Court: Calcutta High Court
Bench: JUSTICE Alok Kumar Basu & Jyotirmay Bhattacharya,
Asoka Mitra Vs. Swapan Kumar Mitra Decided on 31 August 2007
Law Point:
Wife left matrimonial home without consent and reasonable cause. Further, wife condoned wrong on part of husband, even if there be any — No justification in regard to ground of desertion.
JUDGEMENT
1. This First Appeal is directed against the judgment and decree dated 2nd April, 1998 passed by the learned Additional District Judge, 6th Court at Alipore, South 24-Parganas in Mat. Suit No. 38A of 1994 at the instance of the defendant/appellant (wife).
2. The plaintiff/respondent (husband) filed a suit for divorce against the defendant/appellant (wife) on the ground of cruelty and desertion under Section 13(l)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The case which was made out by the plaintiff/respondent (husband) in the said suit, is narrated briefly hereunder.
4. The marriage between the parties was solemnised on 17th January, 1977 at 23, Lake Road, Calcutta-29 according to Hindu rites and customs. After solemnisation of marriage, the parties lived together at their matrimonial home which was a rented accommodation at Mahishyapara, P.S. Khardah, District 24-Parganas (North) along with the other members of the respondent’s family, viz., his parents and one unmarried sister. Matrimonial relationship between the parties was absolutely normal for 2/3 months after their marriage.
5. The relationship between the parties started deteriorating when the wife started pressurising the husband for having a separate and exclusive residence for themselves. To maintain peace in the family, husband constructed a house on a piece of land purchased by his father after taking loan from his office. Thereafter, the couple started living there. On 27th April, 1979 one son was born to them.
6. Sometime thereafter, husband brought his old ailing parents to the newly constructed house against the wish of the wife. This infuriated the appellant (wife) who started misbehaving with the respondent (husband) as well as the other members of his family since then.
7. On 30th April, 1986 evening the husband returned home and found his wife inside the room locking the door from inside. After the prolonged persuasion, she opened the door and being questioned about her conduct, the appellant (wife) became furious and started assaulting the respondent (husband) with a wooden rod. She also abused him and told that her mother-in-law had misbehaved with her and it was not possible for her to live in the matrimonial home with the mother of the respondent (husband). The respondent (husband) was mentally shocked and physically injured and he had to be treated for his injury at a nearby hospital, viz., B.N. Bose Hospital.
8. On 1st May, 1986, the appellant (wife) left the matrimonial home without intimating anyone. She had been to her brother’s place at Southern Avenue and subsequently the appellant (wife) along with her brother lodged a complaint at the Khardah Police Station against the respondent (husband). Being called the respondent (husband) had to go to the police station. An amicable settlement was arrived at, on the advice of the Officer-in-Charge of the said police station who advised the appellant (wife) to return to her matrimonial home. Pursuant to such advice, the appellant (wife) came back to her matrimonial home.
9. Even thereafter, the appellant (wife) failed to amend her behaviour and on 11th June, 1986 morning, the appellant (wife) became furious and started beating the old ailing mother of the respondent (husband) with her slippers. The father of the respondent (husband) came to her rescue, but he was also physically assaulted. Ultimately, the neighbours rescued them.
10. On 13th June, 1986, the appellant (wife) took all her belongings and left the matrimonial home stating that she would not return again. The respondent (husband) made repeated efforts to bring her back, but of no effect. The appellant (wife) refused to come back to her matrimonial home.
11. During her stay at the matrimonial home, the respondent (husband) also failed to take proper care of her child and as a result the child suffered from mental depression due to misbehaviour of his mother. The appellant (wife) also lodged false complaint to the Women Co-ordinating Council, Calcutta alleging that she would not return to matrimonial home unless the respondent (husband) removes his parents therefrom.
12. The appellant (wife) also demanded money as a condition to give consent for mutual divorce. The appellant (wife) also filed a maintenance case under Section 125 of the Criminal Procedure Code and obtained an order whereby the respondent (husband) was directed to pay a sum of Rs. 400 per month to the appellant (wife) towards her monthly maintenance.
13. Since the appellant (wife) deserted the matrimonial home, the respondent (husband) was compelled to keep the child at a boarding (hostel) of Santiniketan School.
14. Under such circumstances, the plaintiff/respondent (husband) was compelled to file the said suit for divorce against the defendant/ appellant (wife) on the ground of cruelty as well as on the ground of desertion with effect from 13th June, 1986.
15. The appellant (wife) contested the said suit by filing written statement denying all these allegations made out in the plaint. She alleged that their conjugal life was always happy and smooth until the third person intervened in between. It was also alleged by the appellant (wife) that the respondent (husband) had illicit relationship with the maid servant Ila Koley. She further alleged that she did not leave the matrimonial home wilfully. She claimed that on 13th June, 1986 she was physically assaulted and driven out from the matrimonial home by the respondent (husband), his sister and the sister-in-law. She also claimed that the sister-in-law also got some blank paper signed by her at the time when she was driven out from the matrimonial home.
16. She further claimed that even theafter she tried to settle the dispute between them and wanted to restore the matrimonial life by joining her husband, but she was not allowed to enter the matrimonial home by the husband. She further complained that she was not given any access to her child after 13th June, 1986. Thus the appellant (wife) prayed for dismissal of the suit.
17. Ultimately the said suit was decreed on contest by the learned Trial Judge by his Judgment and decree dated 2nd April, 1998. The marriage between the parties, thus, stood dissolved by a decree of divorce both on the grounds of cruelty as well as on the ground of desertion.
18. The learned Trial Judge, on analysis of the pleadings of the parties as well as the evidence on record both oral and documentary, held that the appellant (wife) deserted the respondent (husband) since 13th June, 1986, i.e., for a continuous period of more than two years immediately preceding the presentation of the petition for divorce. The learned Trial Judge also held that in spite of repeated persuasion by the respondent (husband) and the members of his family, the appellant (wife) made no attempt to come back to the matrimonial home for restoring their matrimonial relationship and as such she is guilty of desertion.
19. So far as the ground of cruelty is concerned, the learned Trial Judge also found that the appellant (wife) is guilty of cruelty as she, not only assaulted the husband but also misbehaved with the other members of the family and she also failed to discharge her duties even towards her newborn child.
20. The allegation which was made by wife against the husband’s character for his involvement and/or for maintaining his illicit relationship with the maid-servant, was taken note of by the learned Trial Judge who held that since the appellant (wife) failed to prove such allegation regarding accusation of characterisation of the husband, the respondent (husband) is also entitled to get a decree for divorce against his wife on the ground of cruelty.
21. Since admittedly some of the gifted item such as cot, almirah and sofa-set are still lying at the matrimonial home, the appellant was permitted to take back those items from the custody of the husband against proper receipt.
22. The propriety of such judgment and decree is under challenge in this appeal.
23. Since the ingredients of the ground of cruelty and the ground of desertion under the Hindu Marriage Act are different from each other, this Court thinks it proper to deal with the said grounds separately.
24. Let us first of all consider the ground of cruelty as made out by the respondent (husband) in his petition for divorce.
1. Cruelty:
The respective claims and counter-claims of the parties have already been narrated above. As such, this Court does not want to repeat the same hereunder. Various events have been narrated by the respondent (husband) in his pleadings as well as in his evidence which according to him constitute the ground of cruelty both physical and mental.
1(a). Physical Cruelty:
So far as the physical cruelty is concerned, the respondent (husband) pleaded and proved that he was assaulted by the wife with a wooden rod on 30th April, 1986 and as a result of such assault, he had to be treated in a local hospital. The prescription issued by the attending doctor at the said hospital, was also exhibited in the said suit as Exhibit “6” to prove the nature of injury, he received due to such assault. The respondent (husband) also alleged that his old ailing mother was beaten up by the appellant (wife) in the morning on 11th June, 1986 and when the father of the respondent (husband) went to rescue the mother of the respondent (husband), he was also assaulted by the appellant (wife) and ultimately they were rescued by their next door neighbour.
25. This incident, however, was admittedly not witnessed by the respondent (husband). The respondent (husband) stated in his evidence that he heard the said incident from one of his neighbours, viz., Swapan Ghosh in the evening on the said date after returning from office.
26. Both the parents of the husband are dead and as such they were not available for proving the said incident during the trial of the suit. Even the neighbour, viz., Swapan Ghosh who narrated the incident to the respondent (husband), was not examined in the said suit. The neighbour who rescued the parents of the respondent (husband) on the said date was also not examined in the said suit.
27. As such, this Court cannot believe that the appellant (wife) was guilty of assaulting the parents of the respondent (husband) as alleged by the husband in the said suit by relying upon the hearsay evidence of the husband alone.
28. Thus, the only incident of cruelty which according to this Court was proved by the respondent (husband) is the physical assault which was made to the respondent (husband) by the appellant (wife) on 30th April, 1986.
29. Now the question is : as to whether such a stray incident of cruelty is sufficient enough to dissolve the marriage on the ground of cruelty?
30. It is well-settled that for passing a decree for divorce on the ground of cruelty, the acts complained of should be so grave and weighty so as to come to the conclusion that the husband cannot reasonably be expected to live with the wife. On consideration of the evidence of the parties, this Court cannot come to the conclusion that the respondent (husband) is entitled to get a decree for divorce on the ground of physical torture amounting to cruelty.
31. This conclusion is arrived at by this Court, not only with reference to such stray incident of assault on husband on a particular date but also with reference to the subsequent conduct of the husband and his parents who repeatedly requested the wife to come back to the matrimonial home for resumption of their matrimonial relationship, notwithstanding such incident of physical assualt. Writing of letters repeatedly by the husband and his father to the wife and also to the wife’s mother, cannot be lost sight of, as those letters prove beyond any reasonable doubt that the respondent (husband) and his parents condoned the ground of cruelty on the part of the appellant (wife). Thus, whatever incident and/or occurrence took place in 1986 regarding such physical assault and/or misbehaviour either with the husband or with his parents, are all deemed to have been condoned by the husband and the members of his family.
32. This Court cannot be oblivious of the provision contained in Section 23(1)(b) of the Hindu Marriage Act which provides that in any proceeding under this Act, whether defended or not, if the Court is satisfied that where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty.
33. In our considered view, the ground of cruelty relating to the incidents regarding assault and/or misbehaviour inflicted by the wife to her husband and the members of her husband’s family, were all condoned by the husband by his subsequent conduct as mentioned above.
34. Effect of such condonation of the matrimonial offences has been considered by the Hon’ble Supreme Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported in I (1981) DMC 293 (SC)=AIR 1975 SC 1534, wherein it was held that condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. It was further held therein that “to constitute condonation, there must be therefore two things: forgiveness and restoration”.
35. Both the aforesaid elements of condonation are present in the instant case, as the husband and the members of his family invited the appellant (wife) to come back to the matrimonial home and to resume the normal matrimonial life even after the alleged incidents of cruelty had taken place.
36. As such, the respondent (husband) is not entitled to get any decree for divorce even on proof of any of the incidents which took place prior to issuance of the letters being Exhibit “4” written by the respondent (husband) to the appellant (wife) on 15th November, 1988.
1(b). Mental Cruelty:
37. Let us now consider the ground of mental cruelty.
38. The respondent (husband) referred to some stray incidents amounting to mental cruelty. These incidents are as follows:
(i) Repeated insistence for arranging a separate house to be used by the parties exclusively to the exclusion of the other members of the husband’s family, viz., his parents and the unmarried sister, is one of such incidents of mental cruelty.
(ii) Wife’s persuasion for not allowing the other members of the husband’s family to stay with them in the newly built-up house, is another incident of mental cruelty.
(iii) Use of filthy language and misbehaviour to which the husband and the members of his family were subjected to, at the instance of the wife, is another ground of mental cruelty.
(iv) Negligence to take care of their only child since his birth, is another incident of mental cruelty.
(v) Since the wife deserted the matrimonial home on 13th June, 1986, the respondent (husband) was compelled to admit their only son to the hostel at Santiniketan in January, 1987. This is another incident of mental cruelty as the respondent (husband) suffered mental breakdown, as he was deprived of day-to-day company of his only son.
39. These are the incidents which according to the respondent (husband) constitute the ground of mental cruelty. The grounds of mental cruelty which are indicated hereinabove in ground Nos. (i), (ii), (iii) and (iv) are all incidents which took place prior to 13th June, 1986 when the wife left the matrimonial home. These grounds, in our considered view, cannot constitute the ground of cruelty for which a decree can be passed assaulting the matrimonial tie between the parties, as we are of the view that the said acts of cruelty were also condoned by the respondent (husband) who by his letters dated 15th November, 1998 requested the appellant (wife) to come back to the matrimonial house for resumption of their normal life as husband and wife.
40. Accordingly, this Court holds that the respondent (husband) is not entitled to get a decree for divorce on the ground of mental cruelty as those acts of cruelty were condoned by the respondent (husband).
41. The only ground of mental curelty which still survives for our consideration is the act of cruelty, as mentioned in ground No. (v) above, inasmuch as, those are the incidents which took place after the appellant (wife) left the matrimonial home. According to the respondent (husband), wife left the matrimonial home on 13th June, 1986 and the son was admitted to the school hostel at Santiniketan in January, 1987.
Even the said incident, in our considered view, cannot constitute a ground of mental cruelty for the very same reason due to condonation of such act of cruelty by the respondent (husband) by making a request to her for her return to the matrimonial house, as mentioned above.
42. Thus, we hold that that respondent (husband) is not entitled to get a decree for divorce on the ground of cruelty even on proof of the ground as pleaded by him in his petition for divorce.
43. Even then, we are not relieved of our further consideration regarding the effect of unproved accusation against the character of the husband regarding his involvement in illicit relationship with the maid-servant Ila Koley which was made out by the appellant (wife) in her written statement.
1(C). Effect of accusation against the husband regarding his involvement in illicit connection with the maid-servant.
44. A question has cropped up as to whether the respondent (husband) who has failed to prove his case of cruelty, is entitled to get a decree for divorce against the appellant (wife) on the ground of cruelty merely because of the fact that the appellant (wife) made certain statements regarding the husband’s involvement in illicit relationship with the said maid-servant in her written statement, though she did not make any attempt to prove such allegation against her husband.
45. For consideration of the said question, the relevant part of the pleading of the appellant (wife) in her written statement is set out hereunder.
46. According to the appellant (wife), allegations contained in paragraphs 7 to 12 of the plaint were made by the respondent (husband) under the influence of the family members, particularly his third sister Bharati Ghosh and third brother-in-law Paltu Ghosh and maid-servant Ila Koley with whom the respondent (husband) maintains illicit relation. The appellant (wife) also stated in the written statement that when unlawful relation of the husband with the maid-servant Ila Koley came to her knowledge, she protested and interrupted the husband, but was unsuccessful as the husband who was very much under the influence of the said maid turned a deaf ear to the wife.
47. Mr. Bhattacharya, learned Advocate, appearing for the appellant (wife), submitted that though it is true that wife made accusation against the character of the husband in the written statement, but neither she led any evidence to prove such accusation against her husband during the trial nor she put any suggestion to the husband nor cross-examined him on any of the points regarding such accusation during the trial of the said suit.
48. Relying upon a Division Bench decision of this Court in the case of Debjani Sinha v. Bikash Chandra Sinha, reported in 2006 (2) CHN 235, Mr. Bhattacharya submitted that it is settled law that in order to get a decree for divorce on the ground of making baseless allegation made in the written statement, it must be clearly established that such allegation was really a baseless one. According to him, without establishing that such allegation was really a baseless one by evidence, the plaintiff cannot get a decree for divorce merely because of the fact that the defendant who made such accusation against the plaintiff in the written statement, could not prove such fact by evidence.
49. By giving much stress on paragraphs 40 and 40a of the said Division Bench decision, Mr. Bhattacharya, submitted that the learned Trial Judge acted illegally by passing a decree for divorce on the ground of cruelty merely because of such accusation against the husband’s character made by the wife in her written statement, though the wife did neither make any effort to prove the same by giving her evidence in this regard nor by cross-examining the husband on those accusations.
50. The relevant part of the said decision is set out hereunder as follows:
“40. Mr. Dasgupta in this connection by relying upon the decision of a Division Bench of this Court in the case of A.E.G. Carapiet v.A.Y. Derderian, reported in AIR 1961 Cal. 359, contended that even if nothing was stated by the son and the husband in their examination-in-chief, it was the duty of the wife to give suggestion as regards the aforesaid allegation in their cross-examination and for not giving any such suggestion the allegation should be held to be false. We are afraid we are unable to accept such submission. In this case when in the pleading of the wife such allegation was definitely made the same was within the knowledge of the husband and the son. If in spite of such knowledge they decide not to deny such fact in their examination-in-chief, the wife is under no obligation to put any suggestion of her defence to them in cross-examination. Position, however, would have been different if they in their examination-in-chief denied such fact and in such situation, it would have been the duty of the wife not only to give suggestion to the contrary but also to lead her own evidence in support of such defence version. In the case of A.E.G. Carapiet (supra), all that has been laid down is that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony could not be disputed at all. But if the witness does not assert anything against the specific case concerning that very witness taken in the pleading of the other side, there is no duty cast upon the other side to give any suggestion to such witness as regards the said version because the statement in examination-in-chief will not affect the case of the other side and it should be rather presumed that the witness in spite of knowledge of the pleading of the other side is not disputing the same. Moreover, in this case the plaintiff/ husband during the evidence never exercised his option to lead further evidence in rebuttal in terms of Order 18 Rule 3 of the Code of Civil Procedure and thus, the wife cannot be blamed for non-prosecution of any positive evidence on the defence version when such fact was not denied by the husband and his witnesses.
(Emphasis supplied by us)
40a. Moreover, it is now settled laws that in order to get a decree for divorce on the ground of making baseless allegation made in the written statement of a party, it must be clearly established that such allegation was really a baseless one. Mere fact that the party filing written statement could not prove such fact will not be a ground for divorce; on the other hand, if it is established from the evidence that such allegation was evidently false, a Court can pass a decree on the basis of such false allegations in the written statements. It is preposterous to suggest that although the inability of a party to prove the cruelty alleged in the plaint will result in dismissal of the claim of divorce, the failure of a defendant to prove the counter allegation in the written statement for want of sufficient evidence will automatically confer right upon the applicant to get a decree for divorce notwithstanding the fact that such plaintiff failed to prove the case made out in the plaint”.
51. Let us now consider the effect of the said decision to find out what actually was meant by Their Lordships therein.
52. It was held in paragraph 40 therein that if in spite of the knowledge regarding such accusation made by the wife against the husband, the husband decided not to deny such fact in their examination-in-chief, the wife is under no obligation to put any suggestion of her defence to them in cross-examination. It was further held therein that—
“position, however, would, have been different if they in their examination-in-chief denied such fact and in such situation, it would have been the duty of the wife not only to give suggestion to the contrary but also to lead her own evidence in support of such defence version”.
53. The said decision thus makes it clear that if the husband denies such charge of accusation against him in his evidence, then the wife has a duty not only to gave her own evidence in this regard but also she is required to cross-examine the husband in this regard.
54. Let us now find out as to whether the husband denied such accusation made against him by the wife in his evidence or not.
55. In the examination-in-chief, the husband categorically stated that “it is totally false to say that he has any illicit connection with any other woman”.
56. In spite of such statement made by the husband in his examination-in-chief, the wife did not cross-examine the husband in this regard. The wife also did not dare to prove the said accusation against the husband in his deposition.
57. Thus, in the facts of the instant case, we have no hesitation to hold that the principle laid down in the Division Bench decision in the case of A.E.G. Carapiet v. A.Y. Derderian, reported in AIR 1961 Cal. 359 regarding the effect of not putting the essential and material case in cross-examination to the adversary, is applicable in the facts of the instant case. It was held by the Division Bench of this Court in the said decision that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross-examination, it must follow that he believed that the testimony given, could not be disputed at all.
58. It was further held therein that this is not merely a technical rule of evidence. It is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses.
59. It was further held therein that this much a Counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share.
60. Thus, if the aforesaid principle of the rule of evidence is applied in the facts of the instant case, this Court has no hesitation to hold that the plaintiff/respondent (husband) is entitled to get a decree for divorce on the ground of cruelty because of the allegation regarding accusation against the plaintiff’s characterisation made by the appellant (wife) against the respondent (husband) in her written statement.
2. Desertion
61. Let us now consider as to how far the learned Trial Judge was justified in passing a decree for divorce on the ground of desertion.
62. Admittedly, the appellant (wife) left the matrimonial house on 13th June, 1986. The respondent (husband) claims that the appellant (wife) left the matrimonial house on 13th June, 1986 forever without his consent and she also refused to come back to the matrimonial home for resumption of the matrimonial relationship without any reasonable cause in spite of repeated request being made by the respondent (husband) as well as his father. Several letters were written by the respondent (husband) and his father to the appellant (wife) as also to her mother, were exhibited by the husband in the said suit to support his case regarding the ground of desertion.
63. The appellant (wife) in her turn wanted to justify the reasons for her leaving the matrimonial house. The appellant (wife) claims that she did not leave the matrimonial house voluntarily. Rather she was driven out from the matrimonial house by her husband and the members of his family, the appellant (wife) further claims that even in the diary which she lodged with the local police station on 1st May, 1986, she made it clear that she will come back to the matrimonial house after some time. The appellant (wife) further claims that she tried to come back to the matrimonial house for resumption of their normal matrimonial life. But, in fact, she was not given any access by the respondent (husband) and the members of his family.
64. In substance, the appellant (wife) made an attempt to prove that she is not guilty of desertion, as the elements of desertion are not proved in the instant case. Relying upon a Division Bench decision of this Court in the case of Smt. Elokeshi Chakraborty v. Sri Sunil Kumar Chakraborty, reported in AIR 1991 Cal. 176, it was submitted by Mr. Bhattacharya that there are four essential elements of desertion. Those elements are as follows:
“(1) The factum of separation and (2) the intention to bring cohabitation permanently to an end. These two elements are required to be proved by the deserting spouse. Similarly other two elements, 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, are also essentially to be proved by the deserted spouse.”
65. According to Mr. Bhattacharya, the respondent (husband) in the instant case has failed to prove the above two essential elements which were required to be proved by him for proving his ground of desertion.
66. Here, the factum of separation since 13th June, 1986 is no doubt disputed, as both of them are admittedly living separately since 13th June, 1986.
67. With regard to the other elements, viz., the intention to bring cohabitation permanently to an end, we find that both the parties have adduced evidence in support of their respective claims, as indicated above. Thus, here is the case where the evidence is oath versus oath. No other witness except the parties to this proceeding, has come forward to support the respective claims of the parties, though it was claimed by both the parties that not only the members of the family of the respective parties have direct knowledge of the alleged incident, but also some of the family members are instrumental to the cause of cruelty leading to desertion.
68. As such, it is difficult to find out as to whether the said element is proved or not in the facts of the instant case. But, at the same time we cannot lose sight of the evidence of the appellant (wife) where she stated that she came to know in 1989 that her son has been admitted to a hostel at Santiniketan in 1987 and she does not know the present whereabouts of the son even upto the last date of his cross-examination i.e., till 12th March, 1998. During this long period, the appellant (wife) did not make any sincere attempt to see her own son. She did not even take any interest in her own son’s future and development. She did not even attend the Sradh ceremony of her father-in-law.
69. This part of her statement, goes without saying that the appellant (wife) really had no intention to restore the matrimonial relationship and as such, this Court has no hesitation to hold on assessment of totality of the circumstances that the appellant (wife) deserted the matrimonial home without the consent of her husband and also without any reasonable cause since 13th June, 1986. As such, the appellant (wife) is guilty of desertion.
70. With regard to the other two elements, i.e., the absence of consent and the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention to bring cohabitation permanently to an end, have sufficiently proved in the instant case, as the respondent (husband) has proved that the appellant (wife) left the matrimonial home without his consent and without any reasonable cause.
71. In our view, even the reasonableness of the cause which prompted the appellant (wife) to leave the matrimonial home and to stay away from the husband, need not be scanned in the instant case, as the appellant (wife) in paragraph 7 of her written statement made it clear that she had condoned the wrongs of the husband and she is eagerly looking forward for a happy conjugal life since she being Hindu lady believes in single marriage and loves her husband to the heart’s content and does not want to live a detached life from her husband.
72. Thus, once the wrong on the part of the husband even if there be any, is condoned, the last part of the element which the husband was required to prove, in our considered view, need not be proved by him by adducing any further evidence in this regard.
73. Thus, we do not find any justification to disturb the findings as well as the conclusion of the learned Trial Judge which were arrived at by the learned Trial Judge with regard to the ground of desertion. We, however, do not find any collusion between the parties so far as this matrimonial proceeding is concerned.
74. The judgment and decree of the learned Trial Judge, thus, stands affirmed. The appeal is, thus, dismissed on contest without any order as to costs.
Let the L.C.R. along with copy of this judgment be forwarded to the learned Trial Court forthwith.
Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.
Prayer for stay of this judgment and order is considered and rejected.
Alok Kumar Basu, J.—I agree.
Appeal dismissed.
&nsbp;
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for legal consultation or advice by visiting Contact Us
Leave A Comment