Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K MATA NO.51 OF 2020 In the matter of an Appeal under Section 19 of the Family Courts Act. Nalini Barik : Appellant -Versus- Pitambar Barik : Respondent For Appellant : M/s.S.Mohanty, K.Patra, S.R.Mohanty & B.P.Sharma For Respondent : None J U D G M E N T CORAM : JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Date of hearing & Judgment : 19.07.2023 1. This is a Matrimonial Appeal at the instance of the Wife, Appellant herein, Respondent therein, in Civil Proceeding No.113 of 2013 on the File of Family court, Khorda involving allowing an Application at the instance of the Husband, Petitioner therein, Respondent herein under Section 9 of the Hindu Marriage Act (in short, “the Act”) giving direction
Legal Reasoning
to the Wife to join the society of the Plaintiff-Petitioner (Husband) in order to lead conjugal life within a period of three months. Page 1 of 11 // 2 // 2. Background involving the case is, Husband being Plaintiff- Petitioner brought an Application under Section 9 of the Act for restitution of conjugal rights as against his Wife. Husband’s case as pleaded in the Section 9 Application is that marriage between the Husband and Wife was solemnised in the year 2000 following Hindu Rites and Customs in the village of the Petitioner itself. It is claimed by the Husband that both of them led their happy marital life for nearly eight years, in between which both of them have been blessed with a daughter and a son, aged about 6 years and 3 years respectively at the time of filing of the Section 9 Application in the year 2013. It is further claimed, after eight years of marriage, Wife started ill-treating the family members of the Husband, regularly creating disturbances in the house of the Petitioner. Wife engaged herself in quarrel with the mother-in-law and father-in-law and threatened the family members to entangle all in false case. While claiming that he was just a Masson and was in sincere attempt to lead happy conjugal life but unfortunately due to some silly matters, the Respondent (Wife) harassed the family members of the Petitioner. While the matter stood thus, Respondent lodged an F.I.R. against the Petitioner and his family members complaining of threatening her on the guise of demand of dowry resulting registration of a case, vide Jatni P.S. Case No.162/2011 corresponding to G.R. Case No.598/2011 on Page 2 of 11 // 3 // the File of the J.M.F.C.(O), Bhubaneswar. Immediately thereafter on 16.10.2011, the Wife left the house of the Petitioner along with her daughter and son, who were residing with the Wife in Village-Jatni, Haripur, in the district of Khurda. Husband claimed, there was constant attempt in reaching with compromise between the Parties with return of his wife and children to the matrimonial home but alleged, the Wife did not cooperate as she was biased by village touts. In Paragraph-6, Husband made specific allegation that on 2.3.2013, he went to the house of the Wife in an attempt to bring her back and their children and while talking with the father of the Wife, all of a sudden the father of the Wife started abusing the Husband and threatened the Husband with dire consequences and made a clear statement that the Wife would never return to the fold of the Husband claiming that the Husband was still interested to lead conjugal life and brought an Application herein seeking a direction from the Competent Court for a decree of restitution of conjugal right and to give direction to the father of the Wife not to prevent the Wife from resuming the marital relationship. 3. Being noticed, the Wife, Appellant herein being Respondent in the proceeding brought her written statement while admitting that for there is dowry demand by the Husband and torture including an attempt to kill the Wife, ultimately driving the Wife with her two children from their Page 3 of 11 // 4 // matrimonial home led her to bring criminal proceeding under Section 498(A) of I.P.C. Wife has specifically stated that while leading conjugal life, the Husband entered into immoral activities by keeping a lady, namely, Kumari Behera as his kept and was leading extra-marital life even in presence of his Wife finding her life unsafe and the Husband continued to live with the concubine named above. Therefore, while denying each of the accusations made by the Husband, the Wife contested the proceeding showing her reluctance to join back the Husband for his keeping a concubine and leading extra-marital life. Further from the prospective of dowry demand, threatening and forceful driving out the Wife and along with her two minor children, the Wife also made allegation in the written statement that the Husband was not actually interested in getting back the marital life and filing of Section 9 Application appears to be a mere eye-wash to avoid maintenance etc. involving the Wife as well as the minor children. 4. In the trial, both the Parties have led evidence and while presenting themselves also one independent witness each examined as P.Ws.1 & 2 and D.Ws.1 & 2 respectively. There is however no document exhibited from either side. 5. Based on pleading and evidence the trial court has disposed of the Section 9 proceeding under the findings that there will be violation of Page 4 of 11 // 5 // fundamental rights in the event there is no re-union in the family between the Husband and Wife. Secondly, the Wife though alleged on the Husband leading extra-marital life unable to bring home the charges appears to be under the footing the Wife failing to discharge her burden on establishing the above and thereby in the conclusion passing an order allowing Section 9 proceeding directing the Wife to join back the Husband to lead conjugal life resulting the present Appeal. 6. Since the Appeal was accompanied with a delay condonation application, a Division Bench of this Court got inclined to issue notice in I.A. No.54/2021 noticing the Husband. By order dated 12.9.2022 another coordinate Bench of this Court directed the Wife to serve notice on the Husband by Special Messenger thereby directing to post the matter to 14th September, 2022. Finally by order dated 14.10.2021, there has been refusal of service of notice by the Husband and treating the service of notice to have been completed. Considering the Section 5 Application
Legal Reasoning
involved therein in the involvement of the Counsel for the Appellant, the Application was allowed. On the same date, the Appeal was also admitted with further direction for fresh notice on the sole Respondent by Registered Post with A.D. There has been issuing of notice on the Husband with correct address. There has been again refusal of receiving admission notice on the Appeal by the Husband taken note by this Court Page 5 of 11 // 6 // in the order dated 31.3.2023. In the circumstance, this Court is constrained to hear the Appeal involving the submission of the learned counsel for the Appellant alone and in the involvement of the documents through the L.C.R. already in custody of this Court. 7. While challenging the impugned order, the Appeal contains the following grounds :- A. The impugned judgment of the family court is opposed to law, weight of evidence. B. That the learned family court has committed apparent error in facts by not appreciating the apprehension against the adultery life being practised by the respondent one lady namely Kumari Behera. C. That the learned family court also failed to understand the purpose of the treatment made by the respondent as to how he was ignorant of the affairs of the children. D. That the learned family court has further erred in law as to how the security of a lady be ensured when she made an allegation against the adulterous life of her husband in assertive form.
Decision
E. That the learned family court is also erred in law by asking for evidence from the appellant to show the reason of her being distanced from the respondent in the face of her filing of Crl case and asking for maintenance for self and her two daughters one of whom is prosecuting her study in college. F. That the impugned judgment is otherwise bad in law and so also in facts and thus liable to be set aside.” 8. Ms.Patra, learned counsel for the Appellant while taking this Court to the submission of the Wife-Respondent in the trial court through the written statement and the evidence contends, the pleading of the Husband remaining out and out false bringing the written statement, the Wife brought the real happenings. Learned counsel for the Appellant also Page 6 of 11 // 7 // advances her argument contending not only there was constant dowry demand and driving out the Wife along with two minor kids from the matrimonial home, there is also serious allegation against the Husband of leading immoral life by keeping a concubine thereby leading extra- marital life. Wife being the Respondent had also clear evidence to substantiate her case and as appears, the trial court has failed in appreciating the pleadings of the Wife and the evidence led by the Wife and the Family Court thoroughly misled it in unnecessarily proceeding under the footing of protection of fundamental rights completely forgetting the plight of the Wife involved therein. Further there has been also wrong finding in illegally shifting the burden to the Wife to establish the allegation of leading of extra-marital life by the Husband. It is on the above footing, learned counsel for the Appellant while claiming for there is no possibility of joining of the Wife in the marital life any further requests this Court for interfering and setting aside the impugned order involved herein. 9. Considering the submission of the learned counsel for the Appellant and on examination of the pleading of the respective Parties, this Court finds, when the Husband submits that the Wife was a quarrelsome lady getting agitated on silly issues engaged herself in entering into fighting not only the Husband but also his parents and the Page 7 of 11 // 8 // Husband’s attempt through his evidence to remain with above allegations. The Wife brings altogether different case involving serious allegation of demand of dowry by the Husband and his family members leading to filing of a criminal case under the provision of Section 498(A) of I.P.C. and other provisions also. The criminal case was also included allegation of threatening by the Husband with dire consequences. Wife also brings serious allegation against the Husband of his leading extra-marital life even specifically naming a woman. The Wife has also gone to the extent of alleging that the Husband was keeping conjugal relationship with a concubine in presence of the Wife. 10. So far as criminal proceeding under the provision of Section 498(A) of I.P.C. and other provisions is concerned, it may not be appropriate to observe anything at this stage except leaving it for the observation and finding of the Competent Court of law. This Court however cannot lose sight of pendency of the proceeding under Section 498(A) of I.P.C. along with some other provisions. This Court here also takes serious note of the fact that the Husband declined to appear before this Court despite two attempts for service of notice and on both occasions, the Husband refused to receive notice. Interference can very well will be drawn accepting the allegation of the Wife that Husband Page 8 of 11 // 9 // brought such proceeding as an mere eye-wash and he has no real intention to get back the Wife to her marital home. 11. Coming back to the allegation of Husband leading extra-marital life, this Court finds, through the pleading of the Wife as well as the evidence from the side of the Wife appears to have completely established her case on the above score. This Court further finds, for the examination on the allegation of the Husband having extra-marital life with an outsider getting into the observation and finding of the trial court, this Court observes, when the Wife has come up with specific allegation on extra-marital life at the instance of the Husband even strengthening such allegation through her evidence, the trial court went wrong in shifting the burden of establishing such allegation on the Wife. This Court finds, the trial court went wrong and adopted a procedure unknown to law. Further on the finding of the trial court on the issue of fundamental rights of parties, this Court finds, there has been wrong appreciation of such serious aspect. 12. It is a matrimonial issue. The proceeding rather has given appropriate weightage to the pleadings read together with the evidence. This Court finds, the trial court failed in appreciating the pleading and evidence of the parties involved herein, resulting in a bad order. Unless such order is interfered with, the order will lead to bad precedent. Page 9 of 11 // 10 // 13. The allegation of the Husband that Wife being a quarrelsome lady entering into quarrel not only with the Husband but also with his parents and left home along with two kids on her own volition, this Court through the pleading of the Wife observes, in the event Wife chose to voluntarily leave the house, there was absolutely no attempt by the Husband at least to retain the children with him from the point of view of welfare of the children involved. This Court finds, the case made by the Husband on this score remains unbelievable. 14. On his own submission of the Husband in Paragraph-4, there were taking place of some issues between the Husband and the Wife. To add to this, there is also surfacing of Section 498(A) of I.P.C. at the instance of the Wife against the Husband and family members, vide G.R. Case No.598/2011. In this background, it becomes clear, both the Parties were not in good terms even after their peaceful conjugal life for nearly eight years. 15. In the circumstance and for the observation of this Court, this Court finds, the impugned judgment dated 6.11.2019 passed by the Judge, Family Court, Khurda in C.P. No.113/2013 remains unsustainable in the eye of law and is hereby interfered with and set aside. Page 10 of 11 // 11 // 16. The Matrimonial Appeal succeeds. In the circumstance, however there is no order as to cost. (Biswanath Rath) Judge (M.S.Sahoo) Judge Orissa High Court, Cuttack. The 19th July, 2023/M.K.Rout, A.R.-cum-Sr.Secy. Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: Authentication Location: High Court of Orissa Date: 24-Jul-2023 10:37:55 Page 11 of 11