While hearing an appeal filed by the wife against the Judgment dated 25.09.2018 passed in case no T.S.(Divorce) 163 of 2014 by Family Court at Agartala (wherein Divorce was granted to the husband) the Tripura High Court on Wednesday (09th September) affirmed the said Judgment noting that "their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life."
The aggrieved wife had preferred this appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned judgment of the learned Family Judge, Agartala.
A division bench comprising Justices S. Talapatra and S. G. Chattopadhyay dismissed the said appeal noting,
"His wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife." (emphasis supplied)
The background of the case
The marriage of the appellant-wife and respondent-husband was solemnized on 31.07.2002 as per Hindu rites and customs and a daughter was born from their wed lock on 28.07.2003.
The husband being the petitioner in the trial court made several allegations against his respondent-wife, the appellant herein.
The matter was also referred to the court-appointed mediator who made efforts for reconciliation. But the parties did not agree to stay together.
Husband's Contentions - According to him, 02 years after their marriage, cancer was diagnosed in one of his eyes and he started losing his eyesight day by day. He had a small business of motor parts at Agartala. As a result of his ailment, he had to close his business.
His respondent-wife then started avoiding him and abusing him for his blindness. On 12.01.2007 when the petitioner husband was away from home, his wife left the house along with their daughter for her parental home and never returned back.
This apart, she brought false and baseless allegations not only against him but also against his married sister and implicated both of them in a criminal case under Section 498A IPC which according to him amounted to mental cruelty.
As a result, the petitioner filed the petition in the Family Court under Section 13 of the Hindu Marriage Act, 1955 seeking a decree of divorce on the ground of desertion and cruelty which was thereafter granted.
Wife's Contentions - The respondent-wife contested the petition and refuted the allegations made by her petitioner husband against her.
According to her, all the allegations made out by her husband were false and baseless. She never deserted her husband. Rather she along with her daughter was ousted from her matrimonial home by her husband.
It was averted by the respondent-wife that her alcoholic husband used to abuse her for dowry.
She admitted the fact that she lodged a complaint against him and his sister under Section 498A IPC at Agartala Women PS which ended in the conviction and sentence of her husband and his sister.
In the appeal, the learned Sessions Judge acquitted her husband and her sister-in-law of the charge. But the appeal was preferred by the state government against the order of their acquittal which was pending in the High Court when she filed her reply in the Divorce Proceeding.
According to her, she always tried to live a happy conjugal life with her husband. But there was no response from his side. Rather he treated her with cruelty and ousted her along with her daughter from his home.
She, therefore, prayed for dismissal of the petition of her husband seeking divorce.
Trials Court's Decision
The Trial court, after considering all the evidence and the facts and circumstances of the case, came to the conclusion that the respondent-wife had voluntarily withdrawn herself from the company of her husband on 12.01.2007 without any genuine reason and the couple did not reunite for the last 11 years which amounted to a irretrievable break down of their marriage.
It was further held by the learned trial Judge that her allegations of matrimonial cruelty against her husband under Section 498A, IPC was proved to be false in the appeal in the court of Sessions Judge as well as in the High Court.
According to the learned trial Judge, the wife respondent brought such false allegations against her husband with a view to harass her husband which amounted to cruelty for the purpose of granting divorce under Section 13 of the Hindu Marriage Act.
The Trial Judge dissolved the marriage between the petitioner husband and the respondent-wife by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of desertion and cruelty which was challenged before the High Court in the present matter.
The High Court's Observations
The Court was considering the question as to whether the grounds of cruelty and desertion against the respondent-wife, the appellant herein, existed on the date of filing of the divorce petition, or not.
From the pleadings of the parties and the evidence adduced by the parties, the Court couldn't find any material to come to the conclusion that the respondent wife was ever forced by her petitioner husband to leave his company or that she was thrown away from her matrimonial home.
Further, the Court observed that the wife abandoned him on 12.01.2007 in his absence at home without any genuine reason. Thereafter she never resumed her conjugal life with her petitioner husband till the date of filing of the divorce petition or thereafter.
The Bench noted that she contested the case of her husband in the divorce proceedings, but she could not embellish the evidence adduced on behalf of her husband.
In this context, the court remarked,
"The evidence that her husband along with his relatives met her on several occasions and persuaded her to return to her conjugal life is not also denied by the respondent wife. She could not also prove the grounds of her denial to return to her husband. Such a course of conduct of the respondent-wife undoubtedly amounts to desertion for the purpose of seeking divorce under the Hindu Marriage Act." (emphasis supplied)
The Court also took note of the fact that after abandoning her husband, she levelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act.
Notably, the Court stated,
"In the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty." (emphasis supplied)
Relying on the Tripura High Court's ruling in the case of Biswanath Baspar v. Jhumarani Ghosh (Baspar) (2015) 1 TLR 649, the Court concluded that if other grounds are made out or the grounds of cruelty or desertion is partly proved, then, if the marriage is dead, the court may take a view of granting the divorce.
In the present case, the court observed, cruelty and desertion existed on the date of filing of the divorce petition.
Consequently, the Court said,
"There is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time. Efforts of the mediator appointed by this court for reconciliation of their relationship also failed. Therefore, we are of the considered view that clearly this is a case of irretrievable breakdown of marriage and it is quite impossible to save the marriage." (emphasis supplied)
In this backdrop of the circumstances, the Court held that the learned trial court was justified in dissolving the marriage by a decree of divorce. The appeal was therefore declared to be devoid of merit and was thereby dismissed.
Case Title: Aparna Dey v. Alok Dey
Case No.: FA No. 01 of 2019
Quorum: Justices S. Talapatra and S. G. Chattopadhyay
Appearance: Advocate Hillol Laskar (For Appellant); Advocate S. Lodh (For Respondent)
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