JUDGMENT
A.B. Pal, J.
1. The judgment dated 27.7.1998 passed by learned Additional District Judge, West Tripura, Agartala in T.S. (Divorce) 32 of 1990 dissolving the marriage between the appellant wife and the respondent husband herein has been called in question in the present appeal.
2. We have heard Mr. S. Deb, learned Senior Counsel, assisted by Mr. R. Dasgupta, learned Counsel for the appellant wife and Mr. A. K. Bhowmik, learned Senior Counsel, assisted by Mr. P. Deb Roy as well as Mrs. K. Deb, learned Counsel for the respondent husband.
3. The background fact of the failed marriage may be briefly noticed thus:
The marriage between the parties had taken place on 26.1.1989 at Agartala, the capital of the State, in the house of the parents of the appellant wife performing the rituals of Hindu marriage. The respondent husband comes from a rural area known as Khowai and he is a teacher by profession. It is the allegation of the husband that from the very first night of the marriage the conjugal relation suffered jolts when to his dismay he discovered the bride behaving abnormally and not responding favourably to his sexual approaches. With the passage of time, his relation stumbled again and again when she persistently showed her reluctance to cohabitation and expressed her physical incompetence. She refused to sleep with him and expressed her strong objection to use by him any articles given by her parents as gift. She began to misbehave with him, his parents and other in-laws developing thus a sad and unhappy situation in the family. She declared openly that her marriage with a teacher made her unhappy and she was not ready to stay in the mofassil home of her husband. She was in the habit of visiting the neighbours without any permission from the elders and maligning the in-laws with false and cooked up stories, which amounted to defaming the family. She started frequently leaving the marital home for her parents at Agartala defying her husband and the parents-in-law, which only widened the gap between the spouses. Because of her abnormality and physical incompetence, the respondent husband made several attempts for her treatment, which she stubbornly resisted. Finally, she left the marital home on 31.12.1989 for her parents’ house at Agartala writing a note that she was leaving on her own. The said note has been marked as Exbt. 10. Thus, mental illness, physical incompetence and desertion amounting to cruelty formed the basis for making a prayer for dissolution of the marriage. It may be noted that during last 16 years, after her final departure on 31.12.1989, there was no occasion for her to return to the marital tie.
4. The prayer for dissolution of marriage was resisted by the appellant wife herein denying all the allegations against her, but admitting that her final departure came on 31.12.1989 within a period of less than a year from the date of marriage. She, however, contended that she was subjected to physical and mental torture by her husband, which compelled her to leave his home finally. She claimed that after the marriage the conjugal relation had a happy note at initial stage, which, however, gradually soured. She also claimed that the marriage had consummated, as there had been regular cohabitation between them. Though she made allegation about torture in the hands of her husband, she could not give details of such alleged occurrence.
5. The learned Trial Court framed several issues of which following are found to be relevant for disposal of the present appeal.
(3) Whether the wife’s (respondent) behaviour to the petitioner amounts to any CRUELTY to the husband?
(5) Whether the wife left the house of her husband on 31.12.89 finally without anyone’s knowledge or consent?
(6) Whether the marriage between the spouses did at all consummate?
6. While the respondent husband examined three witnesses including himself and relied on several letters written by the parties, the appellant wife also examined three witnesses including herself in support of their respective stand. The learned Trial Court proceeded with the issues and held that she was suffering from deep-seated psychopathic disorder in the first place. For arriving at this finding, the learned Trial Court observed that there were orders passed by that Court on 8.10.1993 and 19.8.1994 for her examination by a Specialist (Psychiatrist) Dr. A.K. Nath of the G.B. Hospital, Agartala and a Specialist (Gynaecology) Dr. R.M. Sarkar of I.G.M. Hospital, Agartala, but she refused to present herself before the said experts, which contributed to the decision process of the learned Trial Court about her mental position. The husband’s specific grievance that not for a single occasion there was cohabitation with his wife was noted by the learned Trial Court with reference to her frequent departure from the marital home on her own will without caring her conjugal responsibility. From the deposition of PWs. 2 and 3, the learned Trial Court felt inclined to believe that she was behaving abnormally. Her utterances “my dog is not ready to go to the house of Trilokesh, then why I will go” coming from the witnesses convinced the Court about her abnormality. It is not in dispute, as found by the learned Trial Court, that the appellant wife had deserted her husband after leaving a note that she was doing so on her own. This act on her part has been considered to be cruelty, which is one of the grounds for seeking a decree of divorce. The facts taken in its entirety showing a discord in the marital tie from the very inception and the behaviour of the appellant wife herein convinced the learned Trial Court to take a view that the marriage between them did not consummate. Mainly, on the findings of this issue that the marriage did not consummate and the husband was treated with cruelty, the decree of dissolution of marriage was the final outcome, which has been impugned in the present appeal.
7. We have noticed from the deposition of OPW 1, Smt. Manju Das that on 31.12.1989, the appellant came from Khowai to her house and stayed in her house as the parents of the appellant were away at Vellore for treatment. The appellant is the niece of this witness. This shows that even though her parents were away from home at Agartala, the appellant left her husband finally on 31.12.1989 and lived with her uncle and aunt for 10/12 days. This behaviour of the appellant cannot but go to show that the allegation of the respondent husband against her frequently leaving marital home is true. None of the witnesses produced by her stated anything about physical or mental torture by her husband as she alleged in her defence against the prayer for dissolution of marriage. It has, however, been stated by OPWs. 2 and 3 that they learnt from her that she was roughly behaved by her in-laws. Such a vague statement without any particulars regarding the nature of such treatment cannot be taken at its face value. If there had been consummation of the marriage and regular sexual activity between the spouses, it is not normally expected that the wife would leave her husband so frequently from the conjugal bliss. Exbt. 10, which is a letter written by the appellant is only indicative of the fact that she herself had deserted her husband without any reason, particularly when she could not prove that she was subjected to any kind of physical or mental torture by her husband. Once her allegation of torture remains unsubstantiated, the other side of the picture that she had finally left the marital house within a period of one year from the date of marriage and she did not make any attempt to return to her husband during the period of 16 years looms large shadowing the very question of sustainability of a marriage, which has apparently gone away.
8. Mr. S. Deb, learned Senior Counsel made a robust argument on behalf of the appellant wife placing reliance on several decisions of the Apex Court, which are-
(i) Dr. N. G. Dastane v. Mrs. S. Dastane ;
(ii) Sobha Rani v. Madhukar Reddi I ;
(iii) S. Hanumantha Rao v. S. Ramani ;
(iv) V. Bhagat v. D. Bhagat ;
(v) Chetan Dass v. Kamla Devi ;
(vi) Shyam Sunder Kohli v. Sushma Kohli ;
9. In Dr. N.G. Dastane v. Mrs. S. Dastane (supra), the focus relevant for the present controversy was on the burden to prove the allegation of cruelty committed by the wife. The observation made in para 23 of the judgment reads thus:
23. But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond reasonable doubt? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order to judge whether the burden has been discharged?
10. In view of the above, it is to be seen whether the appellant wife herein had treated the respondent husband with cruelty within the meaning of Section 10(1)(b) of the Hindu Marriage Act.
11. In Sobha Rani v. Madhukar Reddi (supra), the appellant was a postgraduate in Biological Sciences. She was married to a doctor. Their relation became bitter soon after the marriage. The appellant wife moved the Court for divorce on the ground of cruelty. A constant demand for money from her was the source of an apprehension that something would be done to her either physically or mentally. It was held by the Apex Court that the demand for dowry being prohibited under law, it by itself amounted to cruelty entitling her to get a decree for dissolution of marriage. The fact is, however, totally different from the one in our hand, which is total aversion on the part of the appellant wife to live with her husband. The ground of cruelty as advanced by the respondent husband is her reluctance to cohabitation and desertion for a long period. It is true that cruelty under Section 13(1)(ia) of the Hindu Marriage Act, if not admitted, requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases. The word “cruelty” has not been defined in the Hindu Marriage Act. The cruelty may be menial or physical, intentional or unintentional. In Dastane (supra) the Apex Court observed that in case of the allegation of mental cruelty the inquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment in the mind of the spouses. Whether it caused reasonable apprehension that it will be harmful or injuries to live with the other, ultimately is matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. In the present case, the conduct of the wife, as alleged, that she was averse to cohabitation can be said to be per se unlawful as it is the legal duty of every spouse to willingly participate in cohabitation, which has been held to be the foundation of every marriage.
12. In S. Hanumantha Rao v. S. Ramani (supra), the question of mental cruelty was under consideration of the Apex Court as the question of cruelty is bound to vary from case to case depending on social strata to which the parties belong. In the above noted case, throwing the Mangalsutra by the wife respondent at her husband was pleaded to be an act of cruelty, which was, however, negatived.
13. In V. Bhagat v. D. Bhagat (supra), the meaning and proof of cruelty was under focus in the given facts and circumstances of that case. It was held by the Apex Court that mental cruelty in Section 13(1)(ia) of the Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. The relevant observation of the Apex Court appearing in para 16 of the judgment is quoted below:
Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as won Id make it not possible for that party to live with the other mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
14. In Chetan Dass v. Kamla Devi (supra), the question was irretrievable breakdown of marriage due to series of activities, which are incompatible in a marital life. The illegitimate relationship between the husband and a third party was one of the grounds for breakdown of the marriage. In the case on our hand, no third party was present at any stage of the short lived conjugal relation, which suffered from mal-adjustment, both physical and mental, as has been projected in the pleadings of the rival parties.
15. The question whether refusal to comply with a direction of the Court to the wife for medical examination invites an adverse inference against her came under examination in Sharda v. Dharmpal . It was held that such direction to undergo medical examination is not violative of right to personal liberty under Article 21 of the Constitution and refusal to comply with such direction is bound to give rise to an adverse inference against the party, who disobeyed the direction. As we have noticed above, the learned Trial Court directed the appellant wife herein to undergo a medical examination in view of the pleadings of the respondent husband that their marriage did not consummate as there had been no cohabitation due to complete physical incompetence of the appellant wife. It has been put on record by the learned Trial Court that she disobeyed the direction of the Court and, therefore, invited the adverse presumption that she was not physically competent to cohabitation.
16. Mr. A.K. Bhowmik, learned Senior Counsel for the respondent husband placed a strong argument that the marriage that could not take its wing with a happy note cannot be said to be alive though the same needs a formal dissolution by a decree of divorce or nullity. The abnormal behaviour on the part of the appellant wife, which is very much apparent from the fact that she was unwilling to share same bed with her husband from the very first night and her role and indecent behaviour to her in-laws reflect her mental imbalances, which is not congenial for a conjugal relation, No allegation of torture on her by her husband could be even distantly proved and this fact alone advances no justification for her living separately in her parents’ house for such a long period after her final departure within a period of one year from the date of marriage. Such a behaviour on the part of a newly wed bride, who refused to share bed with her husband on the very first night was certainly shocking for the husband, who was eagerly waiting for marital happiness for which sexual activity is a sine qua non. It is the submission of Mr. Bhowmik that her disobedience to the direction of the learned Trial Court to undergo medical examination eloquently brings home the point that she was physically and mentally incompetent to be a partner in sexual life of her husband. In support of this submission, he was placed reliance on the decision of the Apex Court in Shyam Sunder Kohli v. Sushma Kohli (supra), which is not required to be discussed again in view of the other decisions already quoted.
17. In Durga Prasanna Tripathy v. Arundhati Tripathy , on which reliance has been placed by Mr. Bhowmik, the Apex Court observed that a long separation of 14 years itself offers difficulty for a reconciliation. The relevant observation made in paras 16, 21, 28 and 29 of the judgment are briefly quoted below:
Fourteen years have elapsed since H and W have been separated and there is no possibility of the said parties resuming the normal marital life even though W is willing to join H. There has been an irretrievable breakdown of marriage between H and W. There is clear finding of the Family Court that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the instance of W to remain separately from her in-laws. It was totally an impracticable solution. The evidence adduced by W before the Family Court belies her stand taken by her before the Family Court. Under the circumstances, H had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. Enough instances of cruelty meted out by W to H were cited before the Family Court.
In the facts and circumstances of the case, the reunion is impossible. H and W are living away for the last 14 years. A good part of the lives of both the parties has been consumed in this litigation. The end is not in sight. The assertion of W through her learned Counsel at the time of hearing appears to be impractical. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Hence, there is no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce.
18. In Savitri Pandey v. Prem Chandra Pandey , the wife claimed divorce on ground of desertion. It was held that the wife cannot be permitted to take advantage of her own wrong after marriage. Desertion has been held to mean the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. When certain act amounts to desertion, has been discussed in paras 7 and 10 of the above judgment, the relevant part of which is quoted below:
‘Desertion’, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things, desertion, therefore, means withdrawing from the matrimonial obligations, i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognized and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognized position of law in matrimonial matters that no one can desert who dies not actively or wilfully bring to an end the existing state of cohabitation.
19. Summarising the facts from the rival pleadings and submissions and examining the same in the light of the laws discussed above, we proceed to say that the appellant wife has failed to show enough justification for her leaving the nuptial home so frequently after marriage and final departure within a period of one year from the date of marriage. As has been noticed above, she had left for Agartala though her parents were away at Vellore for treatment and so, she had to stay with her uncle 8/10 days. Such a behaviour after the marriage on the part of the bride cannot be understood to be a normal behaviour. This only demonstrates the fact that the relation with her husband had suffered jolts at the very inception and cracks in their relation had surfaced to widen gradually. The other fact that she has been living for a period of 16 years separately from her husband without any serious attempt for conciliation leaves no doubt in our mind to take a view that the relation has broken down beyond repair. As already discussed above, her reluctance to go for medical examination even after direction of the learned Trial Court is enough to establish the allegation of the husband that she was sexually cool, unresponsive and adverse to cohabitation. As has been held by the Supreme Court, cohabitation is essential for a valid marriage, which appears to be lacking on the part of the appellant wife. There were thus valid reasons for the learned Trial Court to take the view that the marriage did not consummate there having been no occasion of cohabitation between the parties. The desertion for such a long period coupled with her reluctance to cohabitation amounts to cruelty, which is enough for putting an end to the relation, which for all practical purposes is dead.
20. In view of the discussions aforementioned, we do not find any reason to interfere with the judgment and decree of the learned Trial Court dissolving the marriage between the parties and, therefore, this appeal being devoid of any merit stands dismissed with no order as to cost.