CIVIL APPEAL None on 30 August 2000

IN THE HIGH COURT AT CALCUTTA

Appellate Side

Present :

The Hon’ble Justice Arindam Sinha

FAT 638 of 2015

Smt. Mukul Ray

Vs.

Sri Samar Bijoy Roy

For appellant/wife : Mr. Kushal Paul, Adv.

For respondent/husband : Mr. Partha Sarathi Bhattacharya, sr. Adv.

Mr. Raju Bhattacharya, Adv.

Mr. Arunava Maity, Adv.

Mr. T.J. Mondal, Adv.

Heard on : 5[th] April, 2019, 12[th] March, 2020 and 11[th] February,

2021.

Judgment on : 18[th] February, 2021.

Arindam Sinha, J.: In view of difference of opinion in the Division Bench therewas assignment of the appeal to this Bench for third view. Mr. Paul, learnedadvocate appeared on behalf of appellant/wife while Mr. Bhattacharya, learnedsenior advocate appeared on behalf of respondent/husband. Upon hearing them ittranspired, trial Court did not find in favour of respondent/husband as had provedexistence of grounds under clauses (ia) and (ib) in sub-section(1) of section 13,Hindu Marriage Act, 1955. However, decree for divorce was granted on finding ofirretrievable break down of marriage. Hence, appeal by the wife.

Judgment of Supreme Court in Satish Sitole vs. Smt. Ganga reported in

(2008) 7 SCC 734 as well as AIR 2008 SC 3093 were considered by trial Court and both learned Judges in the Division Bench. Learned presiding Judge said, onconsideration of judgments of Supreme Court in Vishnu Dutt Sharma versusManju Sharma reported in (2009) 6 SCC 379 and Darshan Gupta versus RadhikaGupta reported in (2013) 9 SCC 1, irretrievable breakdown is not a good ground togrant divorce in a contested action. So, the legal premise for granting divorce by trialJudge, was incorrect. Learned presiding Judge went on to say, on considering SatishSitole (supra), continuance of a marriage on irretrievable breakdown would amountto cruelty. On facts, learned presiding Judge found there is evidence to suggest thatsince year 2001, respondent husband had been requesting appellant wife to bephysically proximate with him, but she repeatedly denied him amounting tosufficient mental torture, entitling the husband to obtain divorce. Judgment oflearned presiding Judge was that trial Judge had come to correct conclusion forgranting divorce but attributed wrong legal reasons in support of it.

Learned second Judge agreed with interpretation of learned presiding Judgethat Supreme Court in Satish Sitole (supra) had said, continuance of marriageirretrievably broken down could itself amount to cruelty. Said learned Judge found,apart from a bald statement, the husband failed to prove that the wife refused to co-habit with him. Said learned Judge went on to find, the wife was all along ready andwilling to stay with the husband and continue with the marital tie. She is eager to beunited with her husband.

Mr. Paul, drew attention to cross-examination of the husband. He relied onthe following:

“Only for four times we have cohabited. I have accepted this aspect of life. It is not a fact that we are in the habit of regular cohabitation or that I havefull satisfaction in cohabitation of my life.”

………

“Yes it is a fact that w.e.f. 30.08.2000 till 08.10.2000 I and my wifewent on a tour programme with the help of Loknath Travel Agency at Delhi,Agra, Rajasthan and Gujarat.”

……..

“It is not a fact that I with full satisfaction with my conjugal life with mywife in a regular manner.”

He then drew attention to paragraph 11 in Evidence on Affidavit of the husband,reproduced below: - “That due to obnoxious attitude of the O. P. my life became miserable and I became isolated from my friends and relatives and staying in separateplace, separate mess in the same house.”

Meaningful reading of above evidence and the pleading would cause conclusion orinference that his client was always ready and willing to cohabit with her husband.Mr. Paul submitted there should be view taken concurrent with that of learnedsecond Judge.

Mr. Bhattacharya, relied on judgment of Supreme Court in Manish Goel vs. RohiniGoel reported in (2010) 4 SCC 393. He submitted, said Court had granted decree ofdivorce to put quietus to all litigations between the parties and to save them fromfurther agony, as also evident from several earlier decisions referred therein. He submitted, there should be view taken concurring with that of learned presidingJudge.

View to be taken must be upon appreciation on a question of fact, whether regularco-habitation or co-habitation had been denied by appellant/wife torespondent/husband. That is the only question because there is no supplementaryquestion, arising from judgment of the Division Bench, regarding cruelty attendingupon denial.

Paragraph 3 from the plaint is reproduced below:- “3. That since the date of marriage O.P. resides in the house of thepetitioner as husband and wife. Since the date of marriage till today as perdesire of the petitioner and usual force and eggerness O.P. involved in sexual-inter-course for only four days, though not upto the satisfaction.”

Above was also asserted by respondent husband by affidavit in chief. This assertioncould not be shaken in cross-examination, other than obtaining admission, reliedupon by Mr. Paul, of having gone on a trip.

Appellant wife affirmed her Evidence on Affidavit on 1[st] April, 2015. In it shesaid, inter alia, as follows:- “I am the defendant of this suit. Plaintiff is my husband. Since mymarriage till filing of this suit and till the date of receiving the summons at theabove suit I and the plaintiff both lived together as husband and wife withregular co-habitation with full satisfaction of the couple. Our matrimonial lifewas full of joy, jubilant and full and events of the perfect couple. I alwaysbehave properly with plaintiff which a normal wife under all circumstances to her husband. I did never make anything that have caused any mental pain, agony or cruelty in the mind of the plaintiff or any member of the family.”

It is noticed that the assertion of regular co-habitation was general, in as much asno specific mention was made of the trip taken together in year 2000 to Delhi, Agra,Rajasthan and Gujarat. As such there is preponderance of probability that therewas no further co-habitation, as alleged by husband.

Above inference, however, should not be taken to be result of deliberate omissionby appellant, resulting in denial of marriage right of respondent. This becauseappellant’s letter dated 29[th] July, 2001, written to respondent, was exhibited byrespondent, through appellant in cross-examination. Relevant deposition in thisregard, of the cross-examination, is reproduced below:- “This letter dated 29.07.2001 do not belong to me. It does nothave my signature even. He might have used someone for preparation ofthis letter.

(Cross-examination is deferred on the prayer of plaintiff)

…….to be continued

Dictated & Corrected

by me

Additional District Judge Additional District Judge 1[st] Court, Raiganj, Uttar Dinajpur 1[st] Court, Raiganj, Uttar Dinajpur 22.05.2015 22.05.2015

(Cross-examination of OPW-1 Mukul Roy resumed on 01.07.2015)

The letter marked x for identification belongs to me and I admit this letter dated 29.07.2001 (volunteers) it is marked Ext.C.”

The letter is written in Bengali. By the last paragraph appellant says to respondentthat whenever there is quarrel he says; why are you still there when I have noconnection or adjustment with you? She answers the question by posing one. Sheasks him; do you know why?

This Bench is convinced appellant loves respondent. There cannot be a finding thatshe caused him cruelty by not co-habiting with him. It is respondent who does nothave answer to her question. Manish Goel (supra) was exercise of power bySupreme Court under article 142 in the Constitution of India. Even otherwise it isinapplicable on the finding of fact.

There must be and is concurrence with view taken by learned second Judge.The appeal is allowed on direction already made in regard thereto.

(Arindam Sinha, J.)