SABITA CHOWDHURY Vs. DULALI MONDAL CHOWDHURY

JUDGEMENT

(1.) I have had the benefit of going through erudite draft Judgment of my learned Brother. I fully agree with the conclusion arrived at by His Lordship and the consequential order passed by him. However, I wish to add a few words of my own which are as follows : The plaintiff Monoj (now deceased) and the appellant were found to have married under Hindu rites and ceremonies. They had led their happy and modestly eventful marital life til 1981 from the date of their marriage. They had produced three children who are successful and pride of any family. Two sons are products of IIT (Kharagpur) and younger son is enviously placed in his life and working in America and elder son is also not lagging behind, he is in decent employment in the State of Andhra Pradesh. Daughter is also married with an Income Tax Officer. What more a fighting and very lower middle class family could achieve during their struggling marital life? After 50's they migrated from East-Pakistan now Bangladesh in quest of their destiny which fructified in this country, in a small happy family. Reality in life is that poverty keeps family united. Prosperity sometimes becomes the cause of unhappiness in the family, we find exactly what we observe just now. Trouble started as it appears from plaint when appellant got a job of primary school Headmistress. The allegations of cruelty levelled by plaintiff / Monoj is that appellant started neglecting him. She used to quarrel with Monoj, did not cook food, nor washed clothes, and did not prepare tiffin. Monoj was compelled to cook his own food. His aged mother was not at all looked after, as she was occasionally visiting India from Bangladesh. Appellant abused in filthy languages, insulted not only the plaintiff but his aged mother as well and this became routine affairs from 1987. Situation created by appellant in the house is so unbearable that his aged mother was compelled to leave his place. All these allegations of cruelty coupled with act of desertion of the appellant has inflicted mental cruelty on Monoj. It further appears the suit was filed not only on the ground of cruelty but desertion in March 1996, In the written statement she denied all the allegations. Appellant made counter-allegation of mental and physical cruelty inflicted on her. She alleged in her written statement that her husband's act of cruelty had reached in such a state that the family happiness disappeared, peace was shattered, and it affected the mind of the children as well, two sons stopped visiting their father. His unusual and quarrelsome behaviour was started immediate before marriage of their only daughter. Monoj initiated proceedings both, civil and criminal, for driving them out from the house. She was compelled to leave the house because of the proceedings and physical torture inflicted upon her though she was never inclined to leave her marital home and her husband.

(2.) The learned Trial Judge as it appears from the judgment found on evidence both parties are guilty of mental and physical cruelty inflicted on each other. He felt that act and conduct of both the parties were such that no marital tie could survive at the age of late fifty of the husband and early fifty of the wife. Following Supreme Court decisions as cited and discussed by my learned Brother, the learned Court below dissolved marriage by passing decree. It appears after decree of divorce Monoj is said to have married another lady. The second lady came with an application for being added as a party in view of death of Monoj. The application was not pressed because of non-appearance. We find no material except one or two sentences of statement of marriage that too without any particulars. As such we dismissed the said application. Even if it is assumed that there was marriage it appears to be violative of Section 15 of the Hindu Marriage Act. The scope of the said Section has been cited and discussed by my learned Brother in details, which I do not need to repeat.

(3.) Now the question before us is whether the learned Judge was justified under the law to pass decree on the fact finding of mental act of cruelty and also desertion or not. As far as desertion is concerned we have checked that there was no continuous desertion for a minimum period of two years preceding the date of filing of the suit, which is sine qua non to maintain divorce action on this ground. According to us the approach of the learned Judge for dissolution of the marriage on the ground of mental cruelty is not acceptable. Language of Section 13, sub-section 1 (ia) of the Hindu Marriage Act shows that in order to grant a decree the Court has to find, the petitioner has proved his case of cruelty as against the wife with preponderance of probability. It seems to us the learned Court below having found in his own way act of cruelty perpetrated by parties mutually to each other, is a factor to hold breaking down of marriage irretrievably. In our view that is not so under law. We have read evidence adduced by the plaintiff with the supporting evidence of his mother and neighbour. Evidence of the plaintiff is not good enough and is not minimum required standard for which one can say that wife perpetrated cruelty. His charges against Sabita not performing household duties viz. not washing clothes, cooking food, etc. are not justified on fact on records as admittedly Sabita was working lady. Sometimes it might become impossible after hectic school duty to do so. It could have been got to be done engaging domestic help which is normal step usually taken in any middle class family. Testimony of picking up quarrel by Sabita is not such that exceeds limit of normal behavioural pattern between married couple. Some degree of altercation or hot exchange of words is bound to happen in any family, but that does not mean that either of spouse will not have reasonable power of tolerance. Sabita's alleged misbehaviour with his mother is not believable as she was not residing with them permanently. As far as the evidence of mother is concerned the same is of no value as she came to stay permanently after desertion of Sabita. It appears from the evidence that two sons and daughters almost have deserted the plaintiff and severed almost all connection.