Civil Appeal No. 4 of 1996 · Orissa High Court
Case Details
ORISSA HIGH COURT CUTTACK Civil Appeal No.4 of 1996 From the judgment and decree dated 6th December, 1995 passed by the learned Judge, Family Court, Rourkela in Original Suit No.45 of 1993/Misc. Case No.41 of 1993 -------------------- Dibya Kishore Patel .…… Appellant -versus- Smt. Tanoj Kumari Patel & another ….… Respondents For Appellant : M/s. J.R.Patnaik, P.C.Rout, L.M.Nanda & P.K.Patnaik For Respondent : M/s. A.R.Dash, N.Lenka & N.Das -------------------- Date of Judgment: 21.08.2013 -------------------- P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJU PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI ----------------------------------------------------------------------------------------------------- S. Panda, J. This appeal is directed against the judgment and decree dated 6th December, 1995 passed by the learned Judge, Family Court, Rourkela in Original Suit No.45 of 1993/Misc. Case No.41 of 1993, a suit for permanent alimony and return of articles. 2. The facts leading to the present case are as follows:
Legal Reasoning
Appellant-husband is the defendant. Respondent nos.1 and 2 are his wife and son respectively filed the suit as plaintiffs for permanent 2 alimony and return of the properties presented by her father to the bridegroom at the time of marriage. Admittedly, marriage was solemnized as per caste, custom and rites on 4.4.1987 at Jhurimal in the district of Sundargarh. However, plaintiff no.1 was tortured from day one due to insufficient dowry. Accordingly, on 7.4.1987 the wife returned to her father’s house and the husband went to his working place in Delhi. On 6.5.1987, she went to Delhi with her father. She was humiliated and assaulted for non-fullfillment of demanded cash and gold ornaments. The appellant-husband also misbehaved the father-in-law. Finding no other way, her father came back to Rourkela. She stayed in Delhi and was subjected to further torture. 3. While the matter stood thus, on 24.4.1989 the husband assaulted her and at that time she was in the family way. While she was suffering from severe pain, he took her photographs and told her that her photographs would be sent to her father who on seeing such photograph would fulfil the demand of dowry, failing which she would be subjected to further torture. As the torture was severe and unbearable, she wrote a letter to her father who sent her brother to Delhi to take her back. On 17.4.1989, she came back from Delhi with her brother and narrated the entire facts to her parents with a hope of reconciliation. Her father tried for a compromise but it failed. The parents-in-law took her to Delhi on 11.5.1989 and on that occasion she was assaulted and her belongings were thrown away in presence of the father-in-law. She was also assaulted by knife and sustained some bleeding injuries. Hence, she returned to her in-laws’ house with her brother-in-law and mother-in-law and thereafter to her parents house on 10.6.1989. Plaintiff no.2 born on 17.10.1989. Defendant did not turn up after getting intimation to see the child. Sometime thereafter defendant threatened to kill her. She apprehending danger to her life lodged an FIR on 19.5.1990 and a case was registered under Sections 498-A/435/294/506 IPC read with Section 4 of the D.P Act. During pendency of the said proceeding, 3 defendant filed Original Suit No.45 of 1991 for restitution of conjugal rights which was dismissed. The chance of returning of plaintiffs to the defendant was bleak and as plaintiff no.1 was helpless to maintain herself and her child, she filed Original Suit No.45 of 1993 for permanent alimony of Rs.10 lakhs for herself and her child and return of the dowry articles which were given at the time of marriage or cost thereof worth Rs.1 lakh. 4. After receiving notice, defendant filed his written statement admitting the marriage but denied all other allegations. He pleaded that on 17.4.1989, plaintiff no.1 came to her parents place to attend a marriage ceremony of her maternal uncle at village Ghantimal against the wishes of the defendant. She, came, over stayed and did not return to Delhi and subsequently wanted to appear M.Phil Examination. She gave birth to a male child on 17.10.1989. However, he did not come to Rourkela as he had to appear M.Tech. Semester Examination and informed plaintiff no.1 to come back to Delhi which she avoided. Therefore, he filed Original Suit No.45 of 1991 for restitution of conjugal rights. The said suit being dismissed, plaintiff no.1 filed Original Suit No.45 of 1993 with false allegations. She joined as a teacher in a Public School having income of Rs.50,000/- from the service and private tuition. Hence, she was not entitled to any maintenance. Defendant also stated that he was ready and willing to take back his wife and the child. He being the eldest son of his father had to maintain his parents, unemployed brother and meet the litigation expenses. Hence, he prayed for dismissal of the suit along with misc. case. 5. In support of their respective pleas, plaintiff examined two witnesses including herself and her father. Defendant also examined two witnesses including himself and his father. Some of the letters written by the defendant were also marked as Exts.2 and 3 series. Xerox copy of the articles was marked as Ext.1. The letter written by the plaintiff to her father was marked as Exts.3 and 3/a. However, defendant did not file 4 any documentary evidence. On analyzing the evidence available on record, the court below decreed the suit on contest directing the defendant to pay permanent alimony by monthly intalments till her death and to his son till he becomes major at the rate of Rs.4000/- per month from the date of filing of the suit, i.e. 12.5.1993 and arrear dues payable within two months from the date of passing of the decree. The current dues by 10th of each succeeding month beginning from January, 1996 and return back all the properties as per list marked Ext.1 presented to him and his wife at the time of marriage by his father-in-law within two months from the date of passing of the decree, failing which, it is open to plaintiff no.1 to take steps for realization of the same by due process of law. 6. The court below, taking into consideration the facts that plaintiffs are residing separately from the defendant and they needed about Rs.1500/- to Rs.2000/- per month towards house rent, Rs.2500/- to Rs.3000/- towards her maintenance and Rs.1500/- towards the maintenance of her son including the expenses towards dress materials, study expenses, book and tuition fees etc., awarded the compensation at the rate as stated above. O.S. No.45 of 1991 for restitution of conjugal right was dismissed earlier as the husband tortured the wife physically and mentally. The list of articles was marked as Ext.1 without objection. The said list was prepared by plaintiff no.1. The original list was seized by the police in connection with G.R Case No.790 of 1990. D.W.2 stated that scooter, tape recorder and other articles given to his son by the father-in-law at the time of marriage were with his son and other articles, i.e., furniture, steel alimira, bed, etc. are with his house. D.W1-defendant himself stated that he is willing to return the property as per the list. Accordingly, the application filed under Section 27 of the Hindu Marriage Act was allowed. 7. Learned counsel for the appellant-husband submitted that respondent no.1-wife voluntarily left the matrimonial house without 5 reasonable cause and as alleged physical and mental torture has not been proved, the award of maintenance is liable to be set aside. Respondent-plaintiff no.1 is working in a school. The court below has not taken into consideration the said fact while passing the judgment and decree and fixing the quantum of maintenance. Therefore, the same is liable to be interfered with and while granting permanent alimony, the court below should have passed the order of dissolution of marriage. 8.
Legal Reasoning
Learned counsel for the respondents, however, supported the judgment and decree and submitted that the plaintiff-respondent no.1 have adduced the oral evidence as well as documentary evidence to show the physical and mental torture and the conduct of the appellant. However, the appellant has not filed any documentary evidence to show that the plaintiff no.1 is working in a school and having some income. The court below, rightly taking into consideration the materials available on record, has passed the judgment and decree which need not be interfered with. 9. From the rival submissions of the parties, it is to be determined in this appeal; whether the decree passed by the court below is liable to be set aside and whether quantum is to be reduced. After going through the materials available on record and the pleadings of the parties, it is found that the marriage and relationship between the parties are admitted. The husband and wife were living together for some times. Thereafter, dissension cropped up between them. The father of plaintiff no.1 tried for settlement of the dispute and even the in-laws’ of the plaintiffs tried for reconciliation between the parties. However, due to adamant attitude of the defendant-husband, the said attempt could not be materialized. Though the wife tried to adjust with him, his behaviour towards her was violent for which she developed a natural apprehension of physical assault and insecurity of life. The said facts, revealed from the evidence of P.W.1-plaintiff and Exts.2 and 3, the letter written by defendant to plaintiffs’ father and letter written by plaintiff to her father 6 also corroborate the same. Hence, the decree passed by the court below needs to be confirmed. 10. There is no material available on record that plaintiff no.1 has any income for her sustenance. She needs maintenance for herself and also for the son and his study expenses. For the sake of argument, even if the contention of the appellant is accepted that she is working as a teacher in a school, since the alleged service of plaintiff no.1 is a private one and there is no job security, she may be discharged from service at any point of time. 11. Taking into consideration all the above facts, we are not inclined to interfere with the impugned judgment and decree and accordingly the findings of the court below are confirmed.
Decision
The appeal is dismissed. No costs. Dr.B.R.Sarangi, J : I agree. ………..…………… SANJU PANDA, J. ………..…………… Dr.B.R.Sarangi,J High Court of Orissa, Cuttack Dated 21st August, 2013/Pradeep