Dismissed

Smti Arunima Bora v. Shri Pradyunnajit Bora

Gauhati HC3 Sept 2019Mat.App./33/2017

Case brief

AI extract

What is this about?

Divorce on the ground of cruelty was upheld based on suicide attempts and repeated threats, physical assaults, and an unsubstantiated allegation of a homosexual relationship. The wife's appeal was dismissed and interim protection recalled. No alimony was ordered; liberty was granted to apply separately for permanent alimony.

What did the court decide?

Liberty granted to the wife to apply under Section 25 for permanent alimony, if not already sought; the Family Court was directed to consider such application according to law.

Smti Arunima Bora Vs Shri Pradyunnajit Bora — Maintenance and Alimony | Gauhati HC (2019)

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GAHC010197712017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Mat.App. 33/2017

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1:SMTI ARUNIMA BORA

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W/O PRADUNNAJIT BORA, R/O HOUSE NO.46, RAJGARH ROAD, GUWAHATI, DIST. KAMRUP M

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VERSUS

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1:SHRI PRADYUNNAJIT BORA

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S/O M. BORA, R/O HOUSE NO. 46, RAJGARH ROAD, GUWAHATI, DIST. KAMRUP M

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Advocate for the Petitioner : MR.B K DAS

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Advocate for the Respondent : MS.M BHATTACHARJEE

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BEFORE

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HONOURABLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER

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(CAV)

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Date : 03-09-2019 (Manish Choudhury, J)

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Heard Mr. B. K. Das, learned counsel for the appellant and Ms. M. Bhattacharjee, learned counsel, appearing for the respondent.

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The present appeal under Section 19 of the Family Courts Act, 1984 is directed against judgment and order dated 23.02.2017 passed by the learned Principal Judge, Family Court – II, Kamrup, Guwahati (hereinafter referred to as the Family Court, for brevity) in F.C.

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(Civil) No. 123/2010 and F.C.(Civil) No. 686/2014, whereby, the petition presented by the respondent-husband, on 02.03.2010, seeking dissolution of marriage by a decree of divorce, registered and numbered as F.C.(Civil) No. 123/2010, was allowed.

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A brief narration of the background facts leading to the institution of the aforesaid petition, F.C.(Civil) No. 123/2010, by the respondent-husband appears to be necessary before dilating further on the issues involved in the present appeal. There is no dispute to the fact that the marriage between the respondent-husband and the appellant-wife was solemnized according to the Hindu rites and rituals on 09.10.1996. In the year 1999, a male child was born out of the wedlock and he is presently studying in a university in Delhi. After near about 14 years of marriage, the respondent-husband had filed the petition seeking the decree of divorce on grounds mentioned in Section 13(1)(ia) read with Section 13(1)(iii) of the Hindu Marriage Act, 1955.

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The case projected by the respondent-husband was, inter-alia, that: -

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(a) The marriage, solemnized on 09.10.1996, was arranged through family friends. After solemnization of marriage, the appellant-wife started to live with the respondenthusband in the matrimonial home in Guwahati. It was alleged by the respondent that, soon after the marriage, he came to know about the quarrelsome, unreasonable, short-tempered and violent nature of the appellant as she started arguing with him on trivial and petty issues without any rhyme or reason. Initially, the respondent was under the belief that such behaviour of the appellant was for proverbial adjustmental hiccups and the situation would improve with elapse of time after the appellant being able to adjust with the new family members of the respondent and to the new situation. But, he was shocked when he, along with the appellant, visited, for the first time, his in-laws’ house at Bilasipara, Dhubri after the marriage. The respondent’s mother-in-law disclosed to him that the appellant was very shorttempered and was prone to bouts of unreasonable destructive violence and as such, she should be handled with great care and he should fulfill all her wishes and whims. The respondent alleged that the appellant, immediately after the marriage, started shouting at him often without any rhyme or reason whatsoever and started breaking and throwing things at him and also at his family members, who had to intervene and calm her down. Even the birth of the child did not bring any notable difference in the behaviour or attitude of the

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appellant.

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(b) The respondent has three brothers who are all married. The mother of the respondent, who has been living with his younger brother, is quite aged. Though all his siblings are living separately, they have good relation with each other except the appellant vis-à-vis the respondent and his family members. The appellant had shown abnormal behaviour and did not tolerate anybody around her. As her abnormal behaviour created immense trouble and agony to the respondent as well as their son, the respondent took the appellant to a psychiatrist, Dr. J. Das in Guwahati for consultation, who after a detailed checkup, advised the respondent to keep a close watch over the appellant as those types of patients became ferocious and violent, with the possibility of hurting self and others. The respondent mentioned that the appellant refused to take the medicines prescribed by the psychiatrist on the ground that before the marriage also, she was taken to a number of doctors by her father, who himself was a doctor, but there was no result.

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(c) Referring to a specific incident on 12.02.2003, the respondent stated that in the morning of that day, the appellant was found lying in a semi-conscious stage with a strip of Zolam 0.5 mg tablets by her side. The appellant was immediately taken to a nursing home by the respondent, accompanied by his brothers, and she was given emergency treatment there which saved her life. After her discharge from the nursing home, the appellant was taken to the psychiatrist who, in turn, referred her to a Professor in Psychiatry, Dr. D. Bhagawati in the Gauhati Medical College & Hospital (GMCH). Thereafter on 07.08.2003, the appellant attempted suicide by consuming Ala detergent and on that occasion also, the appellant was taken to the GMCH by the respondent with the help of his brothers. In respect of the said suicide attempt of the appellant, the respondent had informed the Chandmari Police Station in writing which was duly received by the Officer-in-Charge of the Police Station. The appellant was under treatment at the GMCH for two days and she was treated there by the doctors, in consultation with the Professor in Psychiatry and the appellant was discharged from the GMCH on 09.08.2003. After the said incident, the appellant was under regular treatment of the Professor in Psychiatry with periodical follow-ups. The respondent had alleged that he bore the brunt of all these cruelties and tortures heaped on him by the appellant on regular basis only for the sake of avoiding a negative impact on their only child.

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The unreasonable bouts of violence of the appellant indulging in breaking and throwing things at the respondent had often caused hurts and injuries to him. The respondent had specifically asserted that the appellant regularly used to threat the respondent and his other family members that she would commit suicide and in her suicide note, she would implicate all his family members. It was a regular affair that the appellant did not cook any food for the respondent. The appellant started suspecting that the respondent was having a relationship with some other women and even doubted him of having some illicit relationship with his own sisters-in-law who treated the respondent as their own brothers. On 02.01.2010, the appellant became so violent that she attacked the respondent with a household wooden piece and was in a mood to kill him who, sensing threat to his life, fled from the room. On being exasperated and no longer able to sustain the behaviour of the appellant, the respondent alleged that he had formally intimated the Chandmari Police Station about the same. At about 8-00 p.m. on the same day, 02.01.2010, when the respondent was in his room the appellant barging into the room, locked the same and started shouting and abusing him using filthy and slang language. The respondent finding no other alternative to save himself, called his brother through his mobile at about 9-35 p.m. by SMS, to intimate the Police and the respondent’s brothers intimated the Chandmari Police Station wherefrom Police personnel came to the house of the respondent and rescued him. The respondent has stated that since 02.01.2010, he has been living separately from the appellant at his brother’s house but maintaining all his duties towards his family. He further stated that since 19.06.2007, the appellant had refused to have any physical intimacy with the respondent. As a result, there was no physical relationship between them since then and the conjugal relationship ceased to exist between them. It was further alleged that the appellant had been poisoning the mind of their only child by telling him lies and bad things about the respondent and there was every possibility of ruining the relationship of father and son.

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In reply to the above allegations, the appellant had filed her written statement contending, inter-alia, that: -

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(a) The petition was filed by distorting facts and the same was liable to dismissed as there was no cause of action. It was stated that though the marriage was an arranged one, both of them used to know each other from a date much prior to the marriage. The

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allegation of misbehaviour, petulance and tantrums to her husband and his family members was categorically denied. Instead, it was alleged that the respondent let loose torture upon her continuously both physically and mentally, including abusing her in presence of her inlaws on trivial issues daily. It was alleged that whenever she objected to such inhuman behaviour of the respondent, she was physically assaulted causing severe injury on her person. On many occasions, she had to call doctor for first-aid and treatment. The appellant craved leave to produce all such medical documents in original at the time hearing of the case. Stating that despite being meted out mental and physical torture to her by the respondent since immediately after the marriage on the alleged ground of not bringing adequate dowry from her parents, the appellant stated that she was always a loving and supporting wife to the respondent.

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(b) The respondent, a senior State Government Officer, earning a good salary, did not provide nutritious food even at the time of her first pregnancy and compelled her to do all household chores. The respondent forcefully got her second pregnancy aborted on the alleged ground that he could not bear the expenses of bringing up two children. As regards the psychiatric treatment, the appellant had alleged that she was taken forcefully to a psychiatrist despite being normal, in order to show her as a psychiatric patient. She hailed from a respectable family with her late father being a physician of repute. The appellant herself worked as an Assistant Headmaster from 1993 to 30.12.1996 at B.S. Konmoina Jatiya Bidyalaya, Bilasipara and she is a good fashion designer having participated in a course conducted by the National Institute of Fashion Technology, New Delhi on being sponsored by the Government of Assam. She can drive light motor vehicles and possesses a valid driving license. She is a good writer and a life-time member of Assam Lekhika Samaroh, besides being a good cook.

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(c) The respondent had a habit of consuming sleeping pills before going to sleep and when objected by her to change his such habit, the respondent, many a times, had assaulted her by slapping in front of their own son in a humiliating manner. As regards the incident of 02.01.2010, the appellant had alleged that it was the respondent who triggered the same by demanding the appellant to ask her mother to give a plot of land located in Hatigaon which belonged to the appellant’s brother. When she denied to take up the proposal with her

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mother, the respondent became furious and assaulted her in presence of all the family members, but no one of his family members prevented the respondent and it was the appellant alone who stood for her self-defence. The complaint at the Chandmari Police Station was lodged by the respondent falsely only to throw out the appellant and the minor son out of the matrimonial house. The Police personnel on reaching the place of occurrence, realised the reality and went away. Since that day, the appellant has been living in the second floor of the shared household along with her son.

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(d) Having apprehension of being thrown out of her matrimonial house after 14 years of marriage, the appellant stated that she approached the Social Welfare Officer, Kamrup and on her suggestion and advise, the appellant instituted a case under the Protection of Women from Domestic Violence Act, 2005 (the DV Act, in short) which was pending before the Court of learned Additional Chief Judicial Magistrate, Kamrup, Guwahati at the time of filing the written statement. The learned trial Court was pleased to issue restriction order restricting the respondent from dispossessing the appellant from the shared household wherein she had been living with her son at that point of time. After the aforesaid incident, the respondent did not give her any amount for day-to-day survival including the school fees of the son, resulting in their deplorable condition. By once stopping the water supply to the house, the respondent tried to compel her to leave the shared household but because of the restriction order, the respondent had failed in his such endeavour. With the above averments, the appellant had prayed for dismissal of the petition of the respondent seeking the decree of divorce. The respondent had filed an affidavit-in-reply to the said written statement on 18.09.2010.

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The efforts of reconciliation having failed, the matter was placed for trial and on the basis of the pleadings, the learned Family Court, on 25.02.2011, framed the following issues :-

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Whether the respondent has treated the petitioner with cruelty?

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Whether the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent?

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Whether the petitioner is entitled to get a decree of divorce as prayed

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for?

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4. To what relief/relief, the parties are entitled?

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On 30.06.2011, both the parties agreed for mediation and the matter was sent for mediation but the same was referred back as it could not be settled through mediation. On 07.09.2012, the respondent filed his evidence-in-affidavit with 12 nos. of exhibits. On 14.05.2013, the appellant filed a petition with the prayer to refer the matter for mediation again as she was willing to settle the matter on compromise and allowing the prayer, the matter was once again referred for mediation. The report of mediation was received by the learned Family Court on 09.09.2013 wherein it was mentioned that the mediation had failed and, accordingly, the matter was fixed for cross-examination. When the petition, F.C.(Civil) No. 123/2010, was at that stage the appellant had filed a petition under Section 9 of the Hindu Marriage Act, 1955 read with Section 7 of the Family Courts Act, 1984 on 19.08.2014 for restitution of conjugal rights. On receipt of the said petition, the learned Family Court registered the same as F.C.(Civil) No. 686/2014 on 19.08.2014 and by an order of even date, directed issuance of notice to the respondent-husband, impleaded therein as the sole respondent. On 19.08.2014, the appellant also filed a petition in F.C.(Civil) No. 123/2010 to keep the proceedings in abeyance.

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In her petition in F.C.(Civil) No. 686/2014, the appellant had, inter-alia, stated that she and the respondent spent a happy marriage life till the year 2010 when, all on a sudden, the respondent without any reason had withdrawn himself from the society of the appellant and started to reside separately. When enquired about the reason, the appellant tried to drive her out from the matrimonial house forcefully. Finding no alternative, the appellant had approached the Social Welfare Department and as per the advise, she filed the case under the DV Act in the Court of learned Chief Judicial Magistrate, Kamrup wherein the respondent entered his appearance. It was at that point of time, she became aware that a petition for dissolution of marriage was filed by the respondent before the Family Court. It was started that although the appellant filed the case for domestic violence, she always wanted that the matrimonial dispute should be settled, more particularly, for the sake of their only son. With such thought only, the appellant tried to settle the matter through mediation and conciliation

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on several occasions but the respondent always wanted that the case under DV Act be either withdrawn or kept in abeyance. Because of their living separately, all the members of the family i.e. the appellant, the respondent and their only son, had suffered immensely. It was further stated that on 02.03.2014, the respondent had to be hospitalized at Aruna Memorial Hospital and during his stay at the hospital, it was the appellant and their son who had taken all the care of the respondent and the family members of the respondent were barely seen in the hospital. Terming such withdrawal of the respondent from the society of the appellant as unjustified, illogical and unreasonable, the appellant had prayed for restitution of the conjugal rights. In response to the said petition, F.C.(Civil) No. 686/2014, filed by the appellant for restitution of conjugal rights, the respondent filed a written statement wherein he reiterated the statements made in the petition in F.C.(Civil) No. 123/2010. He further made mention of an incident of physical assault on him by the appellant on 19.06.2007 when the appellant allegedly injured him by biting and scratching with her nails and kicking on his lower abdomen and groin for which he had to consult a doctor and remain confined to bed on medication for several days.

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The matter was at the stage of re-conciliation till 14.07.2016 on which date it was recorded that the re-conciliation had failed and the matter was, thereafter, decided to be placed before the learned Principal Judge, Family Court for necessary action. The issues were framed on 09.09.2016 and thereafter, the matter was fixed for evidence. In the meantime, the evidence was recorded in F.C.(Civil) No. 123/2010. In the proceedings before the learned Family Court, the respondent adduced evidence of 3 (three) witnesses including himself, who were duly cross-examined on behalf of the appellant. On the other hand, the appellant also adduced evidence of 3 (three) witnesses including herself and those witnesses were also cross-examined on behalf of the respondent. On 02.02.2017, the learned Family Court decided to take up both the cases, F.C.(Civil) No. 123/2010 and F.C.(Civil) No. 686/2014, together as the parties were same.

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After hearing the submissions advanced by the learned Amicus Curie of both the sides and on appreciation of the evidence on record, the learned Family Court decided the issue no. 1 in affirmative and in favour of the respondent. In so far as the issue no. 2 is concerned, the learned Court below decided the same against the respondent. The learned

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Family Court decided the issue no. 3 in favour of the respondent and had held that the respondent was entitled to a decree of divorce and, accordingly, had observed that, as regards issue no. 4, the parties would not get any other relief except the decree of divorce to the respondent.

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Mr. Das, learned counsel appearing for the appellant, assailing the judgment of the learned Family Court has submitted that from the evidence on record, it is not established that the appellant had treated the respondent with any kind of cruelty. Rather, it was the respondent who had inflicted both physical and mental cruelty on the appellant. Mere attempts to commit suicide may not amount to cruelty. To properly appreciate the same, one has to see for what reason the spouse was compelled to make an attempt to end her life and in the instant case, the appellant was forced to do the same due to perpetration of cruelty consistently on her by the respondent. The incidents indicated in the petition, even if considered together, would not amount to cruelty. In support of his submissions, he has relied in the decisions in Gurbux Singh vs. Harminder Kaur, reported in (2010) 14 SCC 301 and in Vishu Dutt Sharma vs. Manju Sharma, reported in (2009) 6 SCC 379.

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Per contra , supporting the judgment of the learned Court below, Ms. Bhattacharjee, learned counsel appearing for the respondent, has submitted that the aspect of mental cruelty has clearly been established from the evidence on record and, therefore, there is no need to interfere with the judgment. The series of incidents including the two attempts to commit suicide with further threats to commit suicide leaving a suicide note implicating the respondent and his family members and regular assault on the respondent, has made the case a case for dissolution of the marriage as it was no longer safe for him to continue any relationship because such threat would loom large on the respondent for all times to come.

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We have considered the submissions made by the learned counsel appearing for the parties. We have also perused the materials available in the records of the cases, F.C. (Civil) No. 123/2010 and F.C. (Civil) No. 686/2014, in original, including the evidence of the witnesses, both oral and documentary.

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In his evidence, filed in the form of affidavit as P.W.1, the respondent while reiterating the facts mentioned in the petition, also exhibited 12 nos. of documents. In order

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to substantiate his assertion that the appellant was suffering from schizophrenia since long and in the year 2002, the respondent had taken her to a Psychiatrist he exhibited 3 nos. of prescriptions as Ext.-1(a), 1(b) & 1(c). He further exhibited one discharge certificate from Gurucharan Polyclinic cum Nursing Home as Ext.-2(a) & two prescriptions of the Psychiatrist as Ext.-2(b) & 2(c) which are of the year 2003. The Ext.-3 is a letter stated to have been written by the respondent on 08.08.2003 to the Chandmari Police Station as regards the suicide attempt of the appellant and her threat to commit suicide by implicating his family members and received by the Officer-in-Charge of the said Police Station. Ext.-4 is a discharge certificate of the GMCH dated 09.08.2003. Ext.-5 is another medical prescription dated 10.09.2003 of the Psychiatrist who prescribed a medicine called Sizodon. Documents, marked as Ext.-6, Ext.-7 & Ext.-8, were exhibited by the respondent to show that Sizodon was a medicine prescribed by the medical practitioners to treat psychiatric illness schizophrenia. Ext.-9 is a medical prescription, issued by the GMCH on 23.03.2006, whereby, the appellant was referred to the Psychiatry Department for needful treatment. For the fact that the respondent had to receive treatment for the assault made on him on 19.06.2007 by the appellant he exhibited a medical certificate dated 20.06.2007, issued by an Assistant Professor, GMCH, as Ext.-10(a) with a medical prescription of even date from the same Doctor as Ext.-10(b). The photographs of the injuries sustained by the respondent on 19.06.2007 were exhibited as Ext.-11(a) & Ext.-11(b). A copy of the Domestic Incident Report submitted by the appellant along with the forwarding letter from the District Social Welfare Officer & Protection Officer, Kamrup, Guwahati was exhibited as Ext.-12. In his cross-examination, the respondent had stated that they, sometime after the marriage, had shifted to a part of the first floor of their 3-storied after staying with his parents in the ground floor since after the marriage. He denied the suggestion of his consuming sleeping tablets. He stated that he took the appellant to the Professor in Psychiatry, GMCH for consultation on being told by the Consultant Psychiatrist. He denied the suggestion that he obtained medical prescriptions falsely and the appellant did not visit the Doctors. He stated that the appellant burnt the previous prescriptions. He further stated that though the appellant was not taken to the hospital for treatment of schizophrenia but she had to stay there for the treatment of the said illness. He denied the suggestion that the injuries, shown in Ext.-11(a) & Ext.-11(b), were sustained by him due to assault by others and not by the appellant. He also denied the

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suggestion that he had been assaulting the appellant since after the marriage. He asserted that after 14 years of marriage, he was compelled to seek divorce and even if the appellant wanted to stay with him, he did not want to continue.

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P.W.2, a sister-in-law who married an elder brother of the respondent, reiterated the same facts, as had been stated by the respondent, as regards the nature and conduct of the appellant. This witness also stated about the psychiatric treatment and also about consumption of sleeping tablets by the appellant for which she had to be admitted in a Nursing Home. She also stated about the assault on the respondent by the appellant in the year 2007 for which the respondent receiving injuries, had to remain in bed for days after medical consultation. This witness stated that neither she nor any of her other sisters-in-law, except the appellant, had ever complained of facing dowry problem in the family. P.W.2 had found the appellant of suspicious nature and the appellant did not maintain any good relation with the other family members including the other sisters-in-law. She denied all the suggestions made to her in the cross-examination.

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P.W.3, in his testimony, had stated that he worked as a house keeper/domestic helper in the house of the respondent since 1989 till the year 2005. Later on, he joined as a Grade-IV employee in the Public Works Department (P.W.D.), Assam in Guwahati. This witness stated that soon after the marriage, he came to know about the quarrelsome, shorttempered and violent nature of the appellant and she used to argue with the respondent and all other family members on petty issues on daily basis. He stated to have witnessed the acts of breaking and throwing things towards the respondent by the appellant and injuring him. P.W.3 had stated that the appellant used to threaten the respondent and his other family members that she would commit suicide and in her suicide note, she would implicate all the family members. The appellant once attempted suicide by consuming sleeping tablets whereafter she had to be taken to a nursing home at Paltan Bazaar, Guwahati. After the said attempt, the appellant once again attempted suicide by consuming Ala detergent and on that occasion also, the appellant was treated in the GMCH. He knew both the incidents as he accompanied the respondent when the appellant was taken to the hospitals. Though he was no longer a domestic help in the house of the respondent, he used to visit the house whenever he got time. When on one day during 2010 he visited the house, he saw the

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appellant, in a violent mood, throwing a sandal to the respondent from the 1^st floor of the house and hitting him while he was coming down to the ground floor and abusing and threatening the respondent loudly using foul words. In his cross-examination, P.W.3 denied the suggestion that whatever he had stated in his examination-in-chief were false. He was given the suggestion that the appellant did not throw the sandal at the respondent in the year 2010 and it was his sister-in-law or some other person who had thrown the sandal and the said suggestion was denied by this witness claiming that he had seen throwing sandal at the respondent. He denied the suggestion that he stated falsely about the suicide attempts of the appellant. He categorically stated that he took the appellant to the nursing home because of her consuming sleeping tablets.

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D.W.1 i.e. the appellant admitted, in her examination-in-chief, the marriage to be an arranged one after both of them met each other on several occasions prior to the marriage. It was after the marriage only she noticed the respondent taking sleeping tablets and on being asked about it, she was scolded. The respondent used to discuss their personal matter with outsiders. Exhibiting a letter, written by the respondent to her, dated 12.04.1996 as Ext.A, the appellant stated that the respondent in his letter requested her to correct him whenever he did a wrong. The allegations that after 2002 i.e. six years of marriage, the appellant was suffering from schizophrenia and she was mentally ill from before the marriage were false and untrue. The respondent always looked at her with suspicion and did not accept the fact that the appellant had adjusted herself with the family. Because of his habit of taking sleeping pills the respondent could not continue physical relation as by the time the respondent used to come to bed at around 11-00 p.m. after completing her daily chores, the appellant used to be in deep sleep. She stated that the respondent had stated that the Professor in Psychiatry had prescribed sizodon tablets but the same was not mentioned in the prescription exhibited. She further asserted that no clinical report was annexed to substantiate the fact that she was suffering from schizophrenia. Had she been a mentally challenged person, she could not have been able to take care of the son and carry out other normal activities. She stated that when the police was brought in the night of 02.01.2010, the police did not question her as the allegations were false and the respondent did not lodge any FIR. She stated that she was forced to attempt to commit suicide due to mental

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harassment of her husband and other family members but when she was inquired about the same by the police she refused to speak as she had every intention to stay together with the family members along with her husband and son. She did not write any suicide note making any allegations against the respondent or his family members. There were many instances when the respondent and his brothers had beaten her and in order to avert that she was compelled to file the case under the DV Act for granting protection to her. In order to substantiate that she had the ability in the fields of cooking, handicraft, weaving, dress making, driving and riding she had exhibited a number of documents. D.W.1 further stated that the photographs, exhibited by the respondent, as regards his sustaining injuries due to her beating were fake ones and the same were prepared by the respondent with the assistance of his elder brother who was a good photographer. She had claimed that P.W.2 had levelled some false allegations in her evidence. In her cross- examination, she admitted that she was taken to the psychiatrist about 2/3 times in 2002 and 2/3 times in 2003. She was prescribed medicines by the psychiatrist. She was given the medicines by the respondent as per the prescription. She further admitted that on 12.02.2003, she consumed about 10/12 sleeping tablets and for that, she was admitted in the Gurucharan Nursing Home. She admitted that she herself consumed the tablets which she was compelled because of the circumstances. After the said incident, the psychiatrist referred her to the Professor in Psychiatry, HOD, GMCH and she had gone there 2/3 times. When she was taking treatment under the Professor in Psychiatry she, on 07.08.2003, attempted to commit suicide again by consuming detergent. As she had breathing problem she was taken to the ENT Department, GMCH. Thereafter, she was again taken to the psychiatrist but she was not aware as to why she was taken there. She denied the other suggestions put to her.

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D.W.2, Dr. (Smti.) Jolly Talukdar Borah, stated that the appellant was known to her through a common acquaintance in the year 2004. She had found the appellant busy doing extra-curricular activities during her free time and during the year 2006, the appellant often used to impart painting lessons to her daughter, a Class-II student. Once, in the year 2006, the appellant came to her house with bleeding from her nose and bruises on her face for which D.W.2 referred her to the GMCH. She was aware of the appellant completing courses in fashion technology, interior designing and computers as well as her literary pursuits. She

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found, from her visits to the house of the appellant during 2004 to 2009, the appellant to be a good wife taking care of her husband and in front of her, the respondent had appreciated the appellant on two occasions. In her cross- examination, D.W.2 stated that the injuries she had seen on the appellant in 2006 could have happened due to fall from rickshaw or from blows.

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D.W.3, Sri Amitabh Sarkar, in his examination-in-chief, had, inter-alia, deposed that he came to know from his mother that the respondent often used to quarrel with his younger sister. His mother also told him that she noticed bruises in the face of the appellant when she visited their house at Bilasipara with the respondent. In the year 2009, he noticed abnormal behaviour of the respondent towards his sister and thought that their relation was not good. Whenever D.W.3 had visited the house of the respondent at Guwahati to see his sister, the respondent never complained before him about anything against his sister and used to greet him nicely. Whenever the respondent had visited their house, the respondent used to behave nicely with him. He corroborated the assertions about the talents of the appellant in the field of literature, etc. In his cross-examination, D.W.3 had stated that he and his mother stay in the same house at Bilasipara.

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The learned Family Court after appreciation of the evidence led by the parties, had come to a conclusion that the evidence on record had demonstrated that the respondent had suffered cruelty and the relationship of marriage has been shattered with no possibility of any kind of revival. The learned Family Court also took note of the fact that the parties had been living separately since the year 2010. Having reached a finding that the respondent had been able to substantiate his case by adducing sufficient and cogent evidence that the appellant being his wife, conducted herself in such a manner which was sufficient to cause reasonable apprehension in his mind that it would be harmful or injurious to live with her. Because of the fact that neither the consultant psychiatrist nor the Professor in Psychiatry, HOD, GMCH had adduced evidence as regards the respondent’s claim that the appellant was suffering from schizophrenia the learned Family Court had observed that it cannot be held that the respondent was a psychiatric patient. Thus, the petition of the respondent, F.C.(Civil) No.123/2010, was allowed on the ground under Section 13(1)(ia), Hindu Marriage Act, 1955.

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As has been mentioned above, the petition seeking the decree of divorce was

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instituted by the respondent on the grounds of cruelty meted out to him by the appellant and of mental disorder of the appellant on 02.03.2010 i.e. after about 14 years of solemnization of their marriage on 09.10.1996. As the learned Family Court had not accepted the second ground due to lack of proper and acceptable evidence and the same having attained finality, no further dilation appears to be necessary on that aspect, thus, requiring us to confine on the issue of cruelty, which itself is a ground under which a marriage can be dissolved by a decree of divorce.

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The evidence adduced by the parties have already been duly recapitulated herein above. It is noticed that the respondent had, all throughout, asserted that the appellant was not with normal behaviour. She did not treat the respondent and his other family members in a good manner right since after the marriage.

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Ext.-12 indicates that on 23.02.2010, the District Social Welfare & Protection Officer, Kamrup, Guwahati by forwarding an application along with Domestic Incident Report under Section 12 & Section 9 of the DV Act, requested the learned Court to look into the matter and pass necessary order for urgent relief of the aggrieved woman victim i.e. the appellant. In the Domestic Incident Report, the allegations levelled by the appellant against the respondent were recorded. It was alleged that the appellant was severely beaten by the respondent during her period of pregnancy in 1997 and thereafter, on one occasion again each in 2005, 2006 and 2008. The appellant was allegedly often verbally abused using unparliamentary and demeaning words against her, her parents and brother. It was also alleged that the appellant was addressed as mad and was not allowed to complete her courses. The appellant was allegedly not allowed to leave the house for the purpose of day to day necessities and to visit her relatives, friends, etc. It was alleged that the respondent was demanding for a particular plot of land at Hatigaon, Guwahati and raised other demands after the marriage and he along with his mother often used to taunt her for not bringing dowry. Another allegation was levelled against the respondent to the effect that the respondent was having an abnormal homosexual relationship with a man which had hampered the conjugal life of the appellant. In the said Domestic Incident Report, the appellant had, inter-alia, prayed for protection order, residence order, maintenance order and custody order.

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The learned counsel for the parties have produced copies of the orders passed by

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Page No.# 16/21

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the learned Court of Additional Chief Judicial Magistrate, Kamrup, Guwahati in the application

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filed by the appellant under the D.V. Act, registered as Case No.39^M /2010. It transpires that by an order dated 16.03.2010, passed ex-parte, the said learned Court prohibited the respondent temporarily from committing any act of domestic violence and also restrained him from dispossessing the appellant or disturbing her possession of the shared household in any other manner until further order.

¶83

On a perusal of the petition and the evidence led on behalf of the respondent, it transpires that the respondent had asserted that he had suffered mental cruelty all along during his married life and one of the causes of such cruelty was attributable to mental illness of the appellant. In order to substantiate his assertion, he narrated a number of incidents, as indicated above, to establish that it is no longer safe for him to continue the conjugal relationship with the appellant. Responding to the same, the appellant asserted that it was the respondent who had perpetrated both physical and mental cruelty upon her. She alleged that the reason for such torture was not bringing adequate dowry at the time of marriage. The said allegation of dowry was brought in by her in her application under the D.V. Act (Ext.12). The parties had lived together as husband and wife in the same household for a period of more than 13 years. The appellant had alleged that the respondent had demanded a landed property at Hatigaon from her which belonged to her brother. Any demand for such landed property at Hatigaon has not found any mention in the testimony of D.W.3, the respondent’s brother. D.W.3 did not say anything about demand of dowry by the respondent from his family. Had the demand of dowry been the root cause for the alleged unbearable physical and mental cruelty upon the appellant, D.W.3 being the brother of the appellant, would have been aware of the same as he along with his mother would have been responsible for meeting such demand, being the family members of the appellant. D.W.3 did not say that his mother had said anything about demand of dowry by the family of the respondent. He did not say that the appellant had ever disclosed about demand of dowry by the respondent. D.W.3 had categorically deposed that the respondent used to greet him and his family members nicely whenever they visited his sister’s place at Guwahati and the respondent never complained before him about anything against his sister. D.W.2, an acquaintance of the appellant, did not whisper anything as regards demand of dowry. If

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Page No.# 17/21

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demand of dowry was the prime reason for the alleged cruelty by the respondent on her, the appellant had the option of availing proper remedy available under the law, but she did not avail such remedy until 23.02.2010. In view of the aforesaid facts, it cannot be reasonably held that the alleged physical and mental cruelty, if any, was because of demand of dowry only by the respondent. It has also emerged that the respondent has three brothers who have their wives and all of them have a cordial relationship amongst them, save and except the appellant and the said fact is corroborated by P.W.2.

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Both P.W.2 and P.W.3 had, in unison, stated about the quarrelsome, short-tempered and violent nature of the appellant. Both of them also stated about the threats often meted out by the appellant to the respondent and his other family members that she would commit suicide and in her suicide note, she would name all the family members. But none of them was challenged and cross-examined on that point. P.W.2 had stated about the suicide attempt of the appellant by consuming sleeping tablets when her husband also accompanied the respondent for taking the appellant to Gurucharan Nursing Home for treatment. P.W.3 had categorically stated that he not only accompanied the respondent on that occasion but also accompanied the respondent when he took his wife i.e. the appellant to the GMCH when she consumed Ala detergent to commit suicide. The said fact is also corroborated by P.W.2. But, these two witnesses were not cross-examined by the appellant on that aspect. The appellant had stated that she was forced to commit suicide due to mental harassment of her husband and other family members. Though the appellant denied that she wrote any suicide note but she, in her evidence, did not deny specifically about the allegation of giving threats to commit suicide and to implicate the respondent and his family members in the suicide note. It was admitted by her that she consumed about 10/12 sleeping tablets on 12.02.2003 and for that, she was admitted in a Nursing Home. She also admitted that on 07.08.2003, she attempted to commit suicide again by consuming detergent. All these go to show that the assertions made by the respondent as regards attempts to commit suicide by the appellant are true.

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It is noticed that D.W.2 had stated that the respondent had praised about his wife whenever she had the occasion to meet him. D.W.3, the appellant’s own brother, had also testified to the effect that the respondent had never complained before him anything about his sister. Whatever D.W.3 had stated about the quarrel, etc. and bruise between the

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Page No.# 18/21

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appellant and the respondent was hearsay only. D.W.2 had claimed to have seen bleeding from respondent’s nose and bruise on her face once, but she did not disclose anything further about the cause. In such situation, it cannot be said that such injuries were acts attributable to the respondent.

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In respect of the injuries sustained by the respondent on 19.06.2007 due to assault on him by the appellant, Ext.-10 (a) & Ext.-10 (b) along with Ext.-11 (a) & Ext.-11 (b) have established that the respondent had sustained injuries on that day. The said assertion of the respondent was not specifically denied by the appellant in her written statement. From the suggestion put to P.W.3, it appears that there was indeed an incident of throwing of sandal on the respondent in 2010 and it was suggested to him, who claimed to be an eye-witness, that it was not the appellant but someone else which P.W.3 had categorically denied. Regarding the incident on 02.01.2010, the respondent had stated that he was attacked by the appellant with a wooden rod and sensing the fury, he fled from his room when she hit him with her sandal. The appellant, on the other hand, had stated that the respondent on that day demanded to put forward the proposal of the property at Hatigaon to her mother and due to her denial to put the proposal before her mother, the respondent had assaulted her. But such claim as regards the property at Hatigaon, which belonged to her brother (D.W.3), is belied by the evidence of D.W.3. All these go to show that there were incidents of violence from the side of the appellant.

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In the application preferred under the D.V. Act, it was seen that an allegation was levelled to the effect that the respondent was having a homosexual relationship with a man which had hampered their conjugal life. But not even a whisper was made in this regard by the appellant during the proceeding before the learned Family Court at any point of time. The respondent has claimed in his evidence, by bringing in the Domestic Incident Report as Ext.12, that such false allegation about having homosexual relationship was made against him by the appellant without an iota of evidence, which has humiliated him and permanently damaged his reputation in the society and the same itself is a clear case of mental cruelty, more so, when such allegation is made by the appellant without any basis. The veracity of bringing in the said allegation against the respondent has not been denied by the appellant. On scanning the evidence on record, we have found that there is absolutely no denial on the

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Page No.# 19/21

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part of the appellant on that aspect. From the order dated 08.06.2012 passed in D.V. Case No. 39/2010, produced before us, it transpires that the said case was dropped due to long absence of the appellant, which indicated that the appellant was not interested to proceed with her case. It, thus, appears that though the appellant had brought the said allegation she did not make any effort to substantiate the same. But bringing in such allegation is a serious matter of concern for the person against whom such allegation is levelled. If any complaint is made making false allegation, more so, an allegation of maintaining homosexual relationship without making an effort to substantiate such allegation by either spouse it definitely amounts to cruelty to entitle the other spouse to claim a divorce. The allegation of abnormal homosexual behaviour, in the instant case, appears to have been made to embarrass and defame the respondent and such conduct constitutes cruelty, as mentioned in Section 13(1) (ia) of the Hindu Marriage Act.

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In Vishu Dutt Sharma (supra), the appellant sought divorce on ground of irretrievable breakdown of marriage and the Hon’ble Supreme Court has held that no such ground is provided by the legislature for granting a decree of divorce under Section 13 of the Hindu Marriage Act, 1955. Such a ground has not been taken in the instant case for dissolution of the marriage and as such, a further discussion on the same is not necessary. In Gurbux Singh (supra), the Hon’ble Supreme Court has observed that cruelty has not been defined under the Act. It is essential for the petitioner who has claimed dissolution of marriage, to prove that a particular/part of conduct or behaviour resulted in cruelty to him and no prior assumption can be made in such matters. The married life, as a whole, has to be assessed. If because of the ill conduct, acts and behaviour of one spouse during the period the relationship has deteriorated to such an extent that the other spouse finds it extremely difficult and unsafe to live any longer then the same may amount to cruelty. We are also of the opinion that the present appeal is to be considered by taking the married life of the parties as a whole.

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It is settled position of law that cruelty has to be judged by taking into account the entire facts and circumstances of the case and not by any predetermined rigid formula, as cruelty in matrimonial behaviours has not been defined anywhere. The cruelty alleged depends largely upon the type of life the parties are accustomed to and also their culture and

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Page No.# 20/21

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human values to which they attach importance. Though the Court below had accepted that the respondent had failed to prove the ground under Section 13(1)(iii) of the Hindu Marriage Act for the reason that the evidence of the Psychiatrists who treated the appellant was not adduced, but the fact remains, from the documentary evidence as well as the evidence of the parties with clear admission of the appellant, that the appellant had taken treatment from the Psychiatrists. A reading of the evidence on record, in entirety, goes to show that the appellant had tried to commit suicide on two occasions, once by consuming 10/12 number of sleeping tablets and by consuming detergent on the other occasion. There were repeated threats also to commit suicide with the further threat to leave a suicide note implicating the respondent and his family members. There are instances of misbehaviour with the family members of the respondent over the years. The respondent has been forced to live separately from his own house since 02.01.2010 and, more so, on and from 16.03.2010 in view of the order passed in the D.V. Case. It further appears that the respondent has to bear the brunt of assault from the appellant over the years which resulted into physical injuries of the respondent on some occasions. By levelling false and unsubstantiated allegation of abnormal homosexual behaviour against the respondent, the appellant has caused humiliation and embarrassment to the respondent. It cannot be denied that when one spouse had made attempts to commit suicide on two occasions earlier and used to give repeated threats to commit suicide again, the other spouse cannot be expected to live peacefully and safely and the same would definitely amount to cruelty. From the materials placed on record, we are satisfied that the respondent’s husband has brought cogent material on record to show that he has suffered enough cruelty during the marital life so as to entitle him a decree of divorce. We find no good and sufficient reason to differ from the ultimate conclusion arrived at by the learned Family Court that the respondent has made out a case entitling him to a decree of divorce on the ground of cruelty, as defined under Section 13(1)(ia) of the Hindu Marriage Act. In view of the same, the present appeal is dismissed. Consequently, the interim order dated 23.06.2017 stands recalled.

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The learned counsel for the appellant, referring to the grounds of appeal taken in the memo of appeal, has also submitted that while dissolving a marriage between the spouses, a duty is also cast on the Court to make an order of alimony under Section 25 of the

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Page No.# 21/21

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Hindu Marriage Act. According to him, the learned Family Court has erred in not granting alimony while passing the impugned judgment. As the appellant does not have any income of her own and the respondent is a senior Government servant, the learned Court ought to have granted appropriate alimony to the appellant. Section 25 of the Hindu Marriage Act has empowered the Court, exercising jurisdiction under the Act, to grant permanent alimony and maintenance on application made to it for that purpose by either the wife or the husband. Having gone through the materials on record, we have not found an application of the appellant for that purpose. Furthermore, the parties have not led any specific evidence in that regard to consider passing any order on alimony by us on the basis of the materials available on record, which we have found deficient. It is not the case of the appellant that during the proceeding before learned Family Court any application was preferred seeking permanent alimony under Section 25 of the Hindu Marriage Act. In any view of the matter, such order on alimony can be passed either at the time of passing the decree or at any time subsequent thereto also. Therefore, option is always available to make such an application even after passing of the decree of divorce. Liberty stands granted to the appellant to make such application under Section 25 of the Hindu Marriage Act, if not preferred earlier or during the interregnum and on such application being filed, the learned Family Court will proceed to consider the same in accordance with law.

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The Registry to return the LCR accordingly.

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JUDGE CHIEF JUSTICE (ACTING)

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Smti Arunima Bora v. Shri Pradyunnajit Bora

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Smti Arunima Bora v. Shri Pradyunnajit Bora

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