DEBANANDA TAMULI Vs. KAKUMONI KATAKY

JUDGEMENT

(1.) Heard Mr. R. Sarma, learned counsel for the appellant and Mr. Z. Hussain, learned Legal Aid Counsel appearing for the respondent.

(2.) This appeal has been preferred against the Judgment dated 22.12.2015 and decree dated 05.01.2016 passed by the learned District Judge, Sonitpur at Tezpur in Title Suit (Divorce) Case No. 60/2011, whereby, the petition filed by the appellant seeking dissolution of his marriage with the respondent by a decree of divorce under Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act, 1955 was dismissed on the ground that the appellant as the petitioner, had failed to prove the grounds which he had taken for seeking divorce against the respondent. The appeal is stated to have been preferred under Section 19 of the Family Courts Act, 1984, instead of under Section 28 of the Hindu Marriage Act, 1955. As a statutory right the appeal is also available under Section 28 of the Hindu Marriage Act, 1955 and this appeal has been preferred availing the said statutory right to appeal within the prescribed period of limitation, the mere defect in quoting the wrong provision would not have any affect to consider the appeal on merits.

(3.) It is apposite to mention the averments and contentions, in brief, made by the appellant in his petition seeking dissolution of his marriage with the respondent. The appellant is a resident of Tezpur, District - Sonitpur and he is a businessman by occupation, having a pharmacy at Mission Chariali, Tezpur. During the last part of the year 2008, the appellant stated to have come in contact with the respondent through common friends at Guwahati. The respondent was a resident of Guwahati at that time. In course of time, a relationship developed between them and they used to communicate with each other through various modes of communication. After certain point of time, the respondent volunteered to come to Tezpur to meet the appellant as well as family members of the appellant and accordingly, she, in the early part of the year 2009, came to Tezpur from Guwahati and spent two nights at the house of the appellant. During that time, the mother of the appellant was alive. Apart from his mother, the appellant has an unmarried sister. During her stay, the respondent expressed her desire to marry the appellant to which the appellant had agreed. When the appellant asked the respondent about the manner in which the proposal of marriage had to be carried forward, the respondent had stated that the matter was to be furthered through her eldest brother-in-law and sister, as her other family members which included her widowed mother and three unmarried sisters, were against the marriage. Thereafter in April, 2009, the respondent s eldest brother-in-law and sister came to Tezpur and agreed for the marriage which was to be held only at Tezpur, according to them. Accordingly, the marriage between the appellant and the respondent was solemnised at Sri Halleswar Temple, Tezpur on 17.06.2009 and a reception was also held on that day. The entire expenses of the marriage and reception were borne by the appellant and the same were attended only by the eldest brother-in-law and the sister from the respondent s side. Nothing was given from the bride s side in the marriage. It is contended by the appellant that after only two days from the marriage, the respondent started showing her true colours and on 19.06.2009, the respondent told him that she needed to go to Mumbai to join her service at a private company as she had been receiving repeated phone calls from them. Because of such strange behaviour of the respondent, the atmosphere at the matrimonial house became tense and disturbed. The appellant and his mother somehow could persuade the respondent not to leave them. The respondent though agreed not to leave, started to behave strangely and decided to sleep separately, thereby, deprived the appellant from having any kind of sexual relationship with her since 19.06.2009. The respondent started to pick up quarrel with the appellant and his mother for no apparent reason and they were abused, insulted and humiliated by her, thus, resulting in mental cruelty. Though his mother advised him to take the respondent to her parents and to explain the difficulties created by the respondent, the appellant was not in a position to go to his in-laws house, as before marriage he never came to know about her mother and other sisters. Because of the coldness and lack of affection on the part of the respondent and her disinclination to play the role of a wife, the appellant suffered extreme mental pain and agony. He stated that the respondent s decision not to have a child was the reason behind her refusal to have any sexual relationship, thereby, leaving the marriage unconsummated. Because of her staying in the matrimonial home like a guest by exchanging a very few words with the appellant, his ailing mother, his sick sister or their maid servant or the visitors to his house like neighbours and relatives, nobody could gather any courage to question the respondent s abnormal behaviour and the relationship between the respondent and the wife remained fictional.