The High Court
Case Details
5IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.153 of 2023 Pramod Kumar Rout …. Appellant Puspita Rout …. Respondent -versus- Puspita Rout .....Appellant MATA No.170 of 2023 -versus- Pramod Kumar Rout …. Respondent Learned advocates appeared in this case: For the husband : Ms. Deepali Mohapatra, Advocate For the wife : Mr. Sourya Sundar Das, Senior Advocate Ms. S. Modi, Advocate enior 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 Dates of hearing 9th July, 5th, 1st, 13th, 27th August and 7th November, 2024 Date of judgment : 7th November, 2024 ________________________________________________________ ARINDAM SINHA, J. 1. Ms. Mohapatra, learned advocate appears on behalf of appellant-husband. She submits, her client is aggrieved by judgment Page 1 of 22 dated 23rd February, 2023 made by the Family Court, dismissing her client’s petition for dissolution of the marriage and decreeing the separate civil proceeding filed by respondent-wife, for restitution. Her client has also filed MATA no.170 of 2023 in respect of the direction for restitution. 2. She submits, it was a love marriage. Both parties are service holders in the Government. The parties fell out within two years of marriage. Respondent-wife lodged false complaint against her client and other family members. Her client obtained anticipatory bail,
Facts
which was unsuccessfully challenged by respondent-wife, right up to the Supreme Court. She relies on the petition of her client, paragraphs 16 to 19, his evidence and evidence of respondent-wife in the divorce case. She draws attention paragraphs 41 to 45 in deposition of cross- examination of respondent. Cruelty and desertion will be evident from evidence adduced by the parties. The judgment be reversed in appeal. 3.
Legal Reasoning
dissolved. In our view, adjudication of the controversy will likely be basis for answer of the question in the other appeal preferred against impugned judgment, for having had decreed restitution. 6. To begin with we looked at the petition made under section 13(1)(i-a) and (i-b) of Hindu Marriage Act, 1955. In paragraph-1 of the petition appellant had emphatically alleged that after the parties had developed intimacy with each other and after having their MATA nos.153 and 170 of 2023 Page 3 of 22 selection for appointment to the Odisha Financial Service, respondent had proposed for early marriage saying that her family was pressurizing her to get married. Appellant alleged that his elder brother had not yet married and so their marriage be deferred. However, at insistence of respondent and her father, appellant and his family agreed to early marriage. It was solemnized on 3rd June, 2013 with undue haste because of unreasonable pressurization and insistence. There is no denial in the written statement. 7. The parties are officers in the Government. They must have exhibited academic excellence to have been chosen. There is no dispute that while at training they met and fell for each other. Allegation of appellant was, togetherness lasted for just about two years. The marriage is without issue. 8. While on behalf of respondent it was contended that allegations in the petition do not amount to grounds, either of cruelty or of desertion, on behalf of appellant it was contended that not only was there cruelty, it was perpetrated by respondent and her father to such an extent that it had an impact on his service. Suggestions to that effect were put to respondent in cross-examination. She confirmed MATA nos.153 and 170 of 2023 Page 4 of 22 that several complaints had been made to work place of appellant and he stood repatriated. 9. It does appear, at the time parties were undergoing training, respondent chose appellant as somebody she could have relation with. After she got married to him the couple were faced with reality, of demands and obligations in a marriage. Obviously they were not up to it and could not cope. Hence, there was entry of others, into the marriage. Those others gave evidence on the respective sides. We have seen the pleadings and evidence. Parties and their witnesses adduced evidence against each other. Relevance and weight of the evidence is to be seen, for reliance thereupon. 10. Respondent alleged physical assault and had complained to the police. Case was registered. Appellant and his family members were accused. Petition was filed for anticipatory bail and allowed by this Court. Respondent filed Special Leave Petition before the Supreme Court but was unsuccessful. Result was, appellant was not taken into custody. After some time and events, there was attempt at compromise. The District Legal Services Authority (DLSA) was in between. Respondent’s contention, made from the Bar is that acting on compromise she withdrew her application for cancellation of bail. MATA nos.153 and 170 of 2023 Page 5 of 22 However, appellant resiled from his obligations in the compromise. That is why there could not be reunion, for parties to resume their married life. On her behalf contention is, any incident or act of cruelty alleged prior to the compromise is deemed to have been waived by appellant. On application of the doctrine of waiver there does not remain any allegation constituting ground, either of cruelty or desertion. 11. There was an incident on 4th April, 2017 as alleged by respondent in her written statement. Appellant’s father is said to have asked respondent’s father to meet at a park, a public place. According to respondent’s father, the meeting was at 8.00 P.M. Also according to him, the meeting did not go well. He was abused by appellant and his father. His cell phone was broken. On shouting for help, he was rescued by respondent’s cousin Pintu and others, who happened to be there. He filed written complaint on next day, 5th April, 2017. It is his allegation that appellant, then being a Vigilance Officer, prevented registration of FIR. On reaching out to several authorities, there was direction for and ultimately registration of his complaint as FIR on 19th July, 2017. Another criminal case thus commenced. At this stage, Ms. Mohapatra submits, in the subsequent criminal case too her client MATA nos.153 and 170 of 2023 Page 6 of 22 and his father successfully petitioned for anticipatory bail. Respondent’s father thereafter applied for cancellation but was unsuccessful. 12. Several allegations were made in the petition leading up to separation, undisputedly on 29th July, 2015. Subsequent thereto, the criminal cases and steps taken to get, inter alia, appellant arrested have all been pleaded as foundation for grounds of cruelty and desertion. 13. In defending the divorce case respondent also had made several allegations. One of them was improper conduct of appellant’s younger brother. The improper conduct was alleged to have happened prior to 31st May, 2015. She admitted in cross-examination that particulars of it were not given, neither in her written statement nor in her evidence on affidavit. Her father filed evidence on affidavit and took the box in support of it. He too narrated this incident of improper behaviour by younger brother of appellant. He said, she told him. The allegation made by respondent in her written statement is by a sentence in paragraph 14 of it, extracted and reproduced below. “14.... .... .... The younger brother in law of the respondent took attempts to commit illegal act that is MATA nos.153 and 170 of 2023 Page 7 of 22 why he pulled and pushed the respondent in her bedroom in absence of her husband.” On an earlier date we had pointed out to Mr. Das that the Supreme Court had said in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, reported in (2003) 6 SCC 334, paragraphs 6,7 and 8 about making bald allegations in pleadings as may amount to cruelty. Mr. Das submits, in Vijaykumar Ramchandra Bhate (supra) the allegation was made by one spouse against the other. As such, the decision is distinguishable on facts. 14. It emerges from evidence adduced and particularly by father of respondent that dowry demand of car was made by appellant’s mother, to his younger son. It was specific case made out by respondent’s father in his evidence. The son did not come to the box, inspite of suggestion put to the witness (respondent’s father). In fact no case was made out in the appeals, on dowry. So we begin to understand why appellant’s father had thought there could be some purpose served by talking with respondent’s father. The latter appears to be very much involved in the matrimonial dispute. We reproduce paragraph 26 from his evidence-in-chief. MATA nos.153 and 170 of 2023 Page 8 of 22 “26. That un-desirable actions on the part of the petitioner and his family members have crossed the limit of patience of the respondent and as well as mine and thereby my social prestige and dignity have been hampered including the dignity and social prestige of the respondent. That for the above said reason myself and the respondent are mentally shocked and tortured. It is submitted that the petitioner is getting approximately Rs.75,000/- (Rupees Seventy five thousand) only on salary per month and he has also landed properties. On the other hand the respondent is spending her days and passing her life in distressed conditions. The petitioner, therefore, threw the respondent in dark of the seas of sorrows by driving out the respondent on 15/11/2015 from his house. The actions and activities of the petitioner are dangerous for smooth, conjugal live between the respondent and petitioner.” (emphasis supplied) Above statements weaken respondent’s contention of wanting to be reunited with appellant, for the marriage to work. On her part though, Mr. Das laid emphasis that pursuant to the settlement she withdraw her application. On query made, submission is she withdrew her application for cancellation of bail. The case initiated remains pending. There is no pleading nor evidence to that effect. MATA nos.153 and 170 of 2023 Page 9 of 22 15. There were several exhibits. On perusal thereof we are satisfied that the Supreme Court by order dated 8th April, 2016 dismissed the Special Leave Petition (SLP no.5791 of 2016) filed by respondent against grant of anticipatory bail. Appellant was repatriated by order dated 19th June, 2017 issued by General Administration (GA) Department, Government of Odisha. We also note, the document of amicable settlement dated 19th November, 2016 was tendered by respondent. In it clause (f) records parties had agreed not to pursue any pending matrimonial dispute/litigation relating to their matrimonial life against each other, their family members and matters arising out of and incidental thereto. The agreement of settlement was filed in CRLMA no.85 of 2016, a criminal case instituted by respondent against appellant. 16. From aforesaid we are able to analyse and cull out the facts. In paragraph-14 of the petition (of appellant) there were allegations made of cruelty and desertion. Respondent, in her written statement had not specifically dealt with the allegations, including of desertion on 29th July, 2015. Respondent had complained to the police of physical assault after she had left the matrimonial home, a rented premises of the parties. A further allegation of impropriety made MATA nos.153 and 170 of 2023 Page 10 of 22 against brother of appellant remained as an allegation, not proved. This was because the allegation itself was without particulars and the making of it imputed dishonor on appellant’s brother, who appears from the evidence, to be dear to appellant. Then there is the incident of 4th April, 2017 taken place in a park, alleged by respondent in her written statement. The allegations were, inter alia, petitioner physically assaulted respondent’s father, broke his cell phone and tried to drag him to the car but there was rescue by Pintu (respondent’s cousin brother) and others who happened to be there. The case constituting the allegations was not put to appellant in cross- examination though, it was a case made out in the written statement. The Calcutta High Court took view on requirement of parties to put their case to the other in A.E.G. Carapiet v. Derderian, reported in AIR 1961 CAL 359. Counsels representing their clients at trial scrupulously follow the requirement put forth in the view. Appellant alleged to have assaulted respondent’s father on 4th April, 2017 was not asked a single question in regard thereto, when he was in the box and cross-examined. We need no further enquiry for proof on the allegations but can only say that the making of it lends support to appellant’s case of cruelty. MATA nos.153 and 170 of 2023 Page 11 of 22 17. We have already noticed from the exhibits that the compromise was filed in the criminal case instituted by respondent. There were reciprocal obligations on the parties to not prosecute. It is a fact the compromise was not given effect to. In the premises, contention on behalf of respondent made from the Bar that she had withdrawn her application seeking cancellation of anticipatory bail after she was earlier unsuccessful, does not impress us. 18. On perusal of the petition, evidence-on-affidavit and cross- examination of appellant along with the written statement of respondent and her deposition in cross-examination in the divorce case, we see that clear case of cruelty and desertion based on aforesaid facts were pleaded and proved. Both the parties being officers in Odisha Financial Service, respondent and her father caused repatriation of appellant, admitted by her as done in connection with several complaints she had made. There is no dispute she deserted appellant without reasonable cause on 29th July, 2015. The facts satisfy declaration of law by the Supreme Court on desertion made in Malathi Ravi M.D. v. B.V. Ravi, M.D., reported in (2014) 7 SCC 640. MATA nos.153 and 170 of 2023 Page 12 of 22 19. Several decisions were cited at the Bar. Ms. Mohapatra relied on judgments of the Supreme Court as given below. i) Vishwanath Agrawal v. Sarla Vishwanath Agrawal, reported in (2012) 7 SCC 288, paragraphs 53 to 55. Paragraph 54 is reproduced below. “54. Regard being had to the aforesaid, we have to evaluate the instances. In our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. The conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty. Her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. She had publicised in the newspapers that he was a womanizer and a drunkard. She had made wild allegations about his character. She had made an effort to prosecute him in criminal litigations which she had failed to prove. The feeling of deep anguish, disappointment, agony and frustration of the husband is obvious.” (emphasis supplied) ii) K. Srinivas Rao v. D.A. Deepa, reported in (2013) 5 SCC 226. Reliance was, inter alia, on opinion expressed in paragraph 29, of the High Court having wrongly held that because appellant-husband and MATA nos.153 and 170 of 2023 Page 13 of 22 respondent-wife did not stay together, there is no question of the parties causing cruelty to each other. This reliance because respondent after having left the matrimonial home made police complaint and did everything she could to get appellant arrested. There was alleged incident in the park with allegation of appellant having physically assaulted her father, omitted to be put as a case to him in cross-examination. The alleged incident was cause for filing yet another criminal proceeding, pursuant to which respondent’s father tried to have appellant arrested. All these were incidents pleaded and amounts to cruelty at a time after respondent had left the matrimonial home, deserting him. Such conduct on her part would be at variance with plea not made, of cause to have left. The petition was presented after two years of the desertion. iii) Malathi Ravi M.D. (supra). Reproduced below is paragraph 42 from the judgment. “42. For the present, we shall restrict our delineation to the issue whether the aforesaid acts would constitute mental cruelty. We have already referred to few authorities to indicate what the concept of mental cruelty means. Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular strata of the society may MATA nos.153 and 170 of 2023 Page 14 of 22 not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.” (emphasis supplied) 20. Several views of High Courts and judgments of the Supreme Court were relied upon on behalf of respondent. They are tabulated below with reference to dates of the judgments. i) J.L. Nanda v. Smt. Veena Nanda, reported in AIR 1988 SC 407, paragraphs 5 to 7. The Supreme Court maintained judgment of the High Court on finding facts to be that the wife’s behaviour may have forced appellant to shift to a Government allotted quarter and live separately, away from other members of the family. The Supreme Court though said, it is no doubt an unfortunate state of affairs but same could not be held to be that the wife was behaving with appellant in a manner, which could be termed as cruelty. In the present case parties lived in a rented house, by themselves. On behalf of appellant no case was argued on shifting. The judgment does not apply on facts. MATA nos.153 and 170 of 2023 Page 15 of 22 ii) View taken by a learned single Judge of Madhya Pradesh High Court in Manohar v. Smt. Madhani, reported in II (1992) DMC 395. It was that where appellant-husband himself was carrying on with affairs, he had made respondent-wife to consent to his second marriage and thereafter seeking to obtain dissolution of marriage. In doing so he was trying to take advantage of his own wrong. We are unable to see how the judgment can be of aid to respondent. iii) Smt. Piyasa Ghosh v. Somnath Ghosh, reported in AIR 2009 Calcutta 90. A Division Bench of said Court took view, where it had been established from the evidence that the husband took money from widowed mother of the wife to construct additional room in his father’s house and thereafter sent summons for suit of divorce on ground of desertion and cruelty, there is nothing wrong on the part of the wife to lodge complaint before the police. It cannot be said that making of the complaint amounted to cruelty. In this case, appellant had specifically pleaded of pressure for early marriage at instance of respondent, not denied. Respondent admitted in cross-examination that appellant had never asked for dowry. There was a substantial period of courtship but she alleged she knew family members of appellant were greedy and that they had asked for dowry. Such allegations, not proved, cannot be seen in light of the view taken, to MATA nos.153 and 170 of 2023 Page 16 of 22 overlook persistent endeavour of respondent to have appellant taken into custody. iv) S. Hanumantha Rao v. S. Ramani, reported in AIR 1999 SC 1318. Paragraph-11 is reproduced below. “11. The last act of the respondent, which according to the learned counsel for the appellant, amounts to mental cruelty is that she lodged a complaint with the Women Protection Cell, through her uncle and as a result of which the appellant and the members of his family had to seek anticipatory bail. The respondent in her evidence stated that she had never lodged any complaint against the appellant or any members of his family with the Women Protection Cell. However, she stated that her parents sought help from Women Protection Cell for reconciliation through one of her relative who, at one time, happened to be the Superintendent of Police. It is on the record that one of the functions of the Women Protection Cell is to bring about reconciliation between the estranged spouses. There is no evidence on record to show that either the appellant or any member of his family were harassed by the Cell. The Cell only made efforts to bring about reconciliation between the parties but failed. Out of panic if the appellant and members of his family sought anticipatory bail, the respondent cannot be blamed for that. Thus, we are of the opinion, that representation made by the parents of the respondent to the Cell for reconciliation of the MATA nos.153 and 170 of 2023 Page 17 of 22 estranged spouses does not amount to mental cruelty caused to the appellant.” (emphasis supplied) Reliance on this judgment does not mitigate respondent’s conduct of doing all she could to have to get appellant arrested. v) Chetan Dass v. Kamla Devi, reported in AIR 2001 SC 1709. The Supreme Court found facts to be that the husband was carrying on with another woman, being cause for the wife to have left him. However, even then the wife was prepared to live, at the stage of her life, with the husband but rightly on condition that he dissociates himself from the other woman. In those facts the Supreme Court found the husband was not entitled to dissolution of the marriage as that would be taking advantage of his own wrong. The judgment is not applicable to facts in this case. vi) A. Jayachandra v. Aneel Kaur, reported in AIR 2005 SC 534, paragraphs 11 to 14. Said paragraphs give interpretation of what can amount to cruelty. Reproduced below is a passage from paragraph 13. “13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However MATA nos.153 and 170 of 2023 Page 18 of 22 insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. … … …” vii) Bishnu Charan Hota v. Smt. Mukta Manjari Hota, reported in AIR 2009 Orissa 144. Facts found were, the husband alleged the wife suffered from filaria, suppressed from him. Reproduced below is a passage from paragraph-8. “8. After perusal of the pleadings of the parties and the evidence on record, we are not at all impressed by the aforesaid submission in as much as appellant took the plea of ill-treatment, cruelty and desertion by the respondent in furtherance of a decree of divorce and in that respect he has tendered no adequate evidence and particularly the evidence of the doctor that the respondent is suffering from filaria or that mental cruelty was caused to him in any particular manner. Institution of criminal proceeding by the respondent. Under the given facts and circumstances, cannot be regarded as an act of cruelty by the respondent on the appellant, in as much as she wanted legal remedy for the ill- MATA nos.153 and 170 of 2023 Page 19 of 22 treatment and cruelty as alleged by her against her husband. …. …. …. ” (emphasis supplied) The husband was found to have failed to prove his allegation of the wife suffering from filaria. On the other hand she was found to have been justified in seeking legal remedy for his ill-treatment. Her seeking remedy was said to not amount to cruelty. In this case we have not found any baseless allegation made by appellant against respondent but to the contrary. viii) Gurbux Singh v. Harminder Kaur, reported in (2010) 14 SCC 301. In this judgment the Supreme Court interpreted ‘cruelty’ on the word not given meaning in the Act. The decision does not apply on facts as will stand demonstrated on reproducing below paragraph-8 therefrom. “8. Section 13 of the Act specifies the grounds on which a decree for divorce may be obtained by either party to the marriage. Though in the divorce petition filed before the Additional District Judge, Amritsar in HMA No. 19 of 2003, the appellant had sought divorce merely mentioning Section 13 of the Act for dissolution of marriage by decree of divorce, and did not specify the grounds on which he is entitled to decree of divorce. In the petition, the appellant has highlighted only one aspect, MATA nos.153 and 170 of 2023 Page 20 of 22 namely, that after the marriage, in the month of January 1998, on first festival of Lohri, when they were enjoying the festival, the respondent-wife abused his mother and the father in the presence of relatives and neighbours.” (emphasis supplied) ix) Smt. Bipasha Bhowal v. Sri Biplab Bhowal, reported in 2014(4) Civil LJ 780. The husband had filed for divorce on imputing cruelty by the wife for alleging he was having unethical and immoral relationship with another woman. The wife had filed written statement and amended written statement tendering explanation. View taken was, the wife had met a person from whom she came to know. Her explanation by the averments in the written statement as amended was simply that the person had reported to her about the unethical and immoral relationship. Furthermore, the husband could not substantiate by any independent or reliable witness, his allegations of cruelty. Our analysis on facts of this case has already been stated above. We are convinced respondent was cruel to appellant and had deserted him. 21. Impugned common judgment is reversed. The marriage solemnized on 3rd June, 2013 is dissolved. As a consequence C.P. no.83 of 2018 is allowed and C.P. no.1073 of 2018, dismissed. Both the appeals are allowed and disposed of. We are not called upon to exercise discretion on MATA nos.153 and 170 of 2023 Page 21 of 22 permanent alimony as the parties are employed as Government servants and can maintain themselves.
Arguments
Mr. Das, learned senior advocate appears for respondent. He places the petition and submits, irretrievable breakdown of the marriage was stated in the reliefs claimed. He adds, cruelty and desertion were cited as reasons for irretrievable breakdown of the MATA nos.153 and 170 of 2023 Page 2 of 22 marriage. Such breakdown is not a ground for dissolution of marriage provided under section 13 in Hindu Marriage Act, 1955. 4. He submits, allegations in the petition, when scrutinized, do not amount to allegations of cruelty. He takes us through evidence adduced in the divorce case, by appellant and respondent. On query made he submits, his client’s brother (Pintu) did not take the box. Likewise several allegations were made against his client as not having done right with her mother-in-law. The mother-in-law also did not take the box. As such nothing turns on the omissions. 5. For assistance of Court both parties had prepared informal paper books. We record our appreciation. We propose to deal with MATA no.153 of 2023 of the two appeals because controversy between the parties in it is whether or not the marriage should be
Decision
22. The appeals are accordingly disposed of. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 14-Nov-2024 18:45:33 MATA nos.153 and 170 of 2023 Page 22 of 22