The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.11 of 2022 Swadesh Kumar Biswal …. Appellant Seema Smaraki Ray -versus- …. Respondent Learned advocates appeared in the case: For appellant For respondent : : Mr. Bikram Keshari Raj, Advocate Mr. Naresh Ch. Jena, Advocate CORAM:
Legal Reasoning
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 and Judgment: 2nd May, 2024 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ARINDAM SINHA, J. 1. The husband has preferred appeal against judgment dated 15th December, 2021 of transferee Family Court, dismissing on contest his petition for dissolution of the marriage. Ground of it urged before the Family Court was cruelty. Mr. Raj, learned advocate appears on behalf of appellant-husband and Mr. Jena, learned advocate, for respondent-wife. 2. We have perused materials available in the lower Court record. The facts are, parties entered into a ‘secret’ marriage on 21st April, 2008, Page 1 of 8 upon having met at their place of training. Subsequently it was made known to, inter alia, appellant’s parents. There was a social marriage/reception on 8th December, 2008. Soon after the marriage, respondent-wife found work. The parties managed their relationship in spite of geographical separation by reason of their work and after a while, respondent-wife became pregnant. She took leave and then left her job to come and stay in her matrimonial home, to continue with the pregnancy. On 17th March, 2010, she gave birth to their daughter. It is within a very short time thereafter, next month in April, 2010, she availed opportunity to join National Rural Health Mission, Bhubaneswar as Project Associate. Sometime later the couple shifted to appellant’s place of work in Angul. There was a visit made by the mother-in-law (husband’s mother) to the rented accommodation. Ultimately, respondent-wife, after having lodged police complaint on 17th May, 2011 that was compromised without any action taken, took up a job in Koraput. She attended to her work by living in her father’s house. For most of the time the daughter was with the husband. On query made we ascertained that the daughter is still with the husband. Further fact is, after the civil proceeding had been instituted by appellant, respondent-wife again lodged police complaint. This time, accompanied by the police, she went to her matrimonial home in Bhubaneswar and took away her belongings. MATA no.11 of 2022 Page 2 of 8 3. Appellant and his father were witnesses from his side. There were also two witnesses on side of respondent-wife, herself and her father’s friend. 4. We have come across several allegations, which we have not recorded above as facts. Of them are demand for dowry of ₹5,00,000/- (rupees five lakhs) and that only ₹2,00,000/- (rupees two lakhs) could be arranged, implying same was given. There are further allegations. It is not necessary to scrutinize and find on every one of them, their veracity. We have before us fact of respondent-wife having had lodged a complaint on 17th May, 2011, which she herself said from the box in cross- examination, as had not led to any further action. The facts are also that she removed herself to reside and do job away from her husband and her matrimonial home. So it is that the civil proceeding was instituted by the husband in the Family Court at Bhubaneswar and on respondent-wife petitioning to this Court for transfer, the proceeding was transferred and dealt with by Family Court, Jeypore. Physical separation being one of the facts leading to institution of the proceeding, further fact is that acted upon complaint was lodged by respondent-wife with the police, after institution of the proceeding and pursuant to substantially long separation. As aforesaid, the police acted and there was recovery of material MATA no.11 of 2022 Page 3 of 8 possessions but the daughter was left behind. Criminal proceeding commenced. 5. Respondent wife made several further and other statements in her cross-examination. From them, we have not been able to see that allegations made by petitioner-husband were demonstrated to be false. There was corroboration with minor inconsistencies. What is important is, allegation made by respondent-wife that cause of dispute between the parties was demand for payment of balance dowry, remained an allegation as her father did not take the box to come and say that he paid or gave. Instead, his friend took the box to say ₹2,00,000/- (rupees two lakhs) was arranged. Across pleading of respondent-wife, her evidence- in-chief, cross-examination and examination of her father’s friend, word ‘arranged’ was used to imply payment of ₹2,00,000/- (rupees two lakhs) in cash as dowry. The story of demand for dowry also appears improbable because the couple had decided to and had also already got ‘secretly’ married. Other material articles were recovered by the wife with help of police. 6. Mr. Jena submits, appellant-husband had filed for quashing of the police case before this Court. In the petition he had admitted that there was compromise and parties were staying together. On that basis the learned single Judge, by order dated 10th August, 2021, quashed criminal MATA no.11 of 2022 Page 4 of 8 proceeding in connection with G.R. Case no.391 of 2014. CRLMC no.731 of 2021 (Swadesh Kumar Biswal and others v. State of Odisha
Decision
and another) was thus disposed of. We reproduce below paragraph-4 from said order. “4. In view of the fact that the Informant (Opposite Party No. 2) and petitioners have already settled their dispute amicably in presence of the village gentries. The Informant is residing with the Petitioner No. 1 (husband) and she does not want to proceed with the prosecution further against the petitioner in connection with GR Case No. 391 of 2014, pending before the learned SDJM, Koraput, there is hardly any chance of conviction of the petitioner and in such event, it will amount to abuse of the process of the court in case the criminal proceeding is allowed to continue further.” (emphasis supplied) Mr. Jena submits, this was taken cognizance of by the Family Court to dismiss the civil proceeding. We have ascertained that the criminal proceeding was independently fought between the parties, initiated on police complaint made after institution of the civil proceeding. The quashing happened at a time, when evidence in the civil proceeding was over. Hence, the petition and aforesaid order does not find place as exhibits. The documents were not there before the Family Court, for MATA no.11 of 2022 Page 5 of 8 consideration in passing judgment. They are before us. To ascertain whether it is necessary for us to treat them as additional evidence in appeal, for purpose of delivery of judgment, we asked the parties whether the compromise is holding. Answer was in the negative. Petitioner resides in Bhubaneswar. It was admitted by respondent-wife in her cross- examination that the daughter is studying in a reputed school at Bhubaneswar. Respondent continues with her work in Koraput, staying at her father’s house. We are quite clear in our minds that purpose of the settlement was otherwise than in salvaging the marriage. As such, there is no requirement to take cognizance, to treat this material as additional evidence, for purpose of adjudication of the appeal. 7. Mr. Jena also draws our attention to deposition dated 22nd November, 2017 of P.W.2 (father of appellant). Relied upon statements are reproduced below. “10. ... ... ... It is not a fact that my daughter in law Seema mentally and physically tortured my son Swadesh at Angul different times. It is not a fact that Seema assaulted Swadesh on his hand and fractured his hand. It is not a fact that I have stated that there is any fracture injury to the hand of Swadesh on the assault of MATA no.11 of 2022 Page 6 of 8 Seema, but there was injury on the hand of my son Swadesh. ... ... ...” (emphasis supplied) Relied upon statement in cross-examination of P.W.2 has been asserted to be admission by appellant’s father that his daughter-in-law did not mentally or physically torture appellant at Angul on different times. The answer was obviously to suggestion given. We cannot rely upon the evidence simply because at Angul, the couple stayed in rented house without the parents, who were at Bhubaneswar. The statement was an answer to an incorrect suggestion given. 8. As aforesaid it is not necessary, in the facts and circumstances found by us, to delve into each and every allegation of cruelty. We are convinced situation in the marriage was such, as has been brought forth from the pleadings and evidence. There was cruelty suffered by appellant- husband. Defence of respondent-wife that cause of dispute between the parties being demand for balance dowry is something she miserably failed to even attempt to prove. Instead, in face of her allegations against her in-laws, she admitted that for major part of her pregnancy and till delivery she was taken care of by them. All this after supposed demand for balance dowry, allegedly also made by appellant-husband. Then we have a police complaint lodged against appellant and his family, which MATA no.11 of 2022 Page 7 of 8 the police felt could be resolved on counseling. Subsequent thereto no complaint till after filing the proceeding. One of the reasons for the civil proceeding was respondent-wife had of her own volition taken up a job causing geographical separation, not only from appellant but also from the daughter. Taking police to house of her in-laws for recovery of her material things and leaving the daughter behind also convinces us that there was cruelty in the marriage. 9. Materials before us do not indicate that appellant has in any manner condoned the cruelty. There is also no indication that respondent- wife is in need of maintenance or support. 10. Impugned judgment is reversed. The marriage taken place in the temple on 21st April, 2008 and thereafter said to be solemnized on 8th December, 2008 is dissolved by decree of divorce on ground of cruelty. The decree be drawn up expeditiously. 11. The appeal is allowed and disposed of. Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 08-May-2024 16:35:03 Prasant MATA no.11 of 2022 ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Page 8 of 8