JHUMKA BISWAS Vs. JAYANTA KUMAR BISWAS

JUDGEMENT

(1.) This Appeal is against the judgment dated 10th May, 2005 passed by Sri D. J. De. Additional District Judge, Third Court, Barasat, District North 24 Parganas. The appellant was the petitioner wherein she had filed a Matrimo-nial Suit No. 42 of 1999 for a decree of di-vorce against her husband, the respondent, but the same was dismissed on contest. The petitioner/wife of the respondent had filed the suit for dissolution of marriage on the ground of cruelty and misbehaviour of her husband. In her suit and also evidence she had stated that the respondent, her husband, who was her teacher had fallen in love with her and married her on 12-7-1989. At that time she passed class VII examination. Thereafter she completed B.Sc. (Hons) and also M.Sc. For studying in M.Sc. she was sent by her husband to Agartala at Tripura University where she stayed with her mother and by a maid servant sent by her husband. After passing her M.Sc. she came back to Calcutta with her maid servant and her hus-band the respondent but she stayed in her parent's house. Thereafter she came to learn that her husband had become victim of an accident and she attended him. She however, denied that her husband had made her nomi-nee in respect of securities of bank out of love. At any event the petitioner has repeat-edly stated that she could not stay with her husband as he had driven her out from her matrimonial house after physically assault-ing her. She has also alleged that her hus-band, the respondent, had hurled abusive lan-guage to her parents during her stay in the matrimonial house and thereafter on 29th November, 1995 after physical assault on her she was thrown out from her matrimonial house by her husband, the respondent. Due to misbehaviour of her husband, the petitioner's life was in danger and she was mentally and physically assaulted. Therefore she filed the suit for decree of divorce. But the Learned Additional District Judge on 10th May, 2005 passed the judgment in which he held that there was no proper evidence to show that the respondent had assaulted the petitioner during her stay in her matrimonial house. He also held that the relationship and bond of love between them still existed and the respondent was willing to resume the mat-rimonial home with the petitioner. Therefore, he did not allow the petitioner's prayer for decree of divorce and dismissed the same. But the cases cited on behalf of the petitioner was not considered as her prayer for a de-cree of divorce was not allowed by the Lower Court. In a Calcutta High Courts case, Sukhdev Kaur v. Ravinder Singh Grewal, 1997 2 DMC 69, the Hon'ble Division Bench has held that mental cruelty being established the Court below was justified in passing de-cree of divorce to the petitioner, and also, in that case it mentioned of the Hon'ble Su-preme Court's decision in AIR 1995 SC page 2150 where it did not lay down any general proposition of law. It has been held that whenever there is irretrievable break down of marriage, the Court shall grant decree of divorce even when no statutory ground of divorce under the provisions of the Hindu Marriage Act of 1955 is made out. Another case has been placed which is reported in 1993 (I) CHN page 213, wherein the suit for decree for divorce prayed for by the husband against the wife was dismissed. Though the respondent had filed an affidavit and in evi-dence had denied and disputed the allega-tions of conducting physical and mental tor-ture against the wife/petitioner and admitted that he had paid the education expenses of his wife. This had been denied and disputed by the petitioner as nothing was established to prove the said payments. At any event at present when the petitioner has filed this Appeal, the Respondent in spite of notice is not appearing before the Hon'ble High Court and therefore it is now established that he is not willing to stay with his wife in a matri-monial manner. Therefore, after careful con-sideration of the facts and circumstances of the case, the evidence on record and estab-lished principle of law, the order of the Dis-trict Judge is not proper or correct and there-fore, this Appeal is being allowed and the decree for divorce is being provided.

(2.) I agree.