The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA Nos.128 and 129 of 2023 Sasmita Moharana …. Appellant -Versus- Susen Kumar Maharana …. Respondent Advocates appeared in this case: For Appellant: Mr. Suryakanta Dash, Advocate For Respondent: Mr. J. Sahoo, Sr. Advocate, Mrs. K. Sahoo, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ---------------------------------------------------------------------------- Date of hearing: 30th July, 2024 Date of judgment: 11th September, 2024 ---------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Two appeals are before us, preferred against common judgment dated 21st January, 2023 of the Family Court. The judgment was made in C.P. no.19 of 2021, civil proceeding filed by appellant for restitution and C.P. no.128 of 2021, civil Page 1 of 15 proceeding filed by respondent, for dissolution of the marriage. By impugned judgment, case for restitution was dismissed and the marriage dissolved. Appellant was wife in the marriage. Mr.
Legal Reasoning
Dash, learned advocate appears on behalf of appellant and Mr. Sahoo, learned senior advocate, for respondent. 2. Mr. Dash submits, the marriage was solemnized on 13th July, 2020. It was a negotiated marriage upon observing Hindu rites and rituals. On 25th October, 2020, to understanding of the parties regarding customary tradition for appellant visiting her paternal home, her brother took her there. The occasion was ‘Kumar Purnima’. She had left the matrimonial home on assurance by respondent and his father that after 15 days they will go to Dhenkanal, to bring her back. However, after lapse of one month they did not turn up. She accompanied by her father and other relatives came to her matrimonial home on 8th January, 2021. Her father-in-law disowned her and did not allow her into the house. In the circumstances, her petition for restitution of conjugal rights. 3. He submits, his client had duly sought restitution. The Family Court failed to appreciate the facts and erred in law, to MATA nos.128 and 129 of 2023 Page 2 of 15 dismiss her case. His client was subsequently provoked and had lodged complaint before the police. That could not and had no bearing on her claim for restitution. Impugned judgment be reversed on that ground alone, to also cover that part of it dissolving the marriage. 4. Mr. Dash submits further, though his client examined herself but her evidence was closed on the next date, in spite of her having prayed for adjournment citing her illness, disclosing medical documents. On query he submits, his client had not filed list of witnesses but neither did respondent. On further query Mr. Dash submits, in the adjournment petition there was no disclosure regarding identity of any other witness. We note that at trial only the parties were examined. 5. Mr. Sahoo submits, grounds for seeking divorce made out by his client are in his client’s petition filed under section 13 in Hindu Marriage Act, 1955. Soon after respondent had left the matrimonial home on 25th October, 2020, his client had filed for judicial separation under section 10. The proceeding was posted for admission on 8th January, 2021. His client was in the Court to prosecute the petition, for it to be admitted. At MATA nos.128 and 129 of 2023 Page 3 of 15 that time respondent had, with her family members, approached the matrimonial home and wrongfully confined his father, abused and threatened him. Being informed about the incident his client returned to Salipur and reported it to the local police. There was timely intervention by them. Appellant returned to her parental home along with her parents and others. 6. Next date of the civil proceeding was 20th September, 2021. His client, on that date, withdrew his petition for judicial separation. Respondent was present in Court. There was altercation in the Court premises. His client filed complaint case before the Magistrate. Cognizance was taken. Appellant stood released and is still on bail. His client filed petition for divorce. Statements regarding cruelty meted out to him by appellant are in paragraphs-7 to 9 of the petition. 7. Mr. Sahoo relies on judgments of the Supreme Court. (i) Rakesh Raman v. Kavita dealt with on judgment dated 26th April, 2023 available at 2023 SCC OnLine SC 497, paragraphs-11, 15 and 17. MATA nos.128 and 129 of 2023 Page 4 of 15 (ii) Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511, the instances given under paragraph-101. He relies on instances described in clauses (i), (x) and (xiv). 8. We see from the record, the cases went to trial and as aforesaid, the parties were examined. The Family Court analyzed evidence of appellant to find inconsistencies. We see, in her cross-examination she retracted from her pleadings regarding articles given at the time of marriage. Our perusal of her cross-examination reveals she said, after two months, because of interference of her father-in-law, relation between she and her husband deteriorated. She was forcibly ousted from her matrimonial home. Though she had stated that for two months she was very happy with her husband, she subsequently extended the period up to 25th October, 2020. 9. Her written statement filed against the petition for divorce assists us in establishing a few facts. She said, inter alia, she was not aware that the judicial separation case was posted to 8th January, 2021. She admits she along with her family members and relatives went to her matrimonial home that day because her husband had not turned up to bring her back. She goes on to say, on their arrival at her matrimonial MATA nos.128 and 129 of 2023 Page 5 of 15 home her husband jumped over the boundary wall and went outside. Her father-in-law told him to lodge FIR and accordingly he lodged FIR in Salipur police station. Neighbours of the locality requested her father-in-law to allow her into the house but he did not. She along with her kith and kin went to the local police station, where the police tried to subside the matter by calling respondent. Finally police requested/advised respondent to take her back. He did not do so, on assurance he will bring her back after 10 days. So appellant returned to her parental home. Since then she is residing there. 10. Materials on record also discloses appellant had filed several complaints. Consequently there are criminal cases pending against both respondent and his father. Sections invoked include section 498-A and 307 in Indian Penal Code, 1860. We are struck by appellant’s assertion that her husband is a person, who jumped the wall and ran away, leaving his father to face appellant and those accompanying her, as capable of domestic violence including attempt to murder her. MATA nos.128 and 129 of 2023 Page 6 of 15 11. Cause of action pleaded by respondent in his petition for divorce is as stated in paragraph-20, a part of which is reproduced below. “20. That the cause of action to bring this proceeding arose on dated 13.07.2020 when the petitioner married to O.P. and from 17.07.2020 i.e. to 25.10.2020 when the O.P. behaved the petitioner and his father with all cruelty and on dated 08.01.2021 and many other dates and lastly on dated 20.09.2021 the day on which the O.P. ill-treated and mis-behaved the petitioner even in judicial court building complex Dhenkanal. … … ….” (emphasis supplied) 13th July, 2020 is date of solemnization of the marriage. 17th July, 2020 is alleged date of commencement of cruelty. 25th October, 2020 is date when appellant left the matrimonial home for her paternal home, said to be on occasion of ‘Kumar Purnima’. 2nd January, 2021 is when appellant affirmed affidavit in support of her petition under section 9, for restitution. Then, on 8th January, 2021 she along with her family members and relatives approached the matrimonial home causing respondent to lodge complaint in the police MATA nos.128 and 129 of 2023 Page 7 of 15 station, followed up by complaint case. 20th September, 2021 is date on which respondent went to the Court to withdraw his judicial separation case and appellant was also there. Respondent alleges there was altercation on that day given rise to part of his cause of action. 12. Appellant had lodged complaint dated 21st September, 2021 (exhibit P2 tendered by her). The police registered FIR dated 22nd September, 2021 on basis of the complaint. In the complaint appellant alleged attempt to murder on 25th August, 2020. Further allegation was, she had conceived but her husband and other in-laws caused miscarriage by administering medicines against her will. He said he was having physical relationship with one lady namely Arpita Mohanty at place of his employment in Bangalore. He had married earlier and has a son of his own. Her father-in-law made indecent approach while she was asleep. On reporting it to respondent, he expressed helplessness disclosing that appellant is meant for his father and she should comply with his desire. She also mentioned about her approach at matrimonial home on 8th MATA nos.128 and 129 of 2023 Page 8 of 15 January, 2021 and that there was an incident in the Court on 20th September, 2021. 13. Contents of her complaint dated 21st September, 2021 corroborates causes of action pleaded by respondent in his petition for divorce. It is clear that after she filed for restitution, she on 8th January, 2021 was allegedly presented with disinclination on part of her husband and her father-in-law to take her back in the matrimonial home. Yet she made allegations regarding her husband having extra-marital affair, being previously married, her father-in-law indecently approaching her and her husband being complicit in it, as late as on 21st September, 2021. True it is that at the time of filing divorce petition the husband made his allegations of cruelty but it is the wife, who by her complaint filed long after on 21st September, 2021, provided the proof. 14. Paragraph-11 in Rakesh Raman (supra) is reproduced below. “11. The High Court has taken a view that mere filing of criminal cases against the appellant- husband would not constitute cruelty. All the same, MATA nos.128 and 129 of 2023 Page 9 of 15 the number of criminal cases filed by the respondent-wife against the appellant-husband are far too many which have been discussed above. All these cases have either resulted in discharge or acquittal of the appellant-husband, if not before the pronouncement of the judgment of the Delhi High Court. Moreover, a three Judge Bench of this Court in Naveen Kohli v. Neelu Kohli held that repeatedly filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty and the same was reiterated by a Division Bench of this Court in K. Srinivas Rao v. D.A. Deepa.” The Supreme Court in Rakesh Raman (supra) relied upon a three Judge Bench decision of said Court in Naveen Kohli v. Neelu Kohli, reported in (2006) 4 SCC 558 and decision by a Division Bench of said Court in K. Srinivas Rao v. D.A. Deepa, reported in AIR 2013 SC 2176 to say, repeatedly filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty. 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 MATA nos.128 and 129 of 2023 Page 10 of 15 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.” (emphasis supplied) 15. There is no dispute appellant filed police complaint dated 21st September, 2021. In alleging therein attempt to murder on 25th August, 2020 and, inter alia, several things that respondent had told her, she made unsubstantiated accusations and character assassination of respondent. Appellant left her matrimonial home on 25th October, 2020. She had admitted in cross-examination she was happy till that date. As such her allegations in the complaint causes doubt as to when she was told by her husband, inter alia, about his physical relation with another woman or that he was already married and had a son. It follows, there was no attempt by her to confront respondent with those allegations, when he was cross-examined. In our view that amounts to cruelty within declaration of law made by MATA nos.128 and 129 of 2023 Page 11 of 15 the Supreme Court in K. Srinivas Rao (supra). This incident of cruelty was in addition to its earlier judgment in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, reported in (2003) 6 SCC 334, whereby was declared that averments, accusations and character assassination in the written statement constitute mental cruelty. Then came Samar Ghosh v. Jaya Ghosh (supra) followed by, inter alia, K. Srinivas Rao (supra). 16. We reproduce below clauses (i) and (xiv) from paragraph-101 in Samar Ghosh (supra). “101. … ... … (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. xxx xxx xxx (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 legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it MATA nos.128 and 129 of 2023 Page 12 of 15 shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” On our appreciation of the facts and circumstances, relied upon instances (i) and (xiv) are applicable to the matrimonial dispute. 17. Reasoning and findings on maintenance or permanent alimony is also a ground in the appeal. Two reasons were given by the Family Court. First is, in the divorce proceeding appellant never claimed permanent alimony and no issue was framed. Therefore, there was no contest. We reproduce below second reason given by the passage in paragraph-11(i) of impugned judgment. “11.i. … … ... Second and more important or convincing reason is that even if this Court has directed snapping of marital tie between the two by granting divorce in favour of Susen, yet considering the degree of hostility and cruelty he has been subjected to and for the conduct of Sasmita in taking law into her own hands during pendency of this case, I decline and refuse to grant any permanent alimony. I hold and conclude in the proven facts and circumstances of this case, Sasmita is not entitled to any permanent alimony.” MATA nos.128 and 129 of 2023 Page 13 of 15 (emphasis supplied) Section 25 provides discretion to any Court exercising jurisdiction under the Act, inter alia, at the time of passing any decree to order for payment on maintenance at such gross or monthly or periodical sum not exceeding life of the payee party. It appears, the Family Court gave second reason in refusing to exercise discretion, to direct maintenance. We are not inclined to interfere with the reason given. However, respondent has, in compliance of interim order made in the appeals, during its pendency, paid aggregate ₹2,60,000/-. 18. We give an additional reason to confirm disinclination of the Family Court to grant permanent alimony. The marriage having had been dissolved by said Court, only if appellant was able to establish she needs support of maintenance, either by a periodical or a gross amount, could she invite exercise of discretion under section 25. We are given to think appellant takes matters in her own hand. After having filed for restitution, she approached the matrimonial home without waiting for the Court to intervene. The Family Court said about her conduct of taking law into her own hands during pendency of the case. In MATA nos.128 and 129 of 2023 Page 14 of 15 the circumstances, there is no scope to interfere with refusal by the Family Court to direct maintenance. 19. Impugned judgment is confirmed. The appeals are dismissed. (Arindam Sinha) Judge (M.S. Sahoo) Judge Jyostna/Radha/RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Designation: Assistant Registrar-Cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 11-Sep-2024 13:21:35 MATA nos.128 and 129 of 2023 Page 15 of 15