Smt. Reena Mitra Vs. Ashesh Kumar Mitra - Court Judgment

S.S. Ganguly, J.

1. This appeal has been preferred from the judgment and decree passed in Matrimonial Suit No. 24 of 1982 by the Id. Additional District Judge, 7th Court, Alipore.

2. Admittedly the parties were married on 21.11.60 under the provisions of the Special Marriage Act, 1954. The respondent is a Lecturer in the Government College or Art and Craft, Calcutta and he is also an artist of some renown. The wife-appellant is also an artist and she is a teacher in a school A daughter was born to them on 12.12.66. From February 1971 they started living at 82/14/86/1, Jadu Park, Behala. On 26.9.77 the respondent-husband left the suit premises and started living at 24/3B, Raja Bagan Lane all alone From there the respondent sent maintenance and the rent payable for the aforementioned premises at Jadu Park upto 8.7.78. These facts are not disputed.

3. The wife-appellant filed the aforementioned Matrimonial Suit f restitution of conjugal rights under Section 22 of the Special Marriage Act 1954. Her case was that the respondent had deserted her and their daughter and left the matrimonial home on 26.9.77 without any reason whatsoever and that all her requests to him either to come back or to take her and her daughter present residence at 24/3B, Raja Bagan Lane fell on deaf ears. The defence as per the written statement was that the appellant treated the respondent with so much of cruelty that the respondent did not feel safe physically and mentally to live with her any more. The appellant used to disturb the peace by quarrelling and she even used to torture him physically and destroy his materials of paintings. The appellant also used to quarrel with the respondent on his alleged illicit connection with one of his girl-students. Lastly it is urged that on several occasions the respondent found the appellant mixing with her previous lover and that in the circumstances stated he had no alternative other than to avoid living with the appellant. Apart from opposing the appellant's claim for a decree for restitution of conjugal right the respondent set out a counter claim from his side for a decree of divorce on the ground of extreme cruelty of the appellant and on the ground that the respondent since 26.9.77 had been forced to live separately. The appellant filed a written statement .whereby she denied all the allegations made against her by the respondent. The parties examined themselves (P.W. 2 and D.W. 1) and their daughter Alakananda (P.W. 2) was also examined from the side of the appellant. Certain letters, etc. were also exhibited,

4. On a consideration of the materials on record the Id. Trial Judge felt that though there was no evidence that the appellant tortured the respondent physically there was enough evidence to show that the appellant at times became whimsical and treated the respondent with rude behaviour, that the respondent had been forced to live separately due to mental torture effected by the appellant on the respondent, that the appellant created a situation in the house making it impossible for the respondent to stay there and that as such he was forced to leave the matrimonial home and shift elsewhere. Feeling further that the marriage had already broken down and they could no longer live together as husband and wife, the Id. Judge being of the view that a decree for restitution of conjugal right would be unless and that it would be better to close the chapter, allowed the respondent's prayer for a decree of divorce following the decision in Smt. Saroj Rani v. Sudarshan Kumar, : [1985]1SCR303 . Hence, this appeal from the side of the wife-appellant.

5. In view of the peculiar facts and circumstances of the case the following points may be framed for disposing of this appeal :

(1) Was the respondent justified in deserting the appellant ?

(2) Was the appellant guilty of treating the respondent with mental cruelty ?

(3) Is the appellant entitled to get a decree for restitution of conjugal rights or in the alternative is the respondent entitled to get a decree of divorce ?

Points 1 to 3

All the points are taken up together as they are interrelated.

6. It must be stated at the very outset that the decree of divorce passed by the Id. Trial Judge cannot be supported. A decree of divorce may be passed on any of the grounds mentioned in Section 27 of the Special Marriage Act. 1954. Cruelty is one of these grounds and this was the ground on which divorce was asked for by the respondent. But the Id. Judge did not decree the suit for divorce on the ground of cruelty. He decreed the suit for divorce as he felt that the marriage had broken down .irretrievably and the parties could no longer live together as husband and wife. This is not a ground contemplated by Section 27 of the Act and the decree, therefore, cannot be allowed to stand. In Saroj Rant v. Sudarshan Kumar, : [1985]1SCR303 cited by the Id. Trial Judge, the decree of divorce was prayed for and granted on the ground of expiry of the statutory period without restitution of conjugal rights after the passing of a decree for restitution of conjugal rights. This has already been explained in Harendra v. Suprava, : (1989)1CALLT104(HC) . The decree of divorce, based as it is on no ground whatsoever must, therefore, be set aside.

7. Now to the question as to whether the appellant is entitled to get a decree for restitution of conjugal rights. Section 22 of the Special Marriage Act provides for the relief where one of the parties to a marriage withdraws from the society of the other without any reasonable excuse. The burden of proving reasonable excuse lies on the party withdrawing from the society of the other. This has specifically been provided by the explanation inserted below the main Section by the Act 68 of 1976. Admittedly the respondent here has been living away from the matrimonial home and his wife and daughter since September 1977. The burden, therefore, lies on him to establish that he had a reasonable excuse to do that. Since the respondent has based his prayer for divorce on the ground of cruelty we have also to see if he is entitled to get his desired relief on the ground of cruelty.

8. As stated above, the respondent's defence before the Id. Trial Judge was that the appellant had treated him with so much of cruelty-both physical and mental-that he found it impossible to go on living in the same house with her He has given instances in his evidence. There was, however, no other evidence documentary or oral in corroboration of his contentions. Considering the materials on record the Id. Trial Judge was of the view that the charge of physical cruelty went unsubstantiated. Considering the state of evidence we are inclined to agree with him. There is indeed no evidence worth the name on the point of physical cruelty. This finding of the Id. Trial Judge is, therefore, confirmed.

9. The Id. Judge as stated above found the appellant guilty of being whimsical and rude in her behaviour to the respondent and of inflicting mental torture on him. He felt that it was because of this that the respondent stayed away from the matrimonial home since as an artist he wanted a peaceful surrounding where he could pursue painting in a proper way. In other words the Id. Judge felt that the respondent had reasonable excuse for staying away from the appellant. The Id. Judge says in his Judgment that there are enough materials on record from which these conclusions can be drawn. He, however, besides citing one or two incidents has not stated in his judgment what these materials were. It becomes necessary, therefore, to see what were the allegations made by the respondent in his written statement and how far did he succeed in establishing them by evidence at the time of trial.

10. . The acts of crulty listed in the written statement are the following :

(1) The Governor requested him to paint two protraits one of Pandit Nehru and the other of Dr. B.C. Roy. The work could be executed with great difficulty since the appellant always used to disturb the peace not only by quarrelling but also by torturing the' respondent physically by assaults and also by destroying the. materials of painting.

(2) The appellant always quarrelled with the respondent charging him with his alleged illicit connections with one of his girl students.

11. These are the only instances of 'crulty' mentioned specifically in the written statement. It will be seen that barring physical assaults which have not been established, the other allegations do not amount to cruelty nor even to reasonable excuse on the part of the respondent for staying away from the appellant. What evidence did he adduce to establish his case ?

12. The respondent was his only witness. These relevant portion of his depositions are the following :

(1) In 1960, two days after their marriage, the appellant slapped him with such force that it caused bleeding from his nose.

(2) In 1963, before leaving for Belgrade with a scholarship for two years, he arranged one room at Narendrapur for the appellant's residence. On that occasion the appellant abused him severely.

(3) In 1964 when he was away at Belgrade, his friend Gour Goswami informed him by a letter that the appellant was inviting some men and was behaving with them in a way which was not proper. Swami Lokeswarnanda also wrote to him to direct his wife to live elsewhere as long as he was away. On receiving these letters he hastended home foregoing one year's scholarship.

(4) In or after 1965 the appellant created a division amongst his students who used to come to him for private coaching and she told him to refuse entry to two of them being Binode and Geeta.

(5) On 20th December, 1973 Nikhil Roy Chowdhury a premarital friend of the appellant, spent the right in their home and around 30 A.M. he found Nikhil lying on the bed and caressing the appellant who was lying with her face on his chest. Next morning Nikhil and the appellant went out together and she alone come back at 9-00 p m. and offered some explanations which did not appeal to him.

(6) On occasions more than one, the appellant put the end of her sari in fire and in 1974 over an incident involving a shirt she set herself on fire for which she had to be hospitalised.

(7) On her return from the hospital she accused him of leading an immoral life with one Batasi-a student of the age group of their daughter.

(8) She spread all sorts of baseless rumors against him like drinking, mixing freely with girl students and told all this to one of his students named Bratin who charged him with indecent behaviour in the course of an examination in 1976.

(9) In 1976, appellant snatched away his brush, broke the same and threw away the paint as he was executing the Governor's order in 1976 and also assaulted him and broke his fingers and spat on him.

(10) One day in 1977 the respondent could not enter home as the main gate was locked with a different lock of which the key was not with him.

(11) On one occasion she threatened to take poison.

(12) She made allegations against him before the Income Tax Authorities.

13. Presumably it is this long list of woes which led the learned Trial Judge to comment without referring to any evidence though, that the evidence clearly showed that the appellant treated the respondent with so much of cruelty and created such an atmosphere that the respondent had no alternative other than to leave the matrimonial home. The Id. Judge failed to see that most of the items of this long list were introduced by the respondent for the first time in his evidence. Items Nos. 1 to 5, 6, 8, 10, 11, 12 were not mentioned in his written statement at all. So far as item No. 5 is concerned, a new and a very serious allegation is made, though in the written statement it is only mentioned that the respondent saw the appellant mixing with her previous lover on several occasions. Only items Nos. 7 and 9 were mentioned in the written statement. True the respondent craved the leave of the Court to adduce detailed further evidence on the point of cruelty at the time of trial. That does not make any difference since it is not the procedure that a party may omit relevant facts from bis pleadings and introduce them for the first time in the shape of evidence at the time of trial. The procedure is that a party must state all relevant facts in bis pleadings and that he should try to establish those facts by his evidence at the time of trial. Deviation from this rule is not permissible since the new facts catch the other party by surprise and land him ingreat unforseen difficulty. Apart from the fact that the respondent was not granted any leave to introduce fresh materials by way of evidence at the time of trial, we are of the view that the learned Trial Court had no right to grant him any such leave at all since that would have been against the procedure. That being the case we are of the view that the Id. trial Judge ought not to have allowed the respondent to introduce these new facts on the time of trial for the first time.

14. In view of what has been stated above we are of the view that the now facts introduced for the first time at the time of trial were not admissible by way of evidence at all. Even granting that they were admissible in evidence we do not think that, that amounts to much. As already stated, all the evidence to prove these facts came from the respondent alone. It is true that as between the husband and the wife there may be incidents which are exclusively known only to them and nobody else. But the incidents listed above were nothing of that kind. Thus for establishing the item No.3 the respondent could have produced the letters written by his friend Gour Goswami or Swami Lokeshwa-rauada and he could have at least examined the former. This was not done. Nobody was also examined to establish that the appellant spread rumours against the respondent (item 8) or created division amongst his students (item 4) or that she made allegations against him before the Income Tax Authorities (item 12). On the statement of the respondent alone it cannot be said that these allegations have been established. So far as Item No. 5 is concerned, the Id. Trial Judge found the allegation unbelievable and so also do we. As for the items nos. 1 and 2 these incidents occurred long ago and .oust be taken to have been condoned. There remains a few incidents (items 4, 6, 7, 11) which clearly were results of suspicions. It is apparent that the appellant suspected that the respondent was taking undue interest in other women and hence her reaction. The respondent himself was not also free from this feeling. He suspected that the appellant still nursed in her heart the love and affection which she had for another man in her younger days. As the respondent said in his deposition ;

'I also became suspicious and used to spend my days in agony. She also suspected me to have an affair with two of my students Including Geeta and often gave me hints'.

15. The parties obviously felt exasperated with each other and may be they provided each with sufficient justification for having that feeling.' From that it does not follow that either of them had any reasonable excuse for living away from the other-the situation which they found so exasperating being their own creation.

16. In the circumstances stated above, the ground of cruelty as taken by the respondent in support of his prayer for divorce is also bound to fail. The Special Marriage Act, 1954 nowhere defines cruelty. Neither does Section 10(1) of the Hindu Marriage Act but Section 10(1)(b) makes such cruelty actionable as causes a reasonable apprehension in the, mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. It was observed in Dastane v. Dastane, : [1975]3SCR967 that under Section 10(1)(b) harm or injury to health, reputation, the working career or life would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. These tests may also be adopted in dealing with the question of cruelty arising in case under Section 27 of the Special Marriage Act. It may be mentioned in this connection that it is the respondent's specific case that the slanders apread by the appellant actually affected his reputation and working career in a very adverse way. But as we have seen above, the respondent made no effort, whatsoever, to prove his allegation in this regard. Besides he himself, there is no other witness who said that the appellant ever made any slanderous statement or for that matter that such statements affected his reputation or working career. The charge being a very serious one, it cannot be held to have been established on the testimony of the respondent alone. It is true in a matrimonial case the question whether the misconduct complained of constitutes cruelty or not is to be determined primarily by its effect upon the person complaining of the misconduct. The Id. Trial Judge took particular note of the fact that the respondent was an artist and he observed further that as such he required a calm and quite atmosphere for persuing his art. Nobody can quarrel with these observations. The fact remains all the same, however, that from the mere fact that the respondent ran away from the matrimonial home it cannot and should not be presumed that the condition in the matrimonial home was so very unhelpful that he was compelled to take that desperate step. As we have seen above, the respondent was not really able to establish anything besides that he, as well as the appellant, eyed each other with suspicion and made each other unhappy by doing that. The other alleged misconducts alluded to the appellant were anciliary to them. These conducts even if they were true, could not constitute cruelty as per the approved standards. On account of the alleged misconduct of the appellant therefore, the respondent should not get a decree of divorce as prayed for.

17. In this context we are also constrained to mention that the conduct of the respondent had not also been very fair and above board. Granting that he found the atmosphere at home somewhat unhelpful, that certainly did not justify his going away therefrom without making any provision whatsoever for the appellant and their daughter. They were solely dependent on him for their subsistence. It appears that upto July 1978 he used to send some amount by way of maintenance and house-rent and thereafter he never sent any amount at all. The respondent's explanation that he did not send any maintenance for the daughter because she refused to leave her mother was certainly not a proper of a responsible attitude to take. In his bid to be vindictive against the appellant the respondent treated his own daughter with utmost cruelty.

18. Be that as it may, on a consideration of all the circumstances we are of the view that the respondent failed to establish that he had any reasonable excuse for staying away from the appellant and the matrimonial home and that he has also failed to establish the ground of extreme cruelty on the basis of which he prayed for a decree of divorce. The present appeal must, therefore, he allowed.

19. In the circumstances stated, both points 1 and 2 are answered in the negative and the first part of the point No. 3 is decided in the affirmative. Hence, the appeal is hereby allowed on contest. The judgment and decree of divorce passed by the Id. Court below are hereby set aside. The appellant do get a decree for restitution of conjugal rights against the respondent as prayed for. The appellant do get costs of the suit as well as of this appeal from the respondent.