IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Madhuresh Prasad and The Hon’ble Justice Bibhas Ranjan De FA 191 of 2022 Sri Kaushik Sarkar Vs. Smt. Baishakhi Ghosh (Sarkar) For the Appellant : Mr. Kushal Chatterjee, Mr. Iftekar Munshi For the Respondent : Mrs. Shohini Chakrabarty, Ms. Prajaaini Das Judgment on : March 12, 2025 MADHURESH PRASAD, J. : 1. The present appeal arises out of a judgment dismissing petitioner’s prayer for a decree of dissolution of marriage/divorce under judgment dated 16th August, 2022 in MAT Suit No. 108 of 2016. 2. The appellant was the plaintiff in the suit. It is not in dispute that the marriage between the parties took place on 24th November, 2006 under the Special Marriage Act, 1954. The marriage was duly consummated and a female child namely, Kaustubhi Sarkar was Page 2 born from the wedlock. The marriage is said to be an arranged/negotiated marriage. 3. The plaintiff alleged that soon after marriage the respondent wife became indifferent and apathetic towards the matrimonial obligations. She demonstrated a total lack of regard for the husband and in laws. She was disrespectful and used to misbehave with them. She indulged in using of abusive and filthy language against the plaintiff and his parents. Even in the presence of outsiders the wife would humiliate him. It is the case of the plaintiff that the marriage broke down irretrievably. The indecent behavior of the respondent wife was of such severity that the petitioner was ultimately compelled to leave his official quarters in the year 2012. Since then he has been living separately, with his parents. 4. The petitioner has also raised an issue that the respondent has indulged in lodging of false cases, and complaints to his superiors in the police service only to malign the petitioner. It is also alleged that on 5th May, 2016 the wife (respondent) assaulted him for which he was treated by the doctor of Sagore Dutta Hospital. The petitioner has also alleged that no conjugal relationship was subsisting between the parties as the respondent even refused to share the bed with him. The appellant has also filed application under Order XLI Rule 27 of the Code of Civil Procedure bringing on record thereby additional evidence. The CAN is supplemented by a Page 3 supplementary affidavit and some additional evidence has been placed on record by way of CAN 3 of 2023. He has brought on record the judgment dated 27.03.2023 passed in the criminal case arising out of G.R. No. 769 of 2017 lodged by the respondent against the appellant, his father and his mother. The respondent had alleged commission of offence under Section 498A/34 of the I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. The records relating to these proceedings have also been placed by way of the applications and supplementary affidavit. Some WhatsApp messages have also been brought on record. The application under Order XLI Rule 27 has been filed since the evidence sought to be introduced are as a result of events, such as judgment dated 27.03.2023 passed in the criminal case arising out of G.R. No. 769 of 2017, which are subsequent to filing of the present appeal. A complaint lodged by a female colleague of the appellant in the police force has also been brought on record. The female colleague has alleged that the respondent/wife has lodged the complaint merely because the female colleague was having an acquaintance with the appellant. She has alleged that baseless and defamatory allegations have been levelled against the said female colleague. 5. The totality of the circumstances according to the petitioner gives rise to a situation that constitutes cruelty to the extent that it is impossible and dangerous for the petitioner to continue in a matrimonial relationship with the respondent. Page 4 6. The respondent wife on the other hand claims to be the victim. It is her specific case that ever since the marriage took place the husband was constantly insulting her with unending accusations, caustic language and implication in a criminal case arising out of a GDE bearing no. 282 dated 5th May, 2016 lodged against the respondent by the petitioner husband making out of a false case that the respondent has assaulted him. In fact it is the petitioner husband and his family members who were mistreating and subjecting the respondent to physical and mental torture. She has stated about demand for money made by the petitioner and his parents. She has alleged constant humiliation at the hands of the petitioner and his family members who looked down upon the respondent for various reasons. 7. She has also alleged that she was subjected to assault by the petitioner for which she lodged an FIR on 5th February, 2017 alleging that the husband and in laws assaulted her on 6th May, 2016. She also produced an emergency ticket from the same hospital (Sagore Dutta Hospital). It is submitted that the petitioner did not even take care of the daughter born from the wedlock. He was self obsessed and having relationship with female colleagues outside marriage. The respondent, on the other hand, is a dutiful wife and grounded in Indian traditions. She, therefore, expects that there will be normalcy in the matrimonial relationship between the parties at some point of time. She claims to be nurturing love and Page 5 affection for the petitioner and is averse to dissolution of marriage or divorce. 8. According to the respondent she witnessed her father in law in such a situation with the maternal aunt of the petitioner that he became furious and asked them to leave the house. She has flatly denied all the allegations which according to the petitioner would amount to cruelty as a ground for dissolution of marriage. It is her case that soon after the marriage, the petitioner’s father had directed the respondent to hand over all her gold ornaments, when she was just a new bride. The family of the petitioner used to call her a misfit, as they were proud of the petitioner being a police officer. They used to refer to the respondent as an inauspicious bride. During the period she was allowed to stay at the matrimonial home, she was compelled to do all the household work. She was not given proper food and clothes and her status was reduced to the status of a maid. She also alleges that the petitioner used to beat her under the influence of liquor. 9. We have heard the parties and examined the records. 10. In support of the petition for divorce the petitioner has relied upon his own deposition in the Trial Court. The emergency ticket issued by the Sagore Dutta Hospital is submitted in order to establish the allegation of being beaten by the respondent. He has also examined one Ms. Geeta Bose as P.W. 2. She deposed claiming to be living in Page 6 a house adjacent to the initial matrimonial home of the petitioner and the respondent. She claims to have witnessed quarrels and disputes over any and everything. She has stated in her examination-in-chief that the respondent (wife) did not want to live with her in laws and wanted a separate family life. She has corroborated the fact of separation between the petitioner and respondent in the year 2010. She has also stated about the respondent using abusive language against the petitioner and inflicting different kinds of matrimonial agony upon him and his parents. She has also stated that the respondent was a very demanding lady expecting a much higher life style than what the petitioner or his family could afford. She has stated that both petitioner and respondent moved out of the parents’ house in the year 2010, but the petitioner returned in 2012 to his parents’ house and started living there alone. She has also stated that he was compelled to return due to matrimonial torture by the respondent (wife). 11. Referring to the deposition of the wife/ respondent in the proceedings arising out of G.R. Case no. 769 of 2017 the learned Counsel has submitted that in the criminal proceedings the respondent has not made any allegation regarding any illicit relation of the appellant, or his father. Before the Judicial Magistrate, the respondent and her mother (P.W.1 and P.W.2) have deposed that father-in-law is a peaceful man. P.W.1 has Page 7 categorically stated that she has no complaint against the in-laws. P.W.2 has categorically admitted that the appellant was transferred from Kolkata Police to State Police as a result of the complaint lodged by the respondent against the husband. 12. Upon perusal of the material brought on record under Order XLI Rule 27 we find a stark contradiction in the stand of the respondent as regards the father-in-law is concerned. In the matrimonial suit she has alleged that she was forced to move out of the matrimonial home when she saw the father-in-law in a compromising position with the maternal aunt of the petitioner. The father-in-law was thus enraged and had driven her out of the house along with her husband. In the criminal trial, however, she has stated about the father-in-law being a peaceful person. 13. There is similar inconsistency insofar as the allegation of the husband having relationship outside marriage is concerned. The learned Counsel for the appellant has further stressed on the fact that the petitioner has suffered immensely on account of the baseless allegations levelled against him in this regard. Such false and baseless allegations were also carried by the respondent to the appellant’s official society, which not only resulted in lowering of his esteem amongst his peers, but also resulted in his transfer from Kolkata Police to State Police, which fact is admitted by the deposition of the respondent’s mother (P.W.2). The false and motivated allegations have been made by the respondent with the Page 8 oblique motive of somehow defeating the appellant’s claim for dissolution of marriage. The falsity is writ large in view of the respondent’s inconsistency in between her stand in the criminal trial and the present proceedings. Such false and mala fide; pungent and caustic allegations levelled against the appellant and his father by itself would constitute cruelty as a ground of dissolution of marriage in view of the decision of the Apex Court in the case of Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511. The reckless and defamatory allegation against the appellant and his father has lowered the reputation of the entire family. The same is an example of the cruelty being meted out to the appellant and his family by the respondents. The appellant, is in a respectable law enforcement job. Such allegations levelled against him in view of the nature of the petitioner’s job profile, including the fact that he maintains the traditions, and lives by the culture of Indian society, gives rise to a situation where such actions of the respondent would amount to cruelty so as to make it impossible for the appellant to continue in matrimony with the respondent. The appellant has been facing such intense cruelty for all his matrimonial life and, therefore, it is desirable that the marriage between the appellant and the respondent be dissolved. 14. The respondent (wife) has also deposed. She has also got the petitioner (P.W. 1) and Ms. Geeta Bose (P.W. 2) cross-examined at the trial. The petitioner in his examination-in-chief has Page 9 meticulously supported all the allegations/averments made in the plaint. During cross-examination however, we find that the petitioner did not even know in which class his daughter was studying. He has stated that she should be a student of class 8 now. He has stated that he never went to her school after filing of the suit. He has no knowledge about the books required by her; or regarding her academic performance in school. He does not know whether she is taking any tuition or not. He also specifically stated that he has never taken any information regarding treatment of his daughter. He has acknowledged the existence of the lady sub- inspector, with whom the respondent was alleging that he was maintaining a relationship outside marriage. He also has acknowledged the fact that he was knowing her phone number. She was the most vital witness who could throw light on the fact whether the petitioner’s relationship with her was amorous or that of a colleague. She, however, has not been brought in the dock by the petitioner and, therefore, the Trial Court has thus drawn an adverse inference against the petitioner on this point in view of the provisions contained in Section 119(9) of the Bharatiya Sakshya Adhiniyam, 2023. 15. From the cross-examination of P.W. 2 it appears that she had no direct information as she never witnessed any alleged misbehavior or mistreatment by the respondent. She has in fact stated in her cross-examination that she came for adducing evidence as per Page 10 instructions of the petitioner and his advocate and that even the affidavit-in-chief filed on her behalf was prepared by petitioner’s advocate. She has flatly denied any knowledge about the contents of the case. She has stated that she was maternal aunt of the petitioner and stated that she was tutored by the petitioner to say what she has deposed in her examination-in-chief. She has further stated that she maintains a good relationship with the respondent and that she has requested the petitioner to reside with the respondent peacefully. She has also requested the respondent to stay with the petitioner but they appeared to be adamant otherwise. 16. Even if the deposition of P.W. 2 before the Trial Court is to be considered unreliable the Court is required to see whether the evidence which has remained intact is sufficient to sustain the case of the appellant. We are also required to consider the additional evidence adduced in the present proceedings, which we have taken note of above. It appears from the evidence, other than the evidence of P.W.2, that the respondent has taken inconsistent stand in respect of alleged mistreatment or hostility prevailing in her matrimonial home. During the proceedings filed by her in the criminal Court, in the dock she has stated that the appellant’s father is a peaceful person and she has not levelled any allegations against him. However, in the matrimonial proceedings, before the Trial Court she has made demeaning and derogatory allegations Page 11 that he has turned her out of the matrimonial home, because she was a witness to the immoral or illegal relationship of the appellant’s father with the appellant’s maternal aunt. It is also not denied or disputed that the criminal proceedings instituted on behalf of the respondent under Section 498A and allied provisions of the D.P. Act has ended in acquittal of the present appellant in the criminal trial. At this juncture we take note of the settled legal position that were filing of complaint and the fact that the same has resulted in acquittal may not be a ground to treat such accusations levelled by the wife as cruelty. It is by now a settled legal proposition that making of such baseless allegations, having the effect of lowering the prestige of the other spouse in society, and amongst his peers in the official society, may in an appropriate case constitute cruelty, moreso when the same allegations are held to be patently false. 17. It is also not in dispute that the respondent wife has all along been staying in the official quarter allotted to the respondent. Considering the totality of the circumstances noted above we also consider the bald allegation regarding the appellant’s father taking away the ornaments and belongings of the respondent, to be unsustainable and unreliable. Even the allegation regarding the husband having relationship outside marriage has been rendered doubtful by the fact that the respondent while lodging the criminal complaint against the husband has not made any such allegation. Page 12 18. The respondent has opposed the application filed under Order XLI Rule 27 C.P.C. It is submitted that there is no relevance of the additional evidence sought to be introduced. The additional evidence which the applicant seeks to bring on record are not necessary for deciding the dispute between the parties. Some of the documents are in fact, executed by individuals, who are not parties to the present proceedings. She has, however, not denied that there is a stark inconsistency insofar as the allegations levelled against the father-in-law in the present proceedings, with her deposition in the criminal proceedings. She has sought to justify such inconsistency by stating in her opposition that since the father-in-law had died on 20.10.2020, she out of pity and compassion did not reiterate her allegation against him. She has further objected to reliance placed on acquittal in the criminal proceedings on the ground that she intends to file an appeal against the order of acquittal dated 27.03.2023 passed by the learned Judicial Magistrate, 1st Class at Barrackpore in North 24 Parganas. We have considered the objections raised by the respondent to the application filed under Order XLI Rule 27 C.P.C keeping in background the statutory provision. Order XLI Rule 27 C.P.C reads as follows: “27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— Page 13 (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” We are conscious of the legal position that we are to exercise discretion for allowing additional evidence in appeal in exceptional circumstances and with circumspection, on existence of the conditions provided under Order XLI Rule 27. 19. A plain reading of the provision discloses that the additional evidence sought to be introduced by the applicant in the present proceedings comes within the scope of Order XLI Rule 27 (aa) as well as (b). It is not in dispute that acquittal in criminal proceedings is subsequent to filing of the present appeal. Insofar as the other material sought to be introduced by way of additional evidence, we find that the same are relevant to consider whether cruelty, as a ground of dissolution of marriage, is made out in the present case and to pronounce a judgment on the issue. Viewed thus the evidence regarding acquittal of the appellant, in spite of Page 14 due diligence was incapable of being produced by the appellant when the decree was passed, since the acquittal is an event, subsequent to filing of the appeal. Insofar as the other material is concerned, the same are considered to be very relevant to the issue. We also find that the authenticity of the complaint lodged by the female colleague of the appellant has not been questioned by the respondent. The respondent in her opposition has merely denied knowledge about lodging of the complaint. In the objection she has not denied or disputed the other material which is sought to be introduced as additional evidence. We, therefore, proceeded to admit the additional evidence under Order XLI Rule 27 C.P.C. 20. Insofar as the other material as per the application filed by the appellant we find that it has a material bearing on the issue involved for determining as to whether cruelty exists within the meaning and scope of Section 27 of the Special Marriage Act, 1954 so as to constitute a ground for divorce. The sum and substance of the facts emerging from the additional evidence is the making of reckless and malicious allegations against the appellant’s father having the effect of casting stigma and lowering of his reputation. We also find that it is not in dispute that the respondent continues to reside in the official residence of the appellant, whereas the appellant was forced to move out of the official residence and live separately from the respondent, along with his parents. Insofar as the allegations levelled against the appellant regarding having Page 15 relationship outside marriage, we find that the female colleague in respect of whom such allegations has been levelled has also lodged a complaint against the respondent for making such false acquisition. Viewed thus, we have no hesitation in concluding that the defamatory, reckless and palpably false acquisitions against the appellant and his family (father) have the effect of lowering the family’s reputation. We also must consider that the allegations made by the respondent to the higher officials in the police department led to the petitioner’s transfer. The allegations made before the appellant’s superiors was also having the effect of bringing down his reputation against his peers, which allegation has also been objected to by his female colleague with whom it is alleged that their appellant was having relationship out of their marriage. Viewed thus we consider it apposite to refer to decision of the Apex Court in the case of Raj Talreja vs. Kavita Talreja reported in (2017) 14 SCC 194, relevant extract of which reads as follows: “9. This Court in para 16 of K. Srinivas Rao v. D.A. Deepa [K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 : (2013) 2 SCC (Civ) 775 : (2013) 2 SCC (Cri) 963] has held as follows : (SCC p. 234) “16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and Page 16 filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” 10. In Ravi Kumar v. Julmidevi [Ravi Kumar v. Julmidevi, (2010) 4 SCC 476 : (2010) 2 SCC (Civ) 185] , this Court while dealing with the definition of “cruelty” held as follows : (SCC pp. 480-81, paras 19-20) “19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometimes cruelty in a matrimonial relationship may take the form of violence, sometimes it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. 20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety—it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon [Sheldon v. Sheldon, 1966 P 62 : (1966) 2 WLR 993 (CA)] held that categories of cruelty in matrimonial cases are never closed.” 11. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground Page 17 to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955 (for short “the Act”). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 IPC. 12. We have perused the judgment of the High Court. The High Court while dealing with the plea of false complaints held that there was no reason to hold that the criminal complaint filed by the respondent wife was false and mala fide. We are unable to agree with this finding of the High Court and the court below. Both the courts below relied upon the statement of the wife that her husband had often visited her house and she fulfilled her marital obligations. These observations are not based on any reliable or cogent evidence on record. It is not disputed before us that the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband. We may note that Ms Makhija has very fairly stated before us that the husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by the court.” 21. The legal position, therefore, is settled in this regard by the report which we have taken note of above. The appellant’s claim, now considering the totality of the material including additional evidence is squarely covered by decision in the case of Raj Talreja (Supra). 22. At this juncture, we must consider the concept of cruelty as laid down by the Apex Court in the case of Samar Ghosh vs. Jaya Page 18 Ghosh reported in (2007) 4 SCC 511. In the said decision, after a proper scrutiny and analysis of earlier judgments rendered by the High Court and other Courts, the Apex Court has held that there cannot be a comprehensive definition of the concept of mental cruelty. The concept as per the judgment is not a static concept, effected by passage of time, impacted by modern culture, media, and contemporary value system etc. It has thus been said that there can never be a strait jacket formula or a fixed parameter for determining mental cruelty. The judgment has also taken into consideration the complexity of human mind and human behavior and held that what is cruelty in one case may not amount in cruelty in another case. The concept of cruelty differs from person to person depending upon upbringing, level of sensitivity, education, family and cultural background. The financial position social status customs, traditions, religious beliefs have also to be considered. 23. The Apex Court has thus concluded that no uniform standard can be laid down for guidance. Having held so it has proceeded to enumerate some instances by way of illustration which may be relevant in dealing with cases of mental cruelty. Being guided by the judgment of the Apex Court in the case of Samar Ghosh (Supra) we find that the cumulative result of the caustic allegations made by the respondent against the appellant and his father, lodging of complaints by the respondent before his employer Page 19 (State Police Force), the same resulting in his transfer from Kolkata Police to State Police have to be viewed keeping in background the fact that such allegations are at stark variance with the allegations levelled by the respondent in the criminal proceedings. The criminal proceeding has resulted in acquittal of the appellant and his family members. We have also taken note of the fact that the respondent continues to reside in the appellant’s official quarters, whereas he has been compelled by the circumstances to live with his parents. 24. On a comprehensive appraisal of the matrimonial life of the parties based on these instances we are of the opinion that a situation has arisen where it cannot be reasonably be expected from the husband to continue to live with such a spouse. It is not a case of mere lack of affection or frequent rudeness. We find that the appellant has been able to make out a situation where the persistent conduct of the wife has led to deep anguish, abusive and humiliating treatment, rendering the life of the appellant miserable. We, therefore, find that when considered as per parameters laid down by the Apex Court in the case of Samar Ghosh (Supra) and in the case of Raj Talreja (Supra) the appellant has succeeded in making out a case for divorce/ dissolution of marriage. 25. We, therefore, direct that a decree of divorce to be issued subject to payment of alimony. Page 20 26. While deciding the quantum of permanent alimony to be granted to the wife, there are various factors, which the court should keep in mind. On one hand, the social and economic status of the parties, the standard of living of the wife while living at her in-laws house, the basic needs of the wife and the daughter in the present case, in future deserve to be considered. Yet, on the other hand, the Theory of Fault also needs to be kept in mind. For, a person cannot be permitted to take benefit of his/her own wrong. As pointed by this Court, there are certain grounds of cruelty and desertion which have resulted in collapse of the conjugal relationship between the parties. In the present factual backdrop of the case at hand, the conduct of the wife is a relevant factor of consideration while deciding the quantum of alimony. Here, the wife comes from a humble background and admittedly she has to take care of her female child born out of the wedlock. Therefore, the wife has a paramount responsibility of looking after her child. Although this Court is of the opinion that the marriage has fallen apart due to acts on the part of the wife but even during the proceedings, the wife claimed that even though she was subject to cruelty at her matrimonial home, still she wants to go back to her husband but considering the gravity of the situation nothing can be gained by trying to keep the parties tied forever to a marriage that in fact has lost its sanctity. Page 21 27. On the other hand, considering the financial background of the husband who is a Police Officer, and also considering the present and the future needs of the wife and the child, in the interest of justice, this Court directs the husband to pay an amount of Rs. 50,000/- per month in the account of the respondent, from month to month by the 7th day of each month. The first instalment is required to be paid by the present appellant by 2nd of April, 2025. 28. The appeal stands allowed in the aforesaid terms. 29. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. (Madhuresh Prasad, J.) I agree. (Bibhas Ranjan De, J.) A.D.