TMI Blog1969 (9) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, preferred this appeal against the decree for divorce passed against her. 3. The facts of the case are as follows; The marriage between the parties took place on June 1, 1958. The wife was taken to the family dwelling house of the husband at Naihati on the next day and she stayed there upto June 6, 1958. On that day, she came away from her husband's place escorted by her elder brother and since then she has never gone back to the husband's place. 4. During the brief period of the wife's stay in the family dwelling house of the husband there was some estrangement of feeling between the husband and the wife. The husband made an application on June 25, 1958 under Section 12(b) of the Hindu Marriage Act read with Section 5(ii) of the said Act for annulling the marriage on the ground of the wife's insanity and the said application was registered as Title Suit N,o. 178 of 1958 in the Court of the District Judge, Alipore. The husband further alleged that she had a defective leg and that she was not the girl selected by the eldest brother of the husband as his bride. 5. The suit was contested by the wife. She was medically examined and found to be not insa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the marriage which took place on June 1, 1958. Their Lordships, however, did not find anything definite on the record to indicate against the bona fide of the husband's offer to take back the wife or of the suit for the restitution of conjugal right or of the attempt at reconciliation during the said suit for the restitution of conjugal rights. As their Lordships thought that the attitude of the husband might have changed and that there was nothing on record to show that the offer of the husband to take back the wife was not genuine, they decreed the suit without entering into the merits of the allegations made by the wife in order to give a fair trial to the offer made by the husband. 9. Their Lordships allowed the appeal, set aside the decree of dismissal passed by the trial Court and decreed the suit only to this extent that the respondent (wife) do return to the plaintiff's (husband's) house though not necessarily, at Naihati, as mentioned in the plaint, and render him conjugal rights . 10. Before their Lordships, the husband gave the assurance through his learned Advocate, that he would treat his wife kindly, if she went back to him and give her all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e members of her husband's family neglected to provide her with proper food and dress. Her further case is that on the night of June 3, 1958 the husband charged her that she was not the actual bride selected for him, that the marriage with her was solemnised by fraudulent change of bride, that she was otherwise unfit to be his wife, that it was not possible to live with her as husband and wife and that the husband behaved with her with utmost indifference and coldness. Her further grievance is that when on June 6, 1958 her elder brother, Susil Kumar Dey, went to the Naihati house to arrange for her customary return to her father's place within the marriage week, the eldest brother of the husband and his mother and other relations made dirty aspersions and accusations against her brother and maternal uncle in whose house the marriage was celebrated and they forced her to leave the Naihati house wrongfully retaining the gifts and presents including saries, ornaments and garments, which she received from them as also their other friends and relations. 15. The wife resisted the present suit inter alia on the allegations of cruel treatment meted out to her during her short st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at Naihati. Hence the family dwelling house of the husband cannot, strictly speaking, be called the house of the husband. In the special facts and circumstances of the present case, the husband should have shifted to a separate house in order to make it possible for the wife to return to her husband's house as per direction given by the High Court. 18. It is true that the direction in the decree for restitution of conjugal rights also contemplates wife's return to her husband at the Naihati house. Even then, in view of what happened in the past, the initiative for the wife's return to the Naihati house should have been taken by the husband. It was the duty of the husband to assure the wife after the disposal of the suit for restitution of conjugal rights that on her corning to the family dwelling house at Naihati she would be properly received not only by the husband but also by the other members of the husband's family. 19. It should be remembered that the husband instituted a suit for obtaining a decree for nullity of marriage some two or three weeks after the marriage on the allegations that fraud was perpetrated upon the husband by solemnising his marria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to facilitate the wife's return to him either in family dwelling house at Naihati or in a separate matrimonial home we cannot say that the wife failed to comply with the decree for restitution of conjugal rights. 21. In the instant suit the husband admitted in his cross-examination that he made no enquiry about his wife after the High Court decree, that he did not send any letter to her asking her to come to him and that he made no attempt to bring her to his house. That being the position, he cannot be heard to say that the wife failed to comply with the decree for restitution of conjugal rights. 22. The wife has said in her examination-in-chief that she was always ready and willing to live with her husband in compliance with the High Court's decree for restitution of conjugal rights, though she was not willing to live in her husband's house at Naihati. She has further said that she sent her husband two letters under certificate of posting intimating her willingness to live with him. The copies of these two letters have been marked as Exts. E and E(1). She has said that she gave the letters to her younger Dada Kalipada Babu for posting. She has not said that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be presumed to be true unless they are proved to be false. No evidence has been adduced on behalf of the husband that the certificates are forged or spurious. Therefore, it must be taken that the three letters, copies whereof have been marked as Exts. E, E(1) and G, were duly posted according to the tenor of the certificates Exts. F, F(1) and H. Under Section 114 illustration (f) of the Evidence Act it must further be presumed that the three letters, two by the wife and one by Kalipada were received by the husband in due course. A reference may be made in this connection to the case of Chhaya Debi v. Lahoriram (1963) 67 CWN 819 at p. 834 , where under similar circumstances, their Lordships of the Division Bench held that the certificate of posting not only raised the presumption that the letter was duly posted but also the presumption that the letter was received by the addressee. 23 A presumption, however, may be rebutted. In the instant case no attempt has been made to rebut the presumption of posting. As to the receipt of the said letter, the husband no doubt has said in his cross-examination that he got no letter from the wife after the decree. He has not said in so man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could make any suggestions for reconciliation to him he told us not to tease them over Kanak Lata and said nothing would be done out of court. So we came back . There was no cross-examination on this point. It may be remembered that the execution of the decree for restitution of conjugal right was kept suspended for a period of three months in the hope that within this time the parties and their well-wishers will so conduct themselves that the way of approach and reconciliation may be made smoother and easier and may ultimately prevent two fruitful lives from being blasted . It is highly probable that in deference to the wishes of their Lordships the relations of the wife approached the husband and his relations to bring about reconciliation between the two. We find no reason to disbelieve what has been stated by Kalipada regarding his visit to Naihati along with his sister's husband, Pankaj Kumar Ghosh, sister's husband of the wife being witness No. 3 for the wife fully corroborated the statement of Kalipada regarding their visit to the house of the husband at Naihatl twice in 1962 with a view to bringing about reconciliation between the husband and the wife, he was ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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