Arindam Lodh, J.
1. This is an appeal against the judgment and decree dated 27.2.2015 passed by the learned Judge, Family Court, West Tripura, Agartala in connection with T.S. (Divorce) 396 of 2010 wherein the marriage between the appellant-husband and the respondent-wife has been dissolved by a decree of divorce.
2. The brief facts are that, the appellant-husband filed a petition for dissolution of his marriage with the respondent-wife on the ground of cruelty and desertion. The marriage between the appellant and the respondent was solemnized on 30.1.1997 as per Hindu rites and customs. From the very initial stage of their marital life, disputes cropped up between them. After certain days of staying together in the house of the appellant, the respondent left her matrimonial house and never came back to the house of the appellant. Thereafter, being impatient of the conduct of the respondent, the appellant had filed a divorce suit being T.S. (Divorce) 14 of 1998 which was transferred to the Court of learned Additional District Judge, West Tripura, Agartala for adjudication. The said divorce suit was dismissed by the learned Trial Court by its order dated 1.6.2001 and challenging the said order of dismissal, the appellant had preferred an appeal before the then Gauhati High Court, Agartala Bench bearing case no. MAT APP 2 of 2004 which was subsequently dismissed by the Gauhati High Court, Agartala Bench by its judgment dated 26.7.2006. It is the further case of the appellant that after such dismissal of the suit the bitterness between the appellant and the respondent had aggravated and the respondent was only interested to get the maintenance allowance by showing her unwillingness to resume her conjugal life with the appellant. The conduct of the respondent compelled the appellant to come to the conclusion that their marriage would not survive, and it became meaningless. Thereafter, the appellant filed the present divorce suit for dissolution of their marriage.
3. In course of trial, the learned Judge, Family Court, West Tripura, Agartala framed the following issues on the basis of the pleadings:
(i) Whether the petitioner was subjected to cruelty by the respondent during her marital life to such an extent that it became impossible on the part of the petitioner to lead his conjugal life with the respondent?
(ii) Whether, the respondent had deserted the petitioner willfully since about more than two years back immediately preceding the institution of the suit?
(iii) Is the petitioner entitled to a decree of divorce, as prayed for?
4. Both the appellant and the respondent had adduced their respective evidences. The appellant himself along with another had deposed before the Trial Court as PW-1 and PW-2 and they were also cross-examined. The respondent herself along with 2 others had deposed before the Trial Court as DW-1, DW-2 and DW-3 and they were also cross-examined. After completion of trial and hearing argument of both the sides, the learned Judge, Family Court, West Tripura, Agarala had dismissed the petition for dissolution of marriage between the appellant and the respondent. Hence, this instant appeal has been preferred by the appellant.
5. Some important facts relevant to decide this appeal are elucidated in the written objection filed by the respondent-wife. In her pleading, the respondent stated that due to their wedlock, she gave birth of a female child, namely, Tamanna Saha and at the time of filing the reply the girl was aged about 14 years. In paragraph 3 of the written statement, the respondent asserted that “it is pertinent to mention here that after few days of their marriage, the opposite party left the house and after that gave delivery of her daughter Tamanna though it is true that the petitioner had no any knowledge about the delivery. Now her age is about 14 years since her birth, she never seen Bidyut Saha even nobody came forward at any point of time to restore the relationship. The opposite party with a cruel motive and to lead a free life after few days of marriage i.e. last 14 years has been living willfully deserted life”.
In paragraph 5 of the written statement, the respondent had admitted the statements made by the appellant which he made in paragraph 3 of his petition, and may be reproduced here-under, for convenience:
“3. That, after staying for a short period with the petitioner, the respondent has been residing permanently with her child at her father’s house since long at her own caprice having no genuine intention to resume marital life. During her period of stay with her father’s house, she at the advice of her father and other relatives filed a maintenance case bearing No. Misc. 29 of 1998 against the petitioner and accordingly obtained an award of monthly maintenance for herself and her child from the respective Court of law. However, since long she has been getting monthly maintenance from the petitioner for herself and her child staying at her father’s house seeking relief with further increment of monthly allowances. During the period, there was exchange of notices between the parties for restitution of conjugal life but all attempts went unheeded and could not bring about slightest change in her behavior”.
6. In para 4 of his petition for divorce, the appellant stated as under:
“4. That due to changed situation specially after getting judgment of Matrimonial Appeal Case No. 2 of 2004 passed by the Hon’ble High Court, Agartala Bench, on 27.7.2006, the respondent was emboldened with the result of findings by which her conduct became aggravated and since then she has been allowing interest in receiving monthly maintenance staying at her father’s house. So in actuality it was the respondent who stood against resumption of cohabitation in pursuant to aforesaid judgments passed in her favour. The respondent taking such advantage has been deliberately feigning a posture which are not indicative of strong hatred and rancor, wholly unnatural and beyond comprehension of reasonable housewife”.
7. In reply to such statement, the respondent had answered at para 6 of her written objection in the manner as under:
“6. That, the statement made in para 4 is totally unjust and beyond law and prepared for justifying his claim. It is true that the O.P. never approached anybody to take attempted for restoring their relationship”.
The respondent further stated in her written statement that the contentions made in paragraph 5 and 6 of the petition though partly true, but the petitioner is totally liable for that situation.
8. We have heard learned Counsel appearing for the parties to the lis and also have considered their respective submissions made before us. We have also perused the petition for dissolution of marriage as well as the written statement of the respondent. We have meticulously scrutinized the evidence led by the parties in course of the trial. We have taken note of the judgment passed by the learned Judge, Family Court.
9. For our convenience, we have taken into account the judgment dated 1.6.2001 passed by the learned Additional District Judge, West Tripura, Agartala in connection with T.S. (Divorce) 14 of 1998 wherein by dismissing the suit for divorce, the learned Judge, had directed the parties to restore their conjugal life at once. The said judgment and the direction thereon was not interfered with by the Division Bench of the then Gauhati High Court, Agartala Bench passed in MAT Appeal 2 of 2001 vide judgment dated 26.7.2006.
10. In the record of the case, we find that after the order of the then Gauhati High Court, Agartala Bench, some communications were admittedly made by the appellant urging the respondent to restore their conjugal life but, the respondent had replied to those communications through her appointed Advocate, which apparently, are found to be evasive in nature.
11. Now, coming again to the evidence on record, as led by the parties, we find that the appellant as PW-1 has reiterated the statements which he made in his petition. He has specifically stated in his evidence that “as per observation made by the Hon’ble High Court, I tried to bring back my wife for the purpose of restitution of conjugal rights, but, she denied and after waiting for more years, I filed the present case against my wife for getting a decree of divorce on the ground of cruelty and desertion”.
PW-2, Sri Sujit Chakraborty, has supported the case of the appellant.
The respondent-wife as DW-1 has come up with a different story during her evidence which she averred in her written objection. She in her evidence has stated that since after marriage, her husband put a strict restriction on her not to get together with her parents and other relatives and he asked her only to make contact with them on mobile, if required. She also has stated that her husband was reluctant to take care of her at her matrimonial home and after three months of her marriage, on one occasion she felt ill and was suffering from fever but, on refusal by the husband to take her to a physician for treatment, her brother, Sri Timir Saha came to her matrimonial home and took her to her paternal house for treatment. At the relevant point of time, she was 1 months pregnant. Thereafter, her husband never tried to make contact with her and she gave birth of a female child on 19.1.1998. During her deposition, she has also stated that her husband neither tried to make contact with her nor he had contacted with her daughter.
In her cross-examination, she denied the suggestion that she did not mention in her written objection the reason as to why she left her husband’s house. Thereafter, she stated that she did not stated in her written statement that she was ready to go to her matrimonial house and she also denied the suggestion that she was unwilling to lead her conjugal life with her husband. She admitted in her cross-examination that in her bank account she had mentioned the name of her father instead the name of her husband.
The elder brother of the respondent was examined as DW-2, Timir Baran Saha who stated that in the month of January 1997 the marriage between the appellant and the respondent was solemnised and since the following day of their marriage, the appellant started to misbehave with them and the appellant abused her father at the time of departure from their house with her sister Tapa. He has further stated that after about three months of her marriage she was brought back to her paternal house for the purpose of her treatment following the information passed by the respondent. At that time, when he went to her matrimonial house, her parents-in-law did not behave with him properly. The said witness further stated that since then his sister (DW-1) has been residing in their house. He has further stated that the appellant never made any attempt to take his wife back to her matrimonial house.
DW-3, Tarun Kumar Saha, the elder brother of the respondent also deposed before the learned Court and has stated that his sister was subjected to torture in her matrimonial house by her husband and others and ultimately they had taken her back to her paternal house and since then the respondent and her daughter had been residing in their house.
12. The learned Judge, Family Court, after considering the evidence on record and all other aspects held that the appellant had failed to make out any case of desertion and cruelty and the appellant is responsible for such desertion.
13. Before we appreciate the evidences, we may take note of some of the authorities where the Apex Court has enumerated the different circumstances of cruelty and desertion.
In the case of Ramchander v. Ananta, reported in II (2015) DMC 34 (SC)=III (2015) SLT 551=(2015) 11 SCC 539, the Apex Court has held that [see p. 542 para 10]
“10. The expression ‘cruelty’ has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behavior by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn and they are only illustrative and not exhaustive”.
In the decision of Samar Ghosh v. Jaya Ghosh, reported in I (2007) DMC 597 (SC)=IV (2007) SLT 76=II (2007) CLT 72 (SC)=(2007) 4 SCC 511, this Court has set out illustrative cases where inference on mental cruelty can be drawn and they are only illustrative and not exhaustive. As such, we deem it fit to re-visit the illustrations as drawn by the Apex Court in Samar Ghosh (supra) wherein in paragraph 101, the Apex Court has held as under:
“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty”.
According to us, the observations of the Apex Court made in paragraphs 94 and 95 in the case of Samar Ghosh (supra), is equally important, which are reproduced here-in-below:
“94. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.
95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavor to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties”.
While deciding the case of Samar Ghosh (supra), the Supreme Court quite significantly referred to its earlier decision in Naveen Kohli v. Neelu Kohli, reported in I (2006) DMC 489 (SC)=128 (2006) DLT 360 (SC)=III (2006) SLT 43=(2006) 4 SCC 555 and observed as under: [see p 544 para 97]
“97. This Court in Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558, dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs:
”74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”
77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.
79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory”.
In the case of A. Jayachandra v. Aneel Kaur, reported in I (2005) DMC 111 (SC)=VII (2004) SLT 581=(2005) 2 SCC 22, the Apex Court defines cruelty as under: [see p 29 para 11]
“11. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes”.
Again in para 12 in the case of A. Jayachandra (supra), the Apex Court has observed as under:
“12. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party”.
14. On reasonable analysis and proper scrutiny of the aforesaid authorities rendered by the Apex Court, if we try to evaluate the facts and evidences of the present case, it would not be unreasonable for us to hold that the appellant had been subjected to mental cruelty by the respondent-wife, and there is no prospect and future of their marriage. According to us, the conduct of the respondent was such that no reasonable person would tolerate it.
15. Marriage is a solemn act. It is the union of two mind, heart and body. Respect to each other is one of the major factors to continue the bondage of marriage. Normal wear and tear, trifling differences are the most natural phenomenon in a family life. It happens in the day to day married life. Other major factors to keep the bondage and to continue the solemn tie is adjustment and tolerance but, when trifling matters aggravates and serious differences crop up and when it appears to be so grave, it becomes impossible for the spouse to live together and then there remains no meaning to continue the marital tie.
16. In the instant case, we find that the respondent has failed to bring to light, any particular instance of alleged cruelty, rather the respondent has admitted the case of the appellant in her written statement. Even the statement which she had controverted and the grounds for leaving the matrimonial home appear to be too vague. The statements which the respondent and her elder brothers, DW-2 and DW-3, have made are not found in the written statement filed by the respondent. More importantly, in the first case, filed by the appellant [T.S. (Divorce) 14 of 1998], the learned Additional District Judge, West Tripura, Agartala has refused to grant the decree of divorce and has directed the appellant and the respondent to resume/restore their marital life at once. After such order, we find no evidence that the respondent had taken any initiative/effort to respect the said judgment of the learned Court. There is no whisper even in the written statement that after the said judgment passed by the learned Additional District Judge, the respondent had tried to restore her marital life so that this Court could blame the appellant that he was not at all ready to take back the respondent and to restore their conjugal life in terms of the direction dated 1.6.2001 passed by the learned Additional District Judge, West Tripura, Agartala in T.S. (Divorce) 14 of 1998. The, then Hon’ble Gauhati High Court, Agartala Bench also did not interfere with any part of the findings and directions of the learned Additional District Judge, West Tripura, Agartala while passing its judgment on 26.7.2006 in MAT APP 2 of 2004.
17. What we find in the record is that the appellant requested the respondent to restore their conjugal life. The appellant has personally requested the respondent and also has made communications to the respondent but, curious enough that the respondent replied/responded to those requests as well as the communications made by the appellant through her Advocate. What we have also noticed is that the appellant waited for about four years before we proceeded with the present suit in the year 2010 seeking a decree of divorce by way of dissolution of their marriage.
18. In this situation, it is very difficult to accept the view of the learned Judge, Family Court, Agartala that the appellant is responsible for desertion. From the conduct of the respondent it is quite obvious that she had been residing in her paternal house on her own wish and volition. The respondent has failed to produce an iota of evidence that for those long years she had ever tried to live and lead her conjugal life with the appellant and she had ever visited the house of the appellant. We have discussed earlier that the allegation of torture a
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ppears to be vague. The respondent has failed to bring any such incident as to when and how she was being tortured by the appellant. 19. The marriage between the appellant and the respondent was solemnised on 30.1.1997 and just within a period of three months of their marital life, the respondent left the company of the appellant and subsequently, she has filed a petition claiming monthly maintenance from the appellant and the appellant has been paying the maintenance allowance to her. In the mean time, both the spouse had lost almost 23 years of the golden period of their marital life which leads the marriage to be unworkable. According to us, there are sufficient reasons for the appellant to have a feeling of anguish, disappointment and frustration due to such unnatural and abnormal conduct of the respondent. 20. On cumulative study of the entire attending facts and circumstances starting from the marriage to the factum of leaving the matrimonial home and subsequent unreasonable apathetic attitude of the respondent to resume and uphold the marital tie in our considered view, has broken down the marriage totally. We find, not only the absence of physical relation but also the emotional relation between the appellant and the respondent. There was no mutual trust, regard, respect, love and affection towards each other. There is no chance or probability of their coming together. Though the concept of irretrievable breaking down of marriage is alien to our prevalent legal system but, in the instant case for all practical purposes, the marriage has irretrievably been broken down. 21. In view of the fact that the parties have been leaving separately for more than 22 years and the marriage has been wrecked beyond the hope of salvage, we are inclined to grant a decree of divorce in favour of the appellant. 22. The learned Judge, Family Court, West Tripura, Agartala ought to have visualized the preservation of such marriage which is totally unworkable and which has been seized to be effective, would be a greater source of misery for the parties. Looking to the peculiar facts and circumstances of the case, we set aside the order passed by the learned Judge, Family Court, West Tripura, Agartala and direct that the marriage between the appellant and the respondent should be dissolved according to the provision of the Hindu Marriage Act, 1955. Accordingly, we pass a decree for dissolution of marriage between the parties. 23. Before we conclude, we must take into consideration the future of the respondent and the unfortunate daughter of the parties. The appellant, shall continue the payment of the monthly maintenance and the respondent as well as the daughter reserves the right to revise the quantum of said monthly maintenance commensurate to the proportionate increase of the income of the appellant. 24. With the aforesaid observation and direction, the present appeal presented by the appellant, Sri Bidyut Kumar Saha praying for dissolution of his marriage with the respondent, Smt. Tapa Saha, by way of granting a decree of divorce is accordingly allowed. Registry is directed to draw the decree accordingly. Appeal allowed.