TAPANKUMAR CHATTERJEE Vs. KAMALA CHATTERJEE

JUDGEMENT

(1.) This appeal is directed at the instance of petitioner-husband against the judgment and decree dt. 12-11-1979 passed by Shree S.K. Basu, learned Additional District Judge, First Court, Hooghly, in Matrimonial Suit No. 28/76 refusing the appellant petitioner's prayer for judicial separation and in the alternative for dissolution of his marriage on the ground of desertion. Having considered the respective contention of the parties, appearing in their pleadings, as supported by the oral and documentary evidence led by them and the arguments advanced by the learned counsel of both sides, we are of opinion that the plaintiff-appellant has failed to prove his case of desertion and we hereby affirm the judgment and decree of dismissal passed by the learned Additional District Judge.

(2.) As already stated, the petitioner (appellant) brought this suit for judicial separation, in the alternative for a decree for divorce, under S.13 of the Hindu Marriage Act, 1955. His case in brief was that the marriage between the parties was solemnized according to Hindu Rites and Customs on 12th May, 1966. After the marriage they lived happily as husband and wife in Calcutta for some time and, thereafter, at Serampur, having two issues, a daughter and a son, born out of their wedlock, who were aged nine years and three years respectively at the time of the institution of this suit. The defendant opposite party, holding a master's degree in commerce is an employee of Punjab National Bank, Brabourn Road, Calcutta, since before her marriage and was at the time of marriage drawing a salary of Rs. 1,000/- per month. The petitioner's further case was that his wife, shortly after the marriage, began to show signs of indifference towards him and his issues and used to come back late at night. The petitioner asked the defendant-wife to give up her work to pay more attention and to take proper care of the children but the defendant did not pay heed to that and instead, indulged in quarrelling with the husband and the members of his family. This attitude of the defendant deteriorated and she became more quarrelsome after the birth of her second issue. She left the plaintiff's house for her father's in Dec. 1973 without his consent and since her return has been residing separately in the same premises with no intention of making a matrimonial home in spite of the best attempts on the part of the plaintiff to bring her back. The defendant opposite party during their stay in the same house, used to assault the plaintiff-petitioner and had even bitten and insulted the petitioner to undermine his prestige in the estimation of others. The defendant-opposite party having wilfully deserted the plaintiff-petitioner for a continuous period of more than two years the plaintiff-petitioner was compelled to bring this action.

(3.) The wife opposite party contested the suit by filing a written objection and denied all the material allegations of the petitioner. She, on her turn, made out a case of systematic indifference, ill-treatment towards her and her children by her husband and his parents. It is alleged, after their marriage in 1966, the parties lived happily and peacefully in Calcutta till June, 1967 and, thereafter, shifted to their residence at Tarapukur housing estate and lived there till Dec., 1973. During this period, the opposite party gave birth to two children, the elder one, a daughter named Kumari Soma Chatterjee and the other a son named Sri Kaushik Chatterjee who were aged nine years and four years at the relevant time. It was alleged by the opposite party that her husband was a Union Leader and devoted most of his time, energy and money to his union activity in complete disregard of his obligation towards his wife and children and the opposite party had to run the whole family affair practically with her own income. As the petitioner's income was not sufficient enough he insisted on the opposite party's continuing in service after marriage in order to maintain his family and his parents. It was on the plaintiffs request the defendant took a loan of Rs. 23,000/- from his office and, thereafter, they purchased jointly a piece of land in the joint names and having constructed a single storied pucca building thereon at Zaminderbagar Lane, Serampur, began living therein with their children. Shortly after this, the plaintiff who was very arrogant and rough in temperament began to misbehave with the opposite party and finally refused to maintain her and her children and separated them on or from Dec., 1975. This, according to opposite party, was done by the plaintiff in collusion with his parents with a view to oust this opposite party and her issues from their new house and to grab such property. The opposite party was insulted and assaulted by the plaintiff and she had a very miserable existence facing great difficulties to maintain herself and her children. The opposite party always tried to adjust herself and to live a happy and peaceful conjugal life with the plaintiff. She denied that she ever left the plaintiffs house in December, 1973 or at any time and that she has been living there in the same premises as before. She also denied that she ever insulted or assaulted the plaintiff petitioner or his parents at any time.