Smt. Meena Jha vs Bipin Kumar Jha on 23 December, 2003

JUDGMENT

Vishnudeo Narayan, J.

1.This appeal at the instance of the appellant has been preferred against the impugned judgment and decree dated 30.8.2001 and 15.9.2001 respectively passed in Matrimonial Suit No. 3 of 1995 by Shri George William Baa, 3rd Additional District Judge, Chaibasa whereby and whereunder the said suit filed by her petitioner-husband Bipin Kumar Jha was decreed and their marriage was dissolved.

2. The respondent-husband has filed the aforesaid suit for dissolution of his marriage with his appellant-wife Meena Jha by a decree of divorce under Section 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the said Act) that his wife has treated him with cruelty after solemnization of the marriage and has also deserted him for a continuous period of not less than two years immediately preceding the presentation of his matrimonial petition.

3. The case of the petitioner-husband (now respondent in this appeal), in brief, is that their marriage was solemnized in accordance with Hindu religion and rites on 22.2.1990 at Bokaro and the ‘gauna’ ceremony was performed in the month of November 1990 and his appellant-wife came to her matrimonial home at Kiriburu, District-Singhbhum West in his company for leading conjugal life and she did not find her matrimonial home to her liking as she hails from a high family being the daughter of employee of Bokaro Steel Factory and her father being General Secretary of the Employees Union of the said Factory and thereafter she started maltreating him, his old father, ailing mother and other members of his family and she was a woman of loose tamper and quarrelsome nature and he tolerated the cruel behaviour of his wife with the hope that there shall be a change in her behaviour towards them and all efforts made by him and his family members to keep her happy could be of no avail. It is alleged that his appellant-wife used to tell that she has come to his family to rule and not to serve them as she belongs to a high family and she is not accustomed of the way of life of a middle class family of her husband and due to her continued cruel behaviour he suffered mental torture and in the month of January 1991 she has left her matrimonial home without informing anybody and went to her parent’s house at Bokaro and she returned to her matrimonial home in the month of May 1991 and from the first day of her arrival here she started misbehaviour and maltreating all the inmates of his house and she asked him to separate himself from the family and to start a separate establishment leaving his old parents which was refused by him and on 10.9.1991 she took over dose of sleeping pills with intention to commit suicide but she was saved due to her proper medical treatment and thereafter she started telling that she would commit suicide in the matrimonial home implicating him and his family members in criminal cases. It is alleged that he tried to reconciliate the matter with the help of local people which did yield no result and she again left her matrimonial home on 19.9.1991 after taking all of her ornaments and belongings and since then she did not return to her matrimonial home and she has deserted him without any reasonable cause and without his consent or against his wish and he has not condoned the acts of his appellant-wife. Lastly, it has been alleged that there is no issue out of their wedlock.

4. The appellant-wife has filed her written statement on 25.3.1996 stating, inter alia, therein that she was brought up in a traditional middle class family with noble tradition and culture and it is false to say that her matrimonial home was not to her liking and it is also false to say that she has treated her husband and his family members with cruelty, rather, she tried to serve him and his family members with sincerity as a good sincere affectionate house wife. Her case further is that her husband and his family members were extremely cruel Lo her since the date of her arrival in her matrimonial home and they treated her with cruelty and she remained frightened and always under apprehension of physical and mental torture. It is alleged that she returned to her parent’s house in the month of February 1991 and not in the month of January 1991 as alleged in the company of her father with the permission of her husband and his family members and after three months she returned to her matrimonial home at Kiriburu. It is also alleged that it is false to say that she had ever asked her husband for living separately from her parents. It is also alleged that she was instigated by the members of the family of her husband to commit suicide and she was tortured by them including her husband and they asked her to commit suicide or otherwise she will be killed and she being surrounded by the hostile members of the family of her husband in her matrimonial home could not bear such tor-Lure and she tried to commit suicide, but it is false to say that she has ever stated that she will implicate her husband and his family members in a criminal cases by committing suicide. The further case of the appellant-wife is that she has remained in her matrimonial home till 8.1.1996 but visiting her parent’s house intermittently and she was driven out from her matrimonial home on 8.1.1996 by her husband and his family members and since then she is residing in her parent’s house and all her ornaments and clothes were kept at Kiriburu by her husband and his family members and she was forcibly taken to Bokaro against her Will on 8.1.1996 and it is not a fact that she has deserted her husband any time. It is alleged that on 8.1.1996 in the mid night she was brought to her parent’s house by her husband along with his brother Nand Kumar Jha and one other person and her husband demanded a colour television, freeze and Rs. 50,000/-as dowry from her father who requested them to stay there in the night and he will talk with them in respect thereof in the morning and they stayed in the night in her parent’s house and inspite of the persuasion and inability of her father to fulfil the said demand, her husband returned to his house along with them leaving her there and thereafter her father several times went to Kiriburu and requested her husband as well as his family members to keep her in their house and also to return her ornaments and clothes etc. but all his request and entreaties failed. It is also alleged that she and her husband has last resided together on 8.1.1996 at Bokaro and therefore, the Court at Chaibasa has no jurisdiction in the matter. It is also alleged that her husband and his family members had obtained the signature of her father on several plain and stamped paper as a result of which her father has lodged a case against them before Marafari Police Station.

5. There had been some subsequent developments during the pendency of the matrimonial suit, which have their relevancy in this case. During the pendency of criminal case under Sections 498A, 437, 379 of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act filed by the father of the appellant-wife, a compromise was arrived at between the parties due to the intervention of the well-wishers on 18.6.1996 and a memorandum of compromise was reduced into writing signed by both the parties and their respective father followed by a joint petition filed in the said criminal case on 5.7.1996 and as a result of which the appellant-wife had gone to Malda to lead conjugal life with her husband, who was then posted in service at Malda where she has lived with him. It is equally relevant to mention here that the memorandum of compromise dated 18.6.1996 stipulates that both the parties shall withdraw their respective cases filed at Chaibasa and Chas respectively and as per the stipulation aforesaid, the joint compromise petition was filed in the criminal case before the Chas Court and the said criminal case has come to an end whereas the petitioner-husband did not act upon in terms of the said stipulation in withdrawing the matrimonial suit filed by him. It is also relevant to mention here that a fresh attempt was also taken by this Court during the pendency of this appeal to reconciliate their matrimonial disputes at the instance of the appellant-wife vide order dated 31.7.2003 and it appears from the order dated 16.9.2003 that inspite of the efforts of this Court, the petitioner-husband is adamant not to accord any opportunity to his appellant-wife to live with him in any eventuality for leading conjugal life whereas the appellant-wife is willing to submit herself to all the dictates of her husband to settle the matrimonial disputes for leading a happy conjugal life with him and in such a situation the reconciliation has, however, failed.

6. In view of the pleadings of the parties, the learned Court below has formulated the following issues for adjudication in this case :–

(i) Has the petitioner cause of action or right to sue the respondent?

(ii) Is the suit maintainable either under the law or on facts?

(iii) Is the suit barred by the principles of estoppel, waiver and acquiescence?

(iv) Has this Court jurisdiction to try
this suit?

(v) Is the suit premature?

(vi) Has the respondent treated the
petitioner with cruelty?

(vii) Has the respondent deserted the petitioner?

(viii) To what relief the petitioner is entitled to?

7. In view of the oral and documentary evidence on the record while deciding issue No. (vii), the learned Court below has held that the respondent has left her matrimonial home on 19.9.1991 executing Ext. 1 and since then she has deserted her petitioner-husband and her case that she resided with her husband till 8.1.1996, has no leg to stand in view of the evidence on the record. It has also been held while deciding issue No. (vi) that the petitioner-husband was treated with cruelty by his wife and she has always been cruel to her husband prior to the institution of the said suit as well as thereafter. It has also been held while deciding issue No. (iv) that the Court at Bokaro has no jurisdiction in the matter as the parties to the suit have last resided together at Kiriburu and thus the Court at Chaibasa has jurisdiction to adjudicate the suit. Lastly, it has been held that there is no possibility in near future of restoration of the conjugal relationship between the parties. In view of the findings aforesaid, the learned Court below decreed the suit of the petitioner-husband dissolving his marriage with his wife. However, a permanent alimony was awarded at the rate of Rs. 500/- per month in favour of the appellant-wife.

8. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not at all consider the evidence, oral and documentary, on the record in proper perspective and has erroneously decreed the suit of the respondent-husband dissolving his marriage with the appellant and the details regarding the allegation of cruelty have not been specifically averred and all these allegations are vague and wild allegations which have also not been substantiated by legal evidence on the record. It has also been submitted that the learned Court below did not at all consider Ext. E, the letter dated 19.1.1994 of the appellant-wife written from her matrimonial home to her father which clearly depicts the cruel behaviour of the respondent-husband causing mental cruelty to his appellant-wife and the respondent in the facts and circumstances of the case cannot take the benefit of his own wrong in his matrimonial relationship with his appellant-wife. It has also been submitted that the appellant-wife has never treated the respondent and his parent with cruelty and has never quarreled with them in her matrimonial home and the appellant-wife has categorically stated in her written statement and also deposed in her evidence on oath that she wanted to adjust herself in the family of her husband with the sole intention to lead conjugal life in-spite of unceremonious approach of the respondent in their marital relationship and she was not at all disrespectful either to the respondent or to his family members and the allegation of cruelty is false on the face of it. It has further been submitted that corroboration in a matrimonial cause resting on cruelty may no be a matter of law, but a matter of precaution and the wild allegations of cruelty mad by the respondent must be tested very carefully and in the absence of corroboration, such allegations should not be accepted to bring dissolution of marriage and the specific allegations in detail should be pleaded in a matrimonial cause and proved by legal and proper evidence. Elucidating further it has been submitted that cruelty simplicitor is not a ground for passing a decree for divorce and the cruelty of a particular nature and of a particular virulence only entails the consequence for dissolution of the marriage and the cruelty should be such as to cause a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for the respondent to live with his appellant-wife and the evidence on the record does not give an inkling of the fact that the allegation of cruelty against the wife is of such a nature that a reasonable apprehension was caused in the mind of the respondent-husband that it was harmful or injurious for the husband to live with her and if there is misunderstanding or discord in the conjugal relationship between the parties but for such trivialities the relationship between the husband and the wife cannot be dissolved by passing a decree for divorce and until and unless it is established by cogent evidence that the alleged mental cruelty was, to such an extent that it crossed the limit of tolerance of the husband, no decree for divorce can be passed and further the evidence on the record does not show the conduct of the appellant that she has caused any mental cruelty to her respondent-husband. It has also been contended that taking of the sleeping pills by the appellant in her matrimonial home with intention to end her life in the facts and circumstances of this case shows the frustration of the appellant-wife due to the nagging approach and cruel behaviour of the appellant towards her and this aspect of the matter in the facts and circumstances of this case does not amount treating the appellant with cruelty. It has also been submitted that the materials on the record do falsify the case of desertion as alleged against the appellant-wife by the respondent-husband. The respondent-wife has lived in her matrimonial home till 8.1.1996 and there is evidence on the record to corroborate it and she has been forcibly brought to her parent’s house on 8.1.1996 and she was ever willing and ready to live with her husband for leading conjugal life on any condition imposed by her respondent-husband and she has categorically stated in her evidence and also in course of reconciliation befpre this Court but inspite of that good sense did not prevail upon her husband and this clearly indicates that there was no intention on the part of the appellant-wife to permanently end cohabitation between them and the appellant has filed this matrimonial suit on the ground of desertion on 19.5.1995 when admittedly the appellant-wife was residing, in her matrimonial home. It has been submitted that there is subsequent developments in this case after the institution of the matrimonial suit by the respondent and that subsequent even is that there had been a compromise between the parties with the intervention of well wishers and it was agreed upon between the parties and their parents as per Ext. B read with Ext. C that both the parties shall withdraw their respective cases and the appellant-wife shall go with her respondent-husband at his place of posting i.e. Malda for leading conjugal life and in pursuance thereto the father of the appellant-wife compromised the criminal case under Section 498A of the Indian Penal Code and the said criminal case came to an end whereas the respondent-husband on the contrary proceeded with the matrimonial suit and as a result of the said compromise the appellant-wife went to Malda where she lived for more than a month with his respondent-husband but due to the attitude of her respondent-husband she had to come back again to her matrimonial home and this aspect of the matter also clearly indicates that there was no animus diserendi on the part of the appellant-wife and the evidence on the record shows that the appellant-wife had all love and respects for her husband and she is willing to fulfil all marital obligations as wife. Lastly, it has been contended that living together of the appellant-wife with her respondent-husband as a consequence to the compromise arrived at between the parties means that the respondent has condoned the alleged matrimonial offence though the appellant-wife does not admit those allegations and in view of the evidence on the record, the case of the respondent-husband for dissolution of his marriage with his appellant-wife is not maintainable. In support of his contention reliance has been placed upon the ratio of the cases of Sunil Kumar Gupta v. Kunti Gupta, AIR 2003 Jhr CR 251 and Prabhat Kumar Mitra v. Smt. Sikha Mitra, 1997 (2) PLJR 130.

9. Refuting the contention aforesaid it has been submitted by the learned counsel for the respondent-husband that there is averment in the matrimonial petition as well as there is evidence on the record to substantiate the fact that the appellant-wife has quarrelled with the appellant and his parents which has caused mental cruelty to the respondent-husband and during her stay in her matrimonial home she has taken sleeping pills to commit suicide on 10.9.1991 only with a view to falsely Implicate the respondent and his entire family members in a criminal case for that and it is the settled principle of law that such an act on the part of the appellant-wife constitutes mental cruelly to the respondent-husband and in this view of the matter, the learned Court below has rightly come to the finding that the appellant-wife has treated her husband with cruelty. Relying upon the ratio of the case of G.V.N. Kameswara Rao v. G. Jabilli, AIR 2002 SC 576, it has been submitted that it not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define ‘cruelty’ as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But such a degree of cruelty is not required. to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount of cruelty, though it may amount to misconduct. The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. Reliance has also been placed upon the ratio of the case of Harbhajan Singh v. Amarjeet Kaur, AIR 1996 MP 41. It has further been contended that though as a result of compromise the respondent had come to Malda but she did not live in the house of the respondent at Malda but she has stayed in the hotel during that period and even if cohabitation on some occasion had taken place between the parties then such cohabitation in an attempt to repair the relationship between the parties will not constitute condonation of matrimonial offence. In support of his contention reliance has been placed upon the ratio of the case of Smt. Santana Banerjee v. Sachindra Nath Banerjee, AIR 1990 Cal 367. Lastly, it has been contended that the respondent-wife has finally left her matrimonial home on 19.9.1991 and thereafter she has never returned there and she has falsely set up a case that she has left her matrimonial home on 8.1.1996 and her respondent-husband had brought her to Bokaro and had left her there when there is evidence on the record to show that on 8.1.1996 her respondent-husband was on duty in the school at Malda and therefore, she has set up a false case in respect thereof and whereas the appellant-wife has left her matrimonial home on 19.9.1991 without a just and reasonable cause and only with a view to end the cohabitation between them permanently and the material on the record, therefore, prove the case of desertion of the respondent-husband as averred in his matrimonial petition. The learned Court below has construed the evidence on the record in proper perspective and has rightly decreed the matrimonial suit of the respondent dissolving his marriage with his appellant-wife and there is no illegality therein.

10. In view of the evidence oral and documentary on the record, the following are the admitted facts :

The marriage of the appellant-wife has been solemnized with the respondent-husband on 22.2.1990 and it was an arranged marriage with the consent of the respondent and one Niranjan Jha, said to be the maternal uncle of the respondent was the middle man in the said marriage and at that time the respondent was unemployed and the said marriage was performed in accordance with Hindu religion and rites. The gauna ceremony was performed on 24.11.1990 and the appellant came to her matrimonial home of Kiriburu in the company of her respondent-husband where the marriage was consummated and she lived there till January 1991. But according to the appellant, she had lived there till 9.2.1991 and the appellant returned to her parent’s house at Bokaro. The appellant again came back to her matrimonial home at Kiriburu in the month of May 1991. The appellant had taken sleeping pills on 10.9.1991 when she was residing in her matrimonial home with intention to end her life and thereafter she returned, to her parent’s house on 19.9.1991. According to the case of the respondent-husband, she has not come to her matrimonial home after 19.9.1991 but this fact has been controverted by the appellant and her case is that she has returned to her matrimonial home thereafter where she did live till 8.1.1996 when she was brought back to her parent’s house by her respondent-husband along with his brother and other and she was left there. I will dilate in respect thereof later on at its appropriate place. It is an admitted fact that the family of the respondent-husband consisted of his parents, his younger brother Nand Kumar Jha and one unmarried sister Bimla and they were residing at Kiriburu where the father of the respondent was employed as a teacher in the Central School. The marriage of Nand Kumar Jha aforesaid was performed on 9.6.1993. The respondent has filed this matrimonial suit for dissolution of his marriage with his appellant-wife by a decree of divorce on 19.5.1995 before the Chaibasa Court. The father of the appellant had filed Marafari PS Case No. 8 of 1996 on 22.1.1996 against the respondent and others under Sections 498A, 437 and 379 of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act and thereafter a compromise (Ext. B) was arrived at between the parties at the intervention of the well wishers and a petition of compromise was reduced into writing and signed by the appellant, the respondent and their respective father and it was agreed that both the parties shall withdraw their respective cases and the appellant-wife shall reside together for leading conjugal life amicably and the respondent-husband shall bring his appellant-wife either to his parent’s house or to the place of his posting for leading their harmonious conjugal life and in pursuance of the said compromise a joint compromise petition (Ext. C) was filed in the said criminal case before the Court of Chief Judicial Magistrate, Bokaro at Chas and the said criminal case was disposed of in terms of the compromise but the said respondent-husband did not withdraw this matrimonial suit pending before the Chaibasa Court. The appellant-wife was willing to accompany to her respondent-husband to Malda where he was working as teacher in pursuance of the compromise arrived at, but it is the respondent, who did not take her to Malda with him but thereafter the appellant went to Malda for leading her conjugal life with him where she remained for one and half months and thereafter she returned to her parent’s house in the company of her father. The appellant-wife is still willing and ready to live with her respondent-husband for leading conjugal life and she has reiterated her intention in the most clear and unequivocal terms before this Court in course of reconciliation in respect thereof on any condition imposed by her respondent-husband. But the reconciliation before this Court has failed due to the adamant approach and behaviour of the respondent to accord any opportunity to his appellant-wife to live with him in any eventuality for leading conjugal life.

11. The respondent-husband has sought for dissolution of his marriage with his appellant-wife on two fold grounds. The first ground is that the appellant-wife has treated the respondent-husband with cruelty causing him mental torture. The case of the respondent-husband is that the appellant did not find her matrimonial home to her liking and she has started maltreating him and his old father and ailing mother besides other members of his family and she is a woman of loose tamper and quarrelsome and inspite of the best efforts of this respondent there was no change in her behaviour and she used to say that she has come to this family to rule the family and not to serve as she belongs to a high family of Bokaro Steel City and she is not the accustomed to the way of life of a middle class family of the respondent and she left her matrimonial home in the month of January 1991 for her father’s house at Bokaro without informing any member of his family. The further case of the respondent-husband in respect thereof is that she asked him to separate himself from his parents and to have a separate establishment leaving his parents and on 10.9.1991 she took overdose of sleeping pills with intention to commit suicide and finally she left her matrimonial home on 19.1.1991 with all her ornaments and belongings and since then she did not return to her matrimonial home. The second ground for dissolution of his marriage with his appellant-wife is desertion by the appellant with effect from 19.9.1991 and it is alleged that she has severed all marital relationship with him from that day. The case of the appellant-wife is total denial of the allegations aforesaid and all the allegations aforesaid as alleged by the respondent-husband are false and concocted. Her case is that she has neither treated the respondent and his family members with cruelty nor has she quarrelled with them, rather, the respondent and his family members were extremely cruel to her and they were torturing her and she has never asked her husband to separate from his parents and his family members and they instigated her to commit suicide or she will be killed and she being fed up with unbearable physical and mental torture, took sleeping pills and thereafter she came to her matrimonial home on 19.1.1991. Her case further is that thereafter she again came to her matrimonial home where she has lived till 8.1.1996 and on that day she was brought to her parent’s house in the dead of night by the respondent in the company of his younger brother and one other person where there was a demand of Television, Freeze and Rs. 50,000/- as dowry made by the respondent and when the said demand was not fulfilled she was left there. Let us now advert to the evidence of the parties regarding the allegation of cruelty as alleged against the appellant-wife. AW 1 Bipin Kumar Jha, the husband of the appellant has deposed that he found after the marriage that his wife is a quarrelsome lady and her conduct and behaviour was not congenial with his parents and it appeared that she has come to her matrimonial home to rule and this caused quarrel between him and her. At page 7 of his cross-examination, the respondent-husband has deposed that he has neither averred in his matrimonial petition on which date she has quarrelled with him nor has he given the specific instances of the cruelty perpetrated on him by his appellant-wife. It is pertinent to mention here that no specific instances with date and the details of the quarrel between him and his appellant-wife, have not been stated by the respondent-husband in his evidence on oath. His evidence that it appears that she has come to her matrimonial home to rule is nothing but an opinion wrongly formed of her by her respondent-husband. The evidence of the husband that the behaviour of his wife was not congenial with his parents also lacks the details in respect thereof and, therefore, this evidence has also no bearing in this case to come to an inference that his wife has treated his parents with cruelty. He has further deposed that his wife left her matrimonial home in the month of January 1991 without telling him and she has gone to her parent’s house. This evidence of the respondent-husband also, does not show any cruelty on the part of his appellant-wife for the reason that after the gauna ceremony she has returned to her parent’s house in the company of her father for the first time and it is a custom prevelant in the society that either after the marriage or of the gauna, the wife returns to her parent’s house on bidai OW 4, the appellant wife, has categorically deposed that she has returned to her parent’s house on 9.2.1991 with her father after spending fifteen or twenty days in her matrimonial home happily. She has further deposed that there was no specific reason for her coming back to her parent’s house on 9.2.1991. Therefore, the said evidence of the respondent-husband does not at all show any mental torture to him caused by the appellant-wife on that score. His evidence is further to the effect that his appellant-wife always used to tell him to live with her at Bokaro and to live separately from his parents, which he had refused, and for that the quarrels used to take place between them. In this connection, it is pertinent to mention here that there is no averment in the matrimonial petition of the respondent-husband that his wife has ever asked him to live with her at Bokaro separately from his parents. Furthermore, there is also neither averment in the matrimonial petition nor evidence in the testimony of the respondent-husband that as to when her wife has told him in respect thereof and the dates on which the quarrel did take place between them and the nature of the said quarrel. The appellant-wife in her evidence on oath has deposed that she has never asked her husband to live separately from his parents. Therefore, the evidence of the respondent-husband constituting the cruelty perpetrated on him by his appellant-wife is nothing but wild allegations and figment of his imagination to make out a case against his appellant-wife for the dissolution of the marriage. AW 1, the father of the respondent-husband has deposed that after the gauna ceremony the appellant-wife came to the village home of the respondent-husband with him and after living there for few days she came to Kiriburu with him, he has further deposed that she used to quarrel with her husband and the other members of his family and she used to tell that she will not live in this family and it was not possible for her respondent-husband to have his separate residence as he was unemployed and there was always quarrel between her and her husband in respect thereof.

He has also deposed that she left her matrimonial home in the month of January 1991 and went to her parent’s house without informing anybody in her matrimonial home. The evidence aforesaid of AW 1 also does not disclose specific instances with date of the quarrel between the appellant-wife on the one hand and the respondent-husband and his family members on the other hand. AW 3 and AW 1 have further deposed that the wife returned to her matrimonial home in the month of May 1991 from Bokaro. AW 1 has deposed that her behaviour thereafter was quite good for few days. AW 1 has further deposed that he has sent the respondent-husband to bring her back at Kiriburu. AW 3, the respondent-husband does not say in his evidence that he has gone to Bokaro to bring his wife back to Kiriburu. Therefore, the evidence of AW 1 in respect thereof lacks credence. He has further deposed that after one week again quarrel started between the couple. Here again no specific instances of the nature of the cruelty has been brought on the record in the evidence of this witness. Here in this case, the quarrel simplicitor between the husband and the wife as deposed by AW 3 and AW 1 can never be a ground for passing a decree of divorce and from the quarrel aforesaid it cannot be inferred that as a result of the quarrel it is harmful or injurious for the respondent-husband to live with his appellant-wife and their evidence on the record does not give an inkling of the fact that the allegation of cruelty against the wife is of such a nature, that a reasonable apprehension was caused in the mind of the respondent-husband that it was harmful or Injurious for him to live with her and even if there is misunderstanding or discord in the conjugal relationship between the couple but for such trivialities the relationship between the husband and the wife cannot be dissolved by passing a decree for divorce unless it is established by cogent evidence that the alleged mental cruelty was to such an extent that it has crossed the limit of tolerance of the husband. The evidence of quarrel as deposed by AW 3 and AW 1 cannot be said to be an act in the facts and circumstances of this case committed by the appellant with intention to cause suffering to her respondent-husband. It is nothing but wear and tear of the matrimonial life and the said quarrel does not at all amount to cruelty in the facts and circumstances of this case against her respondent-husband and furthermore, the conduct of the appellant-wife is not such that it has become intolerable for the respondent-husband to suffer any longer and to live together is impossible for Him. It is equally relevant to mention here that austerity of temper, rudeness of language, occasional outburst of anger do not amount to cruelty though it may amount to misconduct but there is no legal evidence on the record even to establish the fact that the appellant-wife has quarreled with her respondent-husband and his family members. The mother, brother and sister of the respondent-husband, who were admittedly residing in the Kiriburu house with the appellant-wife have not taken oath in this case to substantiate the case of the respondent-husband regarding the said quarrel between him and his appellant-wife and for that an adverse inference has to be drawn against the authenticity of the case of the respondent-husband in respect thereof. Here I will refer the contents of the letter (Ext. E) which depicts the conduct and behaviour of the respondent-husband towards his lawfully wedded appellant-wife. This letter has been written by the appellant-wife to her father on 19.1.1994 from her matrimonial home. It has been recited in the said letter that all the family members of her husband has cordial behaviour with her and the respondent-husband left his house on the day she arrived there and when he came on the second occasion with his friend he did not share her bed, rather he slept in the car. The letter further recites that at the time of taking meal he used to say that he will not take meal touched by her and he used tc tell to ask her not to remain present at the time of taking bis meal. The letter further recites that she was advised by her father-in-law to tender apology to her husband catching hold his feet but she could not gather courage for tendering apology on the first occasion but on the second occasion on the Christmas, holiday when he came, he gathered courage but her husband slept in the car. The letter also depicts that whenever her husband cornes he sleeps on the Sofa. It also recites that her father-in-law (AW 1) wants her to prosecute her study further as he has every apprehension that her husband will desert her and her father-in-law is always pensive as to what will happen to her if he dies. The conduct of the respondent-husband is very much explicit so far his matrimonial relationship with his appellant-wife is concerned but surprisingly enough AW 1, the father of the respondent-husband appears to have succumbed under the pressure of or infatuation for his son, the respondent-husband and has deposed falsely on oath regarding the appellant having quarrelled with him as well as other members of his family besides the respondent-husband. Therefore, the averments and the evidence regarding the appellant-wife treating her respondent-husband with cruelty are vague, bald and wild allegations and their evidence is not at all trustworthy and reliable in respect thereof. The evidence of AW 2 is hearsay in respect thereof as he has claimed to have got knowledge from AW 3.

12. AW 3 has deposed that his appellant-wife quarrelled with him on 10.9.1991 and she took sleeping pills with intention to commit suicide and she was thereafter medically treated and she was saved. He has also deposed that his appellant-wife has uttered that she will commit suicide and she will get his entire family members implicated in a criminal case and the said act on the part of his wife has caused mental torture to him. AW 1 has also deposed that the appellant-wife had attempted to commit suicide by taking sleeping pills on 10.9.1991 and she was saved after medical treatment.” His evidence is further to the effect that she has stated to implicate all the family members of her husband in a criminal case after committing suicide and the father of the appellant-wife came to Kiriburu and she went to her parent’s house in his company along with all her ornaments and other belongings and she has also written a receipt regarding taking away her ornaments with him on 19.9.1991 and the said receipt is Ext. 1 in this case. AW 2 has deposed to have learnt about the attempt of the appellant-wife committing suicide. AW 4 has deposed that the appellant-wile has returned to her parent’s house with her ornaments stating that she will not return in future to her matrimonial home. OW 4, the appellant wife has denied in her evidence on oath that she had taken sleeping pills to commit suicide and she used to tell that she will get all the members of her husband family implicated in a criminal case by committing suicide. Her father, OW 5 has also denied regarding the attempt of committing suicide by his daughter by taking sleeping pills. However, there is no evidence on the record brought by the respondent to show as to which doctor has treated her when she has taken sleeping pills with intention to end her life. No prescription or any certificate of the treating doctor in respect thereof has been brought on the record by the respondent-husband. However, the averment in para 9 of the written statement in reply to the averment made in para 11 of the matrimonial petition is that she was instigated by the members of the family of her husband to commit suicide, otherwise, she will be killed and the torture both physical and mental which had become unbearable and she being surrounded by the hostile members of the family of the husband in the matrimonial home could not tolerate such torture and she tried to commit suicide. From the averments aforesaid read with the evidence of AW 3 and AW 1 it becomes an established fact that the appellant-wife had attempted to commit suicide in her matrimonial home by taking sleeping pills on 10.9.1991. The attempt to commit suicide by the appellant-wife definitely amounts to infliction of mental cruelty on her respondent-husband and the learned Court below has also recorded a finding to that effect in the impugned judgment but without considering the subsequent events and its impact thereon. Admittedly, a compromise was arrived at between the parties during the pendency of a criminal case filed by the father of the appellant-wife and it was agreed that both the parties shall withdraw their respective cases and the appellant-wife shall lead conjugal life with her respondent-husband and in pursuance of the said compromise the criminal case filed by the father of the appellant-wife came to an end though the respondent-husband did not withdraw the matrimonial case filed by him but inspite of that the appellant-wife went to Malda where she lived with her respondent-husband leading conjugal life there. AW 3 the respondent-husband has deposed that there was a condition in the compromise that he will keep his appellant-wife with him at Malda for leading conjugal life but he did not take her to Malda though his appellant-wife was willing to go with him there at the time of the compromise. He has further deposed that one Lal Mohan Jha brought his appellant-wife Meena to Malda and she lived for one and half months at Malda with him and again there was a quarrel between them. AW 1, the father of the respondent-husband has deposed that compromise between the parties did take place on 18.6.1996 and in consequence of the compromise the appellant-wife went to Malda to lead conjugal life with her respondent-husband and quarrel again ensured between them and the appellant-wife lived in a hostel. He has also deposed that he was not present at Malda during that period. There is no document on the record brought by the respondent-husband to establish the fact that the appellant-wife after the quarrel has stayed in a hotel. However, it is an established fact that as a result of the compromise the appellant-wife, who was always willing and ready to lead conjugal life with her respondent-husband, went to Malda where she lived for one and half months with her respondent-husband. The terms of the compromise (Ext. B) are very explicit whereby both the parties to this case agreed to lead conjugal life together forgiving each other regarding their acrimonious marital relationship, which had occurred in the past which was unpleasant and equally condemnable in view of the fact that their marital tie is sacrosanct and a sacrament. Now a pertinent question arises as to whether the said subsequent event does amount condonation of the matrimonial offence alleged against the wife regarding committing suicide or riot. It is pertinent to mention here at the very outset that although the grounds of divorce have been liberalized, they nevertheless continue to form an exception to the general principle favouring the continuation of the marital tie and it is in public interest that marriage should not be annulled on lighter grounds and while exercising matrimonial jurisdiction a Court is not merely concerned with the rights of the private parties but it has also to keep in view the matters of public policy as well Section 23 of the said Act has its relevance in this case. For proper appreciation I quote Section 23 of the said Act, which runs thus :—

“23. Decree in proceedings.–(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that–

  (a) xx      xx      xxx
 

(b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
 (bb) xx      xx      xxx 
 

In the case of Dr. N.G. Dastane v. Mrs. S.Dastane, AIR 1975 SC 1534, the Apex Court has thus observed :
  

"Even though condonation is not pleaded as a defence by the respondent it is Court's duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court is satisfied "but not otherwise", that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration."
 

From the evidence referred to above read with Ext. B it becomes crystal clear that the respondent-husband had forgiven his appellant-wife regarding the matrimonial offence of her attempt to commit suicide by taking sleeping pills and thereafter their marital relationship were restored in view of the fact that the appellant-wife went to Malda to lead conjugal life with him where she did actually live with him for one and half months. It also transpires that due to the said compromise and going of the appellant-wife to Malda to the house of her respondent-husband, her marital life was restored to the same position as she occupied before the said cruelty was committed. Therefore, both the ingredients of condonation i.e. forgiveness and restoration is amply proved as per the evidence on the record. In the case of Sm. Santana Banerjee, (supra) on which the reliance has been placed on behalf of the respondent-husband it has been observed that “the law is well settled that cohabitation at time and/or living together in an attempt to repair the fissures in the relationship of husband and wife by themselves may not amount to condonation. To constitute condonation, the offended spouse must accept the offending partner with a spirit of forgiveness and by wiping off the unpleasant memories, start the conjugal life as if on a clean slate. In the instance case, the husband did not accepted the wife with a spirit of forgiveness and started the conjugal life as if on a clean slate by wiping off all unpleasant memories. With an offended soul he made attempts of repair of the marital home but to no effect”. The facts of the case of Sm. Santana Banerjee, (supra) is on different footing. The said suit was filed by the husband of Sm. Santana Banerjee in the year 1979 in view of the strained marital relationship between her and her husband and prior to the filing of the said suit her husband has taken her on a’pleasure trip for few days. But here in this case, during the pendency of the cases between the parties good feelings were restored due to the intervention of the well-wishers and a compromise was arrived at between the parties with a clear stipulation in the compromise petition (Ext. B) that both the parties shall withdraw their respective cases and the appellant-wife will go to the house of the respondent-husband to lead conjugal life and in pursuance thereto the criminal case filed by the father of the appellant has come to an end and it, therefore, appears that cordial relationship between the parties having been restored, the appellant-wife went to the house of the respondent-husband at Malda. Therefore, In the facts of the present case, the said ratio is of no help to the respondent- husband In this case. Here, in this case, the evidence of condonation of he alleged matrimonial offence on the part of his wife is strong and satisfactory and I have no hesitation to come to the finding that the respondent-husband had condoned the matrimonial offence attributed against his appellant-wife regarding her attempt to commit suicide in her matrimonial home and thereafter there had been restoration of their conjugal relationship. The learned Court below did not consider the subsequent events read with Ext. B in this case and has erred in coming to the finding that the appellant-wife has treated her respondent-husband with cruelty causing him mental torture. Therefore, the said finding of the learned Court below cannot be sustained in the facts and circumstances of this case.

13. The respondent-husband has also sought for dissolution of his marriage with his appellant-wife on the ground of desertion by her with effect from 19.9.1991 and she has severed all marital relationship with him from that day. The case of the appellant-wife is that she has remained in her matrimonial home till 8.1.1996 but visiting her parent’s house intermittently and she was taken to her parent’s house by her husband along with his brother and one other person where demand of colour television, freeze and Rs. 50,000/-as dowry was made from her father and when the said demand was not fulfilled she was left there and her husband along with them returned from there. Her case further is that her father went to Kiriburu on several times and requested her husband as well as his family members to keep her in their house but it did yield no result. It is also alleged that she was ever willing and ready to lead conjugal life with her husband. The learned Court below has held that the appellant-wife has deserted her husband on 19.9.1991 and her case is that she resided with her husband till 8.1.1996 has no leg to stand in view of the evidence on the record. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. The essential ingredients of desertion furnishing a ground for relief are the factum of separation, the intention to bring cohabitation permanently to an end (amicus deserendi) and the element of permanence which is a prime condition requires that both the essential ingredients should continue during the entire statutory period. Section 13(ib) of the said Act mandates that marriage may be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition and desertion as per the explanation contained in Section 13 of the said Act means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage. AW 3 the respondent-husband has deposed that his appellant-wife quarrelled with his family members on 19.9.1991 and she left her matrimonial home with all her belongings and went to her parent’s house and thereafter she did not return to her matrimonial home. Ext. 1 is the photocopy of a receipt per pen of the appellant-wife, which shows that she has taken away ornaments with her on 19.9.1991. He has further deposed that on 8,1.1996 he was at Malda which is 800 kilometers away from Bokaro and it is false to say that he has brought his appellant-wife to Bokaro on 8.1.1996 as alleged where he has demanded dowry from her father. He has also deposed that his appellant-wife did not come to her matrimonial home on the eve of the marriage of his younger brother in the year 1993 and the photograph marked ‘X’ is not of the kitchen of his house at Kiriburu and the other woman in that photo with his appellant-wife Is not the wife of his younger brother. He has also deposed that he had gone to Bokaro in the month of September 1991, April 1992 and December 1994 to bring his appellant-wife to his house but she has declined to come to her matrimonial home though he has not averred this fact in his matrimonial petition. AW 1, the father of the respondent has deposed that he gave information to the father of the appellant when she has attempted to commit suicide and her father came to Kiriburu and she went to Bokaro with her father along with all her belongings uttering that she will never return to her matrimonial home. However, this witness is conspicuously silent In his evidence as to whether the appellant has thereafter ever returned to her matrimonial home or not. He has also deposed that the marriage of his son Nand Kumar Jha was performed in the month of May or June 1994 and his wife has come in her matrimonial home in the month of July 1994 at Kiriburu but the photograph marked Ext. B does not contain the photograph of both of his daughter-in-law. He has also deposed that he does not know as to whether the appellant had come to her matrimonial home several times after 19.9.1991. It appears that this witness has deliberately evaded to say specifically as to whether the appellant had come to her matrimonial home after 19.9.1991 or not and he is suppressing the truth of the matter in respect thereof for which an adverse inference has to be drawn. The evidence of AW 2 and AW 4 have no relevancy in this case as AW 2 is a hearsay witness whereas AW 4 has no means of specific knowledge regarding the affairs of the family of the respondent-husband. OW 4, the appellant has deposed that she has lived in her matrimonial home till 8.1.1996. She has further deposed that Ext. B is her photograph with the wife of Nand Kumar Jha, the younger brother of the respondent, which was photographed in her matrimonial home. OW 5, the father of the appellant has deposed that the appellant had lived in her matrimonial home till 8.6.1996 and she was in her matrimonial home on the eve of the marriage of the younger brother of her husband and she also lived In her matrimonial home with the wife of the younger brother of her husband and Ext. B is the photograph of the appellant with the wife of the younger brother of her husband which was photographed in her matrimonial home. OW 2 has deposed that he had been to the house of the respondent-husband along with his friend and he lived there from 19th March to 21st March of 1994 and he returned to Bokaro with her sister, Meena Jha, the appellant OW 1 has deposed to have photographed appellant Meena Jha with the wife of the younger brother of her husband at Kiriburu when he had gone there with OW 2. OW 3 is the mother of OW 1 and she has also deposed that she had also gone there with them and Ext. B is the photograph of appellant Meena Jha with the wife of the younger brother of her husband. Nand Kumar Jha, the younger brother of the respondent-husband and his wife are the most competent witness in this case in respect of the photograph (Ext. B) but they have been deliberately suppressed from taking oath in this case for the respondent and as such an adverse inference has to be drawn against the respondent so far the authenticity of photograph (Ext. B) is concerned Ex. A is the letter written by the father of the respondent to the father of the appellant on 16.5.1993 expressing his inability to attend the marriage of the sister of the appellant to be performed on 23.5.1993 at Bokaro and further Intimating that the respondent will come on 6th June, 1993 after completion of his examination on the 4th June of 1993. The letter further conveys his blessings to the appellant.

It, therefore, appears from the contents of the letter aforesaid that till 16.5.1993 there was definitely cordial relationship between the appellant-wife and her respondent-husband. The letter (Ext. A) does not at all depict a picture, regarding any strained relationship between the appellant and her respondent-husband. Ext E/1 is the letter dated 17.9.1992 written by Bimala, the sister of her respondent-husband addressed to Niranjan Jha, who was the middleman in the marriage of the parties and said Niranjan Jha is the maternal uncle of the respondent. The contents of the letter shows that one L.N. Jha had come with two local persons to the house of the respondent at Kiriburu and they had talked with the father of the respondent and it has transpired that they are expected to come to Kiriburu with the father of the appellant along with L.N. Jha. The, letter further cautions the said Niranjan Jha regarding the attitude and behaviour of the appellant and a request has been made to him to come to Kiriburu only with the father of the appellant and not with L.N. Jha. The relevance of this letter is to the effect regarding the attitude and behaviour of the respondent towards his appellant-wife. Ext. E/2 is the letter dated 11.12.1993 written by the father of the appellant to his appellant-daughter and to the father of the respondent at the address of the father of the respondent at Kiriburu. The letter is very emotional one which gives cue to the appellant for living in her matrimonial home bestowing all respect, love and affection to all the members of her family at Kiriburu. Further a request has been made to the father of the respondent to bestow all love and affections to the appellant treating her as his daughter. It, therefore, appears that on 11.12.1993 the appellant-wife was definitely residing in her matrimonial home at Kiriburu. Ext. E/2 is the letter dated 19.1.1994 by the appellant to his father at his Bokaro address. This letter has been sent from Kiriburu. This letter equally depicts the cruel behaviour and attitude of the respondent-husband towards her appellant-wife I have- already referred some of the relevant matters contained in the said-letter above. It, therefore, appears from Ext. E that the appellant was definitely residing in her matrimonial home on 19.1.1994. There is no material on the record to question the authenticity of the aforesaid letters. The, learned Court below in the impugned judgment has not at all considered the aforesaid letters for the reasons best known to him and thereby he has committed an error and as such his finding regarding desertion is based on non-consideration of the relevant documents which were already on the record. The respondent has filed the said suit on 19.5.1995 alleging that his appellant-wife has deserted him on 19.9.1991. The case of desertion as alleged by the respondent is totally belied in view of the letters i.e. Exts. E, E/1 and E/2 discussed above and it cannot be said that the appellant-wife has deserted him on 19.9.1991 with intention to end cohabitation permanently. Therefore, there is no animus deserendi on the part of the appellant-wife in this case regarding her marital relationship with her respondent-husband. Furthermore, the appellant has specifically deposed that she has been brought to her parent’s house at Bokaro on 8.1.1996 by her husband in the company of his younger brother and one other person where she was left when his demand of dowry was not fulfilled due to the inability of her father. OW 5, the father of the appellant has also deposed that the appellant has lived in her matrimonial home till 8.6.1996. The respondent-husband in his evidence on oath has denied the said fact and has deposed that on 8.8.1996 he was on duty at his place of posting at Malda. In support of his contention, a certificate dated 12.4.1996 (Ext. 2) of the Principal of Kendriya Vidhyalaya, Malda has been brought on the record proved by AW 5 Jai Ram Mandal, a teacher of the said school who has also brought the Attendance Register of the said school which is Ext.3 in this case. He has deposed that the respondent was present on his duty in the said school on 8.1.1996 and there is signature of the respondent in the said Register showing his presence on 8.1.1996. In para 2 of his cross-examination he has deposed that he has joined Kendriya Vidhyalaya, Malda in the month of June 1996. He has also deposed that there were two teachers bearing the name as B.K. Jha. He has further deposed that he does not know as to when both the persons having the name of B.K. Jha have joined the said school and the signature contained in the Attendance Register has not been made in his presence. He has also deposed that the name of only one B.K. Jha appears in the daily Attendance Register of the said school in the month of January 1996. It, therefore, appears from the perusal of the Attendance Register (Ext. 3) read with the evidence of AW 5 that it is uncertain as to which of the two B.K. Jha was present in the school in the month of January having put his signature in the Attendance Register. In view of the evidence of AW 5 read with Ext. 3 it cannot be conclusively held that the respondent was on duty in Kendriya Vidhyalaya, Malda on 8.1.1996 and as such Ext. 2 lacks credence. I, therefore, see no reason to disbelieve the evidence of the appellant that she has been brought to her parent’s house on 8.1.1996 by her respondent-husband in the company of his younger brother Nand Kumar Jha and one other person where she was left. The learned Court below did not consider the evidence in proper perspective and has erroneously held that the appellant has deserted her respondent-husband on 19.9.1991. Furthermore, after compromise the appellant had gone to Malda where she has led her conjugal life with the respondent for one and half months as deposed by him and as such the matrimonial offence, if any, stands condoned in respect of which I have already dilated above in detail. In view of the oral and documentary evidence on the record it is crystal clear that the appellant has not deserted her respondent-husband on 19.9.1991 and as such the ground of desertion for dissolution of the marriage of the respondent with is appellant-wife falls flat.

14. The appellant-wife is still willing and ready to lead conjugal life with her respondent-husband and she has expressed her desire in respect thereof in course of reconciliation made before this Court but the approach of the respondent-husband was obstinate and stubborn not providing any opportunity to the appellant-wife in respect thereof and the conduct of his father was equally unbecoming in respect thereof due to infatuation for his son. It, therefore, appears that the marriage in this case has not become emotionally and practically dead and it can be retrieved if good sense prevails upon the respondent and his father. Therefore, in the facts and circumstances of this case read with the evidence on the record, the respondent has not established both the grounds i.e. cruelty and desertion for dissolution of his marriage with his appellant-wife. The learned Court below did not scan and scrutinize the evidence of properly and has erred in decreeing the suit dissolving their marriage and viewed thus, impugned judgment is unsustainable.

15. There is merit in this appeal and it succeeds. The impugned judgment is hereby set aside and the suit filed by the respondent is dismissed. The appeal is hereby allowed with cost.

16. The respondent is directed to bring hia appellant-wife to his house at place of his posting for leading conjugal life with her within two months from the date of this order, failing which in view of his home-carry salary of Rs. 6500/- per month as stated by his counsel, the respondent shall pay Rs. 2000/- per month as maintenance to his appellant-wife on every 24th clay of the following English calendar month by bank draft.