The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.223 of 2023 Arjita Mishra …. Appellant -versus- Kaushalendra Kishore Khadanga …. Respondent Learned advocates appeared in the case: For appellant : Mr. Suvashish Pattanaik, Advocate For respondent : Mr. Brahmananda Tripathy, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA ----------------------------------------------------------------------------------- Date of hearing and judgment : 4th December, 2023 --------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. This appeal has been preferred against judgment dated 23rd June, 2023 made by the family Court. It was made on petition filed by the husband for dissolution of marriage alleging cruelty. The family Court dissolved the marriage. Aggrieved wife is before us in appeal.
Legal Reasoning
Mr. Pattanaik, learned advocate appears on behalf of appellant-wife and Mr. Tripathy, learned advocate, for respondent-husband. Page 1 of 10 // 2 // 2. Mr. Pattanaik submits, cruelty was neither pleaded, let alone proved. In the circumstances, on query to point out paragraph(s) in the petition alleging cruelty, to the fact pleaded for being proved, Mr. Tripathy draws attention to paragraph 23 in the petition under section 13 (1) (i-a) in Hindu Marriage Act, 1955. The paragraph is reproduced below. “13. That, on 17.5.2015, the Petitioner along with the Opposite Party and his son came to his residence in Bhubaneswar on the day of Savitri Puja. The house was full with guests and relatives for the puja. At night of the same day, the Opposite Party again started her same drama threatening the Petitioner that he has to choose her or his parents. If he does not choose her, she would go to her home and never come back to his life again in future. The petitioner remained silent that night, but on the next day morning (18.5.2015), at about 9 am, the Opposite Party again started making a scene, saying how unlucky she was to have such a husband and insulted the Petitioners in front of his family members by stating that she cannot stay in her in-laws house for five more minutes and started packing her things and tried to leave her in-laws house suo moto by hiring an auto rickshaw but the Petitioner finding no other alternative, took her to her parents house. After reaching her home, Petitioner went straight to his father-in-law and with folded hands, MATA no. 223 of 2023 Page 2 of 10 // 3 // narrated the entire activity of the Opposite Party. But the Petitioner was shocked to see the aggressive response of his father-in-law who instead of reprimanding the Opposite Party, threatened the Petitioner and his family members of dire consequences if they do not bow down to the demands of her daughter. The Opposite Party was cozily standing next to her mother watching her husband being humiliated and insulted by her own father. He was standing five steps below with folded hands. As the Petitioner began to leave, he could see his father- in-law making “get the hell out of here” gesture at him.” (emphasis supplied) Above pleading was reiterated as paragraph 19 in evidence-on- affidavit of the husband. On offering himself for cross-examination, the incident of 17th/18th May, 2015 was subject matter of it as appears from paragraph 46 of his deposition dated 2nd September, 2021. We reproduce below paragraph 46. “46. On 04.12.2014, I made arrangement for leaving the respondent and my child at her parental house. That time, I could not accompany the respondent and my child to her father’s house as I had to attend a two weeks training programme at Baroda. After one week of the completion of my said training programme, I came to Bhubaneswar. Thereafter, in the month of MATA no. 223 of 2023 Page 3 of 10 // 4 // April, 2015, I took the respondent and my child to Visakhapatnam. It is a fact that on 16.05.2015, I along with the respondent and our child came to my home to celebrate the festive occasion of Savitri falling on 17.05.2015. It is false to say that I had made any commitment with the respondent to come back to Visakhapatnam soon after celebration of Savitri on 17.05.2015. It is false to say that in the morning of 18.05.2015 physically assaulted the respondent as she insisted to accompany me with the child to Visakhapatnam. It is false to say that being assaulted by me, the respondent weeped and informed said incident to her parents. It is a fact that in the morning of 18.05.2015, I left the respondent along with our child at her parents house as she wished for same. It is a fact that she has not lodged any report against me anywhere. I have brought to the notice of the parental family members of the respondent and her maternal aunt regarding her adamant behavior towards me. It is a fact that after 18.05.2015, I have never gone to the parental house of the respondent to bring her back with me as on 18.05.2015, her father had misbehaved me. It is false to say that I have not respondent to any phone calls of the respondent after 18.05.2015. It is false to say that I have also not attended the whatsapp messages of the respondent after 18.05.2015. The respondent has never dialed to talk with me over MATA no. 223 of 2023 Page 4 of 10 // 5 // phone and she has also not sent any whatsapp messages to me.” (emphasis supplied) 3. Mr. Tripathy submits, there was also an independent witness. On query from Court he submits, the witness is a neighbor and was a party witness. We reproduce below paragraphs 12, 14 and 16 from her evidence on affidavit. “12. That, on a few occasions, I alongwith other neighbor have heard the Respondent shouting at the top of her voice, and when I enquiry about the same from the mother of the Petitioner she often avoided to say anything against the Respondent. 14. That, in the year 2013 the Petitioner’s mother was severely ill due to meningitis and due to my acquaintance with her I often visited their house and took care of her in such hard time. I was astonished to notice that, despite of such miserable health condition of Petitioner’s mother the Respondent often preferred to stay in her room and most of the time talk over phone, rather than taking care of her ailing moth-in- law. xxx xxx xxx 16. That, the day after Sabitri Puja in the year 2015 in the morning hour I again heard the shouting of the Respondent where she come out of the house holding her bags and child, but the Petitioner and his family MATA no. 223 of 2023 Page 5 of 10 // 6 // members despite of their request to stay, she remain adamant to go to her father’s house. Accordingly the Petitioner took the Respondent and their son to her father’s house against his will.” We also reproduce below paragraphs 29 and 30 from her deposition (emphasis supplied) dated 8th November, 2021 in cross-examination. “29. The respondent has gone with me on shopping only twice. On my call the respondent accompanies me to shopping center. She talks with me normally whenever she goes with me for evening walk and for shopping. It is false to say that the averments made at para-12 of my affidavit evidence are not correct. 30. Mother of the petitioner had been hospitalized in 2013. By that time, I was present at said hospital. I do not remember the month in which mother of the petitioner had been admitted into hospital for her treatment. On the first day of the admission of the mother of the petitioner in hospital, I was present with her in the hospital from 10.00 AM to 5.00 PM. Elder brother and elder sister-in-law of the petitioner were also present with their mother in the hospital. Mother of the petitioner was in the hospital for eight to ten days. It is a fact that the respondent was in the house of the petitioner during that time. She was taking care of all the affairs of the home during that period. Elder brother and elder sister-in-law of the petitioner were also coming to their home during that time MATA no. 223 of 2023 Page 6 of 10 // 7 // from the hospital. The relatives of the petitioner were coming to his house and also visiting his mother at hospital.” 4. Several documents were exhibited. Respondent-husband had (emphasis supplied) complained to the Human Rights Commission. Fact is, he filed for divorce before waiting for the report. Subsequently, the report was made and thereafter tendered in evidence. 5. Issue no.3 framed by the Court below was regarding petitioner’s entitlement to the decree on ground of cruelty. It appears from discussion on the issue that respondent-wife leaving the matrimonial home on 18th May, 2015 was the significant fact, based on which the allegation of cruelty. The evidence is that appellant-wife wanted to leave the matrimonial home and respondent-husband accompanied her to her parental house. On reaching his in-laws house, respondent-husband was insulted by his father-in-law and thereafter never went there to bring his wife home. Our perusal of the evidence has not yielded discovery of any other fact that could be said as basis for the allegation of cruelty. Mr. Tripathy therefore had pointed out paragraph 23 in the petition, which introduced the incident of 17th/18th May, 2015. MATA no. 223 of 2023 Page 7 of 10 // 8 // 6. The family Court relied on judgment of the Supreme Court in Samar Ghosh Vs. Jaya Ghosh, reported in (2007) 4 SCC 511. It is clear reliance therein was on paragraph 101, in particular illustration by clause (xiv) thereunder. We reproduce the illustration. “(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” (emphasis supplied) It is clear, the family Court felt that in the facts and circumstances perceived, refusal to grant divorce would amount to cruelty. 7. We get the impression that appellant-wife wanted to live with her husband separately and not along with her parents-in-law. That may have been a reason for friction and quarrel between the husband and wife. However, the husband displayed concern and responsibility in accompanying appellant-wife to her parental home, where he was insulted by his father-in-law. This appears to have been the straw that broke the camel’s back, whereafter the husband turned around and MATA no. 223 of 2023 Page 8 of 10 // 9 // became adamant. He made complaint before the Human Rights authority and followed up by his petition for divorce. 8. There could not be and was not made out a case of desertion. The husband showing concern for the wife and accompanying her to her parental home even if not taken as conduct that goes against his allegation of cruelty, the other evidence adduced, of photographs, child from the marriage and having stayed in Visakhapatnam for a while, dispel any presumption of cruelty meted out by either party to the other. However, as aforesaid it emerges that both sides parents had a role in causing trouble for the union. How much of it is justified is not our concern except only that such does not constitute a ground for divorce. So far as PW.2 is concerned, extracted parts of her evidence, in-chief and in-cross examination demonstrates that she made allegation and then contradicted herself. Her evidence is wholly unreliable. 9. The illustration of cruelty in Samar Ghosh (supra) is not applicable to facts in the case. The illustration was given by the Supreme Court in the case, where there had been more than 16 years of separation. Here the separation was less than 4 months. The decision was incorrectly applied by the trial Court. MATA no. 223 of 2023 Page 9 of 10 // 10 // 10. For reasons aforesaid, we set aside impugned judgment. We observe that it is for the parties to give importance to their marriage, make it work and then there will be understanding for accommodating their respective in-laws and discharging their duties towards them. 11. Mr. Tripathy informs us his client had made deposit of permanent alimony directed at ₹15 lakhs, in the Court below. In event respondent-husband accepts our judgment, he will apply for refund of the deposit, to be made to him. Otherwise, in case of appeal, he has to obtain direction from the appellate Court. 12.
Decision
The appeal is allowed and disposed of. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 05-Dec-2023 17:35:44 MATA no. 223 of 2023 Page 10 of 10