Sukhendu Das Vs. Rita Mukherjee - Court Judgment

ASHIM KUMAR BANERJEE, J.

PREFACE

1. Both the parties are Judicial Officers. They fell in love while working together and got tied in a marital knot. The dream however broke soon after the birth of the lone child. Real reason for discord is rather unknown, atleast not came out in evidence. Pertinent to note, the wife did not contest the divorce before the Court below or before us. The learned Judge however declined to pass Decree of Divorce as he was not satisfied with the evidence. We patiently heard Mr. Bidyut Kumar Banerjee, learned senior Counsel appearing for the appellant/husband. We meticulously examined the evidence and pleadings. Despite our best efforts, we also could not find out any logic behind the discord that would result in a break down of marriage. It is only in the passage of time, at least now, when we heard the appeal, long period has passed the couple led a secluded life.

2. They were posted at different places, possibly, they never prayed for posting at the same station that they were otherwise entitled to, being a married couple. If one would guess they must have persuaded their colleagues at the Registry to save them from embarrassment having posted in the same station, we would not be surprised. We adjourned this matter from time to time. We intended to have a conciliation. Despite our best efforts, we failed. The parties avoided us and did not meet us giving us an opportunity to make an attempt for re-conciliation. We however frankly confess, we were cautious enough to deal with the issue, particularly when they were still serving in the State judiciary as Judicial Officers that would have the administrative superindence and control of the High Court in which we are part of. We did not pass any formal order asking them to appear before us. Had we passed that order they would have appeared before us. We saved them from embarrassment.

3. They were prudent people delivering justice to the litigants. They were delivering justice which would speak through their conscience. We appealed to their conscience and adjourned the matter from time to time. Our frantic effort and desperate appeal to them possibly did not reach the core of their heart. Had it been so, they would have obliged us.

4. We, being a part of the judicial system, must preach what we observe in Court. When time and again we urge that the marital institution must be preserved at the cost of great sacrifice by both the spouses we would least expect that the parties would give us a chance to mediate, none of them obliged us. They did not possibly think it fit considering the plight of their lone child who was deprived of her father’s affection since her birth. She is now grown up and a lady of nineteen years. Neither of the parties ascertained her wish.

5. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh reported in 2007 Volume-IV Supreme Court Cases Pages-511 observed that the human mind is extremely complex. If we add a rider taking a cue from our renowned author Bamkim Chandra Chattopadhyay who spoke through Kamalakanta and described the member of the fairer sex, a complex character. He said it as a satire. At the same time we would be failing in our duty if we do not give the other version of the author where he compared lady with a coconut shell. It might be difficult to crack, however once you crack, you would find a kind hearted soul inside.

6. Paragraph 99 of Samar Ghosh (supra) being apt herein is quoted below:-

“Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural back-ground, financial position, social status, customs, traditions, religious beliefs, human values and their value system.”

7. Hearing matrimonial appeals for a substantial period, in each case we try our level best, to settle discord sometimes going out of the way, making arrangement for their meeting. However, our success rate is almost nil in the matter of re-union. However we got opportunity and we availed the same. to that extent, we were satisfied. The present case is the solitary one where we are unsuccessful at the threshold. We do not blame any one. We do not fix the responsibility to any one of them. It is our mis-fortune that we could not get the opportunity, at least to give a try. We did not have occasion to see the blooming child who is now at her prime age. Considering her plight we tried our best. Our appeal however did not reach the appropriate place.

8. There might be thousand and one reason for discord that might not have been spelt out herein but if we follow our age old Hindu Custom and the mantras which we chant at the time of marriage that would teach us, we must forget the past of ourselves. We would not encourage the past of each other. We would start a new life and bring a new life to this horizon. Alas, this did not appeal to the parties.

PLAINT CASE

9. Parties were posted at Burdwan. They became acquainted with each other and decided to tie marital knot that was performed on June 19, 1992. Since there was a death in the family of the wife the marriage was solemnised through registration. Subsequently, relatives were informed. The appellant was then occupying a rented accommodation whereas the respondent/wife was in a Government quarter. The appellant left the rented accommodation and started living in the same quarter where the father of the respondent/wife was also residing with them. They led a happy conjugal life for some time. Subsequently, the husband was transferred to Asansol. He was commuting from Burdwan. Subsequently, husband felt that the wife had no liking upon him and his parents and was only akin to her relatives who were visiting her quarter off and on. The father of the husband became ill. The wife however declined to pay visit to see his father. in fact the respondent/wife was reluctant to visit the native place of the husband. She refused to stay at her matrimonial home during vacation. She admitted her fault in marrying the appellant as according to her he was arrogant. She observed that she was a working lady and she would lead her life according to her own wish and the husband must not interfere. She made it categorically clear that she would not be residing anywhere except Calcutta. Whenever she reluctantly agreed to visit her marital place she made it clear that she would go there as guest and would come accordingly as that place was not in her liking. At one point of time she asked the husband to get out of her place when the husband went to see the child. He tried his best for reconciliation when she threatened that she would finish him and would never give him the custody of the child. She asked him to do whatever he would like. In course of time, the appellant lost his father. The respondent/wife visited his native place. However, she reluctantly stayed there up to the date of sradh ceremony and then left the place abruptly. In 2005, when the husband served a notice of divorce she telephoned him and threatened him with dire consequence. She also threatened him that he would finish him and his service career. There was also discord on the admission of the child in school. The respondent/wife did not listen to the advice of the husband and got her admitted in the school of her choice.

PRESENT SUIT

10. With the allegations as above, the appellant filed a matrimonial suit being suit No.15 of 2006 in the Court of District Judge, Nadia on January 6, 2006. The wife initially appeared and filed written statement.

WRITTEN STATEMENT

11. In the written statement she denied all the allegations. In paragraph 8 of the written statement she emphatically denied that she had deserted the husband. She however expressed her difficulty to stay together because of her posting at a different place. According to her, the respondent got promotion before the husband that became the cause of discord as the husband suffered from inferiority complex. The husband behaved rudely and uttered filthy language to the wife when she visited Krishnanagar residence in May 2005. The respondent/wife gave birth to the female child on April 14, 1993 who was a student of class nine at the time of filing of the written statement. The husband did not have any affection to his daughter. He behaved indifferently with the daughter as well. He never spent any sum for her maintenance which he was otherwise legally bound to do as a father for upkeeping, maintenance and education of their daughter. The respondent/wife was very soft spoken, kind hearted responsible and came from a family of repute. She never imagined that she would inflict mental torture either to her husband or her in-laws. On the contrary, she could not imagine to utter any filthy language which her husband inflicted upon her. She expressed her intention to continue the marital knot and prayed for dismissal of the suit.

JUDGMENT

12. The learned Chief Judge, City Civil Court, Calcutta, heard the suit ex parte as the wife did not appear and contest the same. The learned Judge dismissed the suit vide judgment and order dated August 6, 2009 that was impugned in this appeal.

CONTENTIONS

13. Mr. Bidyut Kumar Banerjee, learned senior counsel appearing for the appellant drew our attention to various averments made by the plaintiff in the plaint. He also took us to the evidence that was led by the appellant through affidavit filed on May 5, 2008. The appellant reiterated what he had stated in his plaint. Since the respondent did not contest the suit he was not cross-examined. To support the appellant Kaliprasad Paul (PW-2) filed another affidavit. Kaliprasad was the nephew of the appellant. He deposed that the wife had not felt comfortable at her marital place during her visit. He also witnessed several discord the couple had when filthy languages had been used by the wife towards his uncle being the appellant. According to him, the respondent disliked everyone of her in-laws’ place and often expressed that there was no one to talk to. Mr. Banerjee contended that the wife never contested the suit except filing of written statement and that too, soon after filing of the suit. Long time had passed since the parties had separated themselves from each other that would itself amount to a dead marriage whose continuance was not healthy.

14. He referred to the following Apex Court decisions;

(i) All India Reporter 1995 Supreme Court Page-851 : (1995 AIR SCW 647) (Ramesh Chander v. Smt. Savitri)

(ii) All India Reporter 2008 Supreme Court Page 3093 : (2008 AIR SCW 5190) (Satish Sitole v. Ganga).

15. He also formally cited the decision of the Apex Court in the case of Samar ghosh (supra).

OUR VIEW

16. We are in doubt whether the grounds mentioned in the plaint, even if taken as sacrosanct, would come within the scope of Section 13 of the Hindu Marriage Act or Section 27 of the Special Marriage Act that would permit the Court to break the marital tie. The decision in the case of Satish Sitole : (AIR 2008 SC 3093) (supra), the Apex Court broke the marriage applying their power under Article 142 of the Constitution. This would be apparent from paragraph 12 thereof. The Apex Court, while doing so, relied on the decision in the case of Ramesh Chander “ (AIR 1995 SC 851) (supra). There also, the marriage was broken applying Article 142 as would appear from paragraph 4 thereof. In the case of Samar Ghosh (supra), the Apex Court held that where there had been a long period of continuous separation, it may fairly be concluded that the marital bond was beyond repair. However, while coming to such a conclusion the Apex Court relied on the evidence that was led on behalf of the parties and came to a conclusion that those evidence would satisfy the requirement of the statute on “mental cruelty”. In the case before us we do not find any such evidence that would help us to break the marital knot. We fully appreciate the submission of Mr. Banerjee that it is a dead marriage as of date in view of the long period having passed in between. In our view, that is yet not considered as a permissible ground of divorce. The law is yet to be changed and given its statutory force.

RESULT

17. The Appeal fails and is hereby dismissed.

18. There would be no order as to costs.

DIRECTION

19. Urgent Photostat copy will be given to the parties, if applied for.

SHUKLA KABIR (SINHA), J:

20. I agree.