Sri Nilakantha Behera Udasini Nayak @ Behera ..…… v. ……
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 10 of 2017 Sri Nilakantha Behera Udasini Nayak @ Behera ..……. Appellant Mr. S.K. Mishra, Advocate Versus ..…….. Respondent Mr. A. Mohanta, Advocate CORAM: Order No. 16. JUSTICE S. TALAPATRA JUSTICE SAVITRI RATHO
Decision
ORDER 27.02.2023 1. 2. This matter is taken up through Hybrid Mode. Heard Mr. S.K. Mishra, learned counsel appearing for the Appellant, Nilakantha Behera and also heard Mr. A. Mohanta, learned counsel appearing for the Respondent, Udasini Nayak @ Behera. 3. The Appellant has categorically stated in his affidavit dated 16.12.2022 that the Respondent is living separately from him since 10.04.2005 and they do not have any relation whatsoever for about last 16 years 08 months. There is no chance of re-union between the Appellant and the Respondent. The Appellant has asserted that he is not interested to continue the marital tie. It has been further stated that the Respondent is serving as Staff Nurse in the District Headquarters Hospital, Baripada, Mayurbhanj and drawing salary of Rs.54,690/- per month and on the other hand, the Appellant is receiving pension of Rs. 23,232/- per month. That apart, the Appellant is also responsible for maintaining his ailing parents and to bear the expenses of their treatment and other expenses. In his Page 1 of 5 2 affidavit, it has been pointed out that the Respondent has instituted a criminal proceeding being C.T. No. 224 of 2019 which is pending in the court of the Judicial Magistrate First Class, Betnoti, Mayurbhanj. 4. The Respondent has filed one similar affidavit on 15.12.2022 stating inter alia that the Appellant filed the civil proceeding for a decree of divorce, but the said proceeding has been dismissed. It has been stated that during the said matrimonial proceeding, the Judge, Family Court had directed the Appellant to pay interim maintenance of a sum of Rs.7,400/- per month. But on scrutiny, we have found the said amount was directed to be paid as a maintenance allowance for their daughter. However, in terms of the order dated 12.08.2013, a sum of Rs.3,000/- was paid as litigation expenses. In para 6 of the affidavit, filed by the Respondent, it has been stated as under: “That, in the meantime 25 years have passed since the marriage and the distance in the matrimonial relationship has swelled to accommodate the entire universe, it seems both the parties have moved the opposite direction which has made the marriage stale and irretrievable.” In para 7 of the said affidavit, it has been stated by the Respondent that from the reliable sources, the Respondent has come to know that the Appellant has contracted a second marriage and accordingly, she has filed a complaint in the Police Station on allegation of bigamy. She has revealed that she has undergone several surgeries and she has been suffering from various ailments and as such, she has decided not to continue the marital relationship which is dead and beyond repair. Therefore, learned counsel for the Page 2 of 5 3 Respondent has contended that on settlement of appropriate permanent alimony, the decree of divorce may be passed. 5. At this juncture, we may note that whether the court shall pass an order of the permanent alimony or not is dependent upon several factors. 6. We have heard Mr. S.K. Mishra, learned counsel appearing for the Appellant. Mr. Mishra has referred to the affidavit filed by the Appellant in this court to show that the arrears of the maintenance allowance on account of their daughter would be around Rs.1,00,000/- and the remaining part of the arrear maintenance allowance as shown in the appendix to I.A. No. 51 of 2023 has been paid. 7. Mr. A. Mohanta, learned counsel appearing for the Respondent has admitted on scrutinizing the account, that there is nothing to dispute. So far the amount claimed by the Respondent for their daughter’s marriage. Mr. Mishra, learned counsel for the Appellant has submitted that the Appellant shall pay a sum of Rs.4,00,000/- towards the costs of marriage for their daughter. But, according to us, this amount is not acceptable in as much the value of the said sum will be diminished over years and at the time of marriage, that value will not be available for inflationary effects. 8. Mr. Mohanta, learned counsel appearing for the Respondent has assured this court that the Respondent will take appropriate steps to bring an end to the case being C.T. Case No. 224 of 2019 which is pending in the court of the Judicial Magistrate First Class, Betnoti, Mayurbhanj; as the matter has been amicably settled. Page 3 of 5 4 9. As far as the demand for returning the gold and silver ornaments, belonging to the Respondent, are concerned, we find that there is no proof establishing the purchase and custody. Mr. Mohanta, learned counsel has further submitted that he has been instructed to state that the Respondent has left the entire matter to the discretion of the Appellant whether he would return those valuable materials or not. Hence, no order is required to be passed by us under Section 27 of the Hindu Marriage Act, 1955. 10. The parties have come to a settlement that they will not continue with the dead marriage. Both the wife and the husband have categorically stated in their respective affidavits about the dead marriage and their intention to get rid of that. Hence, we declare that by mutual consent, the marriage that was solemnized on 27.11.1997 between the parties stands dissolved. 11. As consequence thereof, the impugned judgment dated 05.12.2016 by which the petition of the Appellant filed under Section 13 (1) (a-i) of the Hindu Marriage Act was dismissed, is interfered with and set aside. 12. Having appreciated the submission of the learned counsel for the parties, now we direct as follows: (a) The Appellant will pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as the outstanding interim maintenance in terms of the order dated 12.09.2014 passed in I.A. No. 46 of 2013 arising out of Mat Suit No. 100/394 of 2013/12. (b) Further, we direct the Appellant to pay a sum of Rs.6,00,000/- on account of the marriage of their daughter. The said amount of Rs.6,00,000/- (Rupees Six Lakhs only) shall be paid in the form of Page 4 of 5 5 term deposit, drawn in the name of their daughter. The certificate or voucher of the said term deposit shall be handed over to the daughter through the Respondent within a period of 3 months from today. The amount of Rs.1,00,000/- (Rupees One Lakh only), payment of which has been directed by this order, shall also be paid within 3 months from today. 13. In view of the above decision, all claims of maintenance so In terms of the above, this appeal stands allowed. far as the Respondent is concerned are finally closed. 14. 15. 16. Registry shall prepare the decree in terms of the above. L.C.Rs. if any, still lying in the Registry, be returned forthwith. (S. Talapatra) Judge puspa (Savitri Ratho) Judge Page 5 of 5