispute Redressal Forum in the proceedings initiated by the husband against the Bank that it was the wife who all along operated the bank locker and the last time the same was opened, it was the wife who operated the same. Thus, she deliberately made false allegations against the husband of removal of her ornaments from the locker. It appears that she did not agree to open the locker by breaking it for the purpose of proving the allegation of the removal of the ornaments.
15. From those three incidents, it has been well proved that the wife made false allegation against the husband regarding removal of the ornaments by inciting local people; secondly, at her instance, her brother and sister made false allegation against the husband and his mother before the local police station although there was no foundation of such allegation and thirdly, the appellant has been tortured and humiliated at the instance of the wife by the intervention of the local people. The wife was staying in the house of the husband and if there is any dispute as regards the expenditure of the family which the husband was capable of meeting, there was no just reason for inviting the local people to force the husband to write such letter. The husband is an engineer and a lecturer of Jadavpur University; therefore such infamy on the part of a teacher of a university is worse than death. The wife has failed to bring any witness to prove that the husband did not maintain her and it appears that the husband was bearing all the needful expenses of the family. We have already pointed out that her brother even did not allege anything about non-payment of maintenance.
16. We, therefore, find that even if the other allegations are not proved for want of corroborative evidence, at least the aforesaid three incidents disclose the nature and character of the respondent. She did not hesitate to make false allegation against her husband before the local people and her brother and sister complained before the police not only against the appellant but also against his mother whereas the said brother failed to disclose any allegation worth complaining before the police against them.
17. Apart from those three incidents, it appears that in the past, the husband was compelled to withdraw the earlier suit filed against the wife in spite of specific allegation made against the wife. Regarding withdrawal of the suit, the wife in her written statement stated that those are all matters of record and all allegations beyond the records are denied. She has not denied the receipt of any summons of the said suit which is specifically alleged in the plaint. We find that the order-sheet of the said proceeding has been exhibited and it appears that after the suit was ready as regards service the same was transferred to the Court of the Additional District Judge for ex parte hearing. On the date fixed for ex parte hearing, the husband specifically gave evidence that he was forced by the local people at the instigation of the wife to withdraw the matrimonial suit and the learned Additional District Judge, curiously enough, instead of asking the wife to appear and show cause, permitted the husband to withdraw the suit although the husband specifically alleged that the said petition of withdrawal was not the outcome of his free will but was filed because of coercion. We are, therefore, also convinced that the local people at the instance of the wife forced the husband to withdraw the previous suit as alleged in the plaint and such fact has been borne out by the materials on record. Otherwise, there was no reason why the husband would withdraw the suit on the date fixed for ex parte hearing unless he was forced to file such application.
18. In our opinion, the aforesaid facts definitely constitute cruelty within the meaning of Section 13 of the Hindu Marriage Act, and afford a ground of divorce. Apart from the fact, the wife has admitted that there is no relationship between the parties from the year 1990. The wife could not lead any corroborative evidence showing any assault on her at the instance of the husband; on the other hand, it has been established that she humiliated the husband with the help of the local people and did not hesitate to lodge false complaint before the police and local people. The fact that she was maintaining separate mess has also been proved from her own admission.
19. We, therefore, find that from the materials on record including the additional evidence given before us it has been well established that the conduct of the wife against the husband amounted to cruelty and it is a fit case for grant of decree of divorce on that ground.
20. We, therefore, set aside the judgment and decree, passed by the learned Trial Judge and grant a decree for divorce on the ground of cruelty.
21. The appeal is, thus, allowed to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.
22. I agree.