IN THE HIGH COURT OF TRIPURA

A G A R T A L A

FA No.03 of 2015

Sri Sajal Das,

son of Sri Sachindra Das, resident of

Chaigharia, Maharani, Udaipur, P.S.

Radhakishorepur, District- Gomati, Tripura

………… Appellant

– V e r s u s –

Smt. Champa Das,

wife of Sri Sajal Das, daughter of Sri Nepal

Chandra Das, resident of Dhajanagar, Udaipur,

P.O. & P.S. Radhakishorepur, District- Gomati,

Tripura

………… Respondent

For the Appellant (s) : Mr. D.K. Das Choudhury, Adv.

For the Respondent (s) : Mr. R. Datta, Adv.

Date of hearing : 20.02.2020

Date of delivery of : 29.05.2020

Judgment & order *

1

Whether fit for reporting :

HON’BLE MR. JUSTICE S. TALAPATRA

HON’BLE MR. JUSTICE ARINDAM LODH

JUDGMENT & ORDER

[Talapatra, J]

This is an appeal under Section 19(1) of the Family

Courts Act, 1984 from the judgment dated 28.02.2015 delivered

in T.S.(Div) 37 of 2014 by the Judge, Family Court, Udaipur,

Gomati Judicial District.

*

The pronouncement of the judgment

was deferred for lockdown of the court.

YES NO

√

Page 2 of 14

[2] By the said judgment, the Judge, Fam ily Court

dismissed the suit for divorce as brought by the appellant on the

ground of cruelty and desertion having observed that the

appellant has failed to prove that the respondent treated him

with cruelty after marriage. It has been further observed in the

said judgment that by violating the terms and conditions of

promise that was entered between the parties, the appellant

refused to reunite with the respondent and to restitute their

conjugal life. Thus, the ground for desertion has fallen through.

The said judgment has been challenged in the present appeal.

For purpose of appreciating the grounds as adverted in the

memorandum of appeal it is apposite to introduce the relevant

facts material for the purpose.

The appellant has complained that after the ir

marriage on 10.03.2010 they led their matrimonial life for some

weeks. However, in the wedlock, one female child was born. On

the day of presenting the suit, the said girl child, namely

Samudrita Das was aged about 2 years 8 months. The

allegations are broadly that the respondent is obdurate and not

prone to adjustment. The appellant has been treated with serious

Page 3 of 14

mental and physical cruelty. The respondent did not allow the

appellant to take rest or to take proper sleep by using abusive

slang languages. The respondent had provoked him to commit

suicide or else, she would file a case for commission of offence

punishable under Section 498-A of the IPC. The respondent was,

according to the appellant, reluctant to discharge her duties in

the matrimonial home. Often times she used to misbehave with

the appellant. Since she was pressing him for separating the

mess, the appellant shifted their residence to a rented house on

06.05.2011. Even the respondent filed a written complaint to the

Chief Judicial Magistrate, Udaipur, South Tripura, as he then was,

on 31.03.2012. The said complaint dated 31.03.2012 was sent to

the Officer-in-Charge, R.K. Pur Police Station. Based on the said

complaint, RK Pur P.S. case No.130 of 2012 under Sections 498-

A and 201 of the IPC was registered against the appellant and

other inmates. The said case being PRC 202 of 2012 under

Section 498-A of the IPC was disposed of by the judgment dated

03.01.2013 on acquitting the appellant and others. Thereafter,

the respondent refused to restitute the conjugal life with the

appellant. Thus, the marital tie has been perceived to have

irretrievably broken. Apart from the said criminal proceeding

Page 4 of 14

being PRC 202 of 2012, the respondent had institute d a

proceeding under Section 125 of the Cr.P.C. for her maintenance

being Criminal Misc. FC/UDP/69/2012 before the Judge, Family

Court, Udaipur, Tripura. The Judge, Family Court ordered the

maintenance @Rs.4000/ - per month for the respondent. Against

the order of mainten ance dated 18.02.2013, t he appellant

preferred a revision petition in the court of the Sessions. Hearing

of the said revision was taken up by the Additional Sessions

Judge. The Additional Sessions Judge had ordered in the said

criminal revision petition No.24 of 2013 as follows:

“The petitioner [the appellant] is to pay total Rs.7000/ -

per month as maintenance. ”

The respondent has also filed a petition under

Section 12 read with Section 18 of the Protection of Women from

Domestic Violence Act, 2005. However, the said proceeding was

disposed of on compromise arrived at between the parties on

13.11.2013, but the respondent did not go by the terms of the

settlement nor restituted the conjugal life. There is no

controversy that from 06.05.2011 the parties are living

separately.

Page 5 of 14

[3] By filing the written statement, the respondent had

contested the pleadings of the appellant and stated that the

appellant was found guilty of the offence punishable under

Section 498-A of the IPC but having an eye to the matrimonial

relation between the appellant and the respondent, the case was

ended on a compromise after administering serious admonition

to the appellant. Thereafter, it has been contended that since the

appellant neglected to maintain the respondent and their child,

the respondent was persuaded to file a petition for maintenance.

[4] Mr. Das Choudhury, learned counsel appearing for the

appellant has submitted that the marriage has been irretrievably

broken for the deviant conduct of the respondent. But the Judge,

Family Court without proper appreciation of the evidence has

observed that the evidence of the petitioner [the appellant

herein] cannot be believed but the evidence of the respondent -

wife can be relied. It has been further observed that it was the

appellant who continuously acted with cruelty, both physical and

mental with the wife-respondent, even in the rented house. It

was he who had deserted the wife-respondent without any

cogent and justifiable reason. In the light of all facts, the Family

Page 6 of 14

Court was of the view that the respondent-wife had never

treated the petitioner-husband, the appellant herein, with cruelty

after 5 months of their marriage.

[5] Mr. Das Choudhury, learned counsel has contended

that the evidence as led by the appellant stood, on the contrary,

to show that for the deviant conduct of the respondent , the

appellant had suffered torture both mental and physical. Mr. Das

Choudhury, learned counsel in support of his contention has

referred a decision of the apex court in Shyam Sunder Kohli

vs. Sushma Kohli @ Satya Devi, reported in (2004) 7 SCC

747 where the apex court has observed as under:

“11. ………it was submitted that the marriage has

irretrievably broken down. It was submitted that on this

ground the divorce may be granted by this Court. In

support of this submission, reliance was placed on the

authority of this Court in L. V. Jadhav Vs. Shankarrao

Abasaheb Pawar : (1983) 4 SCC 231.

12. On the ground of irretrievable break down of marriage,

the Court must not lightly dissolve a marriage. It is only in

extreme circumstances that the Court may use this ground

for dissolving a marriage. In this case, the Respondent, at

all stages and even before us, has been ready to go back to

the Appellant. It is the Appellant who has refused to take

the Respondent ba ck. The Appellant has made baseless

allegations against the Respondent. He even went to the

extent of filing a complaint of bigamy, under Section

494, IPC, against the Respondent. That complaint came to

be dismissed. As stated above, the evidence shows that the

Respondent was forced to leave the matrimonial home . It

is the Appellant who has been at fault. It can hardly lie in

the mouth of a party who h as been at fault and who has

not allowed the marriage to work to claim that the

marriage should be dissolved on the ground of irretrievable

break down. We, thus, see no substance in this

contention.”

[Emphasis added]

Page 7 of 14

[6] Mr. Das Choudhury, learned counse l having

substantive reliance on the said decision, has contended that the

marital tie has been irretrievably broken down. It does not have

any future and hence, the appellant be granted divorce. The

parties will bear the pain of a dead relation lift long. In the

backdrop, it has been urged that this court on revisiting the

evidence would find that the evidentiary elements of cruelty and

irretrievable breaking down of marriage are in abundan ce.

However, before closing the submissions, Mr. Das Choudhury,

learned counsel has placed his reliance on Gurbux Singh vs.

Harminder Kaur, reported in (2010) 14 SCC 301 where the

apex court has observed that a particular conduct may amount

to cruelty in one case but the same conduct necessarily may not

amount to cruelty due to change of various factors, in the

different set of circumstances. Therefore, it is essential for the

appellant, who claims relief, to prove that a particular/part of the

conduct or behavior resulted in cruelty to him. No prior

assumptions can be made in such matters, meaning hereby that

it cannot be assumed that a particular conduct will, under all

circumstances, amount to cruelty, vis-à-vis the other party.

Page 8 of 14

[7] In Gurbux Singh (supra), the apex court, having

substantively referred to Samar Ghosh vs. Jaya Ghosh,

reported in (2007) 4 SCC 511 has culled out the guidelines. In

Samar Ghosh (supra), reported in (2007) 4 SCC 511 it has

been held that:

"98. On proper analysis and scrutiny of the judgments of

this Court and other courts, we have come to th e definite

conclusion that there cannot be any comprehensive

definition of the concept of "mental cruelty" within which

all kinds of cases of mental cruelty can be covered. No

court in our considered view should even attempt to give a

comprehensive definit ion of mental cruelty.

99. Human mind is extremely complex and human

behaviour is equally complicated. Similarly human

ingenuity has no bound, therefore, to assimilate the entire

human behaviour in one definition is almost impossible.

What is cruelty in one case may not amount to cruelty in

other case. The concept of cruelty differs from person to

person depending upon his upbringing, level of sensitivity,

educational, family and cultural background, financial

position, social status, customs, traditions, religious

beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot

remain static; it is bound to change with the passage of

time, impact of modern culture through print and

electronic media and value system, etc. etc. What may be

mental cruelty now may not remain a mental cruelty after

a passage of time or vice versa. There can never be any

straitjacket formula or fixed parameters for determining

mental cruelty in matrimonial matters. The prudent and

appropriate way to adjudicate the case would be to

evaluate it on its peculiar facts and circumstances while

taking aforementioned factors in consideration .

101. No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

dealing with the cases of "mental cruelty". The instances

indicated in the succeeding paragraphs are only illustrative

and not exhaustive:

(i) On consideration of complete matrimonial life of

the parties, acute mental pain, agony and suffering

as would not make possible for the parties to live

with each other could come within the broad

parameters of mental cruelty.

Page 9 of 14

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it become s abundantly

clear that situation is such that the wronged party

cannot reasonably be asked to put up with such

conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount

to cruelty, frequent rudeness of language , petulance

of manner, indifference and neglect may reach such a

degree that it makes the married life for the other

spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of

deep anguish, disappointment, frustration in one

spouse caused by the conduct of other for a long time

may lead to mental cruelty.

(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or

render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of

one spouse actually affecting physical and mental

health of the other spouse. The treatment complained

of and the resultant danger or apprehension must be

very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied

neglect, indifference or total departure from the

normal standard of conjugal kindness causing injury

to mental health or deriving sadistic pleasure can

also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiv eness, which causes

unhappiness and dissatisfaction and emotional upset

may not be a ground for grant of divorce on the

ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and

tear of the married life which happens in day -to-day

life would not be adequate for grant of divorce on the

ground of mental cruelty.

(x) The married life should be reviewed as a whole

and a few isolated instances over a period of years

will not amount to cruelty. The ill conduct must be

persistent for a fairly lengthy period, where the

relationship has deteriorated to an extent that

because of the acts and behaviour of a spouse, the

wronged party finds it extremely difficult to live with

the other party any longer, may amount to mental

cruelty.

(xi) If a husband submits himself for an operation of

sterilisation without medical reasons and without the

consent or knowledge of his wife and similarly, if the

wife undergoes vasectomy or abortion without

medical reason or without the consent or knowledge

Page 10 of 14

of her husband, such an act of the spouse may lead to

mental cruelty.

(xii) Unilateral decision of refusal to have intercourse

for considerable period without there being any

physical incapacity or valid reason may amount to

mental cruelty.

(xiii) Unilateral decision of either husband or wife

after marriage not to have child from the marriage

may amount to cruelty.

(xiv) Where there has been a long period of

continuous separation, it may fairly be concluded that

the matrimonial bond is beyond repair. The marria ge

becomes a fiction though supported by a legal tie. By

refusing to sever that tie, the law in such cases, does

not serve the sanctity of marriage; on the contrary, it

shows scant regard for the feelings and emotions of

the parties. In such like situation s, it may lead to

mental cruelty."

[Emphasis added]

[8] These illustrations are not exhaustive but

representative in nature, but it appears that the respondent had

instituted a criminal case on allegation of cruelty which was later

on disposed over settlement. Mr. Das Choudhury, learned

counsel has further referred to Gurbux Singh (supra) to draw

attention of this court to the observation as extracted hereunder:

“No doubt, in that decision, this Court has held that

allegations made in the written stateme nt or suggested in

the course of examination and by way of cross -

examination satisfying the requirement of law has also to

be taken note of while considering the claim of either

party. In the case on hand, it is true that the respondent -

wife has made certa in allegations against her husband -

appellant. However, admittedly based on the same, the

trial Court has not framed any issue and no evidence let in

in support of the same. In such circumstances, the said

decision is not helpful to our case. Admittedly, no such

issue was framed by the trial Court or any point

determined by the High Court based on such averments in

the reply/written statement. Accordingly, we reject the

said contention.”

Page 11 of 14

[9] Mr. Das Choudhury, learned counsel has closed the

submission by stating that it is on record that despite the

initiative taken by the appellant, the respondent did not come

forward to restitute the conjugal life. Even the allegation of filing

the complaint has not been disputed by her. Mr. Das Choudhury,

learned counsel has made a robust attempt to persuade this

court by referring the evidence. According to him, the appellant

has proved the allegation of cruelty and desertion. Therefore, the

denial of decree of divorce is wholly unwarranted.

[10] In the reply, Mr. R. Datta, learned counsel appearing

for the respondent has submitted that there is no infirmity in the

judgment under challenge inasmuch as it would be apparent that

the proceeding as launched by the respondent in respect of the

domestic violence being CR No.14 of 2012 [DV] has ended on

compromise on promise that the matrimonial relation would be

restored. Even in the judgment dated 03.01.2013 delivered in

PRC No.202 of 2012 whereby the appellant was acquitted from

the charge under Section 498-A of the IPC on the observation

inter-alia that even the offence is not compoundable offence,

keeping in mind the welfare of the concerned parties i.e. the

Page 12 of 14

husband and wife, it has been noticed that the evidence of PWs-

3,4,5,6 & 7 as led by the prosecution corroborates each other.

According to the trial court, ‘the evidence warrants conviction of

the accused persons namely, Sajal Das and Smt. Santabala Das.

However, in the matrimonial interest of such woman namely,

Smt. Champa Das who is the complainant of the present cas e, is

restored, I am not going to deal with the conviction and sentence

of the accused person though the aforesaid point is decided in

affirmative and against the accused persons at this stage and

keeping the discussion over the conviction and sentence at this

stage withheld to take up the matter again in future in case any

complaint is received for and on behalf of the complainant

against her husband towards any sort of disturbance and or

nuisance by the husband of the complainant towards breaking of

the matrimonial interest of the complainant.’

[11] Finally, it has been observed by the trial court by the

judgment dated 03.01.2013 delivered in PRC No.202 of 2012 as

follows:

“In the light of above, accused Sajal Das and Smt. Santa

Bala Das are given serou s admonition to keep peace and

tranquility in the family and to keep peaceful atmosphere

in the life with the complaint/victim and thereby they are

acquitted with the aforesaid observation at this stage from

Page 13 of 14

the liability of the charge under Section 498 -A IPC in the

instant case.

In case in future, any complaint is received from the

complainant/victim towards causing nuisance to break the

peaceful matrimonial interest of the complainant, this

Court may take the case again for further consideration in

accordance to the evidence recorded without taking any

consideration of the additional evidence of the

complainant/victim and the case is adjudicated

accordingly.”

[12] Mr. Datta, learned counsel has submitted that all the

allegations brought against the appellant have been accepted by

the court. Even though the trial court has abruptly held that the

appellant is not found guilty. The said judgment and order dated

03.01.2013 is an outcome of a promise or assurance by the

parties to live peaceful conjugal life, but the appellant and his

mother were admonished for their conduct being detriment to

the matrimonial life of the respondent.

[13] Having appreciated the submissions made by the

learned counsel for the parties, the pertinent question that falls

for consideration is that whether the appellant has made out a

case to grant a divorce on the ground of cruelty and desertion.

In Gurbux Singh (supra) it has been stated that sustained

reprehensible conduct, studied neglect, indifference or total

departure from the normal standard of conjugal kindness and

causing injury to mental health or deriving sadistic pleasure can

Page 14 of 14

amount to mental cruelty but mere trivial irritations, quarrels,

normal wear and tear of the married life which happen , day-to-

day, will not include within such reprehensible conduct. Even

unhappiness, dissatisfaction and emotional upset may not be a

ground for grant of divorce.

True it is that this court does not find any possibility

of restitution or revival of the conjugal life of the parties, but

having regard to the judicial observation as relied by the

respondent, we are unable to grant divorce. However, the parties

will be at liberty, notwithstanding what has been observed in this

judgment, to approach the court of the competent jurisdiction to

have their marriage dissolved by mutual consent.

In the result, this appeal stands dismissed.

Send down the LCRs forthwith.

Draw the decree accordingly.

JUDGE JUDGE

Sujay