The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.59 of 2013 Arttatrana Biswal Sasmita Samal @ Biswal -versus- …. …. Appellant Respondent Learned advocates appeared in the case: For Appellant For Respondent : :
Legal Reasoning
Mr. S.N. Mishra-1, Advocate Mr. S. Rath, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- J U D G M E N T Date of hearing: 23rd September, 2024 Date of Judgment: 8th October, 2024 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The appeal is directed against judgment dated 3rd April, 2013 made by the Family Court, dissolving the marriage. There was further direction upon appellant to pay ₹5,000/- per month from date of the judgment, as maintenance. Yet further direction is to allow respondent to see the child, who was with appellant, whenever she would like to see her. Mr. Mishra, learned advocate appeared on behalf of appellant and Mr. Rath, learned Page 1 of 6 advocate, for respondent. On query from Court, Mr. Mishra submitted, respondent never wanted to see the daughter. His client and the daughter were both present in Court. 2. It appears, respondent had earlier filed for divorce by M.A.T. no.121 of 2006 before the Court of Civil Judge (Senior Division), Angul. She had filed an application therein for withdrawal of the case. Reproduced below are paragraphs 2 to 5 of the application. “2. That, while the conjugal life of the plaintiff and the defendant was running smoothly, one Sahadev Bhukta, S/o, Nabina Bhukta who is serving is Kashmir and with whom the plaintiff had acquaintance before her marriage, developed contact with the plaintiff, during absence of the defendant and persuaded her to go with him to Kashmir. Thus being mislead and persuaded by the alluring commitments of the said Sahadev, the plaintiff, left the Defendant and his family and without knowledge or consent of the Defendant went to Kashmir with the said Sahadev and stayed away from the Defendant and his family for more than a month. 3. That, being further provoked and influenced by the said Sahadev, the plaintiff had filed this application before this Hon’ble Court praying for dissolution of the marriage between her and the defendant. 4. That, subsequently the well wishers of the plaintiff have counseled the plaintiff about the wrong being committed by her MATA no.59 of 2013 Page 2 of 6 and the plaintiff has also realized that the steps taken by her including filing of the present application are against the interest of the peace of the family with such realization the plaintiff no more wants to proceed with this case and seeks to withdraw the same. 5. That, it is necessary in the interest of justice that the plaintiff be permitted to withdraw this application for dissolution of marriage.” (emphasis supplied) 3. Respondent did not thereafter turn up in the Court to move the withdrawal application. By order dated 27th January, 2007 the matrimonial case was dismissed. Text of the order is reproduced below. “The petitioner is absent. No step is taken by her advocate. The petition filed by the petitioner on 9.11.2006 is not moved hence the same is rejected. As it appears, the petitioner is not interested to proceed further in this case because after filing the petition on 9.11.2006 she is not attending the Court. In view of the contents of her petition of dtd. 9.11.2006, she is not likely to take step for the appearance of the O.P. Hence the case is dismissed. ” (emphasis supplied) 4. It appears from the lower Court record, respondent had thereafter filed for divorce in the Family Court, registered as C.P. no.520 of 2011. In paragraph-13 of the petition, she said she had earlier filed C.P. no.277 of MATA no.59 of 2013 Page 3 of 6 2010 but owing to formal defect she had withdrawn it upon liberty obtained to file afresh. She did not mention in her petition about the matrimonial case she had filed in year 2006, dismissed as aforesaid. 5. We do not find from the petition, date when part of cause of action arose apart from date of solemnization of marriage on 13th February, 2002, pleaded as the cause of action. The petition bears allegation of matrimonial rape. It includes allegations of respondent having resisted on screaming. There is a daughter from the marriage. She was and still is living with her father (appellant). 6. Contents of the withdrawal application gives rise to lawful presumption to constitute a ground for dissolution of the marriage. It was exhibit-B in the proceeding dealt with by impugned judgment. 7. We have perused relevant materials in the lower Court record. The decision to dissolve the marriage is correct according to us. However, there is no indication in impugned judgment for awarding monthly maintenance of ₹5,000/- to appellant. 8. We confirm impugned judgment on dissolution of the marriage.
Decision
However, we set aside the direction for maintenance. At this stage learned advocates submit, parties have agreed on the amount of permanent alimony. Mr. Mishra submits, his client had already deposited aggregate MATA no.59 of 2013 Page 4 of 6 ₹1,40,000/- with Registrar (Judicial). There has been agreement that permanent alimony will be ₹5,00,000/-. He hands up demand draft no.539121 dated 4th October, 2024 issued by State Bank of India in favour of Registrar, High Court of Orissa for ₹3,60,000/-. Thus, there has been aggregate tender of ₹5,00,000/-. 9. Mr. Rath submits, he has instructions that ₹5,00,000/- permanent alimony has been agreed to be accepted by his client. Appropriate direction be made so that the amount can be disbursed to her, after which she will have no further claim on respondent. 10. Note sheet says ₹90,000/- was invested on 29th June, 2021 and ₹50,000/-, on 31st August, 2021. The investment was on short term basis and kept renewed. Registrar (Judicial) is directed to present said demand draft dated 4th October, 2024 for encashment. The Registrar will also encash the investments along with accruals. Aggregate encashment will thereafter be transferred to respondent’s bank account. For the purpose respondent will produce website copy of this judgment to the Registrar, along with particulars of her bank account. We record receipt in full and final settlement of permanent alimony at ₹5,00,000/- along with accruals on the investments by respondent, in execution, discharge and satisfaction MATA no.59 of 2013 Page 5 of 6 of direction for permanent alimony at aggregate of 5,00,000/- and accruals as encashed and to be disbursed by the Registrar. 11. The appeal is disposed of. Appellant will forthwith take steps for drawing up and completing the decree. (Arindam Sinha) Judge (M.S. Sahoo) Judge Jyoti Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Reason: Authentication Location: HIGH COURT OF ORISSA Date: 08-Oct-2024 18:04:21 MATA no.59 of 2013 Page 6 of 6