AMARENDRA MUKHERJEE Vs. SWAPNA MUKHERJEE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated the 13th September, 1984 passed by the learned Additional District Judge, Asansol in Matrimonial Suit No. 7 of 1983. By the aforesaid decree the suit instituted by the plaintiff appellant Amarendra Mukherjee was dismissed by the learned trial Judge. The plaintiff -appellant made an application under Sec. 13 of the Hindu Marriage Act, 1955 for a decree of divorce against the Respondent wife Smt. Swapna Mukherjee on the ground of adultery and cruelty on the part of the wife. The Appellant -Petitioner stated in the plaint that the Petitioner and his wife were married in December, 1977 and were governed by the Hindu Marriage Act. Out of the wedlock a son was born to the couple sometime in September, 1980. The main grievance of the petitioner as appears from the plaint is that the wife was a nurse attached to a Government Hospital and despite requests the wife did not give up the job and used to stay alone at her place of residence where she used to freely mix up with other persons. Such action on the part of the wife was highly resented by the husband and he was lowered in the estimation of his relations and neighbours. The husband petitioner also alleged that the wife was so cruel that on one occasion she assaulted the husband with a cycle chain causing serious bleeding injuries to the husband for which the husband had no lodge information to the local Police Station. Such fact has been stated in paragraph 10 of the said application for divorce. That although such action of cruelty had been taken by the wife, for the sake of family prestige and for the safety and welfare of the infant son the petitioner did not take steps against the wife for such cruelty and brutality and somehow with much disturbed state of mind he passed his days with the respondent for sometime more at Chittaranjan even after such assault and cruel treatment made to the petitioner. In paragraph 11 of the petition the husband has stated that the climax reached when the wife went to the petitioner's father's quarter at Durgapur during the Puja time in the 'Maha Nabami' day in order to stay there for a few days during the Puja time and all on a sudden she voluntarily left her father's quarter without any information either to the husband or to his parents.

(2.) The said application for divorce was contested by the wife by filing a Writing Statement, inter alia, denying the allegations made by the husband. The wife contended in the Written Statement that she had always tried to adjust the conjugal life although the husband was unreasonable and often sued to maltreat and assaulted her at times and the husband was addicted to drink despite objections made by the wife. The wife denied the allegations specifically that she had ever assaulted the husband or dealt with him cruelty. It may be noted in this connection that in the evidence the husband made a departure from the pleading as contained in Paragraphs 10 and 11 of the application for divorce. Although it was specifically alleged by the husband that the wife herself assaulted the husband with Cycle chain causing bleeding injuries for which the husband had to report to the police, in the evidence the husband stated that the brother of the wife assaulted him. with cycle chain causing bleeding injuries and the wife caught hold of his hands and also kicked him and scratched his body with her nails. One Khokan Chatterjee who is a colleague of the husband was also examined by the husband and the said Khokan also deposed to the effect that being attracted by the crowd at the front of the residence of the husband he came and saw the wife holding the hand of the husband and a man was assaulting him with a cycle chain and the husband disclosed the identify of the said man to be the brother of the wife. It has been stated in the evidence of the husband that immediately after the said incident of assault by the cycle chain the husband had to go the hospital for treatment but on return after such treatment as an out -door patient to his house he found that the wife had gone away with her infant son without leaving any information whatsoever and only on the Maha Nabami day the uncle of the wife took the wife to the husband's father's place and the wife voluntarily wrote a statement which was also endorsed by the uncle. Such statement and the alleged endorsement of the uncle are Exts. 2 and 2/1. A reference to the Ext. 2 reveals that the wife made a statement to the effect that on June 6, 1981, without the permission and in the absence of the husband the wife left the place of residence and she stayed at Achra. But being induced by some people she admitted that she had made false allegation that the husband had beaten her. It was also stated by the wife in the said recorded statement which is Annexure 'B' that her brother Sankar Narayan Dey and one Ashoke Biswas got the husband assaulted by one Chittaranjan by a cycle chain and all of them had gone away from the place after beating. She admitted in the said recorded statement that it was disgraceful on the part of the married women to pass night elsewhere without her husband's consent and she made a promise in writing that she would not take recourse to such misdeed and would not do anything which would lessen the social status and prestige of the husband. The uncle of the wife who took the wife to the husband's father's place made an endorsement to the effect that the wife had written the said statement wilfully in his presence. In the deposition, however, the wife has stated that such statement was obtained from her against her will and the same was a prepared statement to which she had to sign and the uncle had to give an endorsement. It may be noted in this connection that about such alleged writing of the wife there was no mention in the application for divorce and as such, there was no occasion for the wife to deal with such allegation or the said writing in the written statement made by the wife. It may also be noted that although the wife had stated categorically that the prepared statement was to be signed by her under force at the residence of the father of the husband, the petitioner husband did not take any step to get the writing examined for the purpose of establishing that the said writing was in the hand of the wife.

(3.) After taking into consideration of the evidences adduced by the parties the learned Judge, inter alia, came to the finding that the allegations of adultery against the wife could not be proved by the husband and the case of cruelty sought to be made out by the husband was also disbelieved by the learned Judge. The learned Judge had noted that so far as the case of assault as sought to be made in the application for divorce was concerned, there was a clear departure from such case in the evidence adduced by the husband and, accordingly, such story of assault could not be believed. The learned trial Judge was also of the view that even on the husband's own case after such assault by the wife the husband started living with the wife with a hope to improve the marital home and admittedly thereafter they had resided for a couple of months and only on December 12, 1981, the wife had left without any information either to the husband or to his parents. The learned Judge has noted tat such act shows that the husband, in any event, had condoned the cruel treatment made by the wife and as such, there was no occasion to give any decree for divorce on the ground of cruelty. The application for divorce, therefore, was dismissed by the learned trial Judge and as aforesaid, the instant appeal has been preferred by the husband.