Sudha Krishna Halder Vs. Jyotsna Halder - Court Judgment

Excerpt:
- bhaskar bhattacharya, j.1. this first appeal is at the instance of a husband in a suit for divorce on the ground of desertion and cruelty and is directed against the judgment and decree dated 30th november, 2006 passed by the additional district judge, first court, hooghly, in matrimonial suit no. 1671 of 2001 thereby dismissing the said suit.2. being dissatisfied, the husband/plaintiff has come up with the present appeal.3. the appellant before us filed in the court of the district judge, hooghly, a suit being matrimonial suit no. 167 of 2001 thereby praying for divorce under the provision of sections 13(i)(a) and 13(i)(b) of the hindu marriage act and the case made out by the appellant in the petition for divorce may be summed up thus:(a) the parties were married according to hindu rites and customs on 25th february, 1975 in the residential quarter of the father of the husband who was an employee of dvc situated at 17, akbar road, quarter no. e-13, dvc colony, durgapur. thereafter, parties lived together in the house of the husband sometime in the village-kadasole, bankura and sometime, at 17, akbar road and also at the place of work of the husband. the said marriage was duly consummated.(b) the husband is an engineer from r.e. college, durgapur, passed in the year 1968 and subsequently, he got m.tech degree from i.i.t., kharagpur in the year 1970 and was permanently absorbed in the service of public health engineering department, government of west bengal. at the time of filing of the suit, he was posted at siliguri as superintending engineer with effect from 17th february, 1999 of the said department. (c) the wife is a permanent schoolteacher at serarampore girls high school from march, 1978 under the government of west bengal and her academic qualification is b.sc. (hons.) in chemistry, b.ed. and she earned rs. 10,000/- a month. previously she had been working at gupti para girls high school, hooghly as a teacher from 1971.(d) in the wedlock of the parties, a son was born on 21st september, 1977 and on getting proper education by the care and sole expenditure of the appellant, he obtained diploma in engineering and got employment in l & t company. no expenditure on account of the son's education was ever borne by the respondent.(e) from the very beginning of the marriage, it was found that the respondent had a habit to dislike her husband and was suspicious about him without any reason. she never loved her husband but was always intended to get more money and nothing else.(f) the appellant purchased a pucca residential house having four rooms with varandah on 4 cottahs 5 chittaks of land in mahesh at srerampore by taking loan from his employer but the respondent and the son have been occupying the said house.(g) during the period of staying at the house in srerampore, the husband used to come back from his place of work by completing his various supervisory work by late hours and sometime, at night when the respondent used to misbehave by calling the husband as swine, loafer etc. and falsely accusing him as addicted to wine and abused him with filthy language. in the last week of the month of april, 1998, the respondent and the said grown up son assaulted the appellant and had driven out from his own house and at that time, the respondent and the said son pressurized the appellant to transfer the said house to them by making a deed of transfer. the appellant was compelled to take his both meals by himself without being served and the wife even refused to offer a glass of drinking water. she even did not talk to him and threaten him to come back otherwise he would be murdered.(h) the respondent never did any household work or any work either at durgapur or at kadasole or at srerampore and she wanted to lead her whimsical, luxurious life without caring of the husband.(i) the joint family of the husband being big one having four brothers of his father and the husband has three brothers of his own who used to live jointly but the respondent always pressurized the husband to live separately by severing all relationship with his old father and other brothers and the members of their families.(j) the respondent is a permanent schoolteacher having sufficient income but she never contributed any of her earnings to the family nor did she care to respect the husband and his old father and other relatives. she all along misbehaved and tortured the husband by openly declaring that she would not live with the appellant as husband and wife even for a moment and for a longtime, she had been refusing to share bed with the husband and she used to say that she did not want to see the face of the appellant.(k) the appellant requested the respondent to rectify her conduct and character but in vain; on the other hand, her mental torture to the appellant had been increased. the appellant had been living separately from 28th april, 1998 continuously being separated from the said house at srerampore. from the aforesaid physical and mental torture of the respondent, it is apparent that it would be harmful and injurious to live with the respondent; but to fulfil his duties, the appellant had sent sufficient money to the respondent and the son, although both are employed and self-sufficient up to may, 2000.(l) the appellant had not condoned the aforesaid act of cruelty and desertion. hence the suit.4. the suit was contested by the wife by filing written statement and thereby denying the material allegation made in the application for divorce and the defence of the respondent may be summed up thus:(1) the respondent denied the statement that she earned rs. 10,000/- a month or that she was dependent on herself. it was also denied that the respondent had the habit to dislike and doubt the husband or that she never loved the appellant as husband.(2) it was further denied that the respondent at any point of time uttered slang language or that she called the husband as swine, loafer or addicted to wine or that she insulted him at any point of time. it was denied that the in the first week of april, 1998, the respondent and the son assaulted the appellant and drove him out or that they put pressure on the appellant to effect transfer of the house by executing deed.(3) it was denied that the wife led whimsical, luxurious life or that the conjugal life of the appellant was pathetic. it was also denied that the wife ever committed any mental torture towards the husband or that they have been living separately from 28th april, 1998 continuously.(4) the respondent had no complaint of any kind against her husband. the husband is a highly qualified man and was serving in a highly responsible capacity. apart from his personal attainment in his educational career and service career, the appellant is also a loving husband. according to the wife, the appellant all along performed all the duties towards his wife and also his son.(5) the parties had lived a happy matrimonial life for more than two decades and only son born in the wedlock was given education by the husband. of course, there were reasonable matrimonial wears and tears but no reason ever arose for approaching the court for any decree for dissolution of the marriage.(6) on 26th and 27th september, 1998, the appellant stayed in the house at mahesh. he went to market, purchased different items of vegetables and different items of fishes. the reason being that the son came from hostel only on 25th september, 1998. the appellant under his own hand prepared list for purchase of monthly groceries. the husband took his meals and went to bankura to meet with paternal relations during durga puja.(7) on 4th december, 1999, the mother of the appellant died at bankura and the appellant took the respondent at bankura house to perform the religious rituals during mourning and also for the purpose of shradh ceremony. the respondent stayed there till 20th december, 1999 and thereafter returned to srerampore together.(8) the respondent never doubted the fidelity of the appellant and she never dreamed that her husband had any affair with any woman. the respondent believes in god and in her husband but it appears that the husband might have suffered a jolt that the respondent bore any suspicion about the moral character of the appellant. the respondent asserted that the appellant did not have any leak or lapse whatsoever in his personal character.(9) even in may, 2000, the respondent stayed with the appellant at siliguri. even till 30th may, 2000 the appellant and the respondent stayed as husband and wife and freely cohabited. on 30th may, 2000, the respondent came to mahesh from siliguri. the suit was, therefore, liable to be dismissed.5. at the time of hearing of the suit, the appellant himself, his father, his cousin brother and a maidservant gave evident in support of the plaint case while the respondent herself and her son deposed in opposing the petition.6. as indicated earlier, the learned trial judge by the judgment and decree impugned in this appeal was pleased to dismiss the suit on the ground that the appellant had failed to prove the allegations made in the petition for divorce.7. being dissatisfied, the husband has come up with the present appeal.8. mr. roy chowdhury, the learned senior advocate appearing on behalf of the appellant, vehemently contended before us that the learned trial judge in disbelieving the case of the appellant merely took note of the fact that physical torture upon the appellant had not been proved by any corroborative evidence. according to mr. roy chowdhury, the wife having admitted in her evidence that the husband is a perfect gentleman and she had no allegation against her husband, the natural presumption is that in such circumstances, there was no just reason for the husband to leave the house unless the allegations against his wife and son are true. according to mr. roy chowdhury, the husband being a sensible man and having retired as a chief engineer of the government of west bengal, department of public health, the learned trial judge ought to have held that no prudent man would stay away from his family and the property purchased by him unless the allegation of the husband was true. in other words, mr. roy chowdhury submits that no normal person, in such circumstances, will abandon his wife and son unless he himself is abnormal or of bad character. mr. roy chowdhury submits that even the father of the appellant has given evidence against the grandson and, therefore, there was no just reason for disbelieving the allegation of the husband that he was physically assaulted by the wife and his son. according to mr. roy chowdhury, in view of the fact that the husband is a reputed engineer and the wife is also a teacher of a school, even one instance of physical assault upon the husband was sufficient to constitute cruelty. mr roy chowdhury submits that there was no necessity of tendering corroborative evidence, as law does not require corroboration for the purpose of proving a particular fact. mr. roy chowdhury points out that the wife has also described the husband as a perfect gentleman and did not even dare to lead any evidence of his abnormality or of bad moral character.9. mr. mukherjee, the learned advocate appearing on the behalf of the respondent, has, on the other hand, opposed the aforesaid contention of mr. roy chowdhury and has submitted that the learned trial judge in the facts of the present case rightly disbelieved the husband regarding allegation of physical torture upon him in the absence of any corroborative evidence. mr. mukherjee submits that it has been established from the evidence that even in the year 2000 the wife stayed with the husband in siliguri. according to mr. mukherjee, after the parties lived together for 25 years, this court should not entertain the plea of the husband that from the very beginning of the matrimonial life in 1975 he suffered cruelty. mr. mukherjee also draws attention of the court to the various letters written by the husband from abroad and contends that the aforesaid letters would indicate that the relation between the parties was quite normal. mr. mukherjee, therefore, prays for dismissal of the appeal.10. therefore, the question that arises for determination in this appeal is whether the learned trial judge was justified in dismissing the suit for divorce on the ground that the allegation of the husband that he was beaten by his wife and son and was driven away from his house was not proved because such allegation was not corroborated by any other witness when such fact has been denied by the wife and the son.11. according to the provision contained in section 134 of the evidence act, no particular number of witnesses is required for proving any particular fact. even in a criminal trial, where the guilt of the accused person is required to be proved beyond reasonable doubt, it is the consistent view of the apex court that if a witness is found to be wholly trustworthy, a conviction can be made on the basis of his sole evidence. in this connection, reference may be made to the four- judge-bench of the supreme court in the case of chittar lal v. state of rajasthan reported in : air 2003 sc 3590, where the said court made the following observations regarding power of a court to convict a person on the basis of sole testimony after taking into consideration almost all the previous earlier decisions:the legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in section 134 of the indian evidence act, 1872 (in short 'evidence act'). administration of justice can be affected and hampered if number of witnesses were to be insisted upon. it is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. if plurality of witnesses would have been the legislative intent cases where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. it is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. if the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. this position has been settled by a series of decisions. the first decision which has become locus classicus is mohamad gugal esa mamasan ger alalah v. king air 1946 pc 3. the privy council focused on the difference between english law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and section 134 of the evidence act. the view has been echoed in vadivelu thevar v. state of madras : air 1957 sc 614; guli chand and ors. v. state of rajasthan : air 1974 sc 276; vahula bhushan alias vehuna krishnan v. state of tamil nadu : air 1989 sc 236; jagdish prasad and ors. v. state of m.p. : air 1994 sc 1251 and kartik malhar v. state of bihar : 1996 (1) scc 614. 12. regarding the standard of proof in a matrimonial case, the following observations of the supreme court in the case of n. g. dastane v. s. dastane reported in : air 1975 sc 1534 are relevant:the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. this is for the reason that under the evidence act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. the belief regarding the existence of a fact may thus be founded on a balance of probabilities. a prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. as a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. the first step in this of process is to fix the probabilities, the second to weigh them, though the two may often intermingle. the impossible is weeded out at the first stage, the improbable at the second. within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: 'the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue' per dixon, j. in wright v. wright (1948) 77 clr 191 at p. 210; or as said by lord denning, 'the degree of probability depends on the subject-matter. in proportion as the offence is grave, so ought the proof to be clear. blyth v. blyth 1966 1 all er 524 at p. 536.' but whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. in civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. a criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. if the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. it is wrong to import such considerations in trials of a purely civil nature.neither section 10 of the act which enumerates the grounds on which a petition for judicial separation may be presented nor section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the act requires that the petitioner must prove his case beyond a reasonable doubt. section 23 confers on the court the power to pass a decree if it is 'satisfied' on matters mentioned in clauses (a) to (e) of the section. considering that proceedings under the act are essentially of a civil nature, the word 'satisfied' must mean 'satisfied on a preponderance of probabilities' and not 'satisfied beyond a reasonable doubt.' section 23 does not alter the standard of proof in civil cases.13. bearing in mind the aforesaid principles, we now proceed to examine the case before us.14. in the case before us, if it is proved that the wife and the son really had conjointly beaten the appellant on the false allegation that he was a person of bad character, in our opinion, having regard to the background of the family and position of the husband in the society, such fact definitely amounts to cruelty within the meaning of the hindu marriage act. the appellant had alleged that such physical assault had taken place thrice in the year 1998 and after the last incident, which occurred on september 25, 1998 on the day of panchami of durga puja, he had left his house for good. we are of the view that even one of such assaults, if proved, is sufficient to pass a decree for divorce.15. both the wife and the son have denied that there was any such incident either in the month of april, or august or in the month of september, 1998 as alleged. they have, however, admitted that on september 25, 1998 the appellant left the house and thereafter, never came back. the version of wife is that on september 25, 1998, the appellant purchased varieties of items from the market as the son had on that day came from hostel on account of puja vacation but after taking meal, in the afternoon, he left for his native village in bankura to see his father during puja days and thereafter, never came back although nothing happened on that day. her specific defence is that she never alleged anything about the moral character of the husband as he was not a person of bad character and as such, it was beyond her dreams to suspect her husband, not to speak of assaulting the husband, on that ground. she has further admitted that the husband during the period of separation used to send money not only for the education of the son but also for her maintenance and she required her husband's financial help although she divulged that at the time of deposition, she used to get rs. 15,000/- as her salary as a school teacher. she has further alleged that after september 1998, she stayed with the husband at siliguri for three days and had also cohabited with the husband whereas the husband alleged that she went to siliguri for the purpose of humiliating him before his office colleagues and broke open the door of the official guest house but they had no physical relation and she returned after one day. the son of the parties appearing as d.w-2 stated that the relation between his parents was normal and that on september 25, 1998 his father after taking meal in the afternoon left for his native village to attend durga puja. although specific allegation was made against him of physical assault against his father thrice in the year 1998 in connivance with the mother, in his examination-in-chief, he did not utter anything about those incidents denying such allegation. in cross-examination, he, however, merely denied such allegation.16. therefore, according to the wife, her husband was a perfect gentle man in all respect. he had a good moral character, he was dutiful husband and father and that her relationship was quite normal but in spite of such fact, for unknown reason, he had been staying apart from his family from september 25, 1998 although he had been regularly sending maintenance for herself and her son. she had no occasion to suspect his character and no incident of assault ever occurred.17. in our opinion, it is not at all possible to believe the case of the wife that for unknown reason, the husband was staying separately from the year 1998 unless we hold that the husband is either an abnormal person or is person of immoral character who can go to the extent of making false allegation against his innocent wife and son of physical assault. the wife's opinion about the husband is, however, reflected in paragraph 15 of the written statement, which is quoted below:the respondent states that she does not have any complain (sic) of any kind against her husband, the petitioner. the petitioner is highly qualified man. the petitioner served in a highly responsible capacity. apart from his personal attainment in his educational career and service career, the petitioner is also a loving husband. as a husband the petitioner had all along performed all the duties towards his wife i.e. the answering respondent as also to his son. the care, sense of responsibility and reaches (sic) of the petitioner elevated the whole family day by day. 18. in view of the aforesaid opinion of the wife about the husband as stated in her written statement, which is also maintained in evidence, any reasonable person will be inclined to accept the allegation of the husband against his wife of humiliation by describing the husband as a 'characterless person' in the presence of others and also of physical assault in joining hand with the son. that the son, the d.w-2, is a liar would appear from his evidence in cross-examination where he said that he did not know whether his father after september 1998 had been bearing the cost of his education when his mother had admitted that the appellant used to bear such expenditure. we are unable to believe that he did not know that his father was supplying the money to meet the cost his education. any normal son studying engineering course is supposed to know the source of the expenditure of his studies in the case like the present one. his grandfather, an octogenarian person, has also given evidence of misbehaviour against this d.w-2 and we do not find any reason to disbelieve a grandfather who in normal circumstances cannot have any reason to give false evidence against his grandson. moreover, if in a situation like the present one, the husband all of a sudden without just reason starts living separately, it is normal that the wife will write letters, enquire into the reason for such abnormal behaviour and will immediately contact the other members of the husband's family when at the relevant point of time, both the parents of the husband were alive.19. in this case, the wife has not even asserted that after the departure of the husband in the month of september, 1998, she ever tried to know the reason of the alleged peculiar behaviour of her husband or ever tried to bring him back before the institution of the suit long thereafter in the month of june, 2000. according to her own statement, she once went to her father-in-laws place at the time of death of the mother-in-law and only once went to siliguri whereas the case of the husband is that she went to humiliate him by breaking open the door-lock of the guest house. it further appears that the wife also visited the office of the husband in kolkata during the pendency of the suit and according to the appellant she did so to lower down his prestige. but there is no evidence that either the son or the wife ever went to the residence of the husband to bring him back, in the facts of the present case, we find that the case made out by the husband is quite believable. in his fifties, being beaten up by the wife and the son on the false allegation of illicit affairs with other women, he being disgusted, decided to leave the house and the wife and the son were satisfied with the money sent by the husband without caring for the return of the appellant.20. we find substance in the contention of mr. roy chowdhury that the husband throughout his life endured the misbehaviour and maltreatment of his wife for the sake of peace and position of his life, but ultimately, when the torture exceeded the limit of tolerance, he decided to take the extreme step of divorce on the ground of cruelty. it is not possible to accept the explanation of the wife that the husband for unknown reason is staying away by giving false allegation of physical assault on the son and the wife.21. we appreciate the contention of mr. roy chowdhury that his client has the right to live peacefully for the rest of his life after completing all his duties as a husband and father. for maintaining peace in the family he sacrificed the relationship with other members of his family whom the wife could not tolerate. he might have condoned all the previous acts of cruelty of the wife but could not forgive the extreme act of physical assault. that incident is, in our opinion, sufficient in the facts of the present case to grant a decree for divorce having regard to surrounding circumstances in which the parties live where the husband is a retired chief engineer of the government of west bengal, the wife is a teacher of higher secondary school and the son is engaged as an engineer in a company of international repute. moreover, the condonation of cruelty is made on condition that such act would not recur in future and on recurrence of such act, the condoned cruel acts survived.22. we, therefore, find that the learned trial judge erred in law in disbelieving the case of the husband for want of corroboration by totally overlooking the fact that from the circumstantial evidence, the allegation of the husband of cruelty has been well proved and there is no reason of disbelieving the testimony of the husband. it is apparent that the wife was hiding the truth by pretending innocence and making false allegation of abnormality of the husband.23. we, therefore, set aside the judgment and decree passed by the learned trial judge and pass a decree for divorce on the ground of cruelty of the wife. as the wife is a schoolteacher, no question of passing a decree for permanent alimony arises.24. in the facts and circumstances, there will be, however, no order as to costs.prasenjit mandal, j. 25. i agree.