AMARENDRA NATH CHATTERJEE Vs. KALPANA CHATTERJEE

JUDGEMENT

(1.) The question involved in this appeal before us is whether the acts of the respondent as complained of by the appellant have been proved and if so the same constitute cruelty so as to entitle the appellant to a decree for divorce. The Trial Judge held against the husband as a result of which this appeal has been preferred by him.

(2.) Mr. Mitra cited the case of N. G. Dastane Vs. S Dastane, reported in AIR 1975 Supreme Court and urged relying upon the said decision that proceedings under the Hindu Marriage Act being essentially of a civil nature the word 'satisfied' under section 23 of the Act must mean 'satisfied' on preponderance of probabilities and not 'satisfied' beyond the reasonable doubt. He further submitted that though the Supreme Court in earlier decisions viz. Bipinchandra Jaisinghbai Shah Vs. Probhavati, reported in AIR 1967 Supreme Court 176 and Earnist John White Vs. Kathleen Olive White, reported in AIR 1968 Supreme Court page 441 held that in proceedings for divorce the plaintiff must prove the matrimonial offence beyond reasonable doubt and that the word satisfied in that context meant that the court was to be satisfied on the evidence in respect of the matrimonial offences and the guilt must be proved beyond reasonable doubt, but this view, however is no longer good law in view of the subsequent decision in the case of N. G. Dastane Vs. S. Dastane (Supra) which is a later Supreme Court decision. Without going into the said controversy as to whether the matrimonial offence has to be proved beyond reasonable doubt or has to be decided on the preponderance of probabilities and assuming that the later decision of M.G. Dastane Vs. Mrs. S. Dastrne (Supra) holding, even then on the preponderance of probabilities it does not appear to us that the wife in the case before us has committed such acts which amount to cruelty so as to entitle the appellant to a decree for divorce. For the purpose of correct appreciation of the said position it is necessary to consider the facts of the case in details.

(3.) It is the case of the appellant that after the marriage the appellant came to his house at Barasat with the respondent wife and their 'Fulsajya' ceremony was performed on the 12th of July, 1966 corresponding to 27th Ashar, 1373 B.S. Due to the refusal of the respondent, there was no cohabitation between the parties and according to the appellant as made out in the petition after the marriage the petitioner and the respondent did not ever cohabit and did not ever have any sexual relation. As the period of leave of 20 days was going to expire the appellant left for his place of work at Kanshabahal in Orissa leaving his wife with his mother and sister at his Barasat residence He offered to take the respondent to his place of work as soon as he would secure a separate residential quarter there. According to the appellant, as appears from his petition, during the short period of his married life he suffered insults and abuses from his wife. He had to leave for his place of work with a heavy heart. During the next Durga Puja in 1966 the appellant came to Barasat and met his wife with a jubillang mind expecting that his wife will welcome him after a long separation, but to his utter surprise he was taunted and jeered at for living separately from her so long. Due to her rough temper and abusive language used against the appellant his mental peace was disturbed. Again during the next Durga Puja in 1967 he came down to Barasat He expected that with the passage of time the respondent would change for the better but to his dismay he was roughly treated by the respondent. She called him a crook, a 420 and a fraud and kicked him furiously out of the bed. He was so much shocked that he could not sleep at nights resulting in his developing acidity and other stomach troubles effecting his health. Before the Durga Puja in 1968 he secured a separate quarter and requested the respondent to accompany him to Kanshabahal and the respondent refused to go and live with him as be wanted to take his mother with him. However, in the month of Dec. that year the respondent accompanied by her sister's husband Jagadish Chakraborty arrived at the appellant's quarter one early morning without any prior intimation. During her stay there she did not care to do any household work or to look after the appellant. She would rot cook the food and used to idle away her time. She displayed her high temper and justified it by saying that she was the sister-in-law of her wealthy sister's husband and as such it was only natural for her to be in high temper. The hitch between the parties came to such a stage that the respondent even did not hesitate to raise her hands on him. He expressed his desire to boring his mother to live with him at Kanshabahal with the hope that the mother's arrival might help in bringing about a thaw in the bitter conjugal relationship but it was alleged by the appellant that the mother's arrival instead of reducing the tension created further deteriorating effect in the temper of his wife and she got infuritated at the proposal and gave vent to her desire to divorce the respondent if he would bring his mother. After seven days the appellant and the respondent came down to Barasat. During their stay at Barasat she started to disobey her parents-in-law and ignored their forbiddings. She became reckless moraly. One fine morning she left the matrimonial home at Barasat with his brother-in-law without taking permission from her parents-in-law. She returned with an unknown person and promised to mend her ways but soon after she forgot her promise and started to show ill behaviour again to the appellant's family members and went away from the matrimonial heme again and again without permission from the appellant's parents. On some day in July, 1974 she came to Kanshabahal accompanied by a stranger and abused the appellant. She even assaulted the appellant at times with shoes of her feet. She even threatened to kill him by administering poison in his drinking water or by throttling him when asleep. The appellant had to bring her sister at Kanshabahal out of fear and also for doing household work. This intolerable behaviour of the respondent shattered his health and mind and effected differences and disputes between the appellant and respondent and it was settled that they would live separately from each other and the appellant would go on paying to the respondent Rs. 159/- per month for maintenance. The appellant has been since paying maintenance to her. In the meantime the appellant was transferred to Calcutta, but the respondent refused to go with him and continued to live in the appellant's quarter at Kanshabahal all alone. The appellant was thus prevented from surrendering vacant possession of the quarter. While residing at Barasat inspite of best efforts of the appellant since after the marriage, there has been no sexual intercourse between the parties and according to the appellant the marriage has been totally frustrated. The cruelty of the respondent was such that a reasonable apprehension had grown in the mind of the appellant that it would be harmful and injurious for him to live with the respondent. The appellant alleged that under the aforesaid circumstances he had to institute the suit for a decree for divorce.