Merely because there are allegation and counter allegation, a decree of divorce cannot follow.
In the original proceedings the trial Court had decreed the suit for divorce filed by the husband and dismissed the suit for restitution of conjugal rights filed by wife. The present appeals were filed by the wife, one against the judgment granting decree of divorce and another against dismissal of her suit for restitution of conjugal rights.
The Court affirmed the legal position that mens rea or guilty mind has no role to play to constitute cruelty. The husband is under moral and legal obligation to establish the detail particulars of acts and behaviour of wife manifest to constitute the ingredients of matrimonial cruelty. It was observed that no sufficient explanation was given by the husband as to why his close relatives were examined to substantiate allegation cruelty against his wife. Non-examination of the vital witnesses by the husband to establish his allegation of cruelty draws adverse inference under Section 114(g) of the Evidence Act. Since the Matrimonial cases are civil nature, the standard of proof is not the same with Criminal case of proof beyond all reasonable doubts. The principle of preponderance of probability is the basis of the satisfaction that any one of the spouses is guilty of cruelty in matrimonial dispute. It would have been highly probable to conclude that the wife was guilty of causing cruelty towards the husband in case vital witnesses including other inmates of the same paternal building would have corroborated the allegation of husband. It becomes the bounden duty of the husband to examine them or else to explain the non-examination of vital witnesses.
The husband had only relied upon his own isolated and uncorroborated testimony. In absence of any explanation for non-examination of vital and natural witnesses an adverse inference has to be drawn under Section 114(g) of the Evidence Act. Merely because there are allegation and counter allegation, a decree of divorce cannot follow. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading and other admitted materials. The Court must be satisfied that the relationship between the parties have deteriorated to such an extent that due to conduct of the other spouse it would be impossible for them to live together without mental agony. The act of the wife in asking money is not an act of lowering the social prestige and cause of humiliation to the husband.
[Bipasha Bhowal vs. Sri Biplab Bhowal]
(Calcutta HC, 15.05.2014)