Sri Shyamal Samaddar Vs. Smt. Sampa Samaddar (Nee Guha Thakurta) - Court Judgment

ASHIM KUMAR BANERJEE,J.

The marriage took placeon negotiation. However the respective family members perhaps did not consider whether the couple would be a perfect match for each other. We are prompted to say so when we find that the husband was having education up to the school level having passed Higher Secondary Examination whereas the wife was a Post Graduate. From the letters written by the couple to each other would however show that the wife tried to maintain the marital knot even at the cost of desertion as her husband left her soon after the marriage due to occupational commitments. Significant to state, the husband was working as a Radio Officer and mostly on voyage. Thus the wife did not get the company of the husband. From the record we find that the marriage took place on February 11, 1993. From the letters it appears that they had hardly one-month time to be together when husband left for his job. However, the lady conceived. The husband initially was caring about her health. The couple was eagerly waiting to see their child. Their dream did not last for long. We do not know the actual reason. It might be the male chauvinism as the husband, not being with the wife, continued to issue sermon from abroad even on the personal life of the wife. It is unusual for a young educated girl to remain in the family of in-laws without her husband being with her. It is not unusual that the wife would like to stay with her parents when the husband left for abroad after one month of marriage. Even then, the lady tried to stay there as would appear from the evidence. So long her father in-law was alive she used to get his support. She complained that she was victim of mental torture from the mother in-law being instigated by married sisters in-law who frequent at their parental home. This possibly gave rise to discord. The husband initially tried to maintain a balance as we find from the letter, soon took the side of his family members and tried to impose his sermon on the wife and that too, in a commanding voice as we find from the correspondence. The lady however did not adhere to such sermon and continued her stay at her parental home even after giving birth to the child. The husband was not by her side when the child was born on July 26, 1994. We cannot blame the husband as he might be on voyage. He also missed his father when he breathed his last on August 26, 1993. He however complained, that time the wife, without being with the family members during mourning, was busy with her own room repair that was licking. That was hearse evidence and could not be relied upon. It did not get any corroboration from any independent source. The husband complained that the wife was not by his side when he suffered injury on his eye and was in hospital initially at Calcutta and then at Chennai for his treatment. The wife feigned ignorance. We are not impressed on that score. She should have been with her husband. Be that as it may, that solitary instance could not be a ground of divorce.

The wife filed an application forrestoration of conjugal rights. It is true that the statute would not require allegations to be made against the husband. However, the wife explained the discord and one of the causes shown was the drinking habit of her marital family involving her husband too. The husband felt insulted. According to him, the ground mentioned in the application would amount to mental cruelty that would amount to a ground of divorce and he claimed it as and by way of counter claim in his written statement filed against the application for restoration of conjugal rights. The learned Judge considered the issue as well as evidence that was led before him. The learned Judge observed that there was no reason for breaking the marital tie. The wife was always ready and willing to perform the conjugal rights and the husband was obliged to perform the same. On the question of alleged mental cruelty, the learned Judge was not impressed and as such rejected the prayer for divorce.

Being aggrieved, thehusband approached us by filing the instant appeal.

Initially when we heard the matterwe adjourned the same to enable the husband to be present as he was on voyage. Subsequently, the husband appeared before us. We tried to impress upon him. He was however determined to break the marital tie. Even on that score we asked him to adequately compensate the wife and the child. We could persuade him with regard to the amount to be paid as permanent alimony to the wife. However we could not succeed ultimately as he neither agreed to make any suitable financial arrangement for the child nor their accommodation. The mother of the child is now residing with the younger brother of the respondent who is yet to be married. We resumed hearing on merits.

Mr. Bose, learned counsel appearing forthe husband resumed his submission. He contended that the law would not require allegations to be made warranting an order for restoration of conjugal rights. According to Mr. Bose, the grounds mentioned in the application would amount to mental cruelty that would lead to divorce as the husband got insulted not only due to insinuation of the wife hinting to his character but also his family members as well. He asserted that he was a teetotaler. He felt insulted when the wife branded his family members as drunkard. Mr. Bose took us to the evidence. According to him, the husband would obviously expect the wife by his side when he was being treated in the hospital. The wife in her evidence asserted that she had maintained good relation with the husband up to 2001. Hence, one would except her to be by the side of the husband in need. It is very difficult to conceive that despite having cordial relation she did not have any inkling about the accident. He also contended that there was cultural and mental gap as would appear from the respective qualifications of the parties. He also contended that the wife was oblivion towards his parents as would appear from the evidence that would also constitute mental cruelty to the husband. He also referred to the application for restoration of conjugal rights to show that serious allegations were made against the husband that could not be substantiated. Hence, this would be an additional ground of cruelty.

While commenting on the judgmentMr. Bose contended that the learned Judge did not approach the problem in a correct manner. He referred to the observation of the learned Judge that from the evidence of the wife it would reveal that the “ill behaviour” and “assault” by the mother and married sisters were proved, however, the evidence would speak otherwise. The learned Judge also denied divorce on the ground that the husband had stated in his evidence that he had gone to his in-law’s place to bring back his wife and the child during pendency of the suit. According to Mr. Bose, this fact was not taken in its proper perspective. The learned Judge did not consider the fact that even after such approach being made the wife blatantly denied to come back that would amount to cruelty. He also commented that the observation of the learned Judge to the effect that the husband was trying to get rid of the marital tie, was established, was not correct.

To support his contentions Mr.Bose cited the following decisions :-

i)1994 Volume-I Supreme Court Cases Page-337 (V. Bhagat –VS- D. Bhagat (Mrs)

ii) 2006 Volume-IV Supreme Court Cases Page-558 (Naveen Kohli –VS- Neelu Kohli)

iii) 2007 Volume-IV Supreme Court Cases page-511 (Samar Ghosh –VS- Jaya Ghosh

iv) An unreported judgment in F.A. No. 164 of 2005 dated January 21, 2011 (Smt. Sumita Gupta –VS- Sri Kisholay Gupta)

He placed reliance in the caseof Naveen Kohli (Supra), particularly paragraph 71 wherein the Apex Court considered the issue of irretrievable break down of marriage. According to him, the broken marriage in the said case was beyond repair and that would amount to a ground for divorce.

He also relied upon the decisionin the case of SamarGhosh (Supra), particularly paragraph 100 wherein the Apex Court dealt with the concept of mental cruelty. The Apex Court therein observed, “the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.”

He relied upon V. Bhagat (Supra),particularly paragraph 21 where the Apex Court observed, “irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”

In the case of Smt. Sumita Gupta (Supra),the Division Bench of our Court affirmed the Decree of Divorce granted by the Trial Court on mental cruelty after being satisfied with the evidence that was led before the court below.

Mr. Bose also relied upon paragraph31 of the decision in the case of Samar Ghosh (Supra) that is quoted below :-

“The finding of the High Court thatif the ailment of the husband was not very serious and he was not even confined to bed for his illness and even assuming the wife under such circumstances did not meet the husband, such behaviour can hardly amount to cruelty, cannot be sustained. During illness, particularly in a nuclear family, the husband normally looks after and supports his wife and similarly, he would expect the same from her. The respondent’s total indifference and neglect of the appellant during his illness would certainly lead to great annoyance leading to mental cruelty.”

He lastly contended that in absence of theproper cross-examination on the issue the case made out by the husband in its written statement and consistently followed through oral evidence stood uncontroverted and the learned Judge should have accepted the same. To support his contention he relied on the age-old decision in the case of A.E.G. Carapiet –VS- A.Y. Derderian reported in All India Reporter 1961 Calcutta Page-359.

Opposing the appeal,Mr. Ashish Bagchi, learned counsel appearing for the respondent/wife relied on the part of the evidence appearing at pages 43, 45, 46 and 50. He contended that the husband deposed that his family would consist of other relatives. He did not mention about the wife or the daughter that would show his conduct and indifferent attitude towards the wife and child. Referring to the part of the evidence at page 45 Mr. Bagchi contended, giving full credence to what had been stated by the husband in evidence, it would not amount to the mental cruelty unless it was followed by the extent of  sufferings. Such evidence was lacking. He also relied upon the statement of the husband at page 46 where he admitted to have gone several times to his in-law’s place to bring back his wife and daughter that would condone the fault, if any, on the part of the wife having not visited the husband during his ailment. He lastly contended that wife discharged her duty by bringing up the child to the best of her ability. The husband admitted in evidence appearing at page 50 that he was happy to note that his daughter stood first in the school examination. Mr. Bagchi contended that the husband pressed his counter claim on the allegation of mental cruelty that he had allegedly suffered on the allegation of drinking habit and nonvisitation of the wife during his ailment. Such solitary and isolated allegation would not amount to mental cruelty unless it was followed up by appropriate repercussion on the husband and his sufferings followed by such incident. He also critisized the husband for sending money from abroad to the wife through his mother. He relied on the decision in the case of Savitri Pandey –VS- Prem Chandra Pandey reported in All India Reporter 2002 Supreme Court Page-591. He relied on paragraph 6 of the said decision where the Apex Court described cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.

Mr. Bagchi also contendedthat the appeal was not maintainable in view of Order XX Rule 19 read with Order VIII Rule 6 of the Code of Civil Procedure. According to him, Section 21 of the Hindu Marriage Act would permit the defendant to make counter claim that would relate to a claim within the scope of the said Act of 1955. According to Mr. Bagchi, the said Act of 1955 would provide that the proceeding under the Act would be governed by the Code of Civil Procedure. Once the restitution of conjugal rights was allowed and the counter claim was rejected by not preferring appeal against the denial of  the counter claim would amount to res judicata and the appeal would not be maintainable.

While giving reply, Mr. Bose,on the other hand, contended that the appeal preferred by the appellant was statutory appeal under the said Act of 1955 and in any event, if there is any conflict between the statute and the Code of Civil Procedure the provisions of the said statute would prevail over the procedural law. He relied upon the decision of this Court in the case of Srikumar Lahiri –VS- Smt. Sonali Lahiri reported in 2006 Volume-I Calcutta Law Journal (Calcutta) Page 188. He relied upon paragraph 5 of the said decision which is quoted below :-

 “We are afraid we are not at all impressed by such submission. By Section 21 of the Act, only the procedural part of the Code of Civil Procedure is made applicable to the proceedings under Hindu Marriage Act, but there being specific provision for appeal contained in the Act itself in Section 28, we cannot conceive of any appeal except those provided under Section 28 of the Act.”

On the question maintainability of theappeal we are of the view that Mr. Bagchi’s contention would not stand. Right to claim restitution of conjugal rights under Section 9 or divorce under Section 13 was a right guaranteed by the statute. Similarly, the provision for appeal was also stipulated under Section 28 of the said Act of 1955. If we closely consider Section 28 we would find all decrees made by the Court under the said Act would be appealable and every such appeal would lie to the Court to which appeals would ordinarily lie from the decision of the Court given in exercise of its original civil jurisdiction. Hence, the procedural irregularity, if any, as strenuously contended by Mr. Bagchi would not make the appeal non-maintainable in view of the clear statutory provision so stipulated under Section 28. In the case of Srikumar Lahiri (Supra), the Division Bench observed that appeal from the final decree and the final order under Section 25 and 26 were appealable. Hence, the provisions, if any, contrary stipulated in Civil Procedure Code, would not have any role to play in view of the statutory right given under Section 28 of the said Act. Their Lordships also observed that Section 21 of the said Act would make the procedural part of the Code of Civil Procedure applicable. However, such procedural part would only have application once it is not in conflict with the statutory provisions contained in the special statute being the said Act of 1955. Hence, the contentions placed by Mr. Bagchi on that score is rejected, not being tenable in law.

 We fully agree with Mr. Bose that while making an application under Section 9 of the said Act of 1955 for restitution of conjugal rights one need not specify the reason for discord. As and by way of preface, the petitioner would have to state if it is known to him or her the plausible reason that resulted in desertion. In the instant case, the respondent/wife in her application stated the facts that resulted in discord and at the same time agreed to stay with her husband and prayed for restitution of conjugal rights. We do not find any illegality committed by the respondent on that score.

The matter may be viewedfrom another angle. According to Mr. Bose, such allegations caused mental cruelty to the husband. We failed to appreciate. If we scan the wife’s application we would find two statements made by the wife against the in-laws i.e. drinking habit of the in-laws’ family that she disliked and the mental torture inflicted by the mother-in-law at the instance of the married sistersin- law. The wife did not raise any allegation directly against the husband. Hence, even if the husband was upset in reading the petition that could not be a plausible ground within the meaning of Section 13 of the said Act of 1955 warranting divorce. We are rather in agreement with Mr. Bagchi that such allegations by the wife were rather condoned by the husband when he repeatedly visited his inlaws’ place to bring back his wife and daughter. Similarly, nonvisitation of the wife during the ailment of the husband even if painful for the husband, was condoned by the subsequent visit of the husband as referred to above.

If we give full credence to thecase made out by the husband we would find that the claim for divorce was based upon two premises i.e. allegation of drinking habit and non-visitation during ailment. In our view, these two isolated facts per se, could not constitute ground for divorce. Mr. Bose strenuously relied on paragraph 31 of the Apex Court decision in the case of SamarGhosh(Supra). If we read the entire decision we would find that the Apex Court considered nonvisitation of the wife during the husband’s illness as a total indifference and neglect leading to mental cruelty. Such observation was made considering a sum total of the evidence. In the case of SamarGhosh(Supra), both parties were IAS officers and they were working whereas in our case the respondent was a house wife. She had undergone scissorian at the time of delivery of her child and was recovering at her parental home during the period when the husband was admitted in hospital. Hence, the case before us has a distinguished feature.

It is the consistent approach ofthe Apex Court that mental cruelty could not be defined through a straitjacket formula. It would depend upon the factual matrix involved in a particular case. In the case of SamarGhosh (Supra), the Apex Court was satisfied that the wife was indifferent. In the case before us we find that the wife approached the Court of Law for restitution of conjugal rights. The wife had to stay alone just one month after her marriage as the husband left on voyage. She did not get the company of the husband after her marriage barring one month. There might be misunderstanding at her in-laws’ place. She had none by her side  except her father-in-law whom she lost within a short span of time. We do not know who was at fault in the matter of discord between the in-laws’ on the one hand and the respondent on the other. However the tone of the letters of the husband post December 2002 could not be conceived of, at least for a newly married couple. It was not excepted particularly when the wife had to part with company of the husband soon after the marriage. It is not unusual that wife would share her feelings with her husband. She would express her sorrow and joy with him. One would not except the husband to write to the wife that he was bored by her repeated complaints (Husband used the word “bored” in his letter). We are of the view that if there was any discord between the couple that was largely due to the husband and not the wife who was always ready and willing to stay with her husband. Even the child, who is now grown up, wants to have father’s company. At this juncture, the prayer for divorce cannot be conceived of. The evidence so discussed above, would not permit us to allow the prayer for divorce as it would not come within the ambit of Section 13 of the said Act of 1955. The Court below rightly passed order for restitution of conjugal rights that would not deserve any interference at our end.

The appeal failsand is hereby dismissed.

There would beno order as to costs.

Urgent Photostatcopy will be given to the parties, if applied for.