Calcutta High Court: In an appeal against the divorce and custody proceedings, a division bench comprising of Siddhartha Roy Chowdhury* and Soumen Sen, JJ., held the husband’s behavior, such as withdrawing from the company of his wife, living separately in the same house, and subjecting her to physical and mental abuse, amounted to cruelty and therefore, case of divorce is proved. Regarding custody of the child, the Court held that the husband is not a fit person to have custody due to his non-payment of maintenance and lack of cooperation.
Factual Matrix
In the instant matter, the respondent-wife filed a petition under Section 13 of the Hindu Marriage Act, 1955, before the Additional District Judge at Sealdah. Both the parties married on 18-02-2005 following Hindu rituals and various articles and gifts were exchanged during the marriage, including gold ornaments worth Rs. 5,00,000/-.
After the wedding, the wife discovered that appellant-husband had acute asthma, which was not disclosed during negotiations. The couple moved to Bangalore, where wife got a job at Manipal Hospital. The husband insisted on her salary being deposited in a joint account, and she was forced to quit her job.
The wife faced physical abuse from husband and was not allowed to participate in her employer’s training program. The husband’s mother did not support the wife, and she was pressured to leave the marriage. The wife was even asked to fetch money from her father to buy a flat in Bangalore, leading to a confrontation.
In January 2006, the wife found a lump in her breast, but the husband did not support her through. When the wife became pregnant, and the child was diagnosed with a cleft lip requiring surgery, the husband refused to share household expenses and started living separately within the same house.
After being subjected to continuous emotional and physical abuse, the wife filed a complaint with the police in May 2009, resulting in the husband’s arrest and release on bail. The wife filed a maintenance claim, later withdrawn as she secured a job. She then filed for divorce under Section 13(1) of the Hindu Marriage Act, citing cruelty.
Trial Court’s Decision
The trial court found that the husband’s failure to challenge wife’s testimony constituted an admission and held that husband had subjected wife to cruelty and granted her a divorce. Aggrieved by the trial court’s order husband filed an appeal challenging the same.
Court’s Observation
The Court observed that the husband had failed to contest the suit properly and that his conduct indicated an intention to prolong the litigation. Since the husband had not submitted a written note of argument or made submissions on merit, the court proceeded to decide the appeal without further adjournment.
Cruelty
The Court found his behavior to be evidence of cruelty. The Court held that “cruelty” is a wide concept, dependent on various factors, including upbringing, education, and social status. It was opined that husband’s withdrawal from wife’s company and separate living arrangements within the same house constituted cruelty.
“‘Cruelty’ has not been defined in statute and it gives a very wide discretion to the Court to apply it literally and contextually. What is cruelty to one may not be cruelty to other; it depends upon the upbringing, education and social strata to which the parties belong, their ways of life temperament and emotion that have been conditioned by their social status.”
The Court concluded that the husband exhibited patriarchal insensitivity and disrespect for his wife, making it detrimental for wife’s mental and physical health to continue the marriage.
The Court referenced Supreme Court rulings and precedents on cruelty, emphasizing that the Court’s duty is to understand the parties as they are and consider their grievances.
Child Custody and Maintenance
The Court dined husband’s application for custody of the child as he failed to pay maintenance for the child and neglected to submit a required affidavit. The Court opined that the husband’s inaction and non-compliance with the Court’s orders demonstrated his apathy towards his child. The Court found him unfit for child custody and ordered him to clear the arrears of maintenance within four weeks.
Court’s Decision
The Court dismissed the appeal and directed the husband to pay court costs of Rs. 2,00,000/- to the Calcutta High Court Legal Services Committee. The Court directed the husband to pay the arrears of maintenance for the child within four weeks, or the wife could execute the order for payment.
[Manojit Basu v. Shyamasree Basu, 2023 SCC OnLine Cal 3701, order dated 17-10-2023]
*Judgment by Justice Siddhartha Roy Chowdhury
Advocates who appeared in this case :
Manojit Basu, Appellant in person
Mr. Debasish Roy, Ms. Sumitra Das, Counsel for the Respondent
