Orissa High Court
Case Details
ORISSA HIGH COURT CUTTACK MATA No.108 of 2012 From the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in Civil Proceeding No.16 of 2011 -------------------- In MATA No.108 of 2012 Asish Mohapatra .…… Appellant -versus- Priyadarsini Barik ….… Respondent For Appellant : M/s. Bibhu Pr.Mohanty For Respondent : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant In MATA No.64 of 2012
Legal Reasoning
Smt. Priyadarshini Barik @ Priyadarsini Barik .…… Appellant -versus- Ashish Mohapatra ….… Respondent For Appellant : M/s. Susanta Kumar Dash, Anang Kumar Otta, & Mrs.Arunima Dhalsamant For Respondent : M/s. Bibhu Pr.Mohanty -------------------- Date of Judgment: 31.07.2013 -------------------- 2 P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJU PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI ----------------------------------------------------------------------------------------------------- S. Panda, J. MATA No.64 of 2012 has been filed by the wife challenging the order dated 15.5.2012 passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 for enhancement of the permanent alimony and MATA No.108 of 2012 has been filed by the husband for reducing the quantum of permanent alimony. However, decree of divorce passed by the learned Judge, Family Court, Jajpur in C.P No.16 of 2011 is said to have not been challenged. Since both the appeals arise out of common judgment and decree, they were
Decision
heard together and are being disposed of by this common judgment. 2. The facts leading to the present appeals are as follows: An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) was filed by the husband for decree of divorce. The marriage took place in the year 2009. The husband is an Engineer having B.Tech and Telecommunication qualification. Though there was no demand of dowry, Rs.3 lakhs were transferred to the account of the father-in-law of the husband for purchase of articles to be used in day-to- day living. The dispute started immediately on the next date of marriage due to indifferent attitude of the family members of the wife who did not take care of the Barat party. It is alleged that the wife had lack of respect towards the family members of the in-law’s and did not agree to complete any rituals as per the social and cultural background of the society. She neither dried her clothes nor performed Puja. Sometimes thereafter the husband left to join his service. During his absence, the wife misbehaved and created disturbances in the in-laws’ house making false allegations and also threatened to file criminal cases through his uncle, who is a police officer. While the matter stood thus, on 11.6.2009 the father of the wife had taken her to his house and avoided to receive any telephonic calls/mobile calls. Several attempts were made to settle the dispute. However, due to above attitude of the wife, there was no possibility of settlement of the dispute as the relationship between two were not congenial and she treated the family members and 3 the husband with cruelty. Finding no other way, the husband filed the application with the aforesaid prayer which was registered as C.P No.852 of 2009 before the Family Court, Cuttack. After the functioning of the Family Court at Jajpur, the said case was transferred. The wife filed her written statement with counter claim traversing the allegations made by the husband. She further pleaded that the marriage was an arranged marriage and there was a demand of motor cycle, LCD colour television, fridge, furniture, gold and silver ornaments, household articles from the side of the petitioner which was beyond the capacity of the father of the wife. The father of the wife had also given Rs.3 lakhs to the father of the husband to purchase furniture and other house hold articles. She was harassed and misbehaved for non-fulfilment of the dowry. Her father tried his best to fulfil the dowry demand. However, the in-laws tortured her and did not allow her to meet her parents. Thereafter, they approached the police and as such she returned to her parents house with mental shock and trauma and hopeful for amicable settlement. She was subjected to severe mental and physical torture for which she filed an application under the Domestic Violence Act. Accordingly, the husband was responsible for irreparable damage in the marital relationship. Since the husband made an allegation about the character of the wife, she had to stay in her parents’ house and file a counter claim demanding the return of the Stridhan property which had been given at the time of marriage and to pay permanent alimony. 3. In support of their respective pleas, the husband examined himself as P.W. 1 and examined another witness. The wife examined herself as O.P.W.5 and also examined four other witnesses. Xerox copy of pay particulars of the husband and some other documents were produced which were marked as Exts.A to C. Taking into consideration the materials available on record, the court below recorded the finding that it had become difficult on the part of the wife to stay in her marital home till the end of her life. Therefore, she is entitled for a decree of divorce and the court below directed the husband to pay a lump sum of Rs.10 lakhs, inclusive of Rs.3 lakhs, as permanent alimony. 4. Learned counsel for the appellant-wife submitted that the said amount is at a lower side taking into consideration the status of the parties and the salary received by the husband. The husband is deducting the amount from his salary and he will get the benefit of such deduction in future. However, ignoring those facts, the Family Court has fixed the 4 permanent alimony at a lower side. Therefore, the quantum of maintenance is to be enhanced. 5. Learned counsel for the respondent-husband, however, submitted that the wife created an unhealthy atmosphere in the in-laws’ house and she did not perform her duties towards in-laws as per the social custom which amounts to mental cruelty towards the in-laws. Therefore, the wife is not entitled to get any compensation and she has filed many criminal cases against the husband and his family members falsely. Since the quantum of permanent alimony is at a higher side, the same may be reduced. 6. This Court has taken into consideration all the above and the fact that both the parties have agreed for dissolution of marriage by decree of divorce. Admittedly, the husband is an Engineer working in a Company in Pune and from the salary slip, it appears that the salary of the husband is more than Rs.1,00,000/- per month. 7. The apex Court in the case of K.Srinivas Rao v. D.A Deepa reported in (2013) 5 SCC 226 while parting with the case discussed the issues which need to be dealt with in the interest of the victim of the matrimonial dispute and observed that while purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A IPC presents difficulty because the said offence is not compoundable. The Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. Taking into consideration the decisions of G.V. Rao v. L.H.V Prasad, (2000) 3 SCC 693, B.S. Joshi v. State of Haryana,