The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.166 of 2024 Mini Pradhan …. Appellant -Versus- Ganeswar Pradhan …. Respondent Advocates appeared in this case: For Appellant
Legal Reasoning
: Mr. Lalitendu Mishra, Advocate For Respondent : None 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 and Judgment: 17th December, 2024 --------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The appeal has been called on for hearing. Mr. Mishra, learned advocate appears on behalf of appellant-wife. Respondent- husband goes unrepresented. MATA no.166 of 2024 Page 1 of 6 2. Order sheet reveals there was valid service reported, of notice of the appeal. In order dated 15th July, 2024 there was direction for communication of website copy of that order to learned advocate, who had appeared on behalf of respondent in the Family Court and to file the acknowledgement. Mr. Mishra hands up memo dated 5th November, 2024. Attached to it is postal receipt showing dispatch of notice dated 22nd July, 2024 to the learned advocate and track consignment confirming item delivered to addressee as on 25th July, 2024. We are convinced respondent is not interested. 3. Mr. Mishra submits, there was erroneous appreciation of the facts and law by the Family Court in making impugned judgment dated 23rd March, 2024, to dismiss his client’s petition for dissolution of the marriage. The marriage was soleminized on 25th May, 1996. There was cruelty meted out to his client, physical and mental. Subsequent thereto, he deserted her and has since withdrawn himself from society. In the facts and circumstances, his client is entitled to dissolution of the marriage on grounds of cruelty and desertion. His client is not seeking maintenance by permanent alimony or otherwise. MATA no.166 of 2024 Page 2 of 6 4. We have perused impugned judgment. There is precious little in the lower Court record inasmuch as, there was no documentary evidence produced. Appellant and her father gave evidence to prosecute the petition while respondent also adduced oral evidence. 5. Perusal of the judgment reveals, the Family Court was of view that appellant could not prove her contentions. So far as physical and mental cruelty are concerned, the Family Court found appellant to not have made any specific averment. Her allegation was that she had approached the police but they did not receive her complaint. On desertion, analysis of the oral evidence by the Family Court resulted in conclusion that it was appellant who had left respondent in year 2014. On top of it all the Family Court found inconsistencies in the oral evidence adduced by appellant and her father. As aforesaid, there was no documentary evidence to back up claim of physical assault, reported to the police or of articles given as dowry. 6. Mr. Mishra relies on paragraph-14 in evidence on affidavit dated 5th July, 2023 filed by his client in the Family Court. The paragraph is reproduced below. MATA no.166 of 2024 Page 3 of 6 “14. That, the temperament of the O.P. is quite different and aggressive and arrogant, self centered and cruel one as such I apprehend danger to my life and limb and as the O.P. lives in wine and women it is not possible to save the institution of marriage. Hence, this petition for dissolution of marriage.” (emphasis supplied) We are unable to sustain contention of Mr. Mishra that his client’s assertion by paragraph-14 in her evidence on affidavit was not demolished in cross-examination, amounting to admission of cruelty. This is because the allegation is of apprehension. Clause (i- a) under sub-section (1) in section 13 of Hindu Marriage Act, 1955 provides for cruelty that has already happened inasmuch as, after the solemenization of the marriage, a spouse has treated the other with cruelty. Apprehension of danger or cruelty therefore does not come within the ground provided. 7. Mr. Mishra relies on judgment dated 26th April, 2023 of the Supreme Court in Civil Appeal no.2012 of 2013 (Shri Rakesh Raman v. Smt. Kavita), paragraph-17 (live law print). He submits, the Bench delivering the judgment relied on earlier decision of said Court in Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC MATA no.166 of 2024 Page 4 of 6 511. The earlier judgment gave instances of mental cruelty and instance (xiv) talks about long separation amounting to mental cruelty. 8. In dealing with reliance by appellant on Shri Rakesh Raman (supra) and Samar Ghosh (supra) we must keep in mind the facts found by the Family Court. The findings appear to be based on the oral evidence adduced. In that context clause (a) under sub- section (1) of section 23 is reproduced below. “(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and … … …” (emphasis supplied) Long separation between spouses has been declared to be an instance that may amount to mental cruelty. However, long separation caused by a spouse, who thereafter seeks dissolution of the marriage on fact of it is the spouse taking advantage on a wrong MATA no.166 of 2024 Page 5 of 6 done. In the circumstances, instance (xiv) given in Samar Ghosh (supra) is not applicable to appellant for furthering her claim for dissolution of the marriage. 9. We find no error made by the Family Court, either on facts or in law. Impugned judgment is confirmed. 10. The appeal is found to be without merit and dismissed. (Arindam Sinha) Judge (M.S. Sahoo) Judge Radha/Jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: ORISSA HIGH COURT Date: 18-Dec-2024 18:30:08 MATA no.166 of 2024 Page 6 of 6