The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 320 of 2024 (Appeal under Section 19 of the Family Court Act, arising out of the judgment and order dated 27.06.2024 passed by the learned Judge, Family Court, Cuttack in C.P. No.736 of 2021). Mamata Behera …. Appellant Premananda Behera …. Respondent -Versus- For Appellant : Mr. S.K. Baral, Mr. S.R. Pradhan, Mr. L.R. Das, J. Sahoo and, S.R. Acharya, Advocates. For Respondent : Mr. Debajyoti Chatterjee, Mr. B.N. Tripathy and Mr. B. Tripathy, Advocates. ---------- CORAM: HON’BLE MR. JUSTICE MANASH RANJAN PATHAK AND HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO ---------- J U D G M E N T ------------------------------------------------------------------------------------- Decided on : 08.08.2025 ------------------------------------------------------------------------------------- PER MRUGANKA SEKHAR SAHOO, J.
Legal Reasoning
1. As directed by us on 01.07.2025, the parties are present in person before this Court along with their minor daughter from the marriage, Page 1 of 8 who is aged about 10 years, studying in Class-VI in Guru Nanak Public School, Sikharpur, Cuttack. 2. The parties were spoken in the language they understand. The Appellant-wife was spoken to by this Court in Odia, whereas the Respondent-husband, who is working as Asst. Sub-Inspector of Police in Vigilance Department, Odisha, was spoken to by the Court both in Odia and English. The girl child was also spoken to by the Court in English and Odia, as she understands both the languages. 3. The Appellant-wife narrated her plight that how she stays alone at Keonjhar about 180 kilometers away from Cuttack. She is being given Rs.3,000/- (Rupees Three Thousand) only per month by the Respondent-husband, which is also indicated in the judgment of the learned Judge, Family Court dated 27.06.2024 passed in D.V. Misc. Case No.207 of 2021. She expresses her helplessness and tells before the Court that it is almost impossible on her part to keep her body and soul intact with such a meager amount of Rs.3000/- paid to her every month. We find, apart from this amount she is receiving, at her level of education and understanding, she has nothing to say regarding the merits of the appeal that has been filed by her. 4. The Respondent-husband while addressing the Court did not address the Appellant-wife in the language which is expected of a person working as a Govt. Servant in a disciplined force. It was not expected of him to address the lady in the language he did much-less before a Court and, that too, by a person like him serving in Police Department under the State. Page 2 of 8 5. The small girl child stated certain incidents that happened, as she remembers, attributed to her mother when she was aged about 6 years. Her recollections are negative and laced with apparent dislike for her mother and unusual for a child of her age to form such extreme opinion. However, on being asked by Court where she was studying when she was 6 years of age, which was her school, who was her class-teacher, etc., somehow she could not recollect the same properly. She otherwise seems to be good, studying well and stays with her grand-mother and father (Respondent) at Cuttack. 6. We have nothing more to say regarding the highly opinionated version of the small child; but we record the above in order to reflect upon the attitude of the Respondent and his family as far as they treat the Appellant who was the wife and has begotten a child. It is hoped that the child is given good education both informal and formal and a better environment as far as her home is concerned, and she does not outlive her innocence at such an early age to the extent that she speaks ill about her mother, for reasons not difficult to guess nor far to seek. 7. Now, coming to the merits of the appeal, learned counsel for the parties are heard at some length. 8. The judgment of the learned Court, as far as the reasoning is concerned, is evidently based on the fact that the Appellant-wife, who was the Respondent in the divorce proceeding under Section 13 of the Hindu Marriage Act, 1955, filed by the Respondent-husband, i.e. C.P. No.736 of 2021, by order dated 16.01.2024 was precluded from filing her written-statement, as the written-statement was not filed by her in time. Thereafter, though the learned Judge, Family Court has analyzed Page 3 of 8 the case law at paragraph-6(i) of the judgment, but has not written even one sentence analyzing the evidence adduced by the Respondent- husband as the petitioner in the said case. The learned trial court proceeded on an erroneous impression that the pleadings of the Petitioner, evidence adduced, statements made on behalf of the PWs, if there were any, are not to be analyzed before granting a decree of divorce by applying the parameters as specified in Section 13 (1) (1-a), and in the case at hand the alleged ground was cruelty on part of the Respondent-wife. 9. The judgment completely falls short of the standard of proof that is to be applied by the Court, i.e. preponderance of probability as far as civil cases are concerned and, more so, when serious allegations of cruelty are made by the Petitioner. The onus and burden of proving cruelty was on the petitioner who is the respondent here in this case. Since the learned trial court has not gone into or evaluated any iota of evidence, we are also not in a position whether the facts alleged were proved or disproved, as envisaged under the Indian Evidence Act (since repealed and substituted by the Bharatiya Sakshya Adhiniyam).
Legal Reasoning
10. Mr. Chatterjee, learned counsel for the Respondent, taking a fair stand, more so when there is no material evidence on record relied upon by the trial court, does not proceed further to defend the judgment and decree that was granted ex parte. 11. In response to the effectual fervent prayer made by the Appellant in person regarding enhancement of the monthly maintenance amount and also urged by learned counsel Mr. Baral on her behalf, Mr. Chatterjee, learned counsel for the Respondent produces the Pay-Slip of Page 4 of 8 the Respondent issued by the Director General & Inspector General of Police, Vigilance, Odisha. Copy of the said Pay-Slip is kept on record. 12. Learned counsel for the Appellant Mr. Baral relies on the decision of the Apex Court in the case of Kalyan Dey Chowdhury vs. Rita Dey