The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.55 of 2016 Samita Mishra …. Appellant -Versus- Suryakanta Hota …. Respondent Advocates appeared in this case: For Appellant : Mr. S.K. Pradhan-3, Advocate For Respondent : Mr. M. Mishra, Advocate 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: 3rd April, 2024 ---------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The appeal has been preferred by appellant-wife being aggrieved by judgment dated 3rd May, 2016 of the Family Court dissolving the marriage at instance of the husband, carrying consequential directions regarding alimony and maintenance for her
Legal Reasoning
and her minor son. Mr. Pradhan, learned advocate appears on behalf of appellant-wife and Mr. Mishra, learned advocate for respondent- MATA no.55 of 2016 Page 1 of 10 husband, who has also filed cross objection challenging the directions for alimony. 2. Order sheet reveals appellant-wife before us wanted reconciliation, at least for well being of the child. She wanted and still wants to go back and live with her husband. Here it would be appropriate to reproduce below paragraphs-1 to 3 from our order dated 4th March, 2024. “1. Mr. Pradhan, learned advocate appears on behalf of appellant-wife and submits, his client is in Court. He reiterates, she wants to reconcile in wanting to go back, with the son, to her husband and stay with him. 2. Mr. Mishra, learned advocate appears on behalf of respondent husband and submits, his client is in Court. We asked respondent husband to step forward and on query from Court regarding his wife being present and having expressed her desire to reconcile, he with folded hands declined. 3. The parties are excused from further appearance.” So the appeal has been called on for hearing. 3. Mr. Pradhan submits, there was no act of cruelty by his client. Impugned judgment is erroneous in finding otherwise. He reiterates, his client wants reconciliation and the son, she is MATA no.55 of 2016 Page 2 of 10 confident, will cause it. His client is ready to live with her husband and she wants to put everything behind her and together move forward. 4. Mr. Mishra submits, the Family Court correctly appreciated the facts. It was an arranged marriage. There was no demand for dowry. She had no regard, neither for his client nor members of his family. She picked up quarrel with his client’s mother. There were abuse hurled at his client and his mother. Appellant-wife was adamant. All this amounted to cruelty and was found so in impugned judgment. Appellant-wife having married into a good family, was career oriented. She put her career first to desert him. 5. Appellant-wife upon having meted out cruelty and deserted his client, she having been gainfully employed, directions regarding monthly alimony and provision for residential accommodation were erroneously made. His client is unemployed and not in a position to comply with the directions. Hence, cross objection has been filed. 6. We have perused impugned judgment and the oral evidence adduced. We have also seen exhibit-A series being electronic mail conversation between the parties. The husband’s contention of his wife being adamant and schizophrenic had been alleged in the MATA no.55 of 2016 Page 3 of 10 petition. There was no mention nor reliance therein upon the electronic mail conversation between the parties. The written statement and cross examination of the husband were accordingly confined to case made out by the husband. 7. Father of respondent-husband was second witness for him. The witness referred to an incident of quarrel between his wife and daughter-in-law, when appellant-wife had said she wanted early divorce. In his cross-examination several additional facts were drawn from him, including mutual understanding between the parties that after marriage his daughter-in-law would be allowed to continue with her studies. Party witness no.3 of respondent-husband said he is a neighbor. Paragraph-4 from his evidence in chief by affidavit is reproduced below. “4. That, so far my knowledge is concerned, wife of Suryakanta Hota is a quarrelsome lady, to which her father is also supported. Due to her adamant behavior and non-cooperate attitude, some different of opinion is going on, on the matrimonial life of Suryakanta Hota and his family.” In cross-examination, on behalf of appellant-wife it was elicited from the witness that he had sold a plot of land to respondent- husband. MATA no.55 of 2016 Page 4 of 10 8. Mother of respondent-husband was witness no.4 on his side. She introduced allegation as would appear from paragraph-4 in her evidence in chief by affidavit. Said paragraph is reproduced below. “4. That, my daughter in law by character is suspicious in nature. She even did not hesitate to entangle my son relationship with me. Even in so many occasion she accused us that, we are taking attempt of her murder by mixing poison with her medicine.” We looked at the cross-examination but refrain from saying anything because the allegation introduced by appellant’s mother-in- law did not find place, neither in the petition nor cross-examination of respondent-husband. 9. We appreciate that appellant-wife after marriage was allowed to pursue her studies and achieve her higher qualification. She then obtained engagement in academic field. The engagement was at a place away from her matrimonial home. This act of her has been found in impugned judgment to be an incident of cruelty meted out by her towards her husband. It must be mentioned here, respondent- husband’s first ground of desertion was rejected by the Family Court on finding that the petition stood presented before expiry of the statutory period. MATA no.55 of 2016 Page 5 of 10 10. In paragraph-22 of impugned judgment allegation regarding four incidents of cruelty stand recorded. The paragraph is reproduced below. “22. Bearing the above parameters of law, in my mind, I proceed to analyse the evidence adduced by the parties to determine whether there is existence of any cruelty either physical or mental, so that the Court can pass a decree of dissolution of marriage. The petitioner attributed mental cruelty on four aspects. They are as follows:- i) Not doing household chores ii)Misbehaving him and his parents iii)Self centered and career oriented iv) Making unethical and unholy allegation linking up the character of the husband with the character of the mother-in-law.” The Family Court found on allegations (iii) and (iv). Regarding allegation (iii) finding was respondent-husband helped appellant- wife to complete her M.Phil and admitted her for Ph.D. in Ravenshaw College. However, respondent-husband (they) did not want that appellant-wife should be employed. She with her father went to Puri on 9th July, 2013 with assurance to return on 18th July, 2013 but instead went to Paralakhemundi and she joined as English MATA no.55 of 2016 Page 6 of 10 Lecturer in Paralakhemundi College. On those facts the Family Court found it apparent that appellant-wife is career oriented and regardless for restoration of matrimonial obligations. Reliance was placed on judgment of the Supreme Court in Suman Kapur vrs. Sudhir Kapur reported in AIR 2009 SC 589. The Family Court said, accordingly the point stood answered in favour of respondent- husband. 11. In the case before us it is an admitted position that the husband supported his wife to obtain higher educational qualification but he and, it is presumed his parents, did not want the wife to be employed. Aspiring to give fruit to one’s education cannot be seen as an act of cruelty towards a spouse. In Suman Kapur (supra) there was finding that the wife was career oriented lady wanting to pursue her professional career to achieve success, constantly and continuously avoiding staying with the husband and preventing him matrimonial relation, amounting to mental cruelty. In this case and in the context, pleading of appellant-wife in paragraph-17 of her written statement is reproduced below. “17. The desire for restitution of conjugal rights was not sincere. The respondent had always said she would come after her period of temporary appointment as guest MATA no.55 of 2016 Page 7 of 10 faculty is over. The petitioner did not wait and was rather impatient to file for divorce. It is a fact that the petitioner has filed the proceeding only to save him and his parents from the misdeeds they have done towards the respondent. And the allegations made are denied herewith. And hence there is no cause of action of the proceeding and also there is no specific reasonable grounds.” (emphasis supplied) We have not been shown from the oral evidence adduced that appellant-wife stood discredited on her statements made in above reproduced paragraph of her written statement, under emphasis. As such, this case appears to be distinguishable on facts from Suman Kapur (supra), whereby the Supreme Court had confirmed concurrent decrees of divorce on facts found by the trial Court that the wife was interested in her career only and she had neglected towards matrimonial obligations and exercise of conjugal rights by the husband. The trial Court also held that termination of pregnancy by wife was without consent or even knowledge of the husband which was in the nature of mental cruelty. MATA no.55 of 2016 Page 8 of 10 12. The other incident of cruelty found by the Family Court as had been inflicted on respondent-husband is allegation made by appellant-wife against respondent-husband, of him having physical relationship with his mother. As aforesaid, this was not pleaded by respondent-husband in his petition nor adduced by way of evidence in chief in the affidavit filed by him. There was no suggestion in cross-examination put to him by learned advocate representing appellant-wife in the Family Court. The examination of party witness nos.2 and 3 from side of respondent-husband also did not disclose such allegation. The allegation was introduced by appellant’s mother-in-law and weighed with the Family Court. The learned Judge in several places of impugned judgment mentioned that the ‘radix’ of the dispute is physical intimacy of respondent- husband with his mother. However, it is trite that in adversarial litigation there must be notice of case. In the Family Court there was no notice of such a case by the husband against the wife. Notice of case is the purpose of pleadings. Proof of allegations made in pleadings are to come pursuant to foundation laid thereby, on evidence adduced in support thereof. In this connection it must be said that disclosure of the electronic mail conversation between the parties was made by respondent-husband. Appellant-wife said MATA no.55 of 2016 Page 9 of 10 many things, in the electronic mail conversation, private between husband and wife, disclosed by the husband and by her answers to questions in cross-examination. We understand she was provoked. Those statements are irrelevant for the purpose of our adjudication because the evidence was not in support of a case made out by the husband, not by his pleadings nor by his oral evidence. 13. For reasons aforesaid, we confirm finding of the Family Court regarding inability of respondent-husband to have maintained
Decision
his ground of desertion by appellant-wife. We set aside the findings on cruelty, firstly by distinguishing on facts this case from Suman Kapur (supra) and secondly, the subsequent finding on cruelty being based on irrelevant material. 14. Impugned judgment is accordingly reversed. The appeal is allowed and disposed of. The cross objection is also thus disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Radha/Jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Date: 04-Apr-2024 15:56:09 Judge MATA no.55 of 2016 Page 10 of 10