The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.19 of 2018 Sri Bibhu Prasad Mohapatra ..….… Appellant Mr. Dayananda Mohapatra, Advocate -Versus- Smt. Susmita Mishra ..……. Respondent Order No. 27. CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 18.12.2023 1. The husband has preferred appeal against judgment dated 3rd January, 2018 of the family Court. By it the petition of the husband for divorce, stood dismissed. Mr. Mohapatra, learned advocate appears on behalf of appellant-husband but none appears on behalf of respondent- wife. 2. Absence of respondent-wife stands demonstrated by our orders dated 21st and 30th November, 2023. The orders are reproduced below. “21.11.2023 1. Mr. Agarwal, learned advocate appears and hands up memo of date. He submits, it is signed by Mr. Mishra, learned advocate, inter alia, in whose favour respondent- wife had executed the power. Text of the memo is reproduced below. “In the abovementioned case, the counsel for the Respondent seeks permission of this Hon’ble Court to 2 withdraw their power from the abovementioned case as the Respondent is not co-operating. That she may be issued with separate notice for her to appear in-person or through any other counsel of her choice.” 2. Mr. Mohapatra, learned advocate appears on behalf of appellant-husband. 3. Recorded learned advocates for respondent-wife have leave to retire. Retiring learned advocates will communicate this order to respondent-wife by any means and showing acknowledgement of service. In event of omission, the leave to retire will stand automatically revoked. file memo adjourned date on 4. We adjourn hearing of the appeal to give one last opportunity to respondent-wife for being heard on her case. 5. List on 30th November, 2023.” “30.11.2023 1. Mr. Agarwal, learned advocate appears and hands up memo of date. He submits, direction in order dated 21st November, 2023 has been complied with. Text of the memo is reproduced below. “In the abovementioned case, the Appellant herself has received the post and over what’s app message of the order dt. 21.11.2023 passed by this Hon’ble Court. Copy of the receipt and Tracking Report is Annexed herewith as Annexure-1.” He submits, respondent-wife herself, not appellant as erroneously stated in the memo, received the post and WhatsApp message. Leave to retire for recorded learned advocates of respondent-wife is confirmed. Mr. Barik, learned advocate appears on behalf of appellant-husband and prays for adjournment. List on 18th December, 2023. Names of retiring 2. learned advocates be deleted.” 3 3. Mr. Mohapatra submits, there was a civil proceeding (C.P. no.71 of 2011) filed by his client under section 9 of Hindu Marriage Act, 1955. It was disposed of by judgment dated 20th February, 2013 decreeing the petition for restitution of conjugal rights. Respondent-wife had preferred appeal. We by our order dated 30th November, 2023 in her appeal (MATA no.23 of 2013), dismissed it. Said order is reproduced below. “30.11.2023 1. Mr. Agarwal, learned advocate appears and hands up memo of date. He submits, direction in order dated 21st November, 2023 has been complied with. Text of the memo is reproduced below. “In the abovementioned case, the Appellant herself has received the post and over what’s app message of the order dt. 21.11.2023 passed by this Hon’ble Court. Copy of the receipt and Tracking Report is Annexed herewith as Annexure-1.” Leave to retire for recorded learned advocates of appellant-wife is confirmed. Mr. Barik, learned advocate appears on behalf of respondent-husband. 2. As there is none to prosecute the appeal, it is dismissed.” 4. In the circumstances, there was no interference with judgment dated 20th February, 2013. On omission of respondent-wife to join his society, his client filed civil proceeding for divorce on 14th July, 2014. He relies on paragraph 19 in the petition, reproduced below. “19. That the cause of actions for this case arose on 13.7.2005 when the marriage was solemnized and on 20.3.2006 when the respondent voluntarily left the petitioner’s house on 7.3.2008 when parents and other members of the petitioner’s family had gone to the respondent’s 4 house to bring her back, on 11.04.2008 when the petitioner issued a legal notice, on 23.5.2008 when the petitioner initiated MAT case No.618/08 in the court of Civil judge Bhubaneswar and the order of the honourable family court Bhubaneswar on 20.02.2013 for restitution of conjugal rights in CP No. 71/11 was flouted by the respondent for more than one year.” (emphasis supplied) 5. A specific ground was also taken under heading ‘synopsis’ in the petition. Ground 4 under ‘desertion’ is reproduced below. “4. At the peak of the events, the respondent has even intentionally flouted the order of the honourable Judge, family Court, Bhubaneswar dated 20.02.2013 to join the petitioner, in cp No. 71/11 which the petitioner had initiated under section 9 of the HMA for restitution of conjugal rights for more than one year.” Prayer no.1 based on the ground was also made in the petition. The family Court erred in not dissolving the marriage. Mr. Mohapatra submits, a clear ground was there in favour of his client under sub-section (1-A) in section 13. Impugned order be set-aside in appeal and the marriage dissolved. 6. Aforesaid judgment dated 20th February, 2013 of the family Court made in the petition under section 9 was tendered in evidence as exhibit-1. It appears from the judgment respondent-wife contested the proceeding by filing written statement. She also deposed in the proceeding. As such, she was aware of the judgment and ought to have joined petitioner’s society soon thereafter. Instead, she had preferred appeal. The appeal stood dismissed on 30th November, 2023 and as such, the filing of it does not 5 mitigate her obligation to have so joined. Here we reproduce below sub- section (1-A) in section 13, Hindu Marriage Act, 1955. “[(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground– xxx xxx xxx (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]” 7. The appeal being continuation of suit, we have before us the crystalized situation where the decree for restitution of conjugal rights was not executed on omission of respondent-wife for a period of more than one year, after which appellant-husband had filed for divorce. We appreciate that by reason of pendency of the appeal the Court below did not consider this ground of petitioner in deciding the civil proceeding. However, that ground is there before us on the set of facts, including dismissal of the appeal of respondent-wife from the judgment regarding restitution. It presents us the situation of the wife obviously not wanting to join society of the husband and there is in the present circumstances, no impediment against petitioner availing of the ground under sub-section (1-A). 8. In view of aforesaid we are satisfied that petitioner has made out good ground for dissolution of the marriage. We hold that there was no 6 resumption of cohabitation as between the parties to the marriage for little over one year and four months after passing of the decree for restitution of conjugal rights in the proceeding C.P. no.71 of 2011, to which appellant- husband and respondent-wife were parties. As such, impugned judgment is reversed, not on any error made by the learned judge but for reasons aforesaid. 9. Since respondent-wife has shown conscious disinterest in defending the appeal as well as allowing her appeal to be dismissed, we do not make any order on permanent alimony. In view of section 25, no prejudice will be caused to respondent-wife. 10. The appeal is disposed of. (Arindam Sinha) Judge (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Dec-2023 10:39:40