w w w . L a w y e r S e r v i c e s . i n

Jitumoni Das v/s Sri Hirakjyoti Das

Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- SRI B L C PVT LTD [Active] CIN = U92111WB1981PTC033844

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    Case No. Mat. App. 68 of 2018

    Decided On, 19 June 2020

    At, High Court of Gauhati


    For the Petitioner: MD. A. Ali, S.K. Talukdar, Advocates. For the Respondent: R. Sarma, Advocate.

Judgment Text

(Soumitra Saikia, J.)

1. This matrimonial appeal has been preferred by the appellant/wife against the Judgment dated 26.02.2015, passed by the Principle Judge, Family Court, Kamrup, Guwahati in F.C. (Civil) No. 519/2011, under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

2. The respondent/husband as the petitioner, namely, Sri Hirakjyoti Das filed the petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, seeking dissolution of marriage by decree of divorce against the opposite party/wife (appellant herein), namely, Smt. Jitumoni Das. The petition has been allowed. The marriage has been dissolved by a decree of divorce. Aggrieved by the judgment and decree of divorce the wife has brought this appeal. Interim order dated 02.11.2018 was passed in I.A(C) No. 3661/2008 staying the judgment dated 26.02.2015 until further orders. The appeal was admitted on 26.11.2018 while confirming the earlier interim order dated 02.11.2018.

3. The case of the husband before the Family Court below is that he is employed as a drilling engineer in the ONGC and his place of posting revolves around various drilling sites of the ONGC. His nature of duty involves 14 continuous days of being engaged in the drilling site and thereafter he is entitled to 14 days off-duty period. At the relevant point in time, the husband was posted at Sarupathar drilling station under the Jorhat office of the ONGC. As the drilling site is almost 100 kms. away from the Jorhat town, instead of availing rental accommodation at Jorhat, the petitioner found it convenient to come back to Guwahati to his parental house upon completion of 14 days duty at the drilling site. The petitioner resides with his aged parents, his elder brother and his wife, together in the same house at Hengrabari, Guwahati. The marriage between the husband and the appellant-wife was solemnized on 02.11.2009 at Guwahati as per Hindu customs. After marriage, the husband and the appellant-wife started their conjugal life in the husband's house as the matrimonial home. Initially, the husband agreed to the appellant-wife's request to go to her parental house during the period for which the husband has to proceed to his place of employment. When the husband returns back home, the appellant/wife also comes back from her parental house. Because they were newly married, the husband had initially agreed to the request made by the appellant/wife. Subsequently, this became a routine affair and the appellant/wife insisted on going to her parental house for the entire period during which the husband leaves for his place of employment. The attempts made by the husband and his family members to dissuade the appellant/wife from repeatedly going to her parental house were completely disregarded by appellant/wife and this resulted in frequent quarrels between the husband and the appellant/wife. The further case of the husband is that the appellant wife never participated in the family gatherings nor did she extend any help towards the household chores. Because of the frequent quarrels and the unpleasantness that resulted between the husband and the appellant/wife, the husband was deprived of his conjugal life and biological needs. Such deprivation became a regular practice which led to the marital discord causing mental agony. The appellant/wife also falsely accused the husband of misbehaviour. On the contrary, it was the wife who frequently quarrelled with the parents-in-law and there was even an episode where she attempted to assault her mother-in-law. The appellant/wife also suspected the husband of having extra marital affairs with women at his work place. The appellant/wife was so suspicious of her husband's alleged extra marital affairs that she, accompanied by her mother and some other persons, visited the work place of the husband at Jorhat on 24.04.2011 and made enquiries about her husband from amongst his colleagues. Such behaviour of the appellant/wife degraded the husband's status/position at work before his colleagues. The appellant/wife further threatened the husband and his family members with criminal proceedings leading to the constant apprehension in the mind of the husband and his family members and which ultimately led to the father of the husband to suffer a stroke and get admitted to the Guwahati Medical College & Hospital. Efforts to reconcile the relationship between the husband and the appellant/wife did not yield any results. Since the 1st week of May, 2011 the appellant/wife has been staying in her parents' house without the consent of the husband.

4. The appellant/wife contested the suit by filing her written statement. She admitted that the nature of the duty of the husband required him to be engaged for 14(fourteen) days in the drilling site under the various shifts and on completion of 14 days he is entitled to avail 14 days of leave. She further stated that the husband during his off-duty period of 14 days used to return back to his residence in Hengrabari, Guwahati. The appellant/wife stated that her parental house is also situated at Hengrabari. The appellant/wife stated that during the initial period of their conjugal life, at the instance of her husband, she used to come and stay with her parents at her parental house while the husband proceeded to his place of posting in the drilling site. The appellant/wife comes back to the matrimonial house when the husband returns back to Guwahati during of his-off duty period of 14 days. The appellant/wife stated that the family members of the husband never accepted her as a part of the family and were reluctant to talk to her. She stated that her mother-in-law used to ill-treat her and consider her to be a desperate and indecent woman and implored her son that he should have married someone better like a college teacher rather than the appellant. She further stated that she was not allowed to enter the kitchen and was told by her mother-in-law that she did not even have the right to make herself cup of tea. She was not allowed to sit and take meal with other family members nor was she allowed to be a part of the conversations held between the family members. The appellant/wife pleaded with husband to take her with him to a separate rental accommodation near his place of employment. However he did not yield to such request made by the appellant/wife. She denied that she had deprived the husband of his conjugal life and biological needs. She denied having any quarrels with the husband. Rather it was the mother-in-law who always picked up quarrels with her on some issues and provoked the husband to quarrel with the appellant/wife. She stated that on 16.06.2011, the husband left the appellant/wife at her parental house by saying that he would bring her back after his return from his duty, but surprisingly he stopped communicating with appellant/wife. Every time she attempted to call the husband's mobile, it was found to be in switched off mode. As she was unable to obtain any information about her husband or speak to him for about 4 months, she was left with no alternative and, therefore, she proceeded to his work place at Jorhat to make enquiries from the colleagues of the husband. She denied that she had suspected her husband of having extra marital affairs at his work place or that she had proceeded to his place of employment i.e. Jorhat to make any enquiries about his extra marital affairs

5. The respondent/husband also approached the Assam State Commission for Women by way of filing a petition for initiation of conciliation so as to settle the marital dispute. But the conciliation failed to convince the appellant/wife to live with the respondent/husband. It is under these circumstances, the petition for divorce alleging cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 was filed broadly on the following grounds:

(1) That he had been regularly deprived of his biological needs and conjugal rights by the appellant/wife.

(2) He has been degraded before his colleagues by the appellant/wife.

(3) She the appellant/wife issued threats to the husband and his family members which resulted in the aged father of the husband to suffer stroke.

6. The Family Court below attempted reconciliation between the parties, but failed, hence the case proceeded for trial. The Court below framed the following issues;

(i) Whether the suit is maintainable in the present form?

(ii) Whether the opposite party has treated the petitioner with cruelty?

(iii) Whether the petitioner is entitled to get a decree of divorce as prayed for?

(iv) To what relief/relifs the parties are entitled?

7. Both the parties adduced evidences of three witnesses each in support of their respective claims. After hearing parties and on the basis of the evidence adduced, the Family Court answered issues No. 1, 2 and 3 in affirmative in favour of the respondent/husband. No further relief was granted in issue No. 4.

8. Accordingly, the Family Court allowed the petition filed by the respondent/husband by passing a decree of divorce by dissolving the marriage between the parties, namely, Shri Hirakjyoti Das and Smt. Jitumoni Das. The existing marriage between the parties was ordered as dissolved under Section 13(1)(i-a) the Hindu Marriage Act, 1955. The decree was drawn up accordingly.

9. We have heard Mr. S. K. Talukdar, learned counsel for the appellant. Also heard Mr. R. Sarma, learned counsel for the respondent/husband and have also perused and the pleadings and the evidences adduced before the Family Court below, from the Lower Court record.

10. Order-sheet of this Court discloses that the parties were asked to appear before this Court on 26.11.2018, but the dispute could not be settled amicably, thereby necessitating adjudication on merits.

11. In respect of deprivation of the respondent/husband's biological needs/conjugal rights, the husband has stated that because of quarrels and regular absence of the appellant/wife from the matrimonial home, the respondent/husband has been continuously deprived of his conjugal rights. Although the appellant/wife denied the said contention, it is seen from the LCR that she had been living in her parental home in the absence of the husband. Be that as it may w.e.f. 1st week of May, 2011, it is not in dispute that appellant/wife had been living respectively in her parental house.

12. In respect of the allegations against the husband's extra-marital affairs with women at his work place and the visit of the appellant/wife along with her mother to his work place at Jorhat on 24.04.2011 and making enquiries about the respondent/husband from his colleagues, and thereby causing mental agony by lowering the petitioner's reputation before his colleagues, the appellant/wife did not adduce any evidence to discharge her burden that her visit to Jorhat with her mother was not to make enquiries about the respondent/husband regarding any extra-marital affairs, but for some other purpose. The respondent/husband's evidence to the effect that the appellant/wife had proceeded to Jorhat with her mother to make enquiries about any extra-marital affairs of the respondent/husband remains unshaken during the cross-examination. As such, the evidence of the respondent/husband to this effect has remained un-rebutted. That apart, in the evidence adduced before the Court regarding the text messages sent by the appellant/wife to the respondent/husband which were exhibited as Exhibits A-1 to Ext. A-9 (page No. 35 to 43 of file C-1 of the Lower Court's record) reveal that there were several messages sent by the appellant/wife to the respondent/husband's mobile which supports the contention of the respondent/husband that there were threats issued by the appellant/wife which also remained un-rebutted by the wife. For instance, the appellant/wife's text message dated 02.10.2013 sent to the petitioner reads as under:

"Head office t jab loga kam hoise Sinnamara goi aso beya pai lav nai moi nije hara budhi2 korib lagib.mur lgt teri beki korise nahay valr lgt val beya lgt jomkal

Translated which means

"There is work for which I have to go to head office" I am going to Sinnamara no point in getting upset I will have to work out (your) defeat plan (You have) not dealt with me correctly I am good to (people who are) good devil with bad (people).

By Similar text messages dated 19.09.2011, the appellant/wife texted the following messages to the respondent/husband referring to her mother-in-law:

"burir vorihat vagi thob lagisil abosrman pluster logai thoake marib lagisil pongue kari thob lagisil. eman bodmas buarik agatthoi, vagr khai, galipara vorihat, kokal vagi thob lagisil uthib nuara hoi thakk aneke marib lagisil. lawyer question kare jadi 2marpit kari thakato jana tetiahole emandin bybsta kio lobo nuaril"

Translated which means "Old lady's legs should have been broken she should have been thrashed so that she would be required to put plaster for about a year should have been crippled. Such evil old lady (who) eats (appellant/wife's share)/ rebukes (her) hands, legs and backbone should have been broken (so that) she would not be able to move about she would have died like that......"

13. It is clear that there is a complete breakdown of marital harmony between the parties for the past several years and as referred above, attempts to reconcile by the Assam State Commission for Women as well as by this Court failed. Consequently, it is evident that the matrimonial bond between the appellant/wife and the respondent/husband has been irretrievably broken-down. According to Section 13(1)(i-a) of the Hindu Marriage Act, 1955, cruelty is a strong ground for grant of decree of divorce.

14. The moot question is whether the allegations and the aspersions cast by the appellant/wife towards the respondent/husband alleging extra-marital affair followed by enquiries made thereto by the appellant/wife amongst his colleagues at his work place coupled with the SMS/messages sent to the husband as adduced in the evidence; amounts to cruelty? In this context the Judgment of the Supreme Court rendered in the Case of VijayKumar RamChandra Bhate Vs. Neela VijayKumar Bhate , reported in (2003) 6 SCC 334 is relevant. The Supreme Court has held that accusation of extra-marital affairs and character assassination, aspirations of perfidiousness, amounts to cruelty under matrimonial law.

Although in the judgment, the Apex Court considered the character assassination of the wife, the principle of law culled out by the Apex Court is squarely applicable even in the case of the husband. The relevant paragraphs of the Judgment are extracted below:

"7 The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife and to live in matrimonial home any longer with the husband. The Division Bench of the High Court, in the course of its judgment in FCA No. 57 of 1994, particularly in paras 31 to 38 adverted to the nature and details of the allegations as culled out from the written statement extensively and meticulously and considered them in the light of the settled principles of law governing the same before affirming the judgment of the trial court which also recorded findings against the respondent after a detailed discussion of the relevant materials on record in paras 26 to 30 of the judgment in M.J. Petition No. 382 of 1983. On going through them we are convinced that the findings of the courts below are well merited and fully justified on the materials available on record and that they are neither shown to suffer any infirmity in law nor substantiated to be based on no evidence or vitiated on account of any perversity of approach to call for a different conclusion in our hands and interfere with the concurrent verdicts recorded by them.

11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. To satisfy the requirement of clause (i-a) of Sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accomplished the day they were made in the written statement. They continued on record at any rate till 5.10.1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto dissolved, with the amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him".

15. During the course of the hearing although sufficient opportunities were given but the counsel for the appellant/wife could not bring forth any deficiency in the impugned judgment of the Family Court in appreciating the evidences. The learned counsel for the appellant fairly admits to the evidences recorded by the Family Court. However, the learned counsel for the appellant strenuously urged before this Court that the contention/allegations of the respondent/husband towards the appellant/wife that she had not proceeded to Jorhat to make enquiries from the colleagues of the respondent/husband with regard to her allegations of extra-marital affairs have not been substantiated by the evidence produced before the Court below. As mentioned above the evidence of the respondent/husband to that effect has remained unshaken coupled with the fact that the appellant/wife in her evidence also did not sufficiently discharge her burden on the purpose of her visit to Jorhat accompanied by her mother on 24.04.2011. A perusal of the evidence of PW-1 will reveal that in the evidence-in- chief adduced by the respondent/husband, the statements made in paragraphs 13 to 16 regarding the visit of the appellant/wife to Jorhat accompanied by her mother and the enquiries regarding extra-marital affairs of the respondent/husband made from his colleagues at his work place and the consequent loss of status/position suffered by him had not been confronted to the respondent/husband during his cross-examination by the appellant/wife. Therefore, this part of the evidence of the respondent/husband having remained unchallenged will have to be relied upon as had been rightly done by the Family Court.

16. The Supreme Court in a catena of judgments has held that the trial Court is the best Judge of evidence. While, there is no prohibition in law for the Appellate Court to re- appreciate the evidence where compelling reason

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s exists, but where the appraisal of the evidence by the Court below does not suffer from the material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court ought not to interfere with such findings of fact. The evidence adduced is to be viewed collectively. The statements of the witnesses must be read as a whole, as reliance on mere line in a statement of witnesses is not permissible. The judgment of the Family Court has to be tested on the "touchstone of dispassionate judicial scrutiny based on a complete and comprehensive appreciation of all views of the case, as well as on the quality and credibility of the evidence brought on record......" [(2013) 4 SCC 97]. 17. If the evidences adduced by the appellant/wife are taken as a whole, it is seen that it does not explain the conduct of the appellant/wife in sending the text messages (A-1 to A-9) to the husband. She has also not been able to explain her purpose of visit to Jorhat on 24.04.2011 along with her mother and the nature of enquiries and/or nature of interactions admitted to have been made with the colleagues of the respondent/husband. Consequently, the evidence adduced by the respondent/husband with regard to the allegation of extra- marital affair at his work place and the subsequent enquires by the wife amongst his colleagues at Jorhat and thereby causing loss of reputation and/or status of the petitioner and the continued threats made by the appellant/wife, have remained unchallenged. The appellant/wife thereby has failed to discharge her burden as rightly held by the Family Court. This Court also takes note of the fact that the respondent/husband had also been regularly deprived of his conjugal rights. It is no longer res-integra that deprivation of conjugal rights/biological needs without any just cause also amounts to mental cruelty as had been held by the Hon'ble Supreme Court [(2007) 4 SCC 511]. 18. Under the circumstances, the grounds taken in the present proceedings do not appeal to this Court to be good grounds to interfere with the impugned judgment passed by the Family Court below. In view of the discussions above, we are not persuaded to interfere with the findings of the Family Court below and the same is therefore sustained. This matrimonial appeal, accordingly, fails and the same is, therefore, dismissed. 19. Interim order passed earlier stands vacated. Parties are left to bear their cost. 20. Send back the LCR.