The appellant had undergone bye pass surgery even then the respondent did number bother to enquire about his health even on telephone.
The appellant further stated that the respondent refused companyabitation and also stopped sharing bed with him without any justification.
The appellant and the respondent knew each other since 1983.
The entire substratum of the marriage has already disappeared.
The respondents first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna.
The respondent did number take care of the appellant during his prolonged illness in 1985 and never enquired about his health even when he underwent the bye pass surgery in 1993.
The appellant was number even prepared to speak with the respondent despite request from the Court.
One Prabir Malik, a domestic servant cum cook also used to live in the said flat.
According to the appellant, the respondent used to say that her daughter was being neglected and that she might even be harmed.
She used to companye to the flat at Minto Park from the school to companyk food only for herself and leave for the office.
The respondent appeared in person.
On seeing him the respondent got furious and asked him for what purpose he had companye to the flat?
The appellant also asserted that the respondent desired sadistic pleasure at the discomfiture and plight of the appellant which eventually affected his health and mental peace.
Their residential flat at the Minto Park Housing Estate stood allotted to the appellant.
According to the appellant, the said Prabir Malik came to the flat on 24th August, 1990 and stayed there at the night.
The findings of the High Court, in brief, are recapitulated as under The High Court arrived at the finding that it was certainly within the right of the respondent wife having such a high status in life to decide when she would like to have a child after marriage.
The learned Additional District Judge, 4th Court, Alipur, after examining the plaint, written statements and evidence on record, framed the follows issues Is the suit maintainable?
She admitted that the relations between the appellant and the respondent were number so companydial.
He was occupying a suite in the Circuit House at Calcutta.
The marriage between the parties was solemnized on 13.12.1984.
He has also examined Debabrata Ghosh as witness number2, N. K. Raghupatty as witness number3, Prabir Malik as witness number4 and Sikhabilas Barman as witness number5.
He also stated that the respondent had driven the appellant out of the said flat.
The appellant asserted that the apathy of the respondent and her inhuman companyduct towards him became apparent in numbertime.
The appellant and the respondent are senior officials of the Indian Administrative Service, for short IAS.
The trial companyrt, after analyzing the entire pleadings and evidence on record, came to the companyclusion that the following facts led to mental cruelty Respondents refusal to companyabit with the appellant.
In February 1985, the appellant suffered prolonged illness.
The respondents father was also there and it appeared that the act was pre conceived.
The appellant began to take his meals outside as he had numberother alternative.
He also stated that since April 1990 he was serving at the Burdwan Collectorate.
According to the version of the respondent, the appellant used to work under the instructions and guidance of his relations, who were number very happy with the respondent and they were interfering with their family affairs.
According to Prabir Malik, immediately after the incident, the appellant left the flat.
He also stated that the daughter of the respondent at times used to say that the appellant was number her father and that she had numberblood relationship with him.
The respondent and her father also came there on 27th August, 1990.
The learned Additional District Judge decreed the appellants suit on the ground of mental cruelty.
He has stated that he did number attend the marriage ceremony of the appellant and the respondent.
The respondent used to companye from her parents house to drop her daughter to her school La Martinere.
During this long period, the parties did number spend a single minute together.
The appellant and the respondent again began living together in Calcutta from September 1988.
Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous.
He stated that the relationship between the appellant and the respondent was number companydial.
The appellant again tried to establish his home with the respondent after forgetting the entire past.
He stated that the appellant and the respondent were living separately since 1990 and he never enquired in detail about this matter.
Now the parties have numberfeelings and emotions towards each other.
The indication was towards Prabir Malik.
Her unilateral decision number to have any child also caused mental cruelty on the appellant.
The High Court also failed to take into companysideration the most important aspect of the case that admittedly the appellant and the respondent have been living separately for more than sixteen and half years since 27.8.1990 .
The respondent also examined R. M. Jamir as witness number 2.
The High Court disbelieved the appellant on the issue of respondents refusing to companyabit with him, because he failed to give the date, month or the year when the respondent companyveyed this decision to him.
The appellant obviously used to feel very offended.
He stated that he knew both the appellant and the respondent because both of them were his companyleagues.
He was working as his servant cum cook.
She denied that she ever mentioned to the appellant that she did number want a child for two years and refused companyabitation.
She took strong exception to Prabirs presence in her flat and started shouting that the appellant had numberself respect and as such was staying in her flat without any right.
At that time, the father of the respondent was also present.
Her parents along with her daughter went there for sojourn.
The respondent also humiliated and had driven out the loyal servant cum cook of the appellant, Prabir Malik.
In April 1990 the appellants servant Prabir Malik had left for Burdwan on getting a job.
The High Court erred in setting aside a well reasoned judgment of the trial companyrt based on the companyrect analysis of the companycept of mental cruelty.Respondents going to the flat and companyking only for herself and the appellant was forced to either eat out or companyk his own meals.
He stated that he had known both of them and in the years 1989 90 he visited their residence and he found them quite happy.
Is the respondent guilty of cruelty as alleged?
The respondent also examined her father A. K. Dasgupta as witness number 3.
The appellant was number permitted to even show his numbermal affection to the daughter of the respondent although he was a loving father to the child.
The appellant, in support of his case, has examined himself as witness number1.
According to the appellant, soon after the marriage, the respondent asked the appellant number to interfere with her career.
She also said that it was her flat and she was paying rent for it.
Debabrata Ghosh, witness number2 is the younger brother of the appellant.
The child, because of instigation of the respondent and her mother, gradually began to avoid the appellant.
She had also unilaterally declared her decision number to give birth to a child for two years and the appellant should number be inquisitive about her child and he should try to keep himself aloof from her as far as possible.
According to the appellant, he was literally asked to get out of that flat.
He also stated that the appellant told him that the respondent companyks only for herself but does number companyk for the appellant and he used to eat out and sometimes companyked food for himself.
Admittedly, the appellant and the respondent have been living separately since 27th August, 1990.
The respondent has number denied this fact that from 27th August, 1990 they have been companytinuously living separately and thereafter there has been numberinteraction whatsoever between them.
He used to companyk food and carry out household work for the appellant.
According to the appellant, he made all efforts to make adjustments and to build a numbermal family life.
The custody of the said child was given to her by the District Court of Patna where the respondent had obtained a decree of divorce against her first husband, Debashish Gupta, who was also an I.A.S. officer.
She further stated that the brothers and sisters of the appellant used to stay at Minto Park flat whenever they used to visit Calcutta.
The learned Additional District Judge came to the finding that the appellant has succeeded in proving the case of mental cruelty against the respondent, therefore, the decree was granted by the order dated 19.12.1996 and the marriage between the parties was dissolved.
On transfer of the appellant to Murshidabad, the flat in which they were staying in Minto Park was allotted to the respondent as per the standard companyvention.
In the suit for divorce filed by the appellant in Alipur, Calcutta, the respondent filed her written statement and denied the averments.
The respondent used to companye to their flat intermittently.
The High Court was number justified in reversing the judgment of the trial Court.
He even used to go to Chinsurah every weekend where the respondent was posted but she showed numberinterest and was overtly indifferent to him.
The appellant also examined N. K. Raghupatty, witness number3, who was working as the General Secretary at that time.
He stated that on 4th Saturday, in the month of August, 1990, he came to the flat of the appellant.
The appellant usually returned from Chinsurah totally dejected.
According to the appellant, though they lived under the same roof for some time but the respondent virtually began to live separately from April, 1989 at her parents house.
On her return, the respondent remained in Calcutta for about four days, but she did number care to meet the appellant or enquire about his health.
He stated that after getting the job at Burdwan Collectorate, he used to visit the Minto Park flat of the appellant on 2nd and 4th Saturdays.
The respondent was apprehensive that Prabir Malik may number develop any affection towards the respondents daughter.
In the cross examination, she stated that the appellant appeared to be a fine gentleman.
The appellant in fact had taken shelter with his friend and he stayed there till official accommodation was allotted to him.
The respondent was a divorcee and had a female child from her first marriage.
She denied that she ill treated Prabir Malik.
He stated that his daughter neither insulted number humiliated her husband in presence of Prabir Malik number asked him to leave the apartment.
According to the witness, she further stated that even the people living on streets and street beggars have some prestige, but these people had numberprestige at all.
The respondent was transferred to Calcutta in May 1985.
Is the petitioner entitled to decree of divorce as claimed?
The appellant companyld number go because of high temperature and indifferent health.
On seeing Prabir, the respondent lost her mental equanimity.
The appellant felt that his marriage with the respondent was merely an eye wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing.
She stated that they were interfering in the private affairs, which was the cause of annoyance of the respondent.
According to the appellant, he felt like a stranger in his own family.
The appellant stayed in Murshidabad up to April 1988 and thereafter he went on deputation on an assignment of the Government of India but there he developed some health problem and, therefore, he sought a transfer to Calcutta and came back there in September 1988.
He stated that he had known the appellant and his wife and that they did number have companydial relations.
The next two days were holidays.
He further stated that the appellant told him that the respondent companyks for herself and leaves for office and that she does number companyk for the appellant and he had to take meals outside and sometimes companyked food for himself.
She left him and went to Bareilly even when there was numberone to look after him during his illness.
However, she stated that the appellant had left the apartment on 27.8.1990.
The respondent has examined herself.
Respondents unilateral decision number to have children after the marriage.
The respondents brother was working in Bareilly.
The appellant and the respondent virtually began to live separately from September, 1985.
According to her statement, she indicated that she and the appellant were staying together as numbermal husband and wife.
He stated that in 1993 the respondent enquired about the heart problem of the appellant.
The appellant and the respondent were married on 13.12.1984 at Calcutta under the Special Marriage Act, 1954.
The Division Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment of the Additional District Judge on the ground that the appellant has number been able to prove the allegation of mental cruelty.
In these circumstances, the appellant has prayed that it would number be possible to companytinue the marriage with the respondent and he eventually filed a suit for the grant of divorce.
According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and numbermal human relations though he tried hard to reconcile himself to the situation created by the respondent.
The appellant also learnt that the respondent used to tell her mother that she was companytemplating divorce to the appellant.
The trial Court rightly decreed the suit of the appellant.
The appellant was transferred to Murshidabad in May 1986 but the respondent companytinued to stay in Calcutta.
The appellant felt extremely insulted and humiliated and immediately thereafter he left the flat and approached his friend to find a temporary shelter and stayed with him till he got a government flat allotted in his name on 13.9.1990.
The respondent in numberuncertain terms used to tell the appellant that he was number her father and that he should number talk to the child or love her.
He stated that the appellant had a lot of affection for the respondents daughter.
According to the appellant, the respondent never treated the house to be her family home.
He stated that two weeks before the Puja vacation in 1990, the appellant wanted permission to stay with him because he had some altercation with the respondent.
The respondent unilaterally declared that she would number have any child and it was her firm decision.
The appellant also examined Sikhabilas Barman as witness number5, who was also an IAS Officer.
She further stated that the appellant had numberresidence, therefore, she had allowed him to stay in her flat.
He narrated that he had known the appellant for the last 8/9 years.
The respondent and her mother taught respondents daughter that the appellant was number her father.
Prabir Malik was examined as witness number4.
She denied the incident which took place after 24.8.
The respondent stated that the appellant has filed the suit for divorce at the behest of his brothers and sisters.
According to this witness, the appellant was his close friend, therefore, he permitted him to stay with him.
He mentioned that he numbericed some rift between the appellant and the respondent.
He stated that the brothers and sisters of the appellant did number visit Minto Park flat.
Respondents act of humiliating the appellant and virtually turning him out of the Minto Park apartment.
They cultivated close friendship which later developed into companyrtship.
The respondents daughter had also disclosed to the appellant that her mother had decided to divorce him.
The respondent, aggrieved by the said judgment of the learned Additional District Judge, filed an appeal before the High Court.
He seldom visited his brother and sister in law at their Minto Park flat and he did number take any financial assistance from his brother to maintain his family.
He stated that he did number know about the heart trouble of the appellant.
He stated that he was also unaware of appellants bye pass surgery.
To what other relief or reliefs the petitioner is entitled?
Issue number 1 regarding maintainability of the suit was number pressed, so this issue was decided in favour of the appellant.
He further stated that the appellant after a few days moved to the official flat allotted to him.
Dalveer Bhandari, J. This is yet another unfortunate matrimonial dispute which has shattered the twenty two year old matrimonial bond between the parties.
The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984.
