The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.44 of 2022 Sujata Sahu @ Behera …. Appellant Santosh Kumar Behera …. Respondent -versus- Learned advocates appeared in the case: For Appellant For respondent : : Mr. L. Moharana, Advocate Mr. S.S. Das, Sr. Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO -------------------------------------------------------------------------------------------------- Dates of hearing : 5th February,2024, 25th July, 2024 and 21st August, 2024. Date of Judgment: 21st August, 2024 -------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Appellant before us is aggrieved by judgment dated 11th January, 2022 of the Family Court. At instance of respondent, the marriage was dissolved. Appellant’s case is that she is willing to be with respondent upon interference in appeal, to reverse the judgment. Page 1 of 12
Legal Reasoning
allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” (emphasis supplied) We do not see from the paragraph or anywhere else in the judgment that for allegations made in pleadings or suggestions put in cross- examination, to inflict insult and cruelty, there is pre-requirement of finding that the allegations are false as disproved or to a lesser extent, not proved. The question answered was making of injurious allegations in the written statement amounts to cruelty. In event the allegations had been proved, they would be facts and the outcome of the case accordingly would be different. We may add, Evidence Act, 1872 (since repealed) by interpretation clause in section-3 provided MATA no.44 of 2022 Page 9 of 12 for interpretation of ‘proved’, ‘disproved’ and ‘not proved’ in context of ‘fact’, which is given to mean and include anything, state of things, or relation of things, capable of being perceived by the senses. A fact could also mean and include any mental condition, of which any person is conscious. However, in Kamlesh Sharma (supra) the terms ‘not proved’ and ‘disproved’ have been used with regard to ‘allegations’ for purpose of the view taken. 8. We reproduce below paragraph 14 from K. Srinivas Rao (supra). “14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” The Supreme Court saying making unfounded, indecent defamatory allegations against the spouse or his/her relatives in the pleadings, MATA no.44 of 2022 Page 10 of 12 filing of complaint or issuing notices or news items, which may have adverse impact on the business prospect or the job of the spouse and cases in the Court, in the facts of a case amount to causing mental cruelty to the other spouse. We have already said about the Supreme Court developing the law regarding allegations made in pleadings. In this subsequent judgment [K. Srinivas Rao (supra)] the view taken cannot be said to be upon fulfilling requirement to find that the unfounded, indecent, or defamatory allegations or that the complaints or cases were considered to be injurious upon them first found as false. The Court went on to say also that a spouse resorting to such acts, in the facts of the case, amount to causing mental cruelty to the other spouse. In this case we have ascertained that allegations made causing the police to mention sections 377 and 494 IPC in the FIR were not followed through to be mentioned in the charge-sheet. 9. The Family Court in dealing with the allegations made by appellant had said that her evidence was not found to be convincing or credible. It was also not found to be correct or trustworthy. This was contrasted with her further evidence to show she was telling lie of, inter alia, the date of death of wife of P.W.2. The Family Court MATA no.44 of 2022 Page 11 of 12 having had the benefit of analyzing the evidence, including cross- examination recorded before it and having observed demeanour of the witnesses, stood empowered to appreciate admissibility, relevance and weight of the evidence. 10. On going through impugned judgment and materials on record, we are convinced it does not require interference in appeal. The judgment is confirmed. 11.
Arguments
Mr. Moharana, learned advocate appears on behalf of appellant and Mr. Das, learned senior advocate, for respondent. 2. The appeal was heard on earlier occasions. It transpires that appellant has only to show us that the Family Court erred in concluding cruelty was proved, as a ground for dissolution of the marriage. This is because on behalf of respondent, finding on desertion as a ground has not been supported in defence to the appeal. 3. Mr. Moharana had earlier submitted, ground of cruelty was not proved. There were allegations made of his client having ill- treated her mother-in-law and shouted in loud voice but neither the mother-in-law nor any neighbor was examined to prove the allegation. Mr. Das had earlier submitted, pursuant to his client filing for divorce, appellant filed false complaint before the police resulting in his client being taken into custody for 11 days. The fact was brought on record by way of amendment to the petition. Additional written statement was filed by respondent. We ascertained that the pleadings were completed prior to framing of issues. 4. Pursuant to observations made by us, as recorded in order- sheet, the charge-sheet was produced and it appears therefrom, sections 377 and 494 in Indian Penal Code, 1860, as were noted in the MATA no.44 of 2022 Page 2 of 12 FIR, were not included in it. Thus it is revealed that allegations made in the complaint, of unnatural sex and bigamy were allegations that did not yield any substance, upon investigation made by the police, for being included in the charge-sheet. It is in this context, on behalf of respondent submission was made by relying upon judgments of the Supreme Court as well as view taken by co-ordinate Bench that, reckless allegations made in the proceeding also amounts to cruelty. The judgments are Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, reported in (2003) 6 SCC 334, paragraphs 6,7 and 8, K. Srinivas Rao v. D.A. Deepa, reported in AIR (2013) SC 2176, paragraphs 12,14 and 27 and view taken by co-ordinate Bench in (Sri) Ganesh Prasad Khatua v. Smt. Laxmirani Khatua, reported in 136 (2023) CLT 232, paragraph 32. We see that the Division Bench in said paragraph 32 had relied upon Vijaykumar Ramchandra Bhate (supra). The view taken was, inter alia, in subsequent paragraph 34, reproduced below. “34. We have taken note of the conduct of the respondent that she has made the grave allegation of extra-marital relation, not in the written statement nor in the additional written statement. Such allegations have been abruptly made in her examination-in-chief MATA no.44 of 2022 Page 3 of 12 and those allegations occupied further magnitude in the cross-examination. We have no hesitation to hold that those allegations come within the meaning of cruelty as those are bound to hurt the appellant enormously.” 5. Today, Mr. Moharana relies on view taken by a Division Bench in the High Court of Delhi. The case was MAT APP (FC) 38 of 2023 and applications made therein dealt with on judgment dated 8th August, 2023 (Kamlesh Sharma v. Yogender Kumar Sharma). He relies on paragraph 21 to 27, 47 and 51. Paragraphs 21 to 27 are reproduced below. “21. It is thus contended that even unproven allegations of the nature in question were sufficient to constitute mental cruelty and, therefore, there is no error in the impugned judgment. 22. Before adverting to the aforesaid all-important aspect of the case, it needs to be reiterated that the husband had prayed for divorce on the ground of cruelty and, as noted hereinabove, the instances of cruelty averred by him were found to be insufficient for making out any case for dissolution of marriage. We may also point out that husband is not aggrieved by MATA no.44 of 2022 Page 4 of 12 such finding as neither has he filed any appeal nor has he filed any cross objection in the present matter. 23. In view of the aforesaid, this Court is only required to assess and evaluate the impact of the allegations made by the wife in her written statement. 24. There are two major allegations. Firstly, that her husband is having an illicit relationship with one Sunita and secondly, his attempt to kill her by pouring kerosene oil on her. 25. What needs to be examined is whether these allegations could be proved by her or not. We may add a caveat here. 26. There is huge difference between a fact being "proved", "not proved" and "disproved". If any allegation, made about the other spouse being in illicit relationship, is proved then the other side stands precluded from raising any kind of grievance about such allegation. Naturally, if proved, he must bear the brunt. Coming to the second aspect, at times, it may not be always possible for a person making allegation to be able to prove the same by bringing sufficient evidence on record. In such a situation, allegations would simply remain in the realm of being “not proved” and it cannot be, ipso facto, assumed to be MATA no.44 of 2022 Page 5 of 12 false, motivated or vexatious, unless held so specifically. Thirdly, there can be a situation where on account of the evidence brought on record, including that by the other spouse, the court may even go to the extent of concluding that such allegation stood “disproved”. 27. In the present case, the family court has merely concluded that the allegations were “not proved” as distinct from “disproved”. (emphasis supplied) He submits, in this case the Family Court simply said his client’s evidence is not found to be convincing and credible to accept the same that respondent had illicit link with Rizwana Khan outside of his wedlock with her. This, at best, can be said to be his client’s inability to prove her allegation. By no stretch of imagination it can be said that her allegation was disproved as false. Hence, his client making the allegation cannot be said to have meted out cruelty to respondent. He reiterates, otherwise allegations on cruelty could not be proved. 6. Mr. Moharana then relies on judgment dated 10th October, 2023 of the Supreme Court in Civil Appeal no.2045 of 2011 (Dr. MATA no.44 of 2022 Page 6 of 12 Nirmal Singh Panesar v. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar), paragraph 18 in Live Law print. The paragraph is reproduced below. “18. However, in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in the society. Despite the increasing trend of filing the Divorce proceedings in the courts of law, the institution of marriage is still considered to be a pious, spiritual, and invaluable emotional life-net between the husband and the wife in the Indian society. It is governed not only by the letters of law but by the social norms as well. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of “irretrievable break down of marriage” as a strait-jacket formula for the grant of relief of divorce under Article 142 of the Constitution of India.” (emphasis supplied) 7. Adjudication of rival contentions require us to deal with view taken in Kamlesh Sharma (supra), whether can cause distinction to make inapplicable judgments of the Supreme Court and view taken by MATA no.44 of 2022 Page 7 of 12 co-ordinate Bench, relied upon by respondent. In Vijaykumar Ramchandra Bhate (supra) the Supreme Court developed the law by, inter alia, paragraph 7 in the judgment, reproduced below. “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On MATA no.44 of 2022 Page 8 of 12 going through the relevant portions of such
Decision
The appeal is dismissed. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Page 12 of 12 Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 27-Aug-2024 19:13:22 MATA no.44 of 2022