1 Title Suit (Divorce) No.18/2009.

IN THE COURT OF DISTRICT JUDGE: LAKHIMPUR:

AT NORTH LAKHIMPUR

Title Suit (Divorce) No.18/2009.

P A R TI E S

Smti Punam Rao. … Petitioner.

Versus

Sri Biren Bora. … Respondent.

Present : Md. Imtiaz Ali,

District Judge,
Lakhimpur, North Lakhimpur.

A P P E A R A N C E
Mr. S.N. Talukdar & Mr. Kankan Baruah, the learned advocates for the Petitioner.
Mr. K.K.Tamuli, the learned advocate for the Respondent.

Date of argument : 28.05.2015.

Date of Judgment : 19.06.2015.

J U D G M E N T
1. This suit for divorce has arisen out of a Petition submitted
by the Petitioner, Smti Punam Rao under Sec.13 (1) (i-a) of the Hindu Marriage
Act, 1955, for dissolution of the marriage tie between herself and Respondent,
Sri Biren Bora by a Decree of Divorce.
2. The case of the Petitioner, in brief, is that she got married
with the Respondent on 10.03.1994 as per Hindu rites and ceremonies at Ward
No.2, North Lakhimpur town, and started living together as husband and wife
and out of their marital wedlock, two children namely Miss Anamika Bora and Mr.
Sourav Bora were born on 24.08.1995 and 15.12.1999 respectively, and after
birth of the children, the behaviour of the respondent towards her became very
rude as he became very aggressive towards her and hostile towards her children.
The respondent neither looked after the children nor allowed the petitioner to
engage private tutor to help in their studies. It is also alleged that the respondent
is very suspicious man by nature, and he suspected her for no reason with every
Contd…
 2 Title Suit (Divorce) No.18/2009.

person the petitioner talked to, caused physical and mental torture upon her and
the children. It is further alleged that on 15.04.2009, one Miss Bina Bordoloi, who
was with the petitioner and helped in the household works left the petitioner’s
house, at which the respondent became furious, physically assaulted the
petitioner and asked the petitioner either to bring her back or to have no other
maid servant, and as the petitioner refused to bring back the said maid servant,
the respondent left behind the petitioner and the children and since then, he has
been residing at his original house. It is alleged that the respondent did not even
allow the petitioner to take her children with her even during their vacations
while the petitioner was posted out of the district during the years 2006 to 2008.
The respondent did not bother about the petitioner and the children and the
children were scared of the respondent, and on 10.07.2009, the respondent went
to the petitioner’s house and threatened to kill her and her children. It is also
alleged that on 27.07.2009, while the petitioner was in her office, her minor
children informed her over phone that the respondent came to their house and
threatened to kill them and shouted bad things about the petitioner, but
somehow, they managed to save themselves and in this respect, a criminal case
was registered against the respondent u/s 448/ 506/ 498(A) IPC. So, the
petitioner feels that further living together with the respondent is dangerous for
her life and limbs and also for the lives of the children. Under the premises, the
Petitioner prays for a decree of divorce for dissolution of her marriage tie with the
Respondent.
3. On receipt of notice, the Respondent appeared and filed
his written statement, wherein, he stated that the petitioner is taking shelter of
total falsity in making the allegations and at no point of time, the respondent had
shown any rude behaviour either towards the petitioner or towards the children.
In the month of October, 2008, both the petitioner and the respondent went to
Krishna Hyundai, Tezpur, where the petitioner purchased a I-10 car and the
respondent stood as guarantor for the petitioner there. In every walk of the
family life the respondent took active participation. It is also contended that as
the respondent is a Royal BSc graduate having teaching experience, so he
himself looked after the education of his children instead of private tutor. The
respondent denied to have assaulted the petitioner. The petitioner was
Contd…
 3 Title Suit (Divorce) No.18/2009.

transferred to Gohpur in February, 2004 as Sub Divisional Welfare Officer from

North Lakhimpur and she returned to the same post at North Lakhimpur on
November, 2005 and in the month of February, 2006, the petitioner was
transferred to Udalguri as Extra Asstt. Commissioner, and after few months, she
was transferred to Biswanath Chariali as Election Officer, and thereafter, she was
transferred to Tezpur as S.D.O, and in the month of October, 2008, she was
transferred to North Lakhimpur, and during those days, the petitioner came to
the company of the respondent and the minor children at North Lakhimpur, and
on the other hand, during vacation of the school of the children, the respondent
used to go to the quarter of the petitioner along with the children and the family
helper girl. It is also contended that in the year, 2009 during ‘Bohag Bihu’, the
helper girl, Bina Bordoloi asked permission to go to her house on the occasion of
Bihu, though she was not allowed to go home by the petitioner, but as the
respondent told the petitioner to allow the girl to go her home, she was allowed
to go home, but she did not return back to the house of the petitioner, to which
the petitioner every now and then, rebuked the respondent saying that as he
allowed the girl to go home inspite of her objection, so he is to do himself every
household work, and accordingly, the respondent began to do every possible
household work. He also stated that no doubt the petitioner helped in running
the family but at no point of time the respondent demanded money from the
petitioner, but on 27.07.2009 the petitioner got the respondent arrested by police
by registering a case u/s 498(A) IPC and after sending the respondent to hazot,
the petitioner retained all the valuable belongings including Insurance policies.
The respondent contended that the petitioner being a Grade-I officer by misusing
her position seriously injured the very marital relationship between the petitioner
and the respondent and he never showed even a word of cruelty towards the
children at that time. Accordingly, the respondent prays for dismissing the
petition for divorce and also prays to pass a decree of counter claim of restitution
of conjugal rights by restoring the marital relationship between the petitioner and
the respondent.
4. Now, upon the premises of the pleadings, the following
issues have been framed to determine the real controversies between the
parties:
Contd…
 4 Title Suit (Divorce) No.18/2009.

1. Whether there is cause of action for the suit?

2. Whether the respondent treated the petitioner, his wife with
cruelty, as alleged by her?
3. Whether the petitioner without reasonable excuse has withdrawn
from the society of the respondent, her husband?
4. Whether the petitioner is entitled to a decree of divorce as prayed
for?
5. Whether the respondent is entitled to a decree of restitution of
conjugal rights as set up and prayed for in his counter claim?

DISCUSSION, DECISION & REASONS THEREOF ON ISSUE NO.1:

5. From the averments made in the Petition for Decree of
divorce by the Petitioner, Smti Punam Rao, it appears that she was married to the
Respondent, Sri Biren Bora on 10.03.1994 as per Hindu rites and ceremonies.
According to her, the Respondent used to inflict physical and mental torture upon
her, for which she had to leave her matrimonial home with her two minor
children. The Respondent, in his written statement denied to have tortured the
petitioner, as claimed by her and he made a counter claim praying for restitution
of conjugal rights. Thus, from the rival averments of both the parties, it appears
that there is cause of action for the instant suit. Accordingly, the Issue No.1 is
decided in the affirmative.
DISCUSSION, DECISION & REASONS THEREOF ON ISSUE NOs.2 to 5 :
6. All the four issues have been taken up together for
discussion as they are related to each other. The Petitioner has stated in her
affidavit evidence that her marriage was solemnised with the respondent on
10.03.1994 as per Hindu rites and ceremonies, and out of their wedlock, two
children were born to them, and though initially their relation was cordial, but for
last about 11 years, the behaviour of the respondent changed as he became rude
and aggressive towards the petitioner and hostile towards the children. She also
stated that the respondent neither looked after the children nor allowed the
petitioner to engage private tutor to help in their studies, which also became a
matter of great concern to the petitioner. She further stated that on 15.04.2009,
one Bina Bordoloi, who was with the petitioner and helped in household works
Contd…
 5 Title Suit (Divorce) No.18/2009.

had left for home, at which, the respondent became furious and physically
assaulted the petitioner and also asked to bring her back or to have no other
person/ maid servant, but as the petitioner refused to bring her back, the
respondent left behind the petitioner and the children, and since 15.04.2009 he
has been residing in his original house at Tarajuli, Bihpuria. The petitioner is
maintaining the family with two school going children with the little salary
received by her as the respondent never spared a penny for the family and
education of the children rather the respondent frequently demanded money and
out of fear the petitioner fulfilled his demands, and on 27.07.2009, while the
petitioner was in office, her minor children over telephone informed her to come
and rescue them as the respondent had come to the residence and tried to
assault them and threatened to kill them, but somehow the children managed to
save themselves. To her, the counter claim of the respondent is not maintainable.
She also stated that on 07.12.2009, she served an Advocate notice upon the
respondent to take over his belongings within five days of receipt of the notice,
and has also cleared the house rent till December, 2009, and the respondent was
also asked to return the documents belongings to the petitioner which were with
the respondent, but the respondent neither turned up to take his belongings nor
replied the notice. She further stated that being unable to tolerate and condone
the cruelties, she feels that further living with the respondent will be dangerous
to her life and limbs and also to her children, and as such, the petitioner prays
for dissolution of the marriage between the petitioner and the respondent by a
decree of divorce. During cross examination, she denied that she had instituted a
false case against the respondent by alleging that on 27.07.2009, the respondent
tried to assault her children. She admitted that while she was out of North
Lakhimpur on duty on various capacities, the respondent used to look after the
education of the children and other necessary maintenance. The respondent and
both the children visited her official residence at Udalguri, Tezpur and Biswanath
Chariali, but the respondent never stayed at her official residence except on one
occasion at Udalguri. She denied that whatever she stated to the effect that since
last 10 years, behaviour of the respondent towards her became very rude is
false. She also denied that the respondent gave love and affection to her and her
children, but as she got promotion to higher post, she used to neglect the
Contd…
 6 Title Suit (Divorce) No.18/2009.

respondent due to superiority complex and used to look down upon him.
7. PW.2, Smti Anamika Bora, the daughter of the petitioner as
well as respondent, deposed that she was a student of class-IX and her younger
brother, Sri Saurav Bora was reading in class-V and both of them were residing
with their mother, petitioner, and earlier they resided in rented house along with
their father, respondent till 15.04.2009. She also stated that since her childhood,
she has seen their father, respondent misbehaving with their mother, petitioner,
and the respondent never showed any love and affection towards them. The
respondent often scolded them with slang words and her mother in front of
friends and relatives and many times, he threatened to kill all of them. She
further stated that while their mother, petitioner was posted outside the
Lakhimpur district, the respondent did not allow them to visit their mother even
during holidays, and in absence of their mother, their father/ respondent always
remained busy with the helper girl, Bina Bordoloi, whom he loved more than
them. Her parents were not in talking terms as her father never replied to
anything which her mother asked or said, and her father used to speak very bad
words about her mother, which hurts her and her younger brother. She also
stated that on 27.07.2009, while her mother was at office and she was at her
residence with her younger brother, the respondent came to the residence and
threatened to kill them. She further stated that they do not wish to stay together
with their father/ respondent and they are peacefully living with their mother/
petitioner in Govt. quarter. During cross examination, she stated that while her
mother was serving at Udalguri, her father/ respondent once took her and her
brother to Udalguri, but they did not stay there, and they had stayed with their
parents at Tezpur and Biswanath Chariali for one time in each place while the
petitioner was serving there. She denied that whatever she had stated in her
affidavit evidence was tutored by the petitioner.
8. It appears from the record that as PW.3, Sri P.P. Rajan Rao
and PW.4, Smti Kunti Baruah had not appeared before the court to face cross
examination after tendering their affidavit evidence, so their evidence-in-chief
were expunged.
Contd…
 7 Title Suit (Divorce) No.18/2009.

9. DW.1, Sri Biren Bora, the respondent, stated in his affidavit

evidence that the marriage between him and the petitioner solemnised on
07.03.1994 as per Hindu rites and ceremonies and they used to reside in the
rented house of one Tirtha Gogoi of C.D. Road, North Lakhimpur, and out of their
marital wedlock, two children were born to them. He also deposed that as the
respondent is a Royal B.Sc graduate having teaching experience, so he himself
looked after the education of his children instead of private tutor. The respondent
denied to have assaulted the petitioner. The petitioner was transferred to Gohpur
in February, 2014 as Sub Divisional Welfare Officer from North Lakhimpur and
she returned to the same post at North Lakhimpur on November, 2005 and in the
month of February, 2006, the petitioner was transferred to Udalguri as Extra
Asstt. Commissioner, and after few months, she was transferred to Biswanath
Chariali as Election Officer, and thereafter, she was transferred to Tezpur as
S.D.O, and in the month of October, 2008, she was transferred to North
Lakhimpur, and during those days, the petitioner came to the company of the
respondent and the minor children at North Lakhimpur, and on the other hand,
during vacation of the school of the children, the respondent used to go to the
quarter of the petitioner along with the children and the family helper girl. He
also stated that on 15.04.2009 during ‘Bohag Bihu’, the helper girl, Bina Bordoloi
asked permission to go to her house on the occasion of Bihu, though she was
not allowed to go home by the petitioner, but as the respondent told the
petitioner to allow the girl to go to her home, she was allowed to go home, but
she did not return back to the house of the petitioner, to which the petitioner
every now and then, rebuked the respondent saying that as he allowed the girl to
go home inspite of her objection, so he is to do himself every household work,
and accordingly, the respondent began to do every possible household work.
During cross examination, he stated that his wife/ petitioner had instituted a
criminal case against him u/s 498(A) IPC and in connection with that case, he
was kept confined in jail hazot for about 14 days. He denied that while the
petitioner was serving outside Lakhimpur district, he visited the house of the
petitioner to bring money from her, but never stayed in her house for the night
and also never allowed the children to stay with their mother for the night. He
also denied that he used to inflict torture to his wife/ petitioner and imposed his
Contd…
 8 Title Suit (Divorce) No.18/2009.

decision in all matters, and also for petty matters, he used to assault his wife/
petitioner. He also denied that as the neighbouring persons do not support his
claim, for which he could not bring any such person to depose in support of his
case. He further denied that he is not entitled to get the decree of restitution of
conjugal rights and also not entitled to get the custody of the children.
10. Having regard to the evidence as a whole, it is relevant to
state here that the petitioner/ wife in her petition u/s 13(1)(i-a) of the Hindu
Marriage Act, has stated that during last ten years, the behaviour of her
husband/ respondent towards her has become very rude as well as aggressive.
Moreover, the respondent did not talk with her and also did not allow her to take
her children with her. It is also alleged that the respondent failed to look after the
children. Even he did not allow the petitioner to engage private tuition to the
children. The behaviour of the respondent was so rude and rough, but even
then, the petitioner/ wife tolerated all these cruelties. On 15.04.2009, one Bina
Bordoloi, who was the maid servant in the house of the petitioner, went to her
house, for which the respondent became furious and physically assaulted the
petitioner. On 10.07.2009, the respondent threatened to kill the petitioner and
her children and in that view of the matter, it has become a matter of concerned
and so the incident was reported to police. On 27.07.2009, the minor children
telephonically informed the petitioner that the respondent had made attempts to
assault them with threat to kill them. In order to support the above contention,
the learned counsel for the petitioner / wife has placed reliance on the following
number of judgments :

1. AIR 2011 SC 114 Gurbux Singh vs Harminder Kaur.

2. 2012 (5) GLT 386 Bhulurani Dey vs Rabi Dey.
3. 2011 (5) GLT 67 Gaurab Datta vs Arundhuti Mazumdar.
4. AIR 2010 SC 1042 Manisha Tyagi vs Deepak Kumar.
5. 2010 (6) GLT 214 Shanti Ranjan Saha vs Pranati Saha.
6. AIR 2007 SC 1426 Maya Devi vs Jagadish Prasad.
7. AIR 2002 SC 2582 Praveen Mehta vs Indajit Mehta.

Contd…
 9 Title Suit (Divorce) No.18/2009.

In Gurburx’s Singh case, it was observed as under :

“Hindu Marriage Act (25 of 1955), Sec.13(1)(ia) – Divorce
–cruelty – proof – No conduct can be dubbed as cruelty in all circumstances –
Petitioner complaining of cruelty – Has to make out specific case that conduct
alleged amounts to cruelty”.
In Bhulurani Dey’s case, it was observed as under :
“Hindu Marriage Act, 1955 – Section 13(1)(ia) – Divorce –
cruelty – Irretrievable break down of marriage, even though cannot be availed as
ground directly for grant of divorce, but continuance of such category of
marriage inflicts the spouse with cruelty within the meaning of section 13(1)(ia)
and it constitutes ‘cruelty’ attributable to spouse who resisted prayer for granting
divorce – Agony of breakdown of marriage cannot be excluded from realm and
category of cruelty – If it can be found by appellate court that break down of
marriage constituted cruelty, then on substitution of findings, decree can be
maintained.“
In Gaurab Datta’s case, it was observed as under :
“Hindu Marriage Act, 1955 – Sec.13(1)(ia) – cruelty and
desertion – Divorce petition filed by appellant husband on grounds of cruelty and
desertion – No evidence of any desertion by respondent wife who was compelled
to seek shelter in her parents’ house due to torture – allegations of assault by the
respondent wife upon the father of the appellant not established – No evidence
to indicate that the appellant husband was treated with cruelty by the
respondent wife – Held ; appellant husband failed to establish that he was
treated with cruelty by respondents wife- appeal dismissed.”
In Manisha Tyagi’s case, it was observed as under :
“Hindu Marriage Act (25 of 1955) , Sec.13 – Divorce –
Cruelty – Proof – Use of physical violence need not be established – However
continued ill-treatment, cessation of marital intercourse, studied neglect,
indifference of one spouse to other – May lead to inference of cruelty.”
In Shanti Ranjan Saha’s case, it was observed as under :
“Hindu Marriage Act, 1955 – Section 13(1) – Divorce –
Grounds for divorce mentioned in Section 13(1) are to be liberally construed so
as to give full meaning of words used by legislatures – Matrimonial disputes have
Contd…
 10 Title Suit (Divorce) No.18/2009.

to be decided by courts in a pragmatic manner keeping in view ground realities –

Most important being whether marriage can be saved and husband and wife can
live together happily and maintain a proper atmosphere at home for upbringing
of their offspring.”
In Maya Devi’s case, it was observed as under :
“Hindu Marriage Act (25 of 1955), S.13 – Divorce Cruelty – Proof – Concept of
proof beyond reasonable doubt – Not applicable to matrimonial disputes.
In Praveen Mehta’s case, it was observed as under :
“Hindu Marriage Act (25 of 1955), S.13 (1)(ia) – Divorce – Cruelty – What
constitutes – Mental cruelty – Is state of mind and feeling - A matter therefore,
of inference – Inference has to be drawn on facts and circumstances taken
cumulatively.”

11. On perusal of the said judgments, none of the said

authorities relied on by the learned counsel is of any help to advance the cause
of petitioner/ wife. In the evidence of PW.2, the daughter of the petitioner
deposed in little different way about the incident which varies from the deposition
of the petitioner. According to her, since her childhood, she had seen the
respondent misbehaving with her mother/ petitioner and showed no love and
affection towards them. At times, the respondent did not allow the children to
visit the petitioner and during absence of their mother/ petitioner, the respondent
always remained busy with the helper girl, Bina Bordoloi, whom he loved more
than them, thereby suggesting that there is some sort of illicit relationship
between the respondent and the helper girl, Bina Bordoloi, which is an
exaggeration of what has been stated by the petitioner in her petition seeking
divorce on the ground of cruelty. After carefully considering the evidence
adduced by the parties, the allegation of the petitioner / wife that the respondent
/ husband has maintained some sort of illicit relationship with one Bina Bordoloi
appears to be completely baseless because in her statement, the petitioner has
no way stated about such fact, although her daughter, PW.2 has disclosed the
fact of respondent having some sort of affairs with one Bina Bordoloi. Except the
statement of this PW.2, there is nothing to show that the respondent / husband
had illicit relationship with said Bina Bordoloi and lived in adultery. Only
Contd…
 11 Title Suit (Divorce) No.18/2009.

circumstance is that the said Bina Bordoloi during ‘Bihu’ festival went to her
house, then the respondent / husband raised objection to the petitioner / wife,
and such objection cannot be sufficient to prove that said Bina Bordoloi had
some sort of illicit relationship with the respondent/ husband. Therefore, the
petitioner / wife miserably failed in proving her allegation that the respondent /
husband became furious and physically assaulted her when the helper girl had
left their house and did not return to their house.
12. The entire evidence of the husband and wife clearly go to
show that they lived happily till birth of their children. In the light of the above
evidence, it is to be examined whether the husband subjected his wife to mental
torture so as to enable her to lead a marital life with him. In order to grant a
decree of divorce on the ground of mental cruelty or mental torture that there
must be an apprehension which would render harmful or injuries for the wife to
live with her husband or injuries for the wife to live with her husband or is of
such nature so as to create reasonable apprehension to that effect would amount
to cruelty. Mere causing of mental tension does not amount to mental cruelty and
it is the conduct of the parties that have to be assessed on the basis of the
evidence led in by the parties. In the light of the above principles, in this case, it
has to be examined whether the husband subjected his wife to mental torture so
as to enable her to lead a marital life with her husband.
13. In this regard, the evidence of the petitioner side did not
reveal any specific acts of cruelties made by the respondent on the petitioner/
wife. There is nothing to show in her evidence on record that injury, if any,
inflicted has affected her present health and future repeatation of such injury is
likely to affect her health further. There is also nothing to show that the
petitioner was subjected to cruelty to such an extent so as to deduce that it
would be injurious to the petitioner to live with the other party. Thus, in support
of the petition for dissolution of marriage on the ground of cruelty, the statement
as well as evidence given by the petitioner side shows that there was categorical
allegations that after birth of her children, the behaviour of the respondent
towards her became rude and aggressive. There is also general allegation
levelled against the respondent that the respondent / husband neither looked
after the children nor allowed the petitioner / wife to engage private tuition for
Contd…
 12 Title Suit (Divorce) No.18/2009.

them. Another general allegation against the respondent is to the effect that he
was suspicious in nature and for that reason at times, he used to cause physical
and mental torture upon the petitioner/ wife. Thus, this evidence as well as the
statements made by the petitioner / wife regarding cruelty were vague when
there was no specific date, time and place of such cruelty allegedly done by the
respondent/ husband. It is also alleged that the respondent/ husband did not
allow her to take the children during vacations and the children were scary of the
father. It is further alleged that the respondent / husband had threatened to kill
them. In that context, the petitioner/ wife has filed a criminal case against the
respondent/ husband u/s 498(A) IPC. Her filing of such case u/s 498(A) IPC will
not be of any help in granting the prayer for divorce. It is more so in view of the
fact that the respondent/ husband has expressed his willingness to reside with
the petitioner / wife and has also made effort in this direction, but during trial,
the petitioner/ wife despite issuance of direction for amicable settlement, she has
failed to appear before this court thereby suggesting that she is not at all
interested to amicably settle her matrimonial dispute. But, at the same time, the
respondent / husband, who appeared before this court from time to time for
amicable settlement did not at all speak against his wife/ petitioner in his
affidavit evidence as well as in his petition for Restitution of conjugal rights.
However, the woman i.e., the petitioner / wife had deserted her husband/
respondent alleging that he tortured her. But, the conduct of the petitioner/ wife
complaining of tortures and cruelties are not so serious as to warrant dissolution
of marriage. The allegation as well as evidence shows that these are normal
wear and tear between a husband and wife, which can very well be overlooked.
But, the petitioner / wife instead of making any effort for amicable settlement of
their dispute had deserted her husband/ respondent on her own without any
lawful reason, and there is nothing on record to show that she has successfully
performed the marital obligation towards her husband/ respondent. The
respondent/ husband approached this court by seeking decree of Restitution of
conjugal rights denying all the allegations levelled against him by the petitioner/
wife and he also stated that the petitioner being a Grade-I officer by misusing
her position seriously injured the very marital relationship between the petitioner
and the respondent and he never showed even a word of cruelty towards the
Contd…
 13 Title Suit (Divorce) No.18/2009.

children at that time. It is apparent from the evidence of both sides that the
petitioner/ wife had left the respondent/ husband and her matrimonial home
without any lawful cause and further refrained herself from joining him in
matrimonial relationship. The onus to prove that the petitioner/ wife is entitled to
remain separately from the company of her husband/ respondent without
rejoining him, is upon her. But, as already discussed, it is clearly seen from the
evidence on record and gauged from such evidence of the parties that it is the
petitioner/ wife, who has drifted away from her husband/ respondent without
reasonable cause and excuse, and has failed to perform her marital obligation,
which she is legally bound to perform. Accordingly, the petitioner / wife has failed
to justify her decision to stay away from her husband/ respondent showing that
she had left the society of her husband/ respondent on her own accord. On the
other hand, there is no averment made by the petitioner / wife to the effect that
her husband/ respondent is not cooperating with her to lead a happy married life
as he had filed a petition seeking Restitution of conjugal right and expressed his
willingness to live with the petitioner/ wife. Thus, it is found that the respondent
/ husband has intention and desire to live with the petitioner / wife in order to
lead a happy marital life.
14. The respondent side has also cited a Case Law reported in
2015 (149) AIC 152 (SC) in the case of Ramchander vs Ananta in support of his
claim of restitution of conjugal rights.
In Ramchander’s case, it was observed as under :
“Hindu Marriage Act, 1955 – Sec.13(1)(ia) and 13(ib) –
Complaint u/s 498(A) IPC filed by the wife though subsequently withdrawn – She
left her matrimonial home in 1977 to live with her parents – On receipt of legal
notice from husband returned back to her matrimonial home – Again left her
matrimonial home in the same fashion but made no comeback – Suit for decree
of divorce filed by the husband on grounds of cruelty and desertion – Allegation
of husband that she used to quarrel with family members and neighbours
compelling him to change his residence – Not proved by examining family
members and neighbours – Allegation that she was reluctant to do domestic
work – Not accepted as she was a working mother – Failure of wife to prove her
allegation that the husband was involved in extra marital affair – Not enough to
Contd…
 14 Title Suit (Divorce) No.18/2009.

grant decree of divorce – Conduct of the wife complained of not so serious as to

warrant dissolution of the marriage – These being normal wear and tear of
married life have to be overlooked – Evidence of DWs.2,3 and 4 that the
appellant and respondent were seen together as husband and wife in 2005 – No
evidence that testimonies of these witnesses are false – Cannot be said that
marriage between them has irretrievably broken down.”
15. It is also claimed that the marriage has been broken down
irretrievably. So, prayer is made by the petitioner side that a decree of divorce
should be passed. It is difficult to accept the contention at this stage. It is found
that the petitioner/ wife having made the allegation of cruelty against the
respondent/ husband has not been able to prove her case. It has also been
found that the conduct of the respondent / husband as described by the
petitioner / wife is not up to the mark so as to term that conduct to have
amounted to cruelty. Granting her decree of divorce in such situation would allow
her to take advantage of her own wrong. This is contrary to the basic principle as
embodied in Sec. 13(1)(ia) of the Hindu Marriage Act. The petitioner / wife has
failed to establish cruelty on the part of the respondent. Filing of a petition u/s
498(A) IPC is of no consequence to grant divorce.
16. Therefore, this court is of the view that the petitioner/ wife
has failed to establish cruelty as her vague allegation does not constitute cruelty.
As such, the petitioner / wife in absence of proof of any specific acts of cruelty
against the respondent/ husband, her petition seeking decree of divorce is liable
to be dismissed. Accordingly, the Petitioner is found not entitled to get Decree of
Divorce as prayed for, and as such, her petition for a decree of divorce is
dismissed.
17. Coming to the prayer of the respondent/ husband for a
decree of restitution of conjugal rights, in view of the evidence led by the parties,
this court is of the view that the respondent / husband is entitled to a decree of
restitution of conjugal rights in his favour, and accordingly, his counter claim for
decree of Restitution of conjugal rights is granted, and as such, the petitioner/
wife is directed to rejoin the company of the respondent/ husband and to live
together as husband and wife.
 15 Title Suit (Divorce) No.18/2009.

ORDER
18. Consequent to my discussion and decision as indicated
here-in-before, I find and hold that decree of divorce is not granted to the
petitioner, and as such, her petition for a decree of divorce is dismissed, and the
respondent / husband is entitled to a decree of restitution of conjugal rights in
his favour, and accordingly, his counter claim for decree of Restitution of conjugal
rights is granted, and as such, the petitioner/ wife is directed to rejoin the
company of the respondent/ husband and to live together as husband and wife.
19. Both the parties to bear their own costs.
20. Prepare the Decree, accordingly.
21. This T.S (D) stands disposed of, accordingly.
Given under my hand and seal of this court on this 19th day
of June, 2015.

( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.
Dictated & corrected by me :

( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.

Transcribed & typed by -

Sri Satyabrata Kshattry, Stenographer.