Kolkata High Court: Divorce granted due to wife creating mental cruelty to husband, Parameswari Mukherjee vs Krishnendu Mukherjee, 15 April 2008

Kolkata High Court: Divorce granted due to wife creating mental cruelty to husband, Parameswari Mukherjee vs Krishnendu Mukherjee, 15 April 2008, Justice Bhaskar Bhattacharya and Justice Rudrendra Nath Banerjee

Kolkata High Court (Appellete Side)

Parameswari Mukherjee vs Krishnendu Mukherjee on 15 April, 2008

Author: Bhaskar Bhattacharya

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

Appellate Side

PRESENT:

THE HON'BLE MR. JUSTICE BHASKAR BHATTACHARYA

AND

THE HON'BLE MR. JUSTICE RUDRENDRA NATH BANERJEE

F.A. NO. 109 OF 2004

PARAMESWARI MUKHERJEE

- VERSUS -

KRISHNENDU MUKHERJEE

For the appellant : Mr. Rajib Kumar Kundu

For the respondent : Mr. S.P. Roy Chowdhury,

Mr. N.N. Chowdhury,

Mrs. Soma Roy Chowdhury.

Heard on: 11.03.2008, 25.03.2008

Judgment on: 15th April, 2008.

RUDRENDRA NATH BANERJEE, J.:

This appeal is directed against the judgment and decree in the Mat Suit No. 28 of 1998 of the 3rd Court of Additional District Judge at Barasat, North 24 Parganas, allowing a petition by the husband for dissolution of marriage by a decree of divorce under Section 13.(1)(ia), 13.(1) (iii) and 13.(1)(ib) of the Hindu Marriage Act, 1955.

The case of the petitioner Krishnendu Mukherjee, the husband, is as follows:

The petitioner/husband married the respondent/wife, Parameswari Mukherjee, according to Hindu Rites and Customs, while she was a student of B.A., on December 12,1991. After the marriage, the wife began to live with the petitioner at her matrimonial home at Salt Lake City at Kolkata, in the house of the father of the husband. She gave birth to a daughter, namely, 'Puja' on October 1, 1993. But the wife used to quarrel with the petitioner/husband on trifling issues. She sometimes used to become violent against the petitioner and his parents and used to hurl abusive languages to them even in presence of their reputed guests. She did not even take proper motherly care of her daughter 'Puja' and she also did not allow her mother-in-law to come to her daughter's contact. She even used to threat the husband to commit suicide by jumping from the roof of the house. She was practically a patient of psychopathic disorder, which became apparent in the eyes of the husband day by day. The husband requested her and her parents, proposing for her medical treatment by a psychiatric, but the same was refused by her and her father. The father of the respondent/wife used to work under the CBI, and as such, he used to threat the petitioner and his father to entangle them in false criminal cases. Once the petitioner's father had to leave his own house at Salt Lake, out of such threats and began to live at Rajarhut in a separate rented house. The father of the petitioner had to file a suit at Sealdah Court, for declaration and injunction restraining the petitioner and her parents-in-law from entering in his house. It is the further case of the petitioner that while he went to Gangtok on a tour along with his own wife and the closed reputed friends and their respective wives, the wife misbehaved with the petitioner in the presence of others, alleging falsely that he had developed illicit relations with the wives of his friends, which gave much shock and pain to the husband. Ultimately, the husband had to report all these matters to the Secretary of West Bengal Democratic Mahila Samity, which made an enquiry over the matter and submitted a report that the wife was suffering from mental imbalance in the verge of insanity. In the first week of July 1997, the wife left the matrimonial home without the consent of the petitioner and thereafter, began to live at her father's place at Jadavpur, Calcutta. It being impossible for the husband to live with the appellant as husband and wife despite all her futile attempts to bring her back, the husband brought the instant Matrimonial Suit before the District Judge, Barasat, North 24 Parganas, being registered as Mat Suit No. 48 of 1998, subsequently being transferred to the 3rd Court of Additional District Judge, Barasat, and renumbered as 28 of 1998. The husband prayed for dissolution of marriage by a decree of divorce on the grounds of cruelty and desertion and also on the ground that she was suffering from mental disorder under Section 13.(1)(ia),13.(1)(ib) and

13.(1)(iii) respectively of the Hindu Marriage Act, 1955. The wife's case is that she was always mentally sound and balanced and it was the husband and his parents, who perpetuated cruel treatment with her. In the year 1997, the husband took her to her father's place at Jadavpur and kept her there with the pretext that he was to leave for Assam, and ultimately, did not take her back. There was a miscarriage of the first issue at the instance of her mother-in-law by administering medicine upon her. The affairs of her matrimonial home were not at all congenial for her return. It has been further alleged that the husband was in drinking habit and on the day of 'fulasajjya' he disclosed his such habit to the wife and even on the day of 'astomongala' he went to her father's place at Jadavpur in drunken condition and misbehaved with her parents in a very unmannerly way. The wife's further case is that she was always ready and willing to perform all her marital duties and to lead a happy conjugal life with the husband, but the husband was not allowing her to live at her matrimonial home. Accordingly, the wife prayed for dismissal of the suit. The learned Court below framed as many as nine issues and considered the oral and documentary evidence on record like the copies of the letters of the husband to his mother-in-law or the Ganatantrik Mahila Samity and the Secretary's report on enquiry and also examined altogether five witnesses from the end of the husband including the husband himself, his father, the Secretary of the Mahila Samity and his friends and neighbour. The learned Court below also recorded the deposition of the wife as D.W. 1 and her mother as D.W. 2. On consideration of oral and documentary evidence on record, the learned Court below came to the conclusion that the husband was subjected to mental cruelty due to the conduct of the wife and the wife had been residing at her parent's house leaving her matrimonial home for years together and practically there was no chance of the marriage being retrieved, and accordingly, the learned Court below passed a decree of dissolution of marriage by a decree of divorce. Being aggrieved and dissatisfied with such judgment and decree of learned Court below, the wife, as appellant, has preferred this appeal challenging the order of learned Court below and opposing the prayer for divorce. Mr. Kundu, learned Advocate for the appellant has contended that the evidence on record would show that there was no congenial atmosphere at the wife's matrimonial home as the husband was a habitual drunk, and that there was no proceeding under Section 498A Cr.P.C. started against the husband which will show the falsity of the case of threat by the father of the wife. Mr. Roy Chowdhury, learned Senior Advocate for the respondent/husband while supporting the decree of divorce has contended that there is enough evidence on record to show the mental cruelty inflicted by the wife. To ascertain as to how far the husband has succeeded to prove his own case and the case of cruelty upon her, and how far the marriage was irretrievably broken down, it will be profitable for us to have a glance over the oral and documentary evidences adduced by both sides.

The P.W. 1, is the husband himself, who has spoken of his marriage with the appellant/wife on December 12, 1991 and that they were staying as husband and wife at her paternal house at FD-49, Block, Sector III, Salt Lake, Calcutta -

91. He speaks of the birth of the female child in the wedlock on October 01, 1993. The wife left her matrimonial home in the month of June, 1997, without his consent and permission, and began to live with his daughter at her paternal house at 8/5B, Central Park, Jadavpur and she refused to come to the husband's place despite his several attempts to take her back. The husband has a business of publishing books under the name and style 'Mukherjee and Mukherjee', at Calcutta. He also speaks of her misbehaviour and assassination of his character at Gangtok, while during Durga Puja in the year 1992, he along with the wife and his friends and their respective wives visited that place. The husband has also stated that his father-in-law, who was working in CBI, used to threat him and his parents to entangle them in false criminal cases which prompted the father to leave his own house at Salt Lake to shift at Rajarhut. During the cross-examination, he disclosed that he wrote the letters to his father- in-law for taking back his wife and he also disclosed that his father had to file the Title Suit No. 165 of 1997 in the Court at Sealdah, for declaration and injunction restraining himself and the wife and her parents to enter into the said house. The P.W. 2, Bamacharan Mukherjee, the father of the husband, has stated that his daughter-in-law, Parameswari was in the habit of misbehaving with all his family members including himself, while she was at her matrimonial home. He has further stated that he had to leave his house at Salt Lake, as he was afraid of proceeding under Section 498A IPC, with which, the parents of his daughter-in-law used to threat him. He instituted the said suit in the year 1997 in the Court of learned Munsif at Sealdah against his son, daughter-in-law and her father. A temporary injunction was granted in the said suit in his favour. He has also stated that Parameswari had left his residence at Salt Lake in the month of May or June, 1997. He has also alleged that his daughter-in-law used to hurl abusive languages to him and at one occasion, she dipped her finger in the glass of water meant for him, for which the husband rebuked her. The husband having failed to convince his wife and her parents wrote to the Ganatantrik Mahila Samity about her conduct, consequent to which there was an enquiry by the Samity and exhibit 10 is the report on such enquiry. The husband also examined the P.W. 3, Rita Moitra, the Secretary of the West Bengal Ganatantrik Mahila Samity. She has stated that on the complaint by the husband, they made an enquiry both at her metrimonial home at her father's place and the wife was found eager in getting divorce. It is also gathered from her deposition that she was of the view that without decree of divorce, the matter could not be solved. It has been also observed by her on enquiry that they found that Parameswari was to some extent abnormal, and she required examination by doctor. It is also gathered from her cross-examination that the wife had no specific allegation against her husband. Even, during enquiry, the said wife was hurling abusive languages to them. At the last line of her cross-examination, the said Secretary has stated that she found Parameswari was not diligent about her daughter child. The report in the form of a letter to the husband, discloses the conduct of the wife and her lack of sense of leading a normal and beautiful marital life. It is gathered from the report that the Mahila Samity also proposed her to be examined by a psychologist to which at first the wife and her parents agreed but subsequently they refused such proposal. As per such report, she was abnormal.

In this connection, it will be profitable for us to have a glance over the exhibit - 5, letter dated 6th December, 1996, which the husband wrote to the Secretary of the Mahila Samity. The said letter contains various complaints about the misbehaviour and refusal of the wife to do his regular and normal duties at her matrimonial home. The letter also speaks of violent conduct of the wife to the husband and the want of care of Parameswari to her child. Such letter of complaint cannot be said to be inconsistent in any way with the allegations of the husband during trial.

The P.W. 4, is Subrata Bhattacharjee, who resides in a house closed to the house of the husband intervened by 4/5 other houses. The witness has stated that Parameswari was known to her and the other in laws. Even, they as the neighbours started avoiding Parameswari, as her behaviour was not congenial. He speaks of the incident at Gangtok when he and his wife and the said husband Krishnendu and Parameswari and other reputed friends with their respective wives visited that place. At that time, he also found Parameswari abnormal in behaviour with them. It was of such a degree that he requested Krishnendu to go back to Calcutta for avoiding further complication. It is gathered from his cross- examination that Parameswari was also keeping watch at his residence through the open window even at 2.00 a.m. at night. According to the witness, she was abnormal.

The P.W. 5, Nemai Bhattacharjee, was a novelist and was in visiting terms with Krishnendu Mukherjee. It is gathered from his deposition that in the year 1994 - 95, behaviour of Parameswari, towards her husband, was not decent. This witness is a novelist, having written more than 102 novels, mixed up with different people of different lifestyle. He has also spoken of very shocking behaviour of Parameswari at the Salt Lake house where he used to visit and she was found very much arrogant towards her husband and even she called him as 'Buddhu'.

As against such evidence from the side of the petitioner/husband, the wife has examined herself as D.W. 1. She has also denied the husband's allegations of misbehavior against her. She has stated in her examination-in-chief that her in- laws, as well as her husband, told her parents to convince her, so that she could start a conjugal life peacefully. In the last line of examination-in-chief, she has stated categorically - ' at present I am not willing to go to my husband.' She has admitted during her cross-examination that in the month of June 1997, she went to her parent's house from her in-laws place and since September, 1997 she has been staying at her parent's house. She has also admitted that her parents- in- law left the house in the month of May, 1996. It is gathered from her cross- examination that she left her matrimonial home on the day preceding the suit filed by her father-in-law. She has also admitted that her husband had written several letters to her father, but her father did not give any reply to such letters. At one point of cross-examination, she has stated that she was residing at her matrimonial home very peacefully, as there was congenial atmosphere, which practically demolishes her own case. She has spoken of giving her medicine by her mother-in-law while she was pregnant for the first time and she gave birth of a dead child, but such story is not being supported by any documentary or oral evidence. It has been alleged by her that she was beaten at her matrimonial home and that her husband and parents-in-law used to call her as 'mad'. She has stated that her husband demanded Rs.1,00,000/- or Rs.50,000/-, as dowry. She has also documents to show such demand of dowry by his husband and in- laws, but no such document has been produced in Court.

The D.W. 2, is Moli Chakraborty, the mother of the wife. She has alleged that her son-in-law was found under influence of liquor when he visited their house. She has admitted that Krishnendu wrote three letters to her husband, but such letters were not replied to. She of course, has stated later in her cross- examination that she has found Krishnendu under influence of liquor a few times, but not all times. She has also stated that her daughter also had told her that her son-in-law demanded Rs.1,00,000/- from them. She has stated that she did not lodge any diary with police involving Parameswari and Krishnendu. From the end of the husband, the letter dated 24th April, 1994, exhibit - 1, addressed to his mother-in-law, has been produced. It may be relevant to mention the content of such letter in brief campus. In the said letter, the husband made repeated complaints to his mother-in-law, as regards the misbehavior and cruel treatment of his wife. It has been further complained in the said letter that his wife did not take care of the child and also compelled him (the husband) to do the works for the child which she ought to have done. Even, she did not pay the decided price of articles taken by her from a shop. It has been also complained that the wife was threatening to commit suicide for which the husband and his family members remained in panic. He has even stated in such letter that it was not possible to adjust with her any further. But such letter was not even replied to. Such a letter written by the husband long before the filing of the suit speaks a volume to show the genuineness of his case of cruelty against him by the wife.

It further appears from the Exhibit - 6 , a letter of the husband dated 16th June, 1997 addressed to his father-in-law, even before his filing of the suit for divorce making severe complaints against his wife's conducts and desertion. But such letter was also not replied to.

The next two letters produced in the Court below are Exhibit - 4, dated January 18, 1997 and Exhibit - 3, dated June, 4, 1997 addressed to the Officer- in-Charge of the local police station making complaints about the conduct and misbehaviour of the wife and also threats by her father for which his father had to leave his own house. Such letters of complaint are quite consistent with the husband's case.

Thus, from the above discussion it is clear that the evidences that has either been established or remains undisputed can be summed up as follows: The marriage took place according to Hindu Rites and Customs on 12th December, 1991. Thereafter, the wife began to live with the husband along with her parents-in-law at the father-in-law's house at Salt Lake. On 1st October, 1993 a female child was born in the wedlock. It is also established that the wife misbehaved the husband every now and then hurling abusive languages to him and his parents. Even, when they went to Gangtok on a tour, the wife falsely alleged illicit relations between the husband and wives of his friends. She also showed abnormal conduct and behaviour by peeping in others' room through the window at late night. Ultimately, the matter went to such a degree that one of his friends advised him to leave the place to avoid the worsening of the situation. It is also established that the wife used to give threats to the husband that she would commit suicide by jumping from the roof or otherwise. The father of the wife also used to threat the husband's father to entangle them in false criminal case upon which the father of the husband had to leave his own house and reside elsewhere. The husband even had to write to the father-in-law complaining her mental imbalance vide exhibit - 1 letter dated 24th April, 1994 and exhibit - 6 letter dated 16th June, 1997. Admittedly such letters were received by the father-in-law, but neither the father-in-law nor the mother-in-law cared to give any reply to those letters. All such evidence on record suggests that the wife subjected her husband with continuous misbehaviour, well within the knowledge of her parent, obviously resulting in cruelty to the husband. But upon such evidence it cannot be safely said to have been established that she was suffering from mental disorder under Section 13.(1) (iii) of the Act. It is also established that the husband, finding no other alternative, had to lodge complaint relating to conduct of his wife to the West Bengal Ganatantrik Mahila Samity which on enquiry reported that she was mentally imbalanced and she refused to get her examined by psychologist as proposed by the Samity. Furthermore, the wife also expressed during her examination-in-chief that she was not willing to go to her husband. Simply because, she did her graduation in arts after marriage, it cannot be said that she was not suffering from any mental imbalance. Rather as she was a graduate, a normal sense of conduct or responsibility is expected from her.

Against such established or undisputed facts, the wife could not prove the husband's habit of consuming liquor on the day of 'fulasajjya' or 'astomongala'. Even no cross-examination was made to the father of the husband (P.W. 2) and his friends, P.W. 1 and P.W. 5, as to whether he had the habit on consumption of liquor, as alleged. The father of the wife although was present in Court premises during the hearing of the suit was not examined to speak of all such allegations against husband.

The other allegation against the husband was that, he demanded dowry money of Rs.1,00,000/- from the wife. P.W. 1, the husband and his father P.W. 2 were not cross-examined at all over such alleged demand of dowry money. The simple statement of the wife and her mother does not go to prove such demand of dowry.

Cruelty as a ground of divorce, as provided under Section 13.(1)(ia) of the Hindu Marriage Act is not defined in the Act itself but it connotes two types - physical and mental. So far as the physical cruelty is concerned the same can be established by producing medical documents, by showing injuries on the body itself. The problem is to ascertain a mental cruelty to one of the spouse by the other spouse or by his or her family members. To ascertain such mental cruelty, we are to look into the circumstances, in the light of social status of the parties, their education, their physical and mental conditions, customs, traditions etc. Such cruelty, to obtain a decree of divorce must not be like an ordinary wear and tear of marriage life, but must be grave and weighty enough to the petitioner to have shock and pain. In this connection, a decision reported in AIR 2006 Supreme Court, Page 1675 (Naveen Kohli - Vs. Neelu Kohli), may be relied upon. The term cruelty, as a ground of divorce has a very wide connotation, to include a human behaviour. The Supreme Court has held in various judgments the nature and gravity of mental cruelty which shall cause a reasonable apprehension in the mind of the spouse suffering such cruelty that it would be harmful for him or her to live with the other spouse.

It should be kept in mind that standard of proof for establishing such cruelty need not be beyond reasonable ground as is required in convicting an accused in a criminal case. In the cases of divorce like the present one, such standard of proof should be based on pre-ponderance of probabilities, as has been laid down in AIR 1975 Supreme Court, Page 1534 corresponding to 1975(2) SCC, Page 326 (Dr. N.G. Destane - Vs. - S. Dastane).

Learned Advocate for the husband while contending that the conduct of the wife gave shock and pain to the husband cited the decision reported in 2005(2) Supreme Court Cases, Page 22 (A. Jayachandra - Vs. - Aneel Kaur) In the said decision there was a love marriage between the husband and wife. But after the marriage, the wife behaved with the husband obnoxiously, humiliating and even did not share bed for about two years. It was also alleged that the respondent/wife has ill-treated her husband abused him in vulgar languages in the home and at the hospital and other places thereby causing mental agony, damage and loss personally and professionally and also on the social circle. Allegations were also made about his character. The Supreme Court in the said decision observed as follows :

"12. To constitute cruelty, the conduct complained of

should be "grave and weighty" so as to come to the

conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The court dealing with the petition for divorce on

the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind

before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

From the evidence adduced in the present case it thus appears that the wife was although a graduate behaved abnormally and hurled abusive languages to him and his parents and even made such behaviour in presence of distinguished guests and friends and neighbours. It is clear that she manifested her baseless doubt regarding husband's fidelity, character and reputation in presence of others and such behaviour gave shock and pain to the husband who is a reputed publisher of books having much reputation in the society and before his friends. In such circumstances, her conducts can be termed as mental cruelty, grave and weighty enough for the apprehension in the mind of husband that it will be harmful to live with such wife for the rest of his life and the husband was quite justified in seeking for divorce from her on the ground of cruelty under Section 13(1) (ia) of the Hindu Marriage Act. The appellant/wife having undisputedly left her matrimonial home in June, 1997, and the suit for divorce being filed within one year, the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, for obtaining a decree of divorce, does not stand.

Upon the evidence on record, discussed above, it cannot be said that the atmosphere of the matrimonial home of the wife was not congenial for her to stay with the husband or that the husband was taking the advantage of his own wrong.

Accordingly, we find no reason to interfere with the impugned judgment granting decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. Hence, the appeal is dismissed.

There shall be no order as to costs.

Urgent xerox certified copy be given to the parties expeditiously, if applied for.

(Rudrendra Nath Banerjee, J.)

I agree,

(Bhaskar Bhattacharya, J.)