Bibekananda Mukhopadhyay vs Supriya Chatterjee

3. Appellant-Bibekananda Mukhopadhyay is the husband of respondent-Sprayer Chatterjee. They were married on 25th June, 1986. The marriage was performed according to the provisions of the "Special Marriage Act, 1954 ('the Act' for short). At the time of marriage the respondent was staying with her friend. In December, 1987 the parties jointly filed an application for divorce by mutual consent under Section 28 of the Act. For some reason the matter was not pursued further and the petition was dismissed for non-prosecution, vide the order of the family court dated 12.1.1989. Thereafter, on 4th December, 1990 the appellant executed two documents in favour of the respondent; one evidencing an agreement for sale of the house property in the city of Calcutta and the other a power of attorney in her favour. Thereafter on 11th December, 1990, the appellant left for Italy where he was offered a job on contract basis. The parties were in correspondence with each other during the absence of the appellant from India. The appellant was due to return to India in December, 1992. Before his return the respondent had lodged a report with the Park police station, Calcutta in October, 1992 alleging that her husband was missing in Italy and his whereabouts were not known to her. This was followed by a lawyer's notice issued on her behalf to the appellant on 18th November, 1992 requiring him to furnish to her his official address and whereabouts forthwith and threatening civil and criminal action in case of default. The appellant returned to India in December, 1992. Thereafter, the suit for divorce was filed by him under Section 27(1)(d) of the Act alleging mental cruelty on the part of the respondent since marriage.

4. The respondent refuted the allegations of mental cruelty made by the appellant and pleaded a case of cruelty and harassment on the part of the husband towards her. She also alleged that the appellant had utilized her services as a chartered accountant during his absence from the country. Both sides led evidence in support of their respective cases.

5. The trial court on consideration of the evidence on record accepted the case of the appellant and granted a decree of divorce on the ground of mental cruelty. On appeal by the respondent the division bench of the High Court disagreeing with the finding of mental cruelty recorded by the trial court, set aside the judgement and dismissed the suit. The said judgment is under challenge in the present appeal.

6. On analysis of the case of the parties and the contentions raised by learned counsel appearing on their behalf the question that falls for determination in the case is whether on the facts and circumstances pleaded by the appellant a case of mental cruelty for the purpose of divorce under Section 27(1)(d) can be said to have been made out. The substance of the allegations on which the case of cruelty was pleaded are as follows:

(a) Shortly after the marriage the wife consented for filing a petition for mutual divorce;

(b) A week before departure of the husband for Italy he was made to execute an agreement for sale of his house and a power of attorney in favour of the wife;

(c) Being well aware that he was due to return from Italy in December, 1992 the wife lodged a missing report with the police.

(d) In November, 1992 shortly before return of the husband from Italy the wife got a lawyer's notice issued to him threatening civil and criminal action under law.

7. It is the contention of learned counsel appearing for the appellant that cumulative effect of these facts is that the wife has been acting in a cruel and unreasonable manner towards the husband which has caused mental agony and harassment to him.

8. From the discussions in the impugned judgment it appears that the High Court has considered each of the aforementioned factual aspects and has negatived the contention raised on behalf of the husband that conduct of the wife amounts to cruelty and cruelty of a degree is sufficient for granting a decree of divorce on that count. The High Court has given cogent reasons why the circumstances alleged can be explained in a manner conducive to a state of reasonable apprehension and anxiety on the part of the wife which is natural during the absence of her husband.

9. On consideration of the matter we are of the view that the aforementioned circumstances individually cannot be accepted as incidents of cruelty on the part of the wife towards her husband, particularly, in the context of the relationship of the parties since the marriage. Cumulatively also the allegations do not make out a case of mental cruelty under Section 27(1)(d) of the Act. Therefore, the impugned judgment of the High Court is unassailable. Accordingly, the appeal is dismissed, but in the circumstances of the case without any order for any order for cost.