Judgmentday's blog Broadcasting my thoughts 2009-12-31T06:20:03Z WordPress http://blogs.rediff.com/judgmentday/feed/atom/ Mahesh <![CDATA[Right to Information Act - Power to Comman Man!!!]]> http://blogs.rediff.com/judgmentday/?p=15 2009-12-31T06:20:03Z 2009-12-31T06:20:03Z

The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. An informed citizenry will be better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act has created a practical regime through which the citizens of the country may have access to information under the control of public authorities.


For more information on this Act, please visit this link: http://www.498a.org.in/rsrcs_RTI_gd.html


By Mahesh
Gen. Sec. Family Harmony Society, Bangalore.
http://www.498a.org.in
http://www.family-harmony.org

]]> 0 Mahesh <![CDATA[Pay jobless estranged hubby for legal battle: SC to woman]]> http://blogs.rediff.com/judgmentday/?p=13 2009-12-30T07:10:46Z 2009-12-30T07:10:46Z

In a rare departure from rules, the Supreme Court has directed a woman to pay Rs 10,000 to her estranged husband, who is unemployed, to enable him fight their matrimonial dispute in a Bangalore court.
 
Normally, under Section 125 CrPC, it is the duty of the husband to pay maintenance allowance to the wife or his parents during a divorce proceeding or thereafter.


But in the instant case, the apex court, after noting that the husband was unemployed, directed the wife Ines Miranda to pay Rs 10,000 to husband Santosh K. Swamy, domiciled in Chennai, to fight the legal battle in Bangalore where the wife is staying along with her daughter.


Mahesh,
Gen-Sec, Family Harmony Society, Bangalore.
http://www.498a.org.in
http://www.Family-Harmony.org


Below is the judgment:


ITEM NO.19 COURT NO.6 SECTION XVIA


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


TRANSFER PETITION (CIVIL) NO.1268 OF 2009
(For Prel. Hearing)


INES MIRANDA Petitioner(s)


VERSUS


SANTOSH K SWAMY Respondent(s)


(With appln(s) for ex-parte stay)


Date: 14/12/2009 This Petition was called on for hearing today.


CORAM :
HON’BLE MR. JUSTICE DALVEER BHANDARI
HON’BLE MR. JUSTICE A.K. PATNAIK


For Petitioner(s) Mr. S. Gurukrishna Kumar,Adv.
Mr. S.R. Setia,Adv.


For Respondent(s)


UPON hearing counsel the Court made the following
O R D E R


The petitioner is seeking transfer of the
case from Chennai to Bangalore. Her contention is
that it is inconvenient for her to look after the
case at Chennai because she is working in Bangalore
and has a small child. Learned counsel appearing
on behalf of the petitioner submits that it would
not be inconvenient for the respondent-husband to
prosecute the case in Bangalore as he is
unemployed.


The petitioner is directed to pay Rupees
ten thousand as travelling expenses to the
respondent since he is unemployed. Upon deposit of
this amount, notice would be issued and the
proceeding before the Trial Court shall be stayed.


[ Alka Dudeja ] [ Neeru Bala Vij ]
Court Master Court Master

]]> 0 Mahesh <![CDATA[Legalizing prostitution - A social catastrophe.]]> 1970-01-01T00:00:00Z 2009-12-10T10:34:04Z

This is the most horrible news I ever read… How can an Apex body like Hon’ble Supreme court make such a statement…

http://timesofindia.indiatimes.com/india/Legalize-prostitution-if-you-cant-curb-it-SC-to-govt/articleshow/5322127.cms

Legalizing prostitution??? come on… what does SC wants??? Does it want to exploit innocent women who are living happily with their families???

I really don’t understand how it will save the young innocent girls by legalizing the prostitution…

Legalizing prostitution, will create a social catastrophe. Men will not marry women… they will just use the prostitutes. which results in women who want to live in a marriage left with less options.
Women will not marry, they will take this as a career… this will result in men who want to live in a marriage left with less options.

It will create a medical hazard… people will suffer with more veneral dieseases.

Supreme Court has commited a gross error in giving an economic angle into a social problem. Prostitution is a social issue not an economical issue. In US & UK more and more women are taking up prostitution even though they are economically well-off and even though they have social security provided… They are turning to prostitution, because it is easy money there…

Of course, uplifting the people BPL is a priority, but that in no way help in eradicating this social issue of prostitution…

To solve the issue of prostitution, we need to bring a social change… change in the mindsets of people… change the life styles of the people.. making them social security to people and social happiness…

On one side more and more families are getting divided because of increasing number of divorces, misue of law by women using acts like dowry… The court cases take years to resolve making these sex starved people go to prostitues for fulfilling their needs…

I don’t understand on how it will benefit our society by legalizing the prostitution…
Please give your comments…


Mahesh
http://www.family-harmony.org
http://www.498a.org.in

]]> 0 Mahesh <![CDATA[Women are as much villainous as men]]> 2009-12-10T05:32:44Z 2009-12-10T05:27:25Z

Assume that 2 MEN drag a WOMAN in road or quarrel with her, other people who are watching that will stop them. The public will feel that those men are harassing that women and they might cause harm to her.

Similarly if 2 MEN drag a MAN in road or quarrel with him, public will still stop them and mediate them to resolve the issue.

But, If a WOMEN drag another WOMAN in road or quarrel with her, public will not object.

Similarly if a WOMEN drag a MAN in road or quarrel with him, then public will simply watch and enjoy the fun, they will not interrupt. This is the mentality of general public that thinks that no woman can do mistake. This is the psychological thinking of public. Two women in Bangalore took this psychological thinking as an advantage and they kidnapped another woman and forced her to prostitution.

On Nov 25, two women in Bangalore kidnapped a girl in broad day light and forced her to prostitution…

http://timesofindia.indiatimes.com/city/bangalore/Women-arrested-for-kidnapping-minor-girl/articleshow/5320184.cms

After reading this article in Times of India, atleast now, public should change their mindset that not every woman is Holy.

Mahesh
http://www.family-harmony.org
http://www.498a.org.in

]]> 2 Mahesh <![CDATA[Misuse of Section 498 A - PIB]]> 1970-01-01T00:00:00Z 2009-12-09T06:33:12Z

http://pib.nic.in/release/release.asp?relid=55062

Lok Sabha

A number of representations have been received from various quarters regarding the misuse of the provision of Section 498A of IPC. Information regarding its misuse is not collected by National Crime Records Bureau. Giving this information in the Lok Sabha to a written question Dr.M.Veerappa Moily, Minister of Law and Justice said that the matter has been referred to the Law Commission of India to study the use of the provision of this section and hold consultation and suggest amendments, if any, to the provision. An advisory has also been issued to the State Governments to prevent the misuse of the said section.

VLK/ska

]]> 0 Mahesh <![CDATA[Secrecy around the selection process of judges was not unique to India - CJI]]> 2009-12-08T09:05:13Z 2009-12-08T08:27:13Z

This is what our Chief Justice of India tells in the wake of his recent request to our Prime Minister Manmohan Singh to protect the judiciary from comman man’s whistle - The Right to Information Act 2005. Apparently our Chief Justice is not comfortable with the queries raised by the common man using this Act. He feels that the public are intruding into the Judicial system and causing erosion of judicial independence. This has made our government to make changes and take off the freedom of the common man to ask questions.

http://timesofindia.indiatimes.com/india/Govt-mulls-changes-in-RTI-Act/articleshow/5308959.cms

Any change to the Right to Information Act 2005 is a serious threat to the freedom of common man, a serious threat to democracy.

Is this Act being misused in any way?
Do we really need changes to the current Right to Information Act 2005?
Is this Act really a threat to the judiciary or for that matter any department?
Are these questions of common man can really erode the independence of our system, if so to what extent?
Does our CJI has a case to change this Act?

Let’s start the discussion now… I welcome you to please comment on these questions…

Any common man approches any department with an application under Right to Information Act 2005 with an intention to collect information for various reasons - It could be out of curiosity, or he wants to know the status of any application that he made to any department, or he wanted to know about the statistics in a particular department which he can use to expose the government’s or any bearucrat’s or any department’s false claims.

Like the exaggerated data claimed by the Women & Child Development ministry regarding the violence against women and the evil of Dowry system. Many people who made applications under this Act to the National Crime Record Bureau (NCRB) have shown the paltry genuine cases and exposed the false claims made by the ministry for obviuos reasons of its survival, for want of exorbiant funds to be eaten up by the ministry, the bureaucrats, the women organizations, etc.,

This Act in more than one way has empowered the common man.

The claims of CJI that chronic litigants are troubling the system is a vague statement no backed up by any data. He doesn’t have any case to claim a change in the Act. CJI is asking for more independence, he is unwilling to bring transparency into the system which is a matter of concern. We have barged into the 21st centuary by flying high the flags of democracy, we cannot go back to red ribbon raj days…

I welcome you to put forward your comments on these questions…

Mahesh.M
http://www.498a.org.in

]]> 0 Mahesh <![CDATA[Women claim Domestic Violence when Men suffer from Domestic Violence Act!!!]]> 1970-01-01T00:00:00Z 2009-11-24T12:05:22Z

Women from all over the country claim to be suffering from various kinds of Domestic Violence. The National Commission of Women which has been claiming to protect the women from Domestic Violence. They were instrumental in bringing up a law to protect the women from the Domestic Violence. They bought a law formulated and parliament gave approval and thus the Protection for Women under Domestic Violence Act was born in 2006.

Unfortunately this Act has done more bad than good.

First of all the process of formulating this Act itself was done in a very haphazard manner. The bureaucracy which formulated this Act have not produced any data supporting the claims of Domestic Violence, except for few rona-dhonas in movies, media hype of dowry deaths, dowry harassments, etc.

Second, the congress party which was then in power had pushed to bring this Act in to force in a hurry without verifying whether our society really need such a law or not, whether all the reliefs that this Act provides to the women will be used or misused. Some thoughtful MPs did objected to this Act as this can easily be misused. Still, they went ahead to bring this Act without proper debate due to political pressures from opposition and leftists.

Third, the Corruption. There are some sections of our society who are basically corrupt in nature. They do anything & everything to satisfy their greed and ego. Two of those specific categories of corrupted people in our society are some of the complainant wives and their advocates who misuse this Act. The wives who are corrupted up by Greed, Ego, Grudges, Adultery are filing cases under this Act against their husbands and in-laws. Some of the unethical advocates, who want to become rich using short-cuts, are helping these women to Misuse this Domestic Violence Act.

Fourth, the implementation of this Act has left a very bad taste of the judicial system. The Magistrates who were given the authority to preside over the cases under this Act think that they are supernatural beings who got power to protect every woman on earth as if they are their sisters. Again these people were also influenced because of bollywood style rona-dhonas and media. This act has become like a coconut in the hands of a monkey, it doesn’t know how to handle this tool. They pass such mindless and stupid orders in a hurry to save the complainant women without applying their minds. Of course we cannot blame them entirely because we all know already that the judicial system is in any ways rotten, magistrates are nothing more than a clerical people, of course they are under the pressure from various radical women organizations with NCW at the top. NCW has gone a step ahead and started propaganda about this Act in news papers and TV commercials only to make the innocent men suffer and break the marriages irretrievably.

On one side these corrupted women and their advocates are walking away happily with good booty but on the other side the softer husbands are suffering running around the courts, staying away from their own houses as courts ask them to vacate to accommodate the corrupt women, paying hefty, abnormal and unreasonable maintenance amounts, unable to use their bank accounts including their salary accounts, unable to use their properties  and getting stamped as a drug-addict, drunkard, sex-abuser, etc., etc., what not. In most cases this case under Domestic Violence Act follows immediately after a complainant under IPC 498A.

The men who are suffering under these cases are ending up filing divorce cases as these sorts of women will not allow them to live in peace. Husbands have no other option but to go for divorces to reclaim their lives.

But, these intelligent women make all sorts of allegations on the husband from verbal abuse to life threat in these cases. The same women go to Family courts where the husband would have applied for divorce and claim that their husbands are good and that they love their husbands in order to more frustrate their husbands. Strange Law!!! The judges support these kinds of women. The law is totally biased to women.

On Sunday 22nd Nov, the Times of India, Bangalore, has published a half-page article claiming that Domestic Violence exists especially in the economically upper class or upper-middle class of our society. Some advocates have mentioned the same in that article again without support of any data. Obviously this makes sense as men from these sections of the society are well-off and it is easy for their wives and luring for their advocates to squeeze these men for monies using this new tool.

There is hardly any case under this Act which is true & genuine. All the cases are driven by Greed, Ego, Grudges, Adultery. This Act is being misused similar to the way the other women centric laws like IPC 498A was being misused since ages.

Time has come for Men to raise their voice, fight back to stop this misuse instead of silently suffering from this draconian Domestic Violence Act.

Mahesh

www.family-harmony.org

]]> 2 Mahesh <![CDATA[Conviction rate in crime involving husband is down. IOs need introspection!!!]]> 1970-01-01T00:00:00Z 2009-11-17T05:12:29Z

Stop playing safe, Addl DGP tells investigating officers
TNN 15 November 2009, 02:31am IST
CID
S P S Yadav
PUNE: CID’s additional director general of police S P S Yadav attributed the poor rate of conviction in the state to pressure under which police investigation officers tend to submit charge-sheets even in cases where a final report should be submitted due to lack of evidence. The practice of just submitting charge-sheet as a safe playing technique should be curbed by the higher echelons of Maharashtra police, he said.

Adopting scientific measures and making use of latest techniques in investigations has helped the state criminal investigation department (CID), Pune, secure 60 per cent conviction rate in 2008 as against 9.4 per cent by the state police units, said Yadav.

Addressing policemen after the release of state’s yearly crime report at the state reserve police headquarters at Wanowrie, Yadav said the crime registered under the Indian Penal Code (IPC) has gone up by 5.4 per cent in 2008 as compared to the previous year, but the crime committed under the special and local laws has declined considerably.

The crime which registered rise are: counterfeiting coins and currency notes (+ 50 per cent), riots (+17.5 per cent), murder attempt (+13.7 per cent), dacoity (+13.3 percent), thefts (+10.9 percent) and robbery (+9.4 percent). The crime on the decline include planning dacoity (-32.3 percent), dowry deaths (-10.6 percent) and culpable homicide (-1.8 percent).

Yadav said that property offences have gone up by 9.26 per cent and percentage of detection in such cases was 34 per cent, but the rate of illegall transaction of money under such offence was 9 per cent.

The crime against women surged by 5.4 percent and in the last five years it has increased by 36.5 percent. The crime against women which are on rise include molestation (+9.47 percent), dowry (prevention) act (+8.89 percent) , rape (+7.37 percent), subjecting women to cruelty (+6.43 percent), sexual harassment (+5 percent) and kidnapping (+3.21 percent). The conviction rate in respect of crime involving husband and relatives is down by 3.55 percent; dowry and suicide abatement is down by 9 percent and 8 percent respectively. These figures call for introspection by investigation officers and supervisory officers, he said.

Talking to media persons, Yadav said violent crimes like murder, attempted murder, culpable homicide, dowry deaths, kidnapping, rape, arson, riots, dacoity and robbery has escalated by 11 per cent. Violent crime constitutes 10.95 per cent of the total IPC cases and its percentage per lakh population is 19.42 percent. These crimes poses a serious challenge to crime prevention machinery particularly in rural areas like Beed, Gadchiroli, Hingoli, Aurangabad rural, Parbhani, Latur, Ahmednagar, Dhule, Jalna and Solapur rural.

Crime against members of SC/ST communities have increased by 71 percent and 24 percent respectively in the last five years. The rate of conviction under the Prevention of Atrocities Act was 4.8 percent and Prevention of Civil Rights was 2.1 percent. Although the death sentence awarded in the Khairlanji case is a pointer to the success of police investigation, the overall result of investigation of crime against the weaker sections is far from satisfactory.

The CID has called for formation of special juvenile police units in every district and commissionerates consisting of child welfare officers as crimes relating to minors have increased in the age group of 16 and 18 years.

As many as 12,957 people died in road accidents and 49,656 people were injured in road accidents in 2008. The CID report says that the unit commanders can ill afford to ignore the significance of various traffic planning measures required to be taken in their respective jurisdiction for controlling accidents.

Earlier, Mumbai police commissioner D Shivanandan released the CID’s annual report titled: “Annual crime in Maharashtra- 2008″. The function was attended by state police academy director Sridevi Goel, city police commissioner Satya Pal Singh, joint commissioner of police Rajendra Sonawane and mayor Rajlakshmi Bhosale.

]]> 0 Mahesh <![CDATA[Divorce]]> 1970-01-01T00:00:00Z 2009-11-13T11:23:36Z Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisiona l/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 96 of 2000
Sri Subhash Chandra Das Chowdhury
Versus
Smt. Sandhya Das Chowdhury
For the Appellant/Petitione r: Mr Dilip Kumar Mondal, Mr Sandip Roy Chowdhury,
Mr Gurudas Mitra.
For the Respondent/Opposite Party: Mr S.S. Mukherjee, Mr Siddheswar Chandra.
Heard on: 03.06.2008, 10.06.2008 &12.06.2008.
Judgment on: 18th July, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a husband in a suit for divorce on the
ground of cruelty and is directed against the judgment and decree dated 23rd
December, 1998 passed by the learned Additional District Judge, Fifth Court,
Alipore, in Matrimonial Suit No.66 of 1990 thereby dismissing the suit with a
specific finding that the appellant failed to prove cruelty alleged in the
application for divorce.
The case made out by the appellant in the pleading as amended may be summed
up thus:
(a) The parties were married on 7th March, 1988 according to the Hindu rites
and ceremonies at 1/15, Mall Road, Dum Dum. On the eighth day of the marriage,
at the time of visit to the wife's house, the appellant was told by the mother
and the brother of the respondent that he was required to stay away from his
own family and start his life with his wife at the paternal house of the
respondent at Dum Dum as a domesticated son-in-law. The appellant, however, did
not agree with such proposal and such denial on his part annoyed the
respondent, her mother, brother and sister. (b) Thereafter, the appellant took
his wife to Puri on honeymoon and stayed there for about 10 days and after
returning from Puri, the wife stayed in the house of the appellant for a few
days and thereafter, left for her own house at Dum Dum on 17th April, 1988.
(c) On or about 2nd May, 1988, the appellant went to Dum Dum to take her back
but she refused to come back by asserting that the appellant should forget his
parents and sisters and must stay at Dum Dum in their family. Subsequently, the
appellant again on 12th May, 1988, 19th May, 1988 and 27th May, 1988 went to
his father-in-law's house to bring his wife back but she did not come.
Indian Kanoon - http://indiankanoon .org/doc/ 1393137/
(d) On 12th June, 1988, the respondent made a false and baseless complaint to
the local Nagarik Committee; the office bearers of such Committee, after
hearing the parties and being satisfied that there was no truth in her
allegations, asked her to return to her matrimonial home but she did not come
back.
(e) On 27th July, 1988 at about 7 p.m., when the appellant was out of his
house, the respondent came along with her brother and some antisocial persons.
Although, the sisters of the appellant welcomed them, they, after going to the
first floor of the house, started abusing the members of the husband's family
in filthy language. Her brother and his antisocial associates started beating
the appellant's sisters and even did not spare the old father of the appellant
who was then aged about 76 years. One of the appellant's sisters managed to
escape and informed the local people and apprehending the danger, those
antisocial associates of the respondent left the place and threatened that they
would come again. (f) The father of the appellant, therefore, lodged a G.D.
with the Behala Police Station on 27th July, 1988 narrating the incident. After
coming back, the appellant heard the whole incident and on the next day, he
lodged a written complaint before the local police station.
(g) During her first one-month stay in the appellant's house, the wife removed
all her ornaments that she got as presentation to her father's house and
thereafter, she approached the Nagarik Committee by making false complaint
against the husband. The Nagarik Committee initially refused to interfere in
the matter. However, for maintaining peace and with the hope of better days,
the appellant was forced to take a separate rented house at the instigation of
the respondent in her name at 48/2/1, Kabi Guru Sarani Road, P.S.-Behala and
shifted to that house on 20th August, 1988 leaving his paralytic mother and old
father and unmarried sisters. The appellant purchased the household utensils,
fan, etc. and stayed there up to March 1989.
(h) During his stay with the respondent at the rented house, the appellant
passed a very miserable life. The respondent used to come at about 9 p.m. in
the evening some time on bus, minibus and on occasions, in the cars of others.
On enquiry about her late coming, she used to answer in dirty language.
Sometimes at the dead of night, she used to turn the appellant out of bedroom
forcibly and for avoiding scandals, the appellant had to stay outside the room
sitting on the floor.
(i) During the stay at rented house, the respondent sometime kept the house
under lock and key for days together staying at her father's residence. These
behaviours of the respondent amounted to cruelty and in view of misbehaviour of
the respondent, the appellant had lost his dignity and prestige before his
friends, neighbours and office colleagues. He could not sleep at night nor
could he mix with his friends, neighbours and office colleagues.
(j) The respondent also used to utter insulting language towards the appellant
and complain that the appellant had been living in adultery with his sisters.
Such false allegation gave great shock in the mind of the appellant. (k) On
25th March, 1989, the respondent did not allow the appellant to enter the house
shouting that he was in illicit connection with his sisters and that she would
not stay with him and drove him out on that ground. Since then, the appellant
had been residing at her mother's house at 99, Agarwall Garden Road.
(l) On 19th April, 1989, the appellant's mother died and in spite of giving
information, the respondent did not come to take part in funeral nor did she
take part in the Sradh Ceremony.
(m) On 25th May, 1989, the respondent came with her brother and some
associates in the house of the appellant and asked the appellant to send the
two sisters to any orphanage and the father to an old age home and only in
these circumstances, she agreed to come to the house of the appellant. The
Indian Kanoon - http://indiankanoon .org/doc/ 1393137/
respondent also used filthy language towards the appellant's sisters and
father. Thereafter, they left the house. (n) After the filing of the suit, the
respondent with the help of the Nagarik Committee forcibly entered into the
house of the appellant and injured the inmates of the house. In view of such
incident, a General Diary was lodged in the local police station and
subsequently, the respondent lodged complaint under Section 498A of the Indian
Penal Code against the appellant and other members of the family. All of them
were arrested and subsequently, were released on bail. She forcibly occupied a
portion of the house of his father after the institution of the suit.
The respondent contested the suit by filing written statement thereby denying
the material allegations made in the plaint and the defence of the respondent
may be summed up thus:
(1) All the allegations made against the wife were false. On 8th April, 1988,
the appellant along with his divorced sister tried to set fire in her Sari as
the respondent told that there was no talk of giving dressing table at the time
of marriage. The appellant and his divorced sister began to beat her, as a
result, the respondent had fallen ill and ultimately, she left with her brother
to the respondent's house at Dum Dum on 24th April, 1988. (2) On 27th May,
1988, the respondent went to the appellant's house at Behala after being
recovered from illness but the appellant's father and the divorced sister
forcibly drove her out from the house and threatened her with dire consequence
if the respondent came to the house of the appellant any further. The appellant
told the respondent that he would marry his previous girlfriend after divorcing
the respondent. The allegation that on 27th July, 1988, the wife and her
brother and other antisocial elements came to the house of the appellant and
abused the family-members was a false statement and the diary lodged was based
on false story. It was equally false that the respondent removed all her
ornaments and clothing to her father's house.
(3) The appellant at the rented house, on several occasions, forced the wife to
stay outside the room and tortured her. It was absolutely a false allegation
that she used to come back at late night as alleged. The respondent was
attacked with Cholera in the rented house but at that time, the appellant left
the respondent and lived at his father's house. The local people helped the
respondent from recovering from the illness. It was absolutely false to allege
that the wife ever asked the husband to send his two sisters in boarding house
and the father to an old age home.
(4) The husband had a love affair with a girl from the childhood, which was
disclosed by the husband after the marriage, and the appellant married the
respondent with an intention to grab the ornaments and the clothing of the
respondent, as she was a Central Government employee. The appellant used to
often beat the respondent. After returning from Puri, the appellant started
beating, slapping and torturing the respondent. However, the mother-in-law of
the respondent was very much kind towards the respondent and she advised the
appellant not to beat the respondent. The appellant made several General
Diaries before the local police station. Once the appellant and his divorced
sister tried to burn the respondent when she was asleep at the house of the
appellant. At the intervention of the well-wishers of the respondent, the
rented house was taken but after the appellant physically assaulted the
respondent, the members of the Mahila Samity helped the respondent to enter the
house of the appellant on 8th March, 1990 and from that date, the parties
started living as husband and wife in the same room sharing the same bed.
(5) The respondent is a service holder being an upper division clerk at A.G.
Bengal and wants to live with the appellant as husband and wife but the
intention of the appellant was to drive out the respondent with a motive to
marry another girl and to grab the ornaments of the respondents. Even after the
institution of the suit, the parties were leading conjugal life as a husband
and wife and therefore, the suit was liable to be dismissed. At the time of
Indian Kanoon - http://indiankanoon .org/doc/ 1393137/
hearing, five witnesses including the appellant gave evidence in support of the
case of the appellant while six witnesses including the respondent deposed in
opposing the claim.
As pointed out earlier, the learned Trial Judge by the judgment and decree
impugned herein has disbelieved the case of the appellant and, therefore,
dismissed the suit.
Being dissatisfied, the husband has come up with the present first appeal.
After hearing the learned counsel for the parties and after going through the
materials on record, we find that the parties were unhappy from the very
beginning of the marriage. The allegation of the husband in this regard was that
the wife wanted to make him a domesticated son-in-law and that is the cause of
all trouble, while the wife alleged that the two sisters of the husband made her
life miserable in the matrimonial home and they even tried to kill her by
setting fire on her wearing apparel. There is no dispute that the Nagarik
Committee and the local Mahila Samity intervened at the instance of the wife
and on their advice, a separate tenanted accommodation was taken in the name of
the wife in a nearby place. Such effort, however, was not found to be
successful. According to the husband, due to cruel treatment of the wife in the
rented accommodation, he was compelled to leave the said rented house and come
back to his father's house, whereas, according to the wife, it was the husband
who misbehaved with her and left her in the said rented accommodation. The
wife, however, spoke high of her mother-in-law and stated that she used to
protect her from the misbehaviour of her son and daughters. The mother of the
husband died in the year 1989.
The suit was filed in the month of February 1990 when the wife was not
staying in the house of her father-in-law. During the pendency of the suit, the
wife with the help of the local people forcibly entered in the house of the
father of the husband and occupied one of the rooms and further trouble started
leading to the initiation of the criminal case under Section 498A of the Indian
Penal Code against all the members of his family and consequently, all of them
were arrested and subsequently released on bail. The said proceedings are still
pending after framing of charges. The wife in her deposition admitted that with
the help of the Mahila Samity, she got entry in the said house in the month of
March 1990 and she claimed that she had been staying in the said house with the
appellant as a husband and wife till the death of her father-in-law. There is
no dispute that one of the sisters of the husband has also died in the
meantime. The learned Trial Judge was of the view that initiation of the
criminal proceedings against the husband and the other members of the family
could not amount to cruelty as charge has already been framed and at that
stage, one could not presume innocence of the husband. Moreover, according to
the learned Trial Judge, the wife had every right to start criminal proceedings
if any crime was committed by the husband against her. We fully subscribe to
the aforesaid view taken by the learned Trial Judge. However, we, in this
matrimonial proceeding for divorce, cannot approve the action of the wife of
forcefully entering the house of the husband when a suit for divorce had
already been filed against her on the ground of cruelty. She had her rented
accommodation where she was staying and had also the paternal house at Dum Dum.
She is an employee of the Central Government and is not a helpless lady in that
sense of the term and not even dependant upon the husband in anyway. In our
view, once a matrimonial suit has been filed, the wife has no right to have a
force entry in the house of her husband against his will if she is provided
with maintenance by the husband. In the case before us, the respondent being an
employee of the Central Government, she is quite capable of maintaining herself
and thus, she had no right to enter the house of the husband by the help of the
local people. The sole object of the respondent was to frustrate the suit by
contending that she had been staying in the same room as husband and wife and
she has actually taken such plea in this proceeding. We, however, do not
believe such assertion of the wife after taking into consideration the fact
that the she has initiated proceedings under Section 498A of the Indian Penal
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Code during the pendency of the suit and all the members of the family were
arrested. No reasonable person will believe the statement of the wife that the
husband is staying with her notwithstanding the pendency of the criminal case
where charge has been framed and he is an accused person along with other
members of the family. Such wrongful entry in the house with the help of local
people has definitely caused humiliation of the husband, an employee of the
defence service, in the estimation of the local people and in the facts of the
present case positively amounts to cruelty. We further find that the wife in
her written statements made specific allegation that the husband, in order to
marry his girlfriend and to misappropriate her ornaments, filed the suit for
divorce. In evidence, however, the respondent did not lead any evidence in
support of such allegation about the moral character of the husband and no
suggestion was even given in cross-examination of the husband that he had any
illicit relation with any girl. We, therefore, find that the wife has made
baseless allegation against the husband in the written statement about the
desire of the husband to marry any other lady and such act also amounts to
cruelty. Therefore, even if we hold that the husband has failed to prove
that the wife used to allege his illicit relation with his own sisters, we are
satisfied that the subsequent behaviours of the wife towards the husband
definitely amount to cruelty. It appears that on the pressure of the wife and
the members of the local Nagarik Committee, a separate rented accommodation was
taken and that too, in the name of the wife but in spite of such fact, the
parties could not live peacefully. No specific cause could be pointed out by
the wife showing the reason of the discord and the only defence taken in the
written statement as regards the desire to marry the girlfriend has not been
proved. In the rented house, the sisters of the husband were not there and
therefore, they could not be blamed for the unhappiness of the parties in that
rented accommodation. The husband, however, alleged that the respondent used to
come late at night and did not cook for the husband, which was denied by the
wife. The fact that the husband used to take lunch in his office canteen has
been admitted by the wife. We find from the deposition of the wife that she is
a pathological liar as would appear from various deliberate false statements
made in course of deposition. She stated that she came to know of the filing of
the suit on 12th August, 1990 whereas it appears from the order-sheet that she
entered appearance in the suit on 26th April, 1990 and repeatedly prayed for
time to file written statement. In her cross- examination, she stated that she
lodged complaint under Section 498A of the Indian Penal Code against her
father-in-law and the sisters-in-law and not against her husband although it
appears that the husband was one of the accused persons and was arrested. She
further stated in one place of her deposition that in the rented accommodation,
both of them were happy and there was no torture upon either of the parties.
(See: page 112 at the penultimate paragraph of the Paper Book). Such statement
is inconsistent with her other statements as regards the alleged misbehaviour
of the husband in the rented accommodation. She has alleged conspiracy of
killing her against the sisters of the husband and in the same breath,
expressed her desire to stay with her husband along with her sisters-in-law.
She specifically stated that she never created pressure to take any rented
house but the facts remain that the said tenancy was taken in her name and it
was not the husband who of his own took such tenancy in the name of his wife.
On consideration of the entire materials on record we, thus, find that
from the very beginning the wife and her family, took shelter under the local
organisations controlled by the political party and created pressure upon the
husband, first to become a domesticated son-in-law and then to take rented
accommodation for the purpose of living separately from the old parents and the
dependant sisters of the husband. Even thereafter, she could not be happy and
when, the suit was filed after the death of her mother-in-law, she with the help
of the local political party entered forcibly in the house of her husband and
started criminal proceedings against the husband and the members of his family.
However, in Court she took a stance that she was ready to live with her husband.
All these facts taken together will lead to the conclusion that she was
intolerant in her attitude and her aforesaid acts definitely amounted to
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cruelty. We now propose to deal with the decisions cited on behalf of the
wife. In the case of Swapan Kumar Ganguly vs. Smt. Smiritikana Ganguly
reported in A.I.R. 2002 Cal 6, it was established from the evidence on record
that the husband was guilty of physical and mental cruelty, and in such
circumstances, it was held that there was cogent ground of the wife to stay away
from the husband and thus, the husband was found to be not entitled to get a
decree for divorce on the ground of desertion. The said decision, therefore,
does not help the wife in this case where she was found to be guilty of cruelty
towards her husband.
In the case of Chetan Dass vs. Kamla Devi reported in A.I.R. 2002 SC 1709,
the relief of divorce was claimed by the husband on the ground that the
marriage had been broken down irretrievably. It was found that the husband was
leading adulterous life and in such circumstances, it was held that the husband
could not take advantage of his own wrong. In the case before us, from the very
beginning, the wife refused to come back to the matrimonial home and when
separate rented residence was taken in her own name, she could not live
peacefully and ultimately, after filing of the suit for divorce, forcibly
entered into the matrimonial house with the help of the local people although
at that point of time, she was staying in her rented accommodation. Thus, from
the aforesaid fact, we are unable to conclude that the husband was taking
advantage of his own wrong.
In the case of Harish Kumar Ledwani vs. Smt. Anita Ledwani reported in A.I.R.
2003 M.P. 197, the husband neither specifically pleaded the particulars
regarding his allegation of cruelty with him by wife, nor did he lead any
satisfactory evidence in that regard. On the other hand, the evidence on record
indicated that it was the husband who was maltreating and assaulting wife and
was thus cruel to her. In such a situation, the Madhya Pradesh High Court was
of the view that the husband could not get a decree for divorce on the ground of
cruelty. In the case before us, the particulars of cruelty have been
specifically pleaded and the subsequent events were also incorporated by way of
amendment and wife admitted in her evidence that she took the help of the local
Mahila Samity for entering into the matrimonial home during the pendency of the
suit for divorce leading to the filing of the criminal proceedings. Therefore,
the principles laid down in the said decision cannot have any application to
the facts of the present case.
The decisions cited by the learned advocate for the respondent, therefore,
do not help his client in any way.
Although Mr Mukherjee as a last resort tried to impress upon us that the
divorce is a stigma on a woman in Indian society and thus, we should make
endeavour of preserving the marriage. In the case before us, the wife having
been found to be guilty of cruelty we do not find any reason to refuse the just
prayer of divorce. At this stage, we propose to rely upon the following
observations of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli
reported in A.I.R. 2006 SC 1675 in answer to the submission of Mr Mukherjee:
“Undoubtedly, it is the obligation of the Court and all concerned that the
marriage status should, as far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is totally dead, in that event,
nothing is gained by trying to keep the parties tied forever to a marriage which
in fact has ceased to exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage. The course which has been
adopted by the High Court would encourage continuous bickering, perpetual
bitterness and may lead to immorality. In view of the fact that the parties
have been living separately for more than 10 years and a very large number of
aforementioned criminal and civil proceedings have been initiated by the
respondent against the appellant and some proceedings have been initiated by the
appellant against the respondent, the matrimonial bond between the parties is
beyond repair. A marriage between the parties is only in name. The marriage has
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been wrecked beyond the hope of salvage, public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto. To keep the sham is obviously conducive to
immorality and potentially more prejudicial to the public interest than a
dissolution of the marriage bond.”
This is a case where we have decided to grant decree for divorce after being
satisfied with the ground of cruelty and not on the mere ground that the
marriage tie has broken down forever.
The learned Trial Judge, as it appears from the judgment and decree impugned,
did not look into aforesaid misconduct of the wife pointed out by us and
erroneously held that there was no wrong on the part of the wife in forcing
entry into the house of the husband during the pendency of the suit for divorce
and pendency of the criminal case after filing of charge-sheet under Section
498A of the Indian Penal Code rather suggested that the husband was prima facie
not innocent.
We, therefore, set aside the judgment and decree passed by the learned Trial
Judge and hold that the husband has successfully proved that the wife was
guilty of cruelty and consequently, we pass a decree for divorce on such ground.
In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. )
I agree.
( Rudrendra Nath Banerjee, J. )
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]]> 0 Mahesh <![CDATA[fh]]> 1970-01-01T00:00:00Z 2009-11-13T09:30:41Z Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisiona l/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 96 of 2000
Sri Subhash Chandra Das Chowdhury
Versus
Smt. Sandhya Das Chowdhury
For the Appellant/Petitione r: Mr Dilip Kumar Mondal, Mr Sandip Roy Chowdhury,
Mr Gurudas Mitra.
For the Respondent/Opposite Party: Mr S.S. Mukherjee, Mr Siddheswar Chandra.
Heard on: 03.06.2008, 10.06.2008 &12.06.2008.
Judgment on: 18th July, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a husband in a suit for divorce on the
ground of cruelty and is directed against the judgment and decree dated 23rd
December, 1998 passed by the learned Additional District Judge, Fifth Court,
Alipore, in Matrimonial Suit No.66 of 1990 thereby dismissing the suit with a
specific finding that the appellant failed to prove cruelty alleged in the
application for divorce.
The case made out by the appellant in the pleading as amended may be summed
up thus:
(a) The parties were married on 7th March, 1988 according to the Hindu rites
and ceremonies at 1/15, Mall Road, Dum Dum. On the eighth day of the marriage,
at the time of visit to the wife's house, the appellant was told by the mother
and the brother of the respondent that he was required to stay away from his
own family and start his life with his wife at the paternal house of the
respondent at Dum Dum as a domesticated son-in-law. The appellant, however, did
not agree with such proposal and such denial on his part annoyed the
respondent, her mother, brother and sister. (b) Thereafter, the appellant took
his wife to Puri on honeymoon and stayed there for about 10 days and after
returning from Puri, the wife stayed in the house of the appellant for a few
days and thereafter, left for her own house at Dum Dum on 17th April, 1988.
(c) On or about 2nd May, 1988, the appellant went to Dum Dum to take her back
but she refused to come back by asserting that the appellant should forget his
parents and sisters and must stay at Dum Dum in their family. Subsequently, the
appellant again on 12th May, 1988, 19th May, 1988 and 27th May, 1988 went to
his father-in-law's house to bring his wife back but she did not come.
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(d) On 12th June, 1988, the respondent made a false and baseless complaint to
the local Nagarik Committee; the office bearers of such Committee, after
hearing the parties and being satisfied that there was no truth in her
allegations, asked her to return to her matrimonial home but she did not come
back.
(e) On 27th July, 1988 at about 7 p.m., when the appellant was out of his
house, the respondent came along with her brother and some antisocial persons.
Although, the sisters of the appellant welcomed them, they, after going to the
first floor of the house, started abusing the members of the husband's family
in filthy language. Her brother and his antisocial associates started beating
the appellant's sisters and even did not spare the old father of the appellant
who was then aged about 76 years. One of the appellant's sisters managed to
escape and informed the local people and apprehending the danger, those
antisocial associates of the respondent left the place and threatened that they
would come again. (f) The father of the appellant, therefore, lodged a G.D.
with the Behala Police Station on 27th July, 1988 narrating the incident. After
coming back, the appellant heard the whole incident and on the next day, he
lodged a written complaint before the local police station.
(g) During her first one-month stay in the appellant's house, the wife removed
all her ornaments that she got as presentation to her father's house and
thereafter, she approached the Nagarik Committee by making false complaint
against the husband. The Nagarik Committee initially refused to interfere in
the matter. However, for maintaining peace and with the hope of better days,
the appellant was forced to take a separate rented house at the instigation of
the respondent in her name at 48/2/1, Kabi Guru Sarani Road, P.S.-Behala and
shifted to that house on 20th August, 1988 leaving his paralytic mother and old
father and unmarried sisters. The appellant purchased the household utensils,
fan, etc. and stayed there up to March 1989.
(h) During his stay with the respondent at the rented house, the appellant
passed a very miserable life. The respondent used to come at about 9 p.m. in
the evening some time on bus, minibus and on occasions, in the cars of others.
On enquiry about her late coming, she used to answer in dirty language.
Sometimes at the dead of night, she used to turn the appellant out of bedroom
forcibly and for avoiding scandals, the appellant had to stay outside the room
sitting on the floor.
(i) During the stay at rented house, the respondent sometime kept the house
under lock and key for days together staying at her father's residence. These
behaviours of the respondent amounted to cruelty and in view of misbehaviour of
the respondent, the appellant had lost his dignity and prestige before his
friends, neighbours and office colleagues. He could not sleep at night nor
could he mix with his friends, neighbours and office colleagues.
(j) The respondent also used to utter insulting language towards the appellant
and complain that the appellant had been living in adultery with his sisters.
Such false allegation gave great shock in the mind of the appellant. (k) On
25th March, 1989, the respondent did not allow the appellant to enter the house
shouting that he was in illicit connection with his sisters and that she would
not stay with him and drove him out on that ground. Since then, the appellant
had been residing at her mother's house at 99, Agarwall Garden Road.
(l) On 19th April, 1989, the appellant's mother died and in spite of giving
information, the respondent did not come to take part in funeral nor did she
take part in the Sradh Ceremony.
(m) On 25th May, 1989, the respondent came with her brother and some
associates in the house of the appellant and asked the appellant to send the
two sisters to any orphanage and the father to an old age home and only in
these circumstances, she agreed to come to the house of the appellant. The
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respondent also used filthy language towards the appellant's sisters and
father. Thereafter, they left the house. (n) After the filing of the suit, the
respondent with the help of the Nagarik Committee forcibly entered into the
house of the appellant and injured the inmates of the house. In view of such
incident, a General Diary was lodged in the local police station and
subsequently, the respondent lodged complaint under Section 498A of the Indian
Penal Code against the appellant and other members of the family. All of them
were arrested and subsequently, were released on bail. She forcibly occupied a
portion of the house of his father after the institution of the suit.
The respondent contested the suit by filing written statement thereby denying
the material allegations made in the plaint and the defence of the respondent
may be summed up thus:
(1) All the allegations made against the wife were false. On 8th April, 1988,
the appellant along with his divorced sister tried to set fire in her Sari as
the respondent told that there was no talk of giving dressing table at the time
of marriage. The appellant and his divorced sister began to beat her, as a
result, the respondent had fallen ill and ultimately, she left with her brother
to the respondent's house at Dum Dum on 24th April, 1988. (2) On 27th May,
1988, the respondent went to the appellant's house at Behala after being
recovered from illness but the appellant's father and the divorced sister
forcibly drove her out from the house and threatened her with dire consequence
if the respondent came to the house of the appellant any further. The appellant
told the respondent that he would marry his previous girlfriend after divorcing
the respondent. The allegation that on 27th July, 1988, the wife and her
brother and other antisocial elements came to the house of the appellant and
abused the family-members was a false statement and the diary lodged was based
on false story. It was equally false that the respondent removed all her
ornaments and clothing to her father's house.
(3) The appellant at the rented house, on several occasions, forced the wife to
stay outside the room and tortured her. It was absolutely a false allegation
that she used to come back at late night as alleged. The respondent was
attacked with Cholera in the rented house but at that time, the appellant left
the respondent and lived at his father's house. The local people helped the
respondent from recovering from the illness. It was absolutely false to allege
that the wife ever asked the husband to send his two sisters in boarding house
and the father to an old age home.
(4) The husband had a love affair with a girl from the childhood, which was
disclosed by the husband after the marriage, and the appellant married the
respondent with an intention to grab the ornaments and the clothing of the
respondent, as she was a Central Government employee. The appellant used to
often beat the respondent. After returning from Puri, the appellant started
beating, slapping and torturing the respondent. However, the mother-in-law of
the respondent was very much kind towards the respondent and she advised the
appellant not to beat the respondent. The appellant made several General
Diaries before the local police station. Once the appellant and his divorced
sister tried to burn the respondent when she was asleep at the house of the
appellant. At the intervention of the well-wishers of the respondent, the
rented house was taken but after the appellant physically assaulted the
respondent, the members of the Mahila Samity helped the respondent to enter the
house of the appellant on 8th March, 1990 and from that date, the parties
started living as husband and wife in the same room sharing the same bed.
(5) The respondent is a service holder being an upper division clerk at A.G.
Bengal and wants to live with the appellant as husband and wife but the
intention of the appellant was to drive out the respondent with a motive to
marry another girl and to grab the ornaments of the respondents. Even after the
institution of the suit, the parties were leading conjugal life as a husband
and wife and therefore, the suit was liable to be dismissed. At the time of
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hearing, five witnesses including the appellant gave evidence in support of the
case of the appellant while six witnesses including the respondent deposed in
opposing the claim.
As pointed out earlier, the learned Trial Judge by the judgment and decree
impugned herein has disbelieved the case of the appellant and, therefore,
dismissed the suit.
Being dissatisfied, the husband has come up with the present first appeal.
After hearing the learned counsel for the parties and after going through the
materials on record, we find that the parties were unhappy from the very
beginning of the marriage. The allegation of the husband in this regard was that
the wife wanted to make him a domesticated son-in-law and that is the cause of
all trouble, while the wife alleged that the two sisters of the husband made her
life miserable in the matrimonial home and they even tried to kill her by
setting fire on her wearing apparel. There is no dispute that the Nagarik
Committee and the local Mahila Samity intervened at the instance of the wife
and on their advice, a separate tenanted accommodation was taken in the name of
the wife in a nearby place. Such effort, however, was not found to be
successful. According to the husband, due to cruel treatment of the wife in the
rented accommodation, he was compelled to leave the said rented house and come
back to his father's house, whereas, according to the wife, it was the husband
who misbehaved with her and left her in the said rented accommodation. The
wife, however, spoke high of her mother-in-law and stated that she used to
protect her from the misbehaviour of her son and daughters. The mother of the
husband died in the year 1989.
The suit was filed in the month of February 1990 when the wife was not
staying in the house of her father-in-law. During the pendency of the suit, the
wife with the help of the local people forcibly entered in the house of the
father of the husband and occupied one of the rooms and further trouble started
leading to the initiation of the criminal case under Section 498A of the Indian
Penal Code against all the members of his family and consequently, all of them
were arrested and subsequently released on bail. The said proceedings are still
pending after framing of charges. The wife in her deposition admitted that with
the help of the Mahila Samity, she got entry in the said house in the month of
March 1990 and she claimed that she had been staying in the said house with the
appellant as a husband and wife till the death of her father-in-law. There is
no dispute that one of the sisters of the husband has also died in the
meantime. The learned Trial Judge was of the view that initiation of the
criminal proceedings against the husband and the other members of the family
could not amount to cruelty as charge has already been framed and at that
stage, one could not presume innocence of the husband. Moreover, according to
the learned Trial Judge, the wife had every right to start criminal proceedings
if any crime was committed by the husband against her. We fully subscribe to
the aforesaid view taken by the learned Trial Judge. However, we, in this
matrimonial proceeding for divorce, cannot approve the action of the wife of
forcefully entering the house of the husband when a suit for divorce had
already been filed against her on the ground of cruelty. She had her rented
accommodation where she was staying and had also the paternal house at Dum Dum.
She is an employee of the Central Government and is not a helpless lady in that
sense of the term and not even dependant upon the husband in anyway. In our
view, once a matrimonial suit has been filed, the wife has no right to have a
force entry in the house of her husband against his will if she is provided
with maintenance by the husband. In the case before us, the respondent being an
employee of the Central Government, she is quite capable of maintaining herself
and thus, she had no right to enter the house of the husband by the help of the
local people. The sole object of the respondent was to frustrate the suit by
contending that she had been staying in the same room as husband and wife and
she has actually taken such plea in this proceeding. We, however, do not
believe such assertion of the wife after taking into consideration the fact
that the she has initiated proceedings under Section 498A of the Indian Penal
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Code during the pendency of the suit and all the members of the family were
arrested. No reasonable person will believe the statement of the wife that the
husband is staying with her notwithstanding the pendency of the criminal case
where charge has been framed and he is an accused person along with other
members of the family. Such wrongful entry in the house with the help of local
people has definitely caused humiliation of the husband, an employee of the
defence service, in the estimation of the local people and in the facts of the
present case positively amounts to cruelty. We further find that the wife in
her written statements made specific allegation that the husband, in order to
marry his girlfriend and to misappropriate her ornaments, filed the suit for
divorce. In evidence, however, the respondent did not lead any evidence in
support of such allegation about the moral character of the husband and no
suggestion was even given in cross-examination of the husband that he had any
illicit relation with any girl. We, therefore, find that the wife has made
baseless allegation against the husband in the written statement about the
desire of the husband to marry any other lady and such act also amounts to
cruelty. Therefore, even if we hold that the husband has failed to prove
that the wife used to allege his illicit relation with his own sisters, we are
satisfied that the subsequent behaviours of the wife towards the husband
definitely amount to cruelty. It appears that on the pressure of the wife and
the members of the local Nagarik Committee, a separate rented accommodation was
taken and that too, in the name of the wife but in spite of such fact, the
parties could not live peacefully. No specific cause could be pointed out by
the wife showing the reason of the discord and the only defence taken in the
written statement as regards the desire to marry the girlfriend has not been
proved. In the rented house, the sisters of the husband were not there and
therefore, they could not be blamed for the unhappiness of the parties in that
rented accommodation. The husband, however, alleged that the respondent used to
come late at night and did not cook for the husband, which was denied by the
wife. The fact that the husband used to take lunch in his office canteen has
been admitted by the wife. We find from the deposition of the wife that she is
a pathological liar as would appear from various deliberate false statements
made in course of deposition. She stated that she came to know of the filing of
the suit on 12th August, 1990 whereas it appears from the order-sheet that she
entered appearance in the suit on 26th April, 1990 and repeatedly prayed for
time to file written statement. In her cross- examination, she stated that she
lodged complaint under Section 498A of the Indian Penal Code against her
father-in-law and the sisters-in-law and not against her husband although it
appears that the husband was one of the accused persons and was arrested. She
further stated in one place of her deposition that in the rented accommodation,
both of them were happy and there was no torture upon either of the parties.
(See: page 112 at the penultimate paragraph of the Paper Book). Such statement
is inconsistent with her other statements as regards the alleged misbehaviour
of the husband in the rented accommodation. She has alleged conspiracy of
killing her against the sisters of the husband and in the same breath,
expressed her desire to stay with her husband along with her sisters-in-law.
She specifically stated that she never created pressure to take any rented
house but the facts remain that the said tenancy was taken in her name and it
was not the husband who of his own took such tenancy in the name of his wife.
On consideration of the entire materials on record we, thus, find that
from the very beginning the wife and her family, took shelter under the local
organisations controlled by the political party and created pressure upon the
husband, first to become a domesticated son-in-law and then to take rented
accommodation for the purpose of living separately from the old parents and the
dependant sisters of the husband. Even thereafter, she could not be happy and
when, the suit was filed after the death of her mother-in-law, she with the help
of the local political party entered forcibly in the house of her husband and
started criminal proceedings against the husband and the members of his family.
However, in Court she took a stance that she was ready to live with her husband.
All these facts taken together will lead to the conclusion that she was
intolerant in her attitude and her aforesaid acts definitely amounted to
Indian Kanoon - http://indiankanoon .org/doc/ 1393137/
cruelty. We now propose to deal with the decisions cited on behalf of the
wife. In the case of Swapan Kumar Ganguly vs. Smt. Smiritikana Ganguly
reported in A.I.R. 2002 Cal 6, it was established from the evidence on record
that the husband was guilty of physical and mental cruelty, and in such
circumstances, it was held that there was cogent ground of the wife to stay away
from the husband and thus, the husband was found to be not entitled to get a
decree for divorce on the ground of desertion. The said decision, therefore,
does not help the wife in this case where she was found to be guilty of cruelty
towards her husband.
In the case of Chetan Dass vs. Kamla Devi reported in A.I.R. 2002 SC 1709,
the relief of divorce was claimed by the husband on the ground that the
marriage had been broken down irretrievably. It was found that the husband was
leading adulterous life and in such circumstances, it was held that the husband
could not take advantage of his own wrong. In the case before us, from the very
beginning, the wife refused to come back to the matrimonial home and when
separate rented residence was taken in her own name, she could not live
peacefully and ultimately, after filing of the suit for divorce, forcibly
entered into the matrimonial house with the help of the local people although
at that point of time, she was staying in her rented accommodation. Thus, from
the aforesaid fact, we are unable to conclude that the husband was taking
advantage of his own wrong.
In the case of Harish Kumar Ledwani vs. Smt. Anita Ledwani reported in A.I.R.
2003 M.P. 197, the husband neither specifically pleaded the particulars
regarding his allegation of cruelty with him by wife, nor did he lead any
satisfactory evidence in that regard. On the other hand, the evidence on record
indicated that it was the husband who was maltreating and assaulting wife and
was thus cruel to her. In such a situation, the Madhya Pradesh High Court was
of the view that the husband could not get a decree for divorce on the ground of
cruelty. In the case before us, the particulars of cruelty have been
specifically pleaded and the subsequent events were also incorporated by way of
amendment and wife admitted in her evidence that she took the help of the local
Mahila Samity for entering into the matrimonial home during the pendency of the
suit for divorce leading to the filing of the criminal proceedings. Therefore,
the principles laid down in the said decision cannot have any application to
the facts of the present case.
The decisions cited by the learned advocate for the respondent, therefore,
do not help his client in any way.
Although Mr Mukherjee as a last resort tried to impress upon us that the
divorce is a stigma on a woman in Indian society and thus, we should make
endeavour of preserving the marriage. In the case before us, the wife having
been found to be guilty of cruelty we do not find any reason to refuse the just
prayer of divorce. At this stage, we propose to rely upon the following
observations of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli
reported in A.I.R. 2006 SC 1675 in answer to the submission of Mr Mukherjee:
“Undoubtedly, it is the obligation of the Court and all concerned that the
marriage status should, as far as possible, as long as possible and whenever
possible, be maintained, but when the marriage is totally dead, in that event,
nothing is gained by trying to keep the parties tied forever to a marriage which
in fact has ceased to exist. In the instant case, there has been total
disappearance of emotional substratum in the marriage. The course which has been
adopted by the High Court would encourage continuous bickering, perpetual
bitterness and may lead to immorality. In view of the fact that the parties
have been living separately for more than 10 years and a very large number of
aforementioned criminal and civil proceedings have been initiated by the
respondent against the appellant and some proceedings have been initiated by the
appellant against the respondent, the matrimonial bond between the parties is
beyond repair. A marriage between the parties is only in name. The marriage has
Indian Kanoon - http://indiankanoon .org/doc/ 1393137/
been wrecked beyond the hope of salvage, public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure
what is already defunct de facto. To keep the sham is obviously conducive to
immorality and potentially more prejudicial to the public interest than a
dissolution of the marriage bond.”
This is a case where we have decided to grant decree for divorce after being
satisfied with the ground of cruelty and not on the mere ground that the
marriage tie has broken down forever.
The learned Trial Judge, as it appears from the judgment and decree impugned,
did not look into aforesaid misconduct of the wife pointed out by us and
erroneously held that there was no wrong on the part of the wife in forcing
entry into the house of the husband during the pendency of the suit for divorce
and pendency of the criminal case after filing of charge-sheet under Section
498A of the Indian Penal Code rather suggested that the husband was prima facie
not innocent.
We, therefore, set aside the judgment and decree passed by the learned Trial
Judge and hold that the husband has successfully proved that the wife was
guilty of cruelty and consequently, we pass a decree for divorce on such ground.
In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. )
I agree.
( Rudrendra Nath Banerjee, J. )
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