The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.151 of 2015 Anjan Dash …. ..… Appellant Mr. J. Nayak, Adv. -Versus- Sudhansu Panigrahi @ Dash ………… Respondent Mr. S.K. Pradhan, Adv. CORAM: JUSTICE S. TALAPATRA JUSTICE SAVITRI RATHO ORDER 24.01.2023 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
Having appreciated the rival contentions, we are of the view that the appellant has made a turn-around and floated the statement that he would take back his wife. But on appreciation on the evidence, 6 as led before the Judge Family Court, Rourkela, we are of the opinion that the reasonings, as provided in the impugned Judgment, are sufficient to grant a decree of divorce and as such, we are not inclined to interfere with the Judgment by which the marriage between the parties has been dissolved. 21. 22. 23.
Arguments
Heard Mr. J. Nayak, learned counsel appearing for the appellant and Mr. S.K. Pradhan, learned counsel appearing for the respondent. 3. This is an appeal under Section 19(1) of the Family Courts Act from the Judgment and decree respectively dated 14.07.2015 and 25.07.2015 delivered in Civil Proceeding No.283 of 2011 by the Judge, Family Court, Rourkela. The respondent herein filed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act,1955 seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. 4. The husband, the Opposite Party in the Civil Proceeding, resisted the said prayer by stating that the allegations as made against him are all concocted. But, in the written statement, the appellant herein [the Opposite Party in the Civil Proceeding] has pleaded that the petitioner [the respondent herein] has gynecological problems and 2 she is not capable to bear child. The appellant has testified in the same line. 5. The appellant has asserted furtehr in his written statement that the petitioner, the respondent herein, has gynecological problem and she is not capable to fulfil the sexual desire of the appellant. The respondent [the petitioner in the Civil Proceeding] has denied such allegations. During the proceeding, the appellant herein filed a petition stating that respondent does not have any female organ and medical examination may be carried out to ascertain the truth. But such prayer was rejected by the Judge, Family Court by the order dated 28.08.2014. No challenge was thrown against the said order. 6. Now, the appellant has filed this appeal against the Judgment by which their marriage that had taken place on 21.01.2005 as per the Hindu rites and customs has been dissolved. 7. In the petition it has been asserted that the appellant’s mother treated the petitioner [the respondent herein] with cruelty and she had abused her in filthy language. Even the appellant herein did not spare her from torture. 8. On 11.12.2005, when the respondent fell down from the motor bike of the appellant and sustained serious fracture-injury, the appellant left her in her parental house for treatment. Thereafter, he did not take any information about the well-being of the respondent. Since September 2008, the respondent stayed at her parental home and the appellant made infrequent visits. Never did he approach her to go back to the matrimonial home. On her own volition, when she came to the matrimonial home in the month of September, 2008, the appellant went out of his home and started living in a lodge at Rourkela. His mother accompanied him, leaving the respondent alone in the matrimonial home. When the respondent had visited the 3 matrimonial home on 01.04.2006 accompanied by her brother, before her return in the month of September, 2008, the appellant had treated her badly. In Para 17 of the petition it has been pleaded as follows: “The respondent was always telling her that he would marry another girl and keep both the wives under one roof. The petitioner was strongly against such unsocial idea and did not accompany the respondent to his house. The old parents of the petitioner were also regularly misbehaved by the respondent.” The respondent had approached the Women Police Station for 9. alleviation by their intervention. IIC, Women Police Station, Sector-3 at Rourkela summoned the appellant. Appearing in the said police station he assured that the money that was paid to the appellant’s father to the extent of Rs.3 lakhs would be returned by the end of February, 2011. But the said money was not paid. Then the respondent instituted the civil proceeding seeking the dissolution of marriage which was allowed by the Judgment as challenged in this appeal. 10. In the written statement filed by the appellant, as stated earlier, he denied all the accusations as fabricated and as leveled with oblique motive. According to him, all these allegations have been cooked up to tarnish his image in the society. 11. In Para-8 of the written statement, the appellant has pleaded as follows: “It is true that when the petitioner was adamant and never desired to come back to her matrimonial house for reunion and joint living and to continue consummation of marriage, the respondent and his mother along with some gentlemen went to the house of the father of the petitioner and requested her to resume the society of the 4 respondent having no ulterior or ugly motive. The respondent tried his level best to bring back the petitioner to resettle their house but it is the petitioner who agitated and disco-operated for settling their family life.” 12. In Para-13 of the written statement, it has been further pleaded as follows: lady as to marry another “The respondent never uttered the words as alleged in this paragraph but it is the petitioner who at the time of their joint living in the matrimonial home [insisted the him] petitioner [is] suffering from gynecological disorders and incapable to bear a child to genital disfigurness and not due complete the in all respect. Rather respondent at that time to bring clarity in the minds of the petitioner assured to manage their family with an adoptive child as a prudent social activist.” 13. The appellant has made further allegation against the respondent that she had withdrawn herself from the society of the appellant without any reasonable excuse. By withdrawing herself from the matrimonial home and living separately from the respondent, she has treated the appellant with cruelty. 14. Mr. Nayak, learned counsel for the appellant has submitted that the finding of the Judge, Family Court is unsustainable and such finding emanates from gross misreading of the evidence as led by the appellant. He has emphatically stated that the allegation of not having proper genital was never pleaded by the appellant. 15. Mr. Nayak, learned counsel has continued to submit that the appellant strongly desires the company of the respondent at this age and the decree of divorce, if sustained, will bring disaster to his life. 5 16. Per contra, Mr. Pradhan, learned counsel appearing for the respondent has submitted that a serious form of cruelty had been faced by the respondent in her matrimonial home. The respondent has received all her belongings by assistance of the police. The respondent has clearly stated in her evidence that no articles belonging to her is left in the matrimonial home or in the custody of the appellant. But, she has denied that she had left the matrimonial home without any reasonable excuse. The appellant in his evidence has stated that the respondent was not ready for consummation of marriage on various pretexts and there had been no physical relation between the parties as husband and wife. 17. The appellant has also stated in his evidence that she [the respondent] is not entitled to get any permanent alimony. Most surprisingly, the appellant who was the Opposite Party in the Civil Proceeding has, in the Para 19 of the evidence by affidavit, clearly stated as follows: “The respondent has no objection if the Hon’ble Court [is] pleased to grant a decree of divorce on dissolution of the marriage of the petitioner with the respondent.” 18. By the Judgment dated 14.07.2015, the Judge, Family Court, Rourkela has dissolved the marriage by returning the finding that the respondent has pleaded and also stated in his evidence that he has no objection if the decree of divorce be passed dissolving their marriage. 19. It has been held by the Judge, Family Court that the respondent herein has proved her pleadings to the hilt. 20.
Decision
In the result, this appeal stands dismissed. Registry is directed to prepare the decree accordingly. If the physical records are still lying with the Registry, those shall be returned. (S. Talapatra) Judge (Savitri Ratho) Judge Rati Ranjan