JYOTSNA MUKHERJEE Vs. UTPAL MUKHERJEE

JUDGEMENT

(1.) The wife in a matrimonial suit is the appellant before us. The husband sued for divorce on the ground that the wife was guilty of cruelty and desertion. The. case of cruelty and desertion was, however, denied by the wife. Parties adduced evidence in support of their respective cases. The Trial Court found that the case of desertion was not proved by the husband, but held that the husband was entitled to a decree for divorce on the ground of cruelty. Feeling aggrieved by this judgment and decree of the Trial Court this appeal has been preferred.

(2.) In the plaint the case of cruelty and desertion as made out by the husband / respondent may be stated in a nutshell which is as follows : The marriage between the wife/appellant and the husband/respondent was solemnised according to Hindu rites on 10th March, 1984. After the marriage the wife went to her matrimonial home and there the Boubhat ceremony was held on 12th March, 1984. On the 15th March, 1984, the wife fell seriously ill and she was vomiting blood accompanied with prolonged cough. The husband called a doctor, who attended her and within 7 days she partly recovered from the acute stage of her ailments. As the wife insisted on for taking her to her father's place so that she could be under the treatment of their family physician, the husband on 25th March, 1984 accompanied her to her father's house and made all arrangements for her treatment. He used to visit his in-law's house frequently and pay all expenses for her maintenance and treatment. But even after her recovery she was not inclined to return to her matrimonial home at Panihati on the plea that she was in the family way and when the said fact was brought to the notice of her parents, they assured the husband that they would send her back to the matrimonial home within a fortnight following. But the said assurance was found to be a big hoax. In the following months also she was not sent back to her matrimonial home, nor had she any intention to come back there. In spite of repeated requests she on some pretexts or other avoided returning back to her matrimonial home. In spite of the aforesaid conduct of the wife, the husband used to meet her in his in-law's house and as she was in the family way, he used to bear all expenses for her maintenance. A female child was born out of this wedlock on 21st March, 1985. In spite of the aforesaid conduct of the wife, the husband used to meet her at his father-in-law's house and tried to bring her back to her matrimonial home. An offer was, however, made by the parents of the wife to the husband to stay in his in-law's house as Gharjamai, which the husband could not agree. In spite of all attempts by the father of the husband, the wife did not return to Panihati. The father of the husband on 17th April, 1985 went to the residence of the in laws of the husband in order to bring back the wife in her matrimonial home. But, the father of the husband was insulted by the father of the wife. On 17th April, 1985 again the husband went to his father-in-law's house to bring back the wife, but to no effect. He was even threatened with dire consequences, if he would try to come to the in-law's house once again. These acts of physical and mental torture perpetrated on Utpal which told upon his health severely and his physical constitution was very much reduced. He wanted to lead a happy conjugal life with his wife, but the latter without reasonable excuse and with a view to breaking the matrimonial home withdrew herself from his society and deserted the matrimonial home on 25.3.1985. Due to the habitual, wilful, motivated and deliberate acts of the wife in not coming back to her matrimonial home and in not offering the husband her association and keeping the husband deprived of the usual physical and mental comforts, the wife was guilty of the acts of desertion and cruelty. It was further alleged that the wife instituted a petition for maintenance under Section 125 of the Criminal Procedure Code in the Court of the Sub-Divisional Judicial Magistrate, Barrackpore in the year 1985. The husband also instituted a suit for divorce in the Court of the District Judge, 24 Pgs. for restitution of the conjugal rights which was allowed to be dismissed for default in view of the fact that there was a talk of amicable settlement between the parties. In spite of the fact that the v/wife agreed to come back to her matrimonial home and eventually she did not come back to her matrimonial home, nor did she withdraw the proceedings under Section 125 of the Criminal Procedure Code at Barrackpore, the present suit had to be filed by the husband for divorce this time on the ground of desertion, cruelty in the year 1987.

(3.) The wife in her written statement, however, denied the case of cruelty and desertion as made out by the husband. She alleged in her written statement that from the very beginning of her marriage, her husband and his sister as well as her father-in-law jointly and separately assaulted her and used to abuse her with filthy 'language. She was also tortured both physically and mentally. According to the wife, the husband had never been fair to her nor did he try to keep peace in the marriage life. The husband used to create pressure on her in various ways to bring more money from her father and also demanded money from her father for the purpose of purchasing a plot of land in his name. According to the wife, as she did not carry out the said proposal, she was assaulted by the husband and was driven out of her matrimonial home. According to the wife, she took shelter in the house of a relative of the husband, who sent her to her father's place at Kalyannagar. The wife, however, asserted in the written statement, that even after the birth of the child in spite of repeated requests, her husband or any of his relatives did not come to her or to her father's house to see the new baby and ultimately the new baby expired on 28th January, 1986. It was also asserted in the written statement that the husband was addicted to liquor and drinks everyday. Accordingly, she denied the case of cruelty as made out by the husband in the plaint. In the written statement, it was further alleged that even after the birth of the child, in spite of her repeated requests, her husband or any of his relatives did not go to the hospital or to her father's house to see the new born baby and ultimately the new baby expired on 28.1.1986. It was further alleged in the written statement that after the death of the baby, neither the husband, nor any of the family members of the husband ever visited her father's house. It was also denied that there was any amicable settlement on the basis of which she was to go back to her matrimonial home. It was the husband who never took her to the matrimonial home, although she expressed her intention several times before the husband of going back to the matrimonial home. But, she was never taken by the husband to her matrimonial home. Accordingly, she denied that any case was made out by the husband for grant of decree of divorce on the ground of cruelty and desertion.