The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 150 of 2022 Rajan Kumar Lenka Pranati Pratap @ Lenka -versus- …. …. Appellant Respondent Advocates appear in the case: For appellant: Mrs. Soma Patnaik, 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: 17th December, 2024. Date of Judgment: 19th December, 2024 -------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The appeal was admitted on 25th August, 2022 and there was direction for issuance of notice of appeal. By our order dated 13th March, 2024 we had interpreted postal endorsement ‘addressee left Page 1 of 10 without instruction’ as a situation of good service, covered by judgments of the Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in (2007) 6 SCC 555, paragraph 14, State of M.P. v. Hiralal, reported in (1996) 7 SCC 523, paragraph 1 and M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630, paragraph 6. Nevertheless we made request to Mrs. Patnaik, learned advocate appearing on behalf of appellant, as would appear from paragraph-3 in said order, reproduced below. “3. Mrs. Patnaik is requested to communicate website copy of this order to learned advocate for respondent- wife, who had appeared in the Family Court. The order may be served through appellant’s learned advocate in that Court or dispatched by registered/speed post with A.D. and the acknowledgement filed on adjourned date.” Mrs. Patnaik complied with our request. The compliance stands recorded in paragraph-1 of our next order dated 4th April, 2024, reproduced below. “1. Mrs. Patnaik, learned advocate appears on behalf of appellant-husband and hands up photocopy of our order dated 13th March, 2024 bearing endorsement of receipt as on 19th March, 2024 made by the learned advocate, who represented respondent-wife in the Family Court. In MATA no. 150 of 2022 Page 2 of 10 the circumstances, we are convinced that she has chosen to go unrepresented at hearing of the appeal. As such respondent goes unrepresented. 2. Mrs. Patnaik submitted, her client is aggrieved by judgment dated 30th April, 2022, by which the Family Court dismissed her client’s petition for dissolution of the marriage. She drew attention to paragraphs 9 to 13 in impugned judgment. She submitted, evidence
Facts
adduced by her client and supporting witnesses, went unchallenged. It ought to have been relied upon. Particularly so when respondent on receiving summons, entered appearance and filed her written statement but did not thereafter cross-examine appellant nor adduced evidence herself. 3. It appears from impugned judgment, allegation of cruelty was disbelieved on reason given that the evidence on record does not reveal, when or how or the manner of respondent’s misbehavior towards appellant or his family members. Furthermore, appellant’s allegation regarding respondent having been involved with a boy during her schooling or still having such relationship were also disbelieved citing lack of cogent evidence. Refusal of intimacy was disregarded as not pleaded. MATA no. 150 of 2022 Page 3 of 10 4. The Family Court said on desertion that there is presumption of respondent having reasonable cause to stay away from appellant since it appears from the pleadings that there was order made under section 125 in Code of Criminal Procedure, 1973, for payment of interim maintenance of ₹5,000/- per month. 5. Mrs. Patnaik handed up judgment dated 21st January, 2017 made by the Family Court in Criminal Proceeding no.20 of 2013
Legal Reasoning
Court in the maintenance case, we find that explanation of it was given by the Family Court in respect of clear admission proved against respondent. The Family Court thereafter went on to rely upon said judgment, to disbelieve appellant in the subsequently decided divorce proceeding. The Family Court had subsequently proceeded to deal with the divorce case by reliance upon said judgment instead coming to independent finding on analysis of the pleadings and evidence before it. 9. We have satisfied ourselves that respondent, of her own accord and consent left petitioner and there has been long separation since year 2007. The petition was filed after requisite period of two years MATA no. 150 of 2022 Page 8 of 10 from the desertion. Instances given in Samar Ghosh vs. Jaya Ghosh, reported in (2007) 4 SCC 511 include, long separation by itself amounts to cruelty. We are also convinced on desertion since, respondent herself admitted she did not have reasonable cause to leave appellant. Her thus leaving appellant amounts to desertion as law declared by the Supreme Court on desertion in Malati Ravi M.D. v. B.V. Ravi, M.D., reported in (2014) 7 SCC 640. 10. Impugned judgment is reversed in appeal. The marriage between the parties solemnized on 16th January, 2005 is dissolved by decree of divorce hereby made on grounds of cruelty and desertion. On query made Mrs. Patnaik handed up certified copy of few orders made commencing from 12th January, 2021 till 25th October, 2021 in C.P. no.304 of 2017 pending in the Family Court. It appears on 8th September, 2021 and 25th October, 2021 two demand drafts were tendered by appellant for aggregate ₹37,000/-. Respondent did not collect them and her instruction is the drafts have lost the validity and on lying in the Court. A photocopy was made and the certified copy returned to Mrs. Patnaik. Considering respondent had been found by the Family Court to have left appellant of her own volition, we are not called upon to exercise discretion under section 25. MATA no. 150 of 2022 Page 9 of 10 11. The appeal is disposed of. The decree be drawn up expeditiously. (Arindam Sinha) Judge (M.S. Sahoo) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT Date: 19-Dec-2024 19:02:58 MATA no. 150 of 2022 Page 10 of 10
Arguments
(Smt. Pranati Pratap @ Lenka v. Ranjan Kumar Lenka). The judgment dealt with respondent’s petition for interim maintenance made under section 125 in the Code. On perusal of the judgment we see that the Family Court had in paragraph-8 of it noted respondent to have said in cross-examination that she is voluntarily staying at the house of her father, on her own accord and consent. Reproduced below is a passage from paragraph-8 of the judgment. “8. xxx xxx xxx During course of argument he has drawn my attention to the cross-examination of P.W.1 which reveals that she is voluntarily staying at the house of her father on her own accord. On scrutiny of the cross- examination of the P.W.1 it is found that she has admitted that she has been staying at the house of her father since 2009. Further, in para-16 of her cross- examination she has admitted the suggestion of the defence that she has been staying at the house of her MATA no. 150 of 2022 Page 4 of 10 father and apart from O.P. on her own consent. xxx xxx xxx” (emphasis supplied) Drawing attention to impugned judgment Mrs. Patnaik submitted, inspite of such admission the Family Court held against her client to disbelieve his pleadings and unchallenged oral evidence regarding cruelty and desertion. On query made she submitted, the Family Court while dealing with the maintenance claim had directed interim maintenance of ₹5,000/- per month. Her client’s salary at that time was ₹8,200/- per month as he had deposed in cross-examination. Inspite thereof, his gross salary was taken at ₹15,000/- per month on disbelieving her client because he did not produce his salary certificate, to take the figure asserted by respondent. In fact, the direction for ₹5,000/- per month was on consideration of assertions made by respondent in the maintenance proceeding, believed without any supporting document. A passage from paragraph-9 of said judgment is reproduced below. “xxx xxx xxx It is the evidence of P.W.1 that he is a young able bodied person having qualification of B.Com with M.C.A and his gross salary of ₹15,000/- per month out of his job. He has got 10 acres of irrigated land and truck business out of which he earns ₹50,000/- per month MATA no. 150 of 2022 Page 5 of 10 besides having a two stored building. P.Ws. 2 and 3 have also supported the evidence of P.W.1 on this aspect. O.P. in his examination-in-chief on affidavit has not specifically denied the aforesaid claim of the petitioner, but in his cross-examination he denied the suggestion on behalf of the petitioner on this aspect. In his cross- examination he disclosed his gross salary as ₹8200/-, but he failed to produce his salary certificate. So far his landed property is concerned no document or land particulars are produced by the petitioner. Similarly, no document is produced by the petitioner in connection with truck business of O.P. No truck number is also disclosed by the petitioner. In such circumstance, the claim of the petitioner regarding landed property as well as truck business of O.P. is not acceptable. However there is nothing to raise any doubt that the O.P. is a clerk in the aforesaid institution. Taking into consideration of his qualification and job, his monthly income can be assessed at ₹15,000/-.” She sought reversal of impugned judgment. 6. On further query Mrs. Patnaik submitted, respondent deserted her client in year 2007. The petition was filed carrying ground of desertion, after period of two years from it. Respondent was also cruel to her client inasmuch as she, without reason attributed to her client, had left him and thus caused mental cruelty. She reiterated, impugned MATA no. 150 of 2022 Page 6 of 10 judgment be reversed in appeal and there be declaration for dissolution of the marriage. 7. It appears, there were three witnesses on side of appellant. He himself, his elder brother and a neighbor. Respondent did not adduce any evidence nor anybody on her side. There was only one exhibit tendered by appellant. It is a certificate dated 8th November, 2021. Text of the certificate is reproduced below. “TO WHOM IT MAY CONCERN This is to certify that Sri Ranjan Kumar Lenka S/o Sri Bhimsen Lenka of Vill- Gopalpur, Dist- Jajpur (Odisha) has been continuing as Junior clerk (Contractual basis) with ₹7,300/- (rupees seven thousand three hundred only) per month as consolidated salary.” The certificate was issued by Sri Aurobindo Integral Education and Research Centre through its Principal, counter signed by the Secretary. There does not appear to be any dispute, as appearing from the lower Court record, regarding either genuineness or contents of the certificate. 8. Since repealed Indian Evidence Act, 1872 by section 17 gave definition of ‘admission’. Relevant are said section, sections 18, 21 and 23. Meaning given to ‘admission’ is, it is, inter alia, an oral MATA no. 150 of 2022 Page 7 of 10 statement which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons mentioned in the section. In this case respondent herself admitted she was staying in her parent’s house of her own accord and consent. Section 18 talks about ‘admission’ by, inter alia, a party to the proceeding. Section 21 says there can be proof of admission against the person making it. Section 23 provides for admission in civil cases, as relevant unless it is made upon an express condition that evidence of it is not to be given, or under other circumstances to be inferred by Court. Applying the provisions to the admission made by respondent before the Family