Following decisions of Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in MATA no
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 70 of 2020 Mita Pramalik …. -Versus- Appellant Sudip Kumar Pramalik …. Respondent Advocates appeared in this case : For Appellant : Mr. P.K. Mohanty, Advocate For Respondent : None CORAM:
Legal Reasoning
paragraph 6, we are satisfied that there has been good service.” 3. Mr. Mohanty submits, there was neither cruelty nor desertion by his client. Dissension between the parties was because of interference by the in-laws. So much so that when there was attempt at conciliation, on respondent-husband having had earlier filed for restitution, after staying one night in a lodge, respondent-husband left his client on allegedly getting intimation that his father had been taken ill. She wanted to accompany but he did not take her along. The husband’s allegation of his client being unwilling to accompany him was admitted by him to not having been brought to notice of the conciliation officer nor the Family Court. The admission was by respondent-husband in his cross-examination. He has MATA no.70 of 2020 Page 3 of 8 deliberately chosen to go unrepresented, to remain unreachable from his client. 4. On query from Court Mr. Mohanty submits, his client had initiated criminal proceeding under section 498-A, Indian Penal Code, 1860. Respondent-husband and his family members were acquitted. His client being aggrieved, preferred criminal appeal. He submits further, the criminal case will be rendered irrelevant on impugned judgment being set aside in appeal and his client finding herself in society of respondent- husband, with their daughter. He adds, parents of respondent- husband have since passed away, first the mother-in-law and then the father-in-law. 5. We have perused impugned judgment. Two issues were framed. We reproduce below issue no.1. “(I) If the respondent being the legally married wife of the petitioner subjected him to cruelty and deserted the petitioner for which the petitioner is MATA no.70 of 2020 Page 4 of 8 entitled for a decree for dissolution of his marriage with the respondent.” The Family Court answered the issue relying on admission by both parties that since July, 2009 they were staying separately from each other and there was no conjugal relationship for more than 11 years. There is, however, no specific finding of cruelty against appellant-wife. 6. We reproduce below paragraph 5 from evidence on affidavit filed by respondent-husband. “5. That I am the only son of my parents for which I do not want to live separately from them. When I did not agree the proposal of the opp.party, she became furious and assaulted my parents by abusing in filthy languages. Thereafter the opp.party left her marital home along with huge amount and jewelry and came to her maternal house at Cuttack and since then she is residing with her parents” MATA no.70 of 2020 Page 5 of 8 In paragraph 18 of his deposition in cross-examination he said appellant-wife wanted to stay with him, obviously meaning without the parents-in-law. Furthermore, respondent-husband deposed that on 16th October, 2011 he took appellant to Basanti hotel/lodge as per decision of the conciliator and both stayed together for a night but since he got information that his father is sick, he asked appellant-wife to accompany him but she refused. He admitted of not informing the conciliator regarding the refusal. 7. Appellant-wife in her evidence-in-chief by affidavit had alleged that there was compromise brokered by local gentlemen, on her father-in-law having confessed his guilt and assurance given to keep her in good condition. The separation happened on 17th July, 2009, when she accompanied by her family members returned to the matrimonial home after attending marriage ceremony of a relative but was prevented entry. She stated further that she had requested him to take her with him from Basanti lodge but respondent-husband did not do MATA no.70 of 2020 Page 6 of 8 so saying that his father would become more unwell if he sees her. Soon after he filed for divorce. 8. Respondent-husband had tendered medical documents, which were marked exts. 4 to 9 in the proceeding. We have perused the exhibits. They relate to appellant-wife. We were looking for a medical document to substantiate deteriorating health of the father being reason for separation of the couple, who had reunited at Basanti lodge under a conciliation in the restitution proceeding. Neither impugned judgment nor the evidence discloses what happened to the restitution proceeding. After the attempt at conciliation was disrupted, respondent- husband had filed for divorce. 9. As aforesaid we have not found any positive finding of cruelty. Law is well-settled regarding desertion. We do not see any fact found by impugned judgment to attract declaration of law on desertion made by the Supreme Court in Malathi Ravi v. B.V. Ravi, reported in (2014) 7 SCC 640, paragraph 19. MATA no.70 of 2020 Page 7 of 8 Now that the parents-in-law are no more there should be no impediment for the parties to get back together. 10.
Arguments
THE HON'BLE MR. JUSTICE ARINDAM SINHA THE HON'BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------------- Date of hearing and Judgment: 2nd April, 2024 ------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Mohanty, learned advocate appears on behalf of appellant-wife and submits, his client is aggrieved by judgment Page 1 of 8 dated 18th March, 2020 of the Family Court dissolving the marriage. 2. None appears on behalf of respondent-husband. Several attempts were made to serve him. It will be sufficient for us to reproduce paragraphs 2 and 3 from order dated 6th December, 2023, regarding sufficiency of the service. “2. He submits further, several attempts to serve were made. Initially, the service was accepted but co-ordinate Bench, by order dated 7th April, 2022, had directed fresh service because the acknowledgment due card bore initial acknowledging the service. Subsequently, several attempts were made to serve at both, residential address of respondent-husband in West Bengal and his place of employment in Jharkhand. Postal articles were returned bearing respective endorsement ‘addressee left return to sender’ and ‘the person has left service for last four years’. 3. Following decisions of Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in MATA no.70 of 2020 Page 2 of 8 (2007) 6 SCC 555, paragraph 14, State of M.P. v. Hiralal, reported in (1996) 7 SCC 523, paragraph 1 and M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630,
Decision
Impugned judgment is reversed. The appeal is allowed and disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Jyoti Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 03-Apr-2024 12:34:59 MATA no.70 of 2020 Page 8 of 8