The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.219 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure) Lokanath Mishra -versus- Smt. Baijoyantimala Mishra @ Bayani …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. S. P. Mishra, Sr.Advocate. Ms. S. Rout, Advocate. For Respondent - Mr. D. P. Mohanty, Advocate. Mr. P. K. Swain, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :12.01.2024 :: Date of Judgment :22.02.2024 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment. 2. The appellant of this Second Appeal was the petitioner before the Trial Court in M.C. No.13 of 1984 under Section 13 of the Hindu Marriage Act, 1955 and he was the appellant in the First Appeal before the First Appellate Court in S.J. Appeal No.38 of 1989. S.A. No.219 of 1991 Page 1 of 18 The respondent of this Second Appeal was the
Legal Reasoning
respondent/opposite party before the Trial Court in M.C. No.13 of 1984 and she was also the respondent in the First Appeal before the First Appellate Court in S.J. Appeal No.38 of 1989. 3. The case of the petitioner vide M.C. No.13 of 1984 before the Trial Court was a case for annulment of marriage between him (husband) and his wife (respondent) by a decree of divorce. 4. As per the averments made by the petitioner/husband in his petition vide M.C. No.13 of 1984 before the Trial Court, his marriage with the respondent was solemnized on 02.07.1979 at village Garadpur
Legal Reasoning
as per Hindu rites and customs. They both are Hindus and they are guided and governed by Hindu Marriage Act, 1955. Prior to the marriage of the petitioner with the respondent, they (petitioner and respondent) were spinsters. After the marriage of the petitioner and respondent, they both led their conjugal life as husband and wife in the house of the petitioner at village Naripur under Town P.S. of Bhadrak district and they resided unitedly in the house of the petitioner as husband and wife up to 09.11.1980. But, since 09.11.1980, the respondent (wife) had withdrawn herself voluntarily from the company of her husband i.e. from the company of the petitioner without any S.A. No.219 of 1991 Page 2 of 18 permission of the petitioner and without any just cause and came to her parents’ house and since then i.e. since 09.11.1980, till yet, she (respondent) has been residing in her parents’ house. By the time of leaving the house of the petitioner on dated 09.11.1980, the respondent (wife) had not conceived any child in her womb. During the above short period of stay of the respondent with the petitioner up to 09.11.1980 since 02.07.1979, the respondent (wife) was in a habit of disregarding the petitioner and his parents’ family members along with other elderly members of his family. She (respondent) used to show utter disrespect to the family members of the petitioner including the petitioner in small matters by using slang languages, those were insulting them and she was also showing her gestures, which were in the nature of insult. Accordingly, the respondent (wife) was in a habit of offending the sentiments of the family members of the petitioner and she (respondent) was also underestimating all the family members of the petitioner including the petitioner. Inspite of the repeated requests of the petitioner, his family members and relatives, the respondent (wife) did not return back from her parents’ house to the house of the petitioner for leading her conjugal life with the petitioner together in his house. So, the above conduct of the respondent subjected the petitioner to extreme pain and S.A. No.219 of 1991 Page 3 of 18 mental agony. The parents of the respondent (wife) also instigated her (respondent) for her non-return to the house of the petitioner from their house. On that aspect regarding the reluctancy of the parents of the respondent for non-allowing the respondent to come to the house of the petitioner, the mother of the respondent had written a letter to the petitioner indicating the same. On dated 16.11.1980, the petitioner along with some local gentlemen moved to the parents’ house of the respondent and requested the respondent to come to his house. But, the respondent became violent and used slang languages against them all, for which, the petitioner’s attempt for bringing the respondent (wife) back to his house was in vain. During the stay of the respondent in her parents’ house, she (respondent) applied for C.T. Training without disclosing her identity as the wife of the petitioner. But, she applied for C.T. Training stating her as a bachelor showing her permanent residence to the house of her parents. Thereafter, the respondent took C.T. Training course at Remuna in the district of Balasore projecting herself as bachelor without disclosing herself as the wife of the petitioner. The petitioner had sent notices to the respondent requesting her for resumption of her conjugal S.A. No.219 of 1991 Page 4 of 18 life with him. But, in spite of receiving that notices, the respondent did not give any reply. Inspite of the repeated requests of the petitioner to the respondent for attending the funeral ceremony of his father on dated 10.11.1981, she (respondent) did not attend. None of the parents’ family members of the respondent (wife) also attended the funeral ceremony of the father of the petitioner (husband). Accordingly, since 09.11.1980, the respondent has been staying in her parents’ house deliberately withdrawing herself from the company of the petitioner. For which, the petitioner has been subjected to mental torture, cruelty and discomfort by the aforesaid acts and activities of the respondent. When, the petitioner lost his all hopes and expectations of joining of his wife (respondent) with him for leading conjugal life, then without getting any way, the petitioner approached the Civil Court by filing the case vide M.C. No.13 of 1984 against his wife i.e. against respondent under Section 13 of the Hindu Marriage Act, 1955 praying for annulment (dissolution) of his marriage with his wife (respondent) through a decree of divorce. 5. Having been noticed from the Trial Court in M.C. No.13 of 1984, the respondent (wife) contested the same by filing her written statement admitting the solemnization of her marriage with the petitioner as per the S.A. No.219 of 1991 Page 5 of 18 Hindu Rites and Customs on dated 02.07.1979, but disputing/denying the other allegations alleged by the petitioner against her in his petition by taking her stands specifically therein that, he (petitioner) is passing his time with bad company and seldom goes to his father’s place except once or twice in a month. His ears are poisoned by his mother, sister and brother-in-law and consequently, the petitioner was assaulting her mercilessly during her stay in the house of the petitioner. None of the family members of the petitioner were taking any care of her food, clothings or anything else. The family members of the petitioner were subjecting her to torture compelling her for bringing more and more dowry from her parents’ house. The petitioner (husband) has never paid any heed to her request to take her to the place of his service, but, on the other hand, he was assaulting her mercilessly. So, there was no other way for her (respondent), but to send information to her father for her protection. For which, her father came to her in-laws house and brought her to his house and provided her shelter in his house. Her father has provided her C.T. Training. Still then, she (respondent) agrees to go and join with the company of the petitioner for leading her conjugal life, if, he (petitioner) agrees to allow her to reside at the place of his service and if he (petitioner) shall not provide any rude behaviour to her. S.A. No.219 of 1991 Page 6 of 18 Therefore, the petition for divorce filed by the petitioner against her (respondent) is not maintainable under law. For which, the same is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four (4) numbers of issues were framed by the Trial Court and the said issues are:- Issues (i) Has the petitioner got cause of action against the O.P./respondent? (ii) Has any cruelty and desertion been caused by the O.P./respondent? (iii) Is there any necessity for divorce as prayed for in the petition? (iv) To what relief, if any, the petitioner is entitled? 7. In order to substantiate the aforesaid relief i.e. for the decree of divorce sought for by the petitioner, during trial of Misc. Case No.13 of 1984 before the Trial Court, he (petitioner/husband) examined three witnesses from his side including him as P.W.1 and relied upon one document on his behalf vide Ext.1. But, on the contrary, in order to nullify the petition for divorce of the petitioner, the respondent (wife) examined three witnesses from her side including herself as D.W.1 and relied upon series of documents on her behalf vide Exts.A to G. S.A. No.219 of 1991 Page 7 of 18 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the petitioner (husband) and in favour of the respondent (wife) and basing upon the findings and observations made by the Trial Court in all the issues against the petitioner and in favour of the respondent (wife), the Trial Court dismissed the M.C. No.13 of 1984 under Section 13 of the Hindu Marriage Act, 1955 of the petitioner on contest and also rejected the petition under Section 27 of the Hindu Marriage Act, 1955 of the respondent (wife) on contest, but without cost vide its judgment and decree dated 04.05.1989 and 12.05.1989 respectively assigning the reasons that, the materials available in the Record are not sufficient to establish the allegation of the cruelty, desertion alleged by the petitioner (husband) against the respondent (wife), because the respondent (wife) was forced to leave the house of the petitioner due to the troubles made to her (respondent) by the petitioner and his family members. For the rejection of the petition under Section 27 of the Hindu Marriage Act, 1955 of the respondent, the Trial Court also assigned the reasons that, the pleadings and evidence are not sufficient to allow the S.A. No.219 of 1991 Page 8 of 18 petition under Section 27 of the Hindu Marriage Act of the respondent (wife). 9. On being dissatisfied with the aforesaid judgment and decree of dismissal of the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 of the petitioner (husband) vide M.C. No.13 of 1984 passed by the Trial Court through its judgment and decree dated 04.05.1989 and 12.05.1989 respectively, he (petitioner/husband) challenged the same by preferring the First Appeal being the appellant vide S.J. Appeal No.38 of 1989 against the respondent (wife) by arraying her (wife) as respondent. 10. After hearing from both the sides, the First Appellate Court dismissed to the First Appeal vide S.J. Appeal No.38 of 1989 of the petitioner (husband) on contest as per its judgment and decree dated 18.04.1991 and 03.05.1991 respectively and confirmed the judgment and decree of dismissal of the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 of the petitioner (husband) vide M.C. No.13 of 1984 passed by the Trial Court accepting the findings and observations made by the Trial Court against the petitioner and in favour of the respondent (wife). S.A. No.219 of 1991 Page 9 of 18 11. On being aggrieved with the aforesaid confirming judgment and decree passed by the First Appellate Court in S.J. Appeal No.38 of 1989 against him (petitioner/husband), he (petitioner/husband) challenged the same by preferring this Second Appeal being the appellant against his wife by arraying his wife as respondent. 12. This Second Appeal was admitted on formulation of the following substantial question of law i.e.:- Whether in view of the admitted factual position that, the wife had left the house of the husband and parted company with him and in the absence of any specific finding accepting the plea taken by her for leaving her husband’s house and not joining him, the courts below erred in negativing the case of desertion pleaded by the appellant. 13. I have already heard from learned counsels of both the sides. 14. It appears from the Record that, the petition for divorce was filed by the appellant (petitioner/husband) before the Trial Court vide M.C. No.13 of 1984 on dated 30.01.1984 indicating the age of the petitioner as 29 years and age of the respondent (wife) as 24 years. In the written statement of the respondent (wife), she has not disputed/denied her aforesaid age stated by her husband (petitioner) in the petition vide M.C. No.13 of 1984 supported with an affidavit. S.A. No.219 of 1991 Page 10 of 18 On dated 09.08.1988, the petitioner has adduced evidence on oath before the Trial Court in M.C. No.13 of 1984 as P.W.1 by stating his age as 30 years. On dated 11.08.1988, the respondent (wife) has also adduced evidence on oath before the Trial Court in M.C. No.13 of 1984 as D.W.1 by stating her age as 30 years. In the evidence of P.W.1 on dated 09.08.1988 before the Trial Court in M.C. No.13 of 1984, the petitioner (P.W.1) has specifically deposed that, he is serving as clerk in central excise Department in Balasore and the respondent (wife) is serving as a teacher at Santhia, which is under Bhadrak N.A.C. In the evidence of D.W.1 on dated 11.08.1988 before the Trial Court in M.C. No.13 of 1984, she (respondent/wife) has deposed specifically that, she is serving as a teacher in Nilakanthpur U.P. school, prior to that she was serving as a teacher at Khira sahi, Rambhila and before that at Nilakanthpur. 15. It is the undisputed case of the parties that, the marriage of the petitioner and the respondent was solemnized on dated 02.07.1979 and they both had led their conjugal life unitedly only up to 09.11.1980 i.e. for one year four months and seven days only. They (both petitioner and S.A. No.219 of 1991 Page 11 of 18 respondent) are residing separately without having any sort of conjugal relationship between them continuously for more than 43 years since 09.11.1980. Because, since 09.11.1980 till date, they both are residing separately and independently in their respective parents’ houses. 16. On the basis of the above undisputed/unchallenged age of the petitioner and respondent indicated in the petition vide M.C. No.13 of 1984 and as well as in the depositions of the petitioner and the respondent on oath on dated 09.11.1988 and 11.08.1988 respectively as P.W.1 and D.W.1, the present age of both the parties are more than 63 years and they both have crossed the age of their superannuation from their respective Government services as clerk and Mistress. On this aspect, propositions of law has already been clarified in the ratio of the following decisions of the Hon’ble Courts and Apex Court:- together despite (i) 2023 (4) Civ.C.C. 741 (S.C.)(D.B)—Rajib Kumar Roy Vrs. Sushmita Saha—Hindu Marriage Act, 1955—Section 13— Para 5—Divorce4Keeping parties irretrievable breakdown of marriage amounts to cruelty on both sides. Parties have been living separately for the last 12 years. 12 years of separations is a sufficiently long period of time to have sapped of all emotions, which the two perhaps may have had once for each other. Continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of <irretrievable breakdown of marriage=, which is also a facet of <cruelty=. So, marriage between the parties dissolved by grant of decree of divorce. (ii) 2023 (4) Civ.C.C. 763 (Kerala) (D.B.)—Sreedharan Vs. Ahsa—Hindu Marriage Act, 1955—Section 13—Para 8— S.A. No.219 of 1991 Page 12 of 18 Divorce4Keeping parties together despite irretrievable breakdown of marriage amounts to cruelty on both the sides. Marriage between the parties dissolved. (iii) 2023 (4) Civ.C.C. 795 (Delhi) (D.B.)—Anita Vrs. Amit Bhardwaj—Hindu Marriage Act, 1955—Section 13—Para 164 Divorce4Parties were able to live together barely for ten months and since 23.09.2013, they have been living separately proves that, the parties were unable to sustain their matrimonial relationship. For a couple to be deprived of each other’s company and of conjugal relationship, is an act of extreme cruelty. Divorce granted. (iv) 2005 (2) CJD (S.C.) 230—Durga Prasanna Tripathy vs. Arundhati Tripathy— Hindu Marriage Act, 1955—Section 13— Divorce4both parties have crossed the point of no return4A workable solution is not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. Accordingly, the judgment of the High Court was set aside and the decree of divorce passed by the Family Court was confirmed. (v) 2007 (1) CCC (S.C.) 28 (D.B.)—Rishikesh Sharma Vs. Saroj Sharma—Hindu Marriage Act, 1955—Section 134Para 4—No purpose in compelling both the parties to live together and best course would be to dissolve the marriage by passing a decree of divorce. (vi) 2007 (II) Apex Court Judgment 154 (S.C.), 2007 (II) Civ.C.C. 663 (S.C.) and 2007 (4) SCC 511—Samar Ghosh Vrs. Jaya Ghosh—Hindu Marriage Act, 1955—Section 13 (1) (i-a)— Divorce4Certain guideline laid down by the Apex Court4Held, where there has been a long period of continuous separation, it may fairly be concluded that, the matrimonial bond is beyond repair4 The marriage becomes a fiction though supported by a legal tie4 By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties4In such like situations, it may lead to mental cruelty. 17. Here in this Second Appeal at hand, undisputedly, the parties i.e. husband and wife both have been residing separately after being separated from each other continuously for more than 43 years only after S.A. No.219 of 1991 Page 13 of 18 spending one year four months and seven days unitedly and the prime/pick period of lives of both the parties have already been crossed/passed. At present, they both are in the age group of senior citizens and they both have become old having more than 63 years each in their respective age. As such, they both are at the fag end of their lives. Because, as per the dictum of the Apex Court in the case of Dr. Balram Prasad Vrs. Dr. Kunal Saha and Ors. reported in 2013 (II) CLR (SC)—1062 (at Paragraph 133) <the life expectancy of a healthy person in the present age is 70 years.= During the period of their separate living, both the parties have also crossed the age of their superannuation from their respective Government services. For which, at present, no workable solution between them is possible for their union, as they both cannot and shall not at the last stage of their lives reconcile themselves to live together forgetting their past as bad dream. Because, more than 43 years of their continuous separate living from each other during their prime/pick periods of their lives is a sufficiently long period of time to have sapped all emotions, which they perhaps may have had once for each other prior to 09.11.1980. Therefore, the aforesaid continued bitterness between the parties due to the continuance of the litigations between them for more S.A. No.219 of 1991 Page 14 of 18 than 43 years coupled with dead emotions and long separation between them can be construed as a case of irretrievable breakdown of marriage of the parties. For which, it may fairly be concluded that, at this stage and under the situations and conditions as discussed above, their matrimonial bond is beyond repair. Their marriage has become a fiction though supported by a legal tie. So, at this stage, if any attempt will be taken by Court for keeping the parties together despite irretrievable breakdown of their marriage for the aforesaid reasons, the same shall amount to cruelty on both the sides. That apart, absence of regard to the feelings and emotions by staying separately for more than 43 years alleging allegations/faults against each other can also be treated as mental cruelty to the parties. So, by taking the above situations as well as the present physical conditions and age of the parties coupled with the law and facts as per the discussions and observations made above, it is held that, the ends of justice shall bestly be served, if both the parties shall be allowed to lead their lives independently by curtailing their all sorts of marital ties between them as per law. 18. Here in this case at hand, both the husband and the wife were the Government servants. The husband (petitioner) was serving as clerk in S.A. No.219 of 1991 Page 15 of 18 central excise department and the wife (respondent) was serving as teacher in education department under Odisha Government. Both the husband and the wife have crossed their age of superannuation. The jobs of both the husband and wife were pensionable jobs. There is no material in the Record to show about the present liabilities of the petitioner and respondent in their respective parents’ house. As such, both the husband and the wife are self dependent having own sources of their income from their respective pensions. As, the respondent (wife) had undergone C.T. Training for obtaining a job in education department after her marriage and during her stay in her parents’ house and as till the joining of the respondent (wife) in her service, it was the duties and obligations of the husband (petitioner) to maintain her, because till joining in the service, respondent (wife) had no independent income, then at this juncture, by taking such situation into account, it is felt proper to allow the petition for divorce filed by the petitioner (husband) against the wife (respondent) for annulment (dissolution) of their marriage through a decree of divorce directing the husband (petitioner) to pay a lumpsum amount i.e. Rs.3,00,000/- (rupees three lakh) to the respondent (wife) S.A. No.219 of 1991 Page 16 of 18 towards her permanent alimony as per Section 25 of the Hindu Marriage Act, 1955. 19. As per the discussions and observations made above, when it is held that, the annulment of marriage between the parties through a decree of divorce shall meet the ends of justice, then at this juncture, the judgment and decree regarding the dismissal to the petition for divorce under Section 13 of the Hindu Marriage Act, 1955 of the petitioner (husband) passed by the Trial Court in M.C. No.13 of 1984 and confirmation to the same by the First Appellate Court through its judgment and decree in S.J. Appeal No.38 of 1989 cannot be sustainable under law. For which, there is justification under law for making interference with the judgments and decrees passed by the Trial Court in M.C. No.13 of 1984 and as well as by the First Appellate Court in S.J. Appeal No.38 of 1989 through this Second Appeal filed by the appellant (husband). So, there is merit in the appeal of the appellant. The same must succeed. 20. In the result, the Appeal filed by the petitioner (husband) is allowed on contest, but without cost. The judgment and decree of the dismissal to the petition under Section 13 of the Hindu Marriage Act, 1955 for divorce of the petitioner S.A. No.219 of 1991 Page 17 of 18 passed by the Trial Court in M.C. No.13 of 1984 as per its judgment and decree dated 04.05.1989 & 12.05.1989 respectively and as well as confirmation to the same through the the judgment and decree dated 18.04.1991 and 03.05.1991 respectively passed by the First Appellate Court in S.J. Appeal No.38 of 1989 are set aside. The petition for divorce vide M.C. No.13 of 1984 filed by the petitioner (husband) is allowed on contest against the respondent (wife), but without cost. The marriage between the petitioner and the respondent is hereby annulled (dissolved) through this decree of divorce. The petitioner (husband) is directed to pay a lumpsum amount i.e. Rs.3,00,000/- (Rupees Three Lakhs) to the respondent (wife) towards her permanent alimony within a period of two months hence, failing which, the respondent (wife) is at liberty to realize the aforesaid amount from the petitioner (husband) through process of Court as per law making the petitioner liable for all expenditures incurred by the respondent (wife) for realisation. Orissa High Court, Cuttack. 22nd February, 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. S.A. No.219 of 1991 Page 18 of 18