JOLLY BISWAS SHARMA Vs. ARUN SHARMA

JUDGEMENT

(1.) THIS is an appeal preferred against the judgment and decree dated 31.5.2004 and 18.6.2004, respectively, passed by the learned District Judge, Bongaigaon in TS(D) No 55/1998, granting decree of divorce to the respondent husband, on the grounds of cruelty and desertion.

(2.) THE respondent husband filed a petition, under sections 13(1)(i-a) and/or 13(1)(i-b), read with section 21-B of the Hindu Marriage Act, 1955, (for short the "Act"). THE respondent husband's case, in brief, is that the marriage between him and the appellant, was solemnized on 19.11.92 as per Hindu rites and customs. THE respondent husband is an employee of the Bongaigaon Refinery and Petro-Chemicals Limited and the appellant is an employee of the Government of Meghalaya, working as a Junior Divisional Accountant, posted at Tura. From the very beginning of their marriage, the appellant treated respondent husband with extreme cruelty and she was trying to fish out grounds with the intention of deserting respondent husband on one pretext or the other. THE appellant was also not interested to lead a conjugal life or to cohabit with him. It is also stated that the appellant wife refused to cohabit with him after about two months of their marriage severing their relationship. She made occasional visits to the matrimonial house, only to pick up quarrels with all the members of the family. THE appellant also filed false police cases against him. She took serious exception to the close relatives of the respondent husband, residing with him. THE appellant had approached the members of various organizations and authorities and fed them with false allegations of physical and mental torture and demand of dowry. She filed a case under section 498(A) / 323 IPC, alleging physical and mental torture and demand of dowry, against the respondent husband and the said case was filed as a ploy to leave the matrimonial house. She also filed a complaint before the National Commission for Women, New Delhi, without any just or cogent cause. THE National Commission for Women, New Delhi, vide letter dated 1.1.96, advised the appellant to institute a divorce proceeding and / or to file a case for maintenance against the respondent husband. Suppressing the aforesaid letter dated 1.1.96, the appellant again filed a complaint before the National Commission for Women on 8.9.97, which was subsequently sent to the District Women Cell, Bongaigaon, for appropriate action and the District Women Cell, Bongaigaon, drew up a proceeding against him. Aggrieved by the proceeding against him, the respondent husband had approached this Court by filing Civil Rule No 1552/98 and this Court had stayed the said proceeding vide order dated 6.4.98. Efforts were also made by this Court to reconcile the parties by facilitating conciliation between them through intervention of a learned advocate of this Court and despite efforts made, conciliation failed. This Court, finally vide order dated 13.11.98, after perusal of the report prepared in connection with the conciliation proceeding, disposed of the writ petition, observing that either of the parties may file appropriate divorce suit.

(3.) MR Roy has submitted that the learned trial Court did not afford opportunity to the appellant to file her written statement. He has submitted that the appellant had filed Petition No 932/98 dated 19.12.98 informing the Court that she had been furnished a copy of the petition without containing page- 10 thereof and, therefore, it would not be possible for her to file written statement. Similar prayer was made by her by filing another petition signed on 18.1.99 which was registered as Petition No 261/99. According to the learned counsel, page- 10 was never served and that is why the appellant was not able to file written statement. He also submits that the learned trial Court without fixing any date for argument, passed the impugned judgment and decree in undue haste and, therefore, the impugned judgment and decree is not sustainable in law. According to the learned counsel, the appellant had approached this Court by filing Civil Revision Petition No 60/99, for transfer of the suit proceeding to the Court of the Deputy Commissioner, West Garo Hills, and this Court had suspended the proceedings in the aforesaid Title Suit (D). However, the said Civil Revision Petition was dismissed for default and, thereafter, the appellant was unaware of the proceeding that was continued in the Court of the District Judge, Bongaigaon. He also submits that the evidence on record do not at all establish that the respondent husband was treated with cruelty and that the appellant had deserted him without sufficient or just cause. It is also pointed out by him that in the petition for divorce it has not been specifically averred when the appellant deserted the respondent husband and that being the position, the finding of the learned trial Court that the appellant deserted the respondent husband is wholly misconceived. Making a reference to section 23 of the Act, the learned counsel submits that it was mandatory on the part of the learned trial Court to have attempted reconciliation before proceeding with the matter and the same having not been done, the impugned judgment and decree of divorce is a nullity. To support his contentions, the learned counsel has referred to the decisions rendered in Jyotishwar Sen Vs Anjana Sen, reported in 2010 (3) GLT 104, Neelam Kumar Vs Dayarani, reported in 2010 AIR SCW 6606 and Maya Devi Vs Jagadish Prasad, reported in AIR 2007 SC 1426.