He relied on judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh, reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 45 of 2018 Sanjay Samal …. -Versus- Appellant Swagatika Mahapatra …. Respondent Advocates appeared in this case : For Appellant : Mr. B.S. Das, Advocate For Respondent : Mr. R.C. Swain, 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 ------------------------------------------------------------------------------------- Dates of hearing: 1st August, 2024 and 19th September, 2024 Date of Judgment: 3rd October, 2024 ------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Das, learned advocate appeared on behalf of appellant-husband. He submitted, his client preferred the appeal Page 1 of 8 against judgment dated 23rd December, 2017 of the Family Court dismissing his petition for dissolution of the marriage. Mr. Swain, learned advocate appeared on behalf of respondent- wife. 2. Sole ground, Mr. Das submitted, is cruelty by long separation. Respondent, soon after the marriage solemnized on 6th May, 1999, demanded that the couple live separately, away from the parents. Appellant’s resistance was dispute. On query made Mr. Das submitted, his client had filed for judicial separation but later withdrew the case. Parties became separate on and after 16th September, 2005, when she had lodged complaint to the police, registered as FIR and GR case started. 3. He relied on judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511, instance (xiv) under paragraph 101. The instance is reproduced below. “(xiv). Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a MATA No.45 of 2018 Page 2 of 8 legal tie. 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 parties. In such like situations, it may lead to mental cruelty.” He relied on another judgment dated 26th April, 2023 of said Court in Civil Appeal no. 2012 of 2013 (Shri Rakesh Raman v. Smt. Kavita), paragraph 18 of LiveLaw print, reproduced below. “18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken MATA No.45 of 2018 Page 3 of 8 down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock.” 4. We had ascertained that there has been separation for over 19 years. In the circumstances, cruelty by separation pronounced upon by Samar Ghosh (supra) and Shri Rakesh Raman (supra) are applicable to facts of this case for this Court to find cruelty. However, Mr. Swain pointed out from said paragraph 18 of Shri Rakesh Raman (supra), in the case before the Supreme Court there was no issue but here his client had looked after and brought up two daughters from the marriage. They are now college going young woman. A reduced sum of ₹1000/- directed as interim maintenance also remains unpaid. Such is conduct of appellant-husband. He further pointed out from cross-examination of appellant- MATA No.45 of 2018 Page 4 of 8 husband recorded in deposition dated 4th August, 2017 that it is appellant who was not interested in the marriage to work. Reproduced below is a passage from paragraph 22 of the deposition. “22. I have passed B.Sc. Now I am cultivating. My father has about 4 to 5 acres of agricultural land. At the time of my marriage I was working as a teacher in a private School. My two daughters are now prosecuting their study in College. I am not interested to get back the respondent and two daughters to my house although they are interested. ... ... ...” 5. The Family Court found respondent to have said that separation was when she had gone to question her husband on 5th September, 2005, regarding she receiving summons in CP no.518 of 2005 (the judicial separation case filed by appellant). She was driven out from the house and since then she has been residing in her father’s house along with the daughters. Mr. Swain submitted, his client is still ready and willing to join appellant. The Family Court also disbelieved appellant on his contention that respondent had left him because he did not MATA No.45 of 2018 Page 5 of 8 accede to her request to live separately from his parents. We have not found anything in the record for us to interfere with the finding. 6. As aforesaid, cruelty stands established on instance of it by clause (xiv) under paragraph 101 in Samar Ghosh (supra). There is a distinguishing feature from the case of Shri Rakesh Raman (supra) inasmuch as parties before the Supreme Court were childless, but here there are two daughters from the marriage. We have noted appellant’s position taken by his deposition in cross-examination that he is not interested to have them back. In the circumstances, respondent continuing to want to salvage the marriage appears to be wishful thinking on her part. We observe that in future, the daughters are entitled to marriage expenses from their father. 7. On cruelty established, Hindu Marriage Act, 1955 by clause (ia) under sub-section (1) in section 13 empowers dissolution of the marriage by decree of divorce. In applying the provision we must also consider section 25, empowering MATA No.45 of 2018 Page 6 of 8 the Court to direct for maintenance and support at a gross or such monthly or periodical sum. The power is discretionary. 8. On query made Mr. Swain submitted, appellant and his family have agricultural land. Appellant’s father is a retired teacher and appellant does work as contractor. On discussion at the Bar ₹20,00,000/- was suggested for being the amount of permanent alimony to be paid by appellant upon decree for dissolution of the marriage. 9. The marriage solemnised on 6th May, 1999 between the parties is hereby dissolved on the ground of cruelty. Appellant will pay permanent alimony at ₹20,00,000/-. 10. After the judgment is delivered Mr. Das hands up memo of date with demand draft no.964357 dated 1st October, 2024 issued by State Bank of India in favour of respondent for ₹20,00,000/-. Mr. Swain submits, he has instruction to accept the tender in full and final payment of the permanent alimony directed by us. The draft is handed over to Mr. Swain, who puts his signature on the copy to acknowledge receipt, execution, MATA No.45 of 2018 Page 7 of 8 discharge and satisfaction of said direction for payment of permanent alimony. 11. Impugned judgment is reversed. Mr. Swain undertakes on behalf of his client, she will take all steps necessary for withdrawal/dropping of GR case no.678 of 2005 pending before the Sub-Divisional Judicial Magistrate, Kendrapara. 12. The appeal is disposed of. The decree be drawn up expeditiously. 13. (Arindam Sinha) Judge Jyoti (M.S. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Reason: Authentication Location: HIGH COURT OF ORISSA Date: 03-Oct-2024 17:46:04 MATA No.45 of 2018 Page 8 of 8