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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Bhaskar Ghosh
  • Mr. Jiban Ratan Chatterjee
Judges
  • S.S Ganguly
  • Manabendra Nath Roy, JJ.
Acts
  • S. 13(i)(b) of the Hindu Marriage Act
  • S. 13 of the Hindu Marriage Act.7.
  • HINDU MARRIAGE ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Bhaskar Ghosh
  • Mr. Jiban Ratan Chatterjee
Judges
  • S.S Ganguly
  • Manabendra Nath Roy, JJ.
Acts
  • S. 13(i)(b) of the Hindu Marriage Act
  • S. 13 of the Hindu Marriage Act.7.
  • HINDU MARRIAGE ACT
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appeal arises from a matrimonial suit (Matrimonial Suit No. 9 of 1986) in which the learned Additional District Judge, 3rd Court, Midnapore, granted the husband (respondent in this appeal) a decree of judicial separation. The husband and wife were married on 22-05-1983. The husband was a primary school teacher with his ancestral home at Panchkhuri; the wife was a nurse posted at a Primary Health Centre at Sabang and later at the Midnapore Sadar Hospital.

The respondent petitioned under Section 13 of the Hindu Marriage Act, alleging that after the wedding the wife left the matrimonial home following the Astamangala rites and thereafter lived away from the matrimonial home, spending only a night or two with him within two months of Astamangala and subsequently remaining absent. He alleged repeated attempts to persuade her to return, an incident on 10-12-1983 when he fell ill and suspected poisoning, and that she thereafter refused contact; he sought divorce/judicial separation on grounds of desertion (since 10-12-1983) and cruelty.

The appellant (wife) in her written statement denied desertion and said she left because of physical and mental torture by the respondent, and because she discovered evidence that the respondent had an extramarital relationship (with a woman named Nilima Maiti). She alleged continued harassment, threats and inducement to suicide, was compelled to take shelter in a nurses' hostel in April 1985, and lodged complaints with the police and other authorities.

At trial both parties and witnesses were examined and documentary evidence (including letters) was produced. The trial court found desertion established, held the wife had no justification for staying away, did not find cruelty established, and decreed judicial separation in favour of the husband. The wife appealed against that judgment.

Legal Issues Presented

  1. Was the desertion of the respondent by the appellant proved in this case?
  2. If so, was the appellant justified in deserting the respondent?
  3. Did the appellant treat the respondent with cruelty as alleged?
  4. To what relief, if any, is the appellant entitled?

Arguments of the Parties

Appellant's Arguments

  • The learned trial Judge wrongly held that desertion by the appellant was proved and wrongly placed the burden on the appellant to justify the desertion; since the respondent failed to establish his case satisfactorily under Section 13 of the Hindu Marriage Act, the petition should have been dismissed.
  • The appellant's pleaded factual case: after marriage she lived at the matrimonial home but was physically and mentally tortured by the respondent; she discovered that the respondent had an affair with Nilima Maiti and intended to marry her; the respondent and his family continued humiliating and torturing her; she felt insecure, took shelter in a nurses' hostel in April 1985, visited the matrimonial home only when necessary, and lodged complaints with the police and other authorities.
  • The appellant produced letters and other papers in support of her claim of respondent's improper relationship and mistreatment.

Respondent's Arguments

  • The learned trial Judge correctly held that the appellant had deserted the respondent for a period exceeding two years without reasonable cause, and correctly decreed the suit on the ground of desertion.
  • The respondent asserted that the appellant left the matrimonial home following Astamangala, thereafter stayed at her quarters and visited only occasionally, and that despite repeated requests she refused to return. He alleged an incident on 10-12-1983 when he fell sick and suspected poisoning following his visit to her, and that he then ceased visits to her. He maintained he was entitled to decree on desertion and argued the court could have also decreed on cruelty.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
L.U. Kirpalani v. Smt. Meena, AIR 1964 SC 40 Definition of desertion and burden of proof: desertion is intentional, permanent forsaking without consent and without reasonable cause; burden of proving desertion for two years and lack of just cause is on the petitioner. The court relied on this authority to state the legal test for desertion and to remind that the petitioner carries the burden of proof as to desertion and absence of justification.
Bipin Chandra v. Prabhabati, AIR 1957 SC 176 Two essential conditions for desertion by the deserting spouse (separation and intention to end cohabitation permanently) and for the deserted spouse (absence of consent and absence of conduct giving reasonable cause). The court applied these elements to the facts, assessing whether separation plus requisite intention and absence of consent/reasonable cause were present.
A. Narayanan v. K. Sri Devi, AIR 1990 Ker 151 Principle that if a spouse is forced by the other's conduct to live separately, there is no legal desertion. The court considered the appellant's claim that she left because of respondent's conduct and evaluated whether that conduct constituted reasonable cause preventing a finding of legal desertion.
Toppo v. Toppo, 1988 (1) CLJ 294 Similar proposition to A. Narayanan — conduct of one spouse forcing separation negates legal desertion. The court cited this principle when testing the appellant's justification for leaving the matrimonial home and concluded her evidence did not establish such compulsion.
Dastane v. Dastane, 1975 Tax LR 1800; AIR 1975 SC 1534 The test of proof in a matrimonial suit is preponderance of probabilities (civil standard). The court applied the civil standard of proof in weighing the evidence and found on balance that desertion was established.

Court's Reasoning and Analysis

The court proceeded by framing four points (desertion proved; justification; cruelty; relief). It evaluated the trial court's findings against established legal principles and the evidence on record.

Starting with the element of factum of separation, the court noted that both parties accepted the date of marriage and that the respondent's specific case (and evidence) was that after the Astamangala ceremony the appellant left to her quarters and thereafter stayed away, spending only one or two nights within two months and not returning thereafter. The respondent's testimony and several witnesses (maternal uncle P.W.2; next-door neighbour P.W.3; headmaster P.W.4; neighbour P.W.6) corroborated that the appellant had not been residing at the matrimonial home for a period exceeding two years before the suit. Documentary exhibits (Exts. C1–C4 and D) produced by the appellant herself showed she was not living in the matrimonial home (letters dated Feb–Nov 1984). The court observed the appellant failed to produce corroborative evidence to contradict these accounts.

On the question of intention (whether separation was accompanied by an intention to permanently end cohabitation) and absence of consent, the court found that, in the factual matrix, the appellant's prolonged absence combined with her refusals to return when asked supported an inference of intention to bring cohabitation to an end. The respondent had repeatedly sought her return; there was no evidence he consented to her staying away.

Turning to justification, the court examined the appellant's claim that she left because of the respondent's relations with Nilima Maiti and because of physical and mental mistreatment. The appellant exhibited several letters; the trial judge had found only a few showed cordiality. The appellate court reviewed the letters and concluded that only one (Ext. A) suggested Nilima had a soft corner for the respondent and the others merely showed regard. The court found no convincing evidence that the respondent reciprocated a regular love affair, nor any independent evidence that he misbehaved physically with the appellant. The court concluded the material was insufficient to establish that the appellant was forced to leave by respondent's conduct; hence there was no reasonable excuse for her prolonged absence.

The court applied settled law cited in the precedents (definitions and elements of desertion, the civil standard of proof) and held that the two year period requirement for desertion under Section 13 was satisfied, that the necessary intent and absence of consent were present, and that no reasonable cause for the appellant's staying away had been proved. Consequently, desertion without just cause was established on the preponderance of probabilities.

Although the respondent argued the suit could also have been decreed on cruelty, the court declined to adjudicate that issue because its finding on desertion was sufficient to dispose of the appeal; it therefore did not enter into a detailed determination on cruelty.

Holding and Implications

Holding: The court dismissed the appeal. The appellate bench expressly affirmed the trial court's judgment and decree granting a decree of judicial separation in favour of the respondent (husband). The opinion concludes: APPEAL DISMISSED.

Direct implications: The decree of judicial separation granted by the trial court is confirmed; the parties are to bear their own costs as ordered by the court. The finding that desertion for a period exceeding two years without reasonable cause was established is the operative basis for the decree.

Broader implications: The opinion does not state or purport to establish any new legal precedent; the court applied established authorities and civil standards of proof to the facts at hand.

Show full summary ...

    Smt. Elokeshi Chakraborty v. Sri Sunil Kumar Chakraborty .

    S.S Ganguly, J.:— This first appeal has been preferred by the wife-opposite party from the judgment and decree passed by the learned Additional District Judge, 3rd Court, Midnapore in Matrimonial Suit No. 9 of 1986 awarding thereby a decree of judicial separation in favour of the husband-petitioner.

    2. The petitioner the respondent henceforward was a primary school teacher at Midnapore town with his ancestral home at Panchkhuri under Midnapore P.S and very near Midnapore town and the opposite party/wife the appellant henceforward was a nurse posted at the primary health centre at Sabang within the district of Midnapore, when they were married on 22-5-83 according to Hindu Rites.

    3. The respondent's case as per his petition u/S. 13 of the Hindu Marriage Act is that after the marriage he brought the appellant to his ancestral home at Panchkhuri. She stayed with the respondent there till the date of Astamangla and thereafter she went away to her quarters attached to the primary health centre at Sabang. Thereafter the appellant spent only one or two nights with him at his home at Panchkhuri within a period of two months from the date of Astamangla and thereafter she never came back there and lived with him there on any other occasion. The respondent repeatedly went to Sabang on many occasions and requested her to come back to the matrimonial home for living with him there. The appellant not only did not come back to the matrimonial home but she also expressed her irritation and annoyance and ultimately she told him that she was compelled to marry him by her relations and that she wanted to lead a life free from the confines of the matrimonial home. She even told him not to visit her at Sabang. On 10-12-83 the respondent went to see her at Sabang when she treated him with great rudeness. At the night of that day the respondent felt sic with violent pain in his stomach and vomiting. He was sent back home on the day following and his family physician diagnosed his trouble as food-poisoning. The respondent suspected that the appellant had added poison to his food and thereafter he never dared to go to Sabang to visit her. He, however, wrote to her repeatedly requesting her to come back to Panchkhuri, but without any response from her. Thereafter when the appellant was transferred to the Sadar Hospital at Midnapore and started living in her quarters attached to that Hospital, the respondent and his well wishers met her there repeatedly and requested her to come back to Panchkhuri. On 18-9-85 the appellant turned down their requests and abused the respondent in filthy language. The respondent nevef met the appellant after that. In the circumstances stated the respondent filed his petition and prayed for divorce/judicial separation on the ground of desertion with effect from 10-12-83 and also on the ground of cruelty.

    4. The appellant's case as per her written statement appears to be the following:—

    After her marriage the appellant went to her husband's place at Panchkhuri and started living there with the respondent as husband and wife. After sometime she noticed a change in the behaviour of the respondent who started torturing her physically as well as mentally without any reason. Subsequently she discovered a number of letters from the respondent's room and from those letters as well as on enquiry she learnt that since before the marriage the respondent had been carrying on an affair with a girl of the name of Nilima Maiti. Being asked by her, the respondent admitted all this and he also told her that he would marry the said Nilima. At her instance her husband's people contacted Nilima's father and he assured them that he would take appropriate steps but actually did nothing. Since the appellant was attached as a nurse to the primary health centre at Sabang, occasionally she used to go to the matrimonial home at Panchkhuri. On those occasions the respondent used to avoid her and go away elsewhere and he also used to torture her in many ways. The respondent also went on maintaining his relations with the aforementioned Nilima as before and on her protest the respondent used to torture her in many ways. He also put pressure on her for a written permission to marry the said Nilima. In February 1985 the appellant was transferred to Midnapore Sadar Hospital and she started living at her matrimonial home and she used to attend the hospital therefrom. On this the respondent became very angry with her and he started torturing her in many ways and the other members of his family also never raised any objection to that. In the circumstances stated it was not possible for the appellant to attend to her duties from the matrimonial home and she also felt very much insecure there and in April, 1985 she was compelled to take shelter in a hostel attached to the Midnapore Sadar Hospital. While living there the appellant used to go to her matrimonial home in case of necessity and during the holidays. The respondent, however, went on maintaining his relation with the aforementioned Nilima and he also repeatedly told her that he would marry her. On her protest the respondent used to torture her and used to induce her to commit suicide. In the circumstances stated feeling very much insecure the appellant lodged information with the Midnapore Kotwali P.S Since thereafter the other members of the respondent's family started humiliating the appellant and under such adverse circumstances the appellant was compelled to leave her matrimonial home.

    5. The parties examined themselves and their witnesses before the learned trial Judge. The appellant also exhibited a number of letters and such other papers in support of her case. On a consideration of all the materials on record the learned trial Judge held that while it was established that the appellant had deserted the respondent the appellant could not establish that she was justified in doing that. On the ground of desertion, therefore, the learned Judge decreed the suit and gave the respondent a decree for judicial separation. The learned Judge felt that the ground of cruelty was not established. Hence, this appeal.

    6. It is urged from the side of the appellant that the learned Judge without finding that the respondent had succeeded in establishing his case, wrongly held that the desertion was proved and wrongly placed the burden on the appellant to establish that the desertion was justified. It is urged that since the respondent failed to establish his case as per his petition by satisfactory evidence the learned trial Judge ought to have dismissed his petition under S. 13 of the Hindu Marriage Act.

    7. It is urged from the side of the respondent that not only the learned trial Judge was justified in decreeing the suit on the ground of desertion but that he also could have and should have decreed the suit on the ground of cruelty also.

    8. In the circumstances stated above the following points may, therefore, be framed for disposing of this appeal:—

    1. Was the desertion of the respondent by the appellant proved in this case?

    2. If so, was the appellant justified in deserting the respondent?

    3. Did the appellant treat the respondent with cruelty as alleged?

    4. To what relief, if any, is the appellant entitled?

    Decision on points Nos. 1 to 4.

    9. All the points are taken up together. As stated above the respondent sought the relief mentioned above on the ground of desertion and cruelty. On a consideration of the materials on record the learned trial Judge has concluded that the appellant had permanently abandoned the respondent and his family without any reasonable cause. How far the learned Judge's conclusion in this regard may be considered as justified?

    10. Desertion in such a case as the present is the intentional permanent foresaking and abandoning of one's spouse by the other without that other's consent and wihout reasonable cause; L.U Kirpalani v. Smt. Meena, AIR 1964 SC 40. The law is well settled that for the offence of desertion so far as the deserting spouse is concerned two essential conditions must be there namely, (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end and similarly two elements are also essential so far as the deserted spouse is concerned, namely, (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid; Bipin Chandra v. Prabhabati, AIR 1957 SC 176. The burden of proving desertion for 2 years and further that such desertion was without any just cause is on the petitoner, L.U Kirpalani (supra). If a spouse is forced by the conduct of the other spouse to live separately or to stay away, in such a case there is no legal desertion to constitute a ground for divorce; A. Narayanan v. K. Sri Devi, AIR 1990 Ker 151; Toppo v. Toppo, 1988 (1) CLJ 294. The law is equally well settled that the test of proof in a matrimonial suit is preponderance of probabilities as is available in every kind of civil litigation; Dastane v. Dastane, 1975 Tax LR 1800 : AIR 1975 SC 1534. In the background of the above propositions we now proceed to see how far the decision of the learned trial Judge in this case may be considered as justifiable.

    11. As stated above it is the case of both the parties that the marriage between them took place on 22-5-83. It is not disputed that thereafter the appellant went to her matrimonial home at Panchkhuri to live there with the respondent as husband and wife. It is the definite case of the respondent that on the eighth day thereafter she went away to her father's place in connection with Astamangla ceremonies and it is the respondent's further case that since thereafter within a period of two months the appellant spent one or two nights with him at the matrimonial home and that since thereafter she has never been there on any other occasion whatsoever. This is the respondent's specific case as per his petition under S. 13(i)(b) of the Hindu Marriage Act which under the provisions of S. 20(2) of the said Act may be, considered as his evidence in support of his case. Besides this, the respondent also examined himself and a few witnesses on this point. The respondent's specific evidence on this point is as stated above. It is also his specific case in his evidence that since 10-12-83 in the night of which he fell sick he had no conjugal relationship with the appellant. The respondent's maternal uncle Shyama Prasad Chakraborty, P.W 2, says unequivocally that the parties have not been staying together since about three months after their marriage. The respondent made several attempts to bring the appellant back to his house. Once he, the maternal uncle of the respondent and a teacher of the respondent's school went to the Hospital at Midnapore to meet the appellant when she told them that she was not willing to live with him. Ajay Kumar Ghorai, P.W 3, the next door neighbour of the respondent said that the appellant had been to her in-law's house for the last time about two months after their marriage. Ajit Chakraborty, P.W 4, the headmaster of the primary school of which the respondent is also a teacher said that on one occasion in September, 1985 he had accompanied the respondent to the nurses' hostel at Midnapore. They tried to persuade her to come and stay with the respondent. The appellant, however, was adamant and she ultimately refused to go to the respondent's house. The maternal and paternal uncles of the respondent were also with them at that time. Anku Ari, P.W 6, another close neighbour of the respondent said that the appellant had last visited and stayed in the house of the respondent in the month of Sraban of the year of their marriage. From the evidence of Ajay Kumar Ghorai it appears that the Bengali date of the marriage of the parties was 13th Jaistha, 1390 B.S From the evidence of these witnesses it becomes quite clear that for a period exceeding 2 years next preceding the date of the institution of the suit, the appellant had stayed away from the matrimonial home. No reason was shown from the side of the appellant as to why these witnesses should be disbelieved. The appellant has also exhibited a number of letters which she received from one of the brothers of the respondent and a cousin of his. These letters (Exts. C1, C2, C3, C4 and D) very clearly show that the appellant was not living in her matrimonial home. These letters are dated from February, 1984 to November, 1984. The appellant deposed to the contrary but she could not produce any corroborative evidence.

    12. In the circumstances stated we are of the view that the learned trial Judge made no mistake by holding that the appellant had deserted the respondent and that the period of desertion was more than two years next preceding the date of the filing of the suit.

    13. The question that arises next is as to whether the appellant had any reasonable justification or excuse for deserting the respondent or staying away from him.

    14. As stated above the appellant's case in this regard is that on her objection to the affair the respondent had been carrying on with Nilima Maity, the respondent misbehaved with her and the situation came to such a pass that she ultimately had to leave the matrimonial home. To prove her allegations in this regard the appellant has exhibited a number of letters. The learned trial Judge observed that a few of these letters showed that the relation between the respondent and the aforementioned girl Nilima was very cordial which could be termed as love. We have also gone through the letters. In our view only one of them namely, Ext. A shows that the Nilima had a soft corner for the respondent. The other letters do not show anything besides that she had high regards for the respondent. Even granting, however, that Nilima had great affection for the respondent, from that it does not follow that the respondent also reciprocated her feelings. There is, in fact, nothing to show that, except one or two stray statements made by the respondent's brother in his letters to the appellant. On the basis of such meagre material it cannot be held that there was a regular love affair going on between the respondent and Nilima. According to the appellant the affair between the two had been going on since before the marriage. Had the relationship between them been really so cordial the respondent would have married Nilima instead, and in any way he would not have married the appellant at all. There is also not an iota of evidence to show that the respondent misbehaved with the appellant. Considering all the circumstances we agree with the learned trial Judge that even granting that there was some kind of a relation between the respondent and Nilima the appellant ought not to have left the matrimonial home and that on the other hand she ought to have stayed there and made a definite effort to take the respondent's mind away from the girl. Agreeing with the learned trial Judge we are inclined to hold that there was no sufficient justification or excuse on the part of the appellant to stay away from the matrimonial home.

    15. It has been established that the appellant had been staying away from the respondent for a period exceeding two years next preceding the date of filing of the suit for divorce. We have also seen just now that the appellant had no reasonable excuse for staying away from the respondent. In the circumstances stated we are inclined to agree with the learned trial Judge that the factum of separation in the case was accompanied by an intention on the part of the appellant to bring cohabitation permanently to an end. We hold also that there was no question of the respondent's consenting to her staying away from him and further that he also cannot be held guilty of any conduct giving reasonable cause to the appellant leaving the matrimonial home. Agreeing with the learned trial Judge we hold that desertion for a period exceeding two years has been established in this case. The suit, therefore, has been rightly decreed by the learned trial Judge.

    16. It has been urged from the side of the respondent that the learned Judge ought to have decreed the suit also on the ground of cruelty. It is urged that by staying away from the respondent without any valid reason and thereby depriving him of her company the appellant treated him with cruelty and heartlessness and that he was entitled to get a decree on this ground also. It was urged that by lodging complain with the local Police Station, the Gram Panchayat and such other Authorities casting aspersion on the respondent the appellant treated the respondent with curelty. In view of the fact that no decree was passed by the learned trial Judge on this ground and further that our finding with regard to the point of desertion is sufficient for the purpose of disposing of this appeal we are not inclined to enter into the question of cruelty.

    17. The points are decided accordingly. In view of what has been stated above it is hereby ordered that the appeal is hereby dismissed on contest. The judgment and decree passed by the learned trial Judge are hereby confirmed. The parties do bear their costs.

    Manabendra Nath Roy, J.:— 18. I agree.

    Appeal dismissed.

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    Comments

    Smt. Elokeshi Chakraborty v. Sri Sunil Kumar Chakraborty .
    (Nov 14, 1990)