The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.416 of 2023 Durga Prasad Pattnaik & Ors. …. Petitioners Mr. S.K. Pattanaik, Adv. -versus- Sanghamitra Pattanaik @ Sanghamitra Mohanty …. Opp. Party CORAM: DR. JUSTICE S.K. PANIGRAHI Order No. ORDER 03.11.2023 05. 1. This matter is taken up through hybrid arrangement. 2. 3.
Legal Reasoning
Heard learned counsel for the Parties. In this Writ Petition, the Petitioners have challenged the Judgment dated 28.07.2023 passed by the learned 3rd Additional Sessions Judge, Bhubaneswar dismissing the Criminal Appeal No.35/2023 filed by the Petitioner No.1/ husband and allowing the Criminal Appeal No.35 of 2023 filed by the Opposite Party/ wife challenging the order dated 06.03.2023 passed by the learned J.M.F.C. (L.R.), Bhubaneswar in C.M.C. No.336 of 2022 under Section 23(1) and (2) of the Protection of Women from Domestic Violence Act, 2005. Page 1 of 8 // 2 // 4. The facts of the case are that the Petitioner No.1 and the Opposite party married on 30.11.2012 and they went to stay at Calcutta and, thereafter, at Bangalore where the petitioner was serving. A girl child named Patavya was born on 11.01.2015. 5. The Opposite Party was very obstinate and was not willing or interesting to discharge her responsibility and treating the Petitioner No.1 and his parents with cruelty. She even neglected to perform her duty of taking care of the child and treated her with cruelty as well. She used to beat the child and locked her in bath room for no apparent reason. For such ill treatment, the daughter was mortally afraid of the mother and took refuge under the protection of her father. She was also not interested in cooking the food for the family for which the Petitioner had to purchase food from the hotel. She was always occupying herself in Cell Phone. She was also using slang language with the Petitioner No.1 and physically and mentally torturing him. She was always threatening the Petitioners to initiate proceeding under Section 498(A) of the I.P.C. and under Section Section-4 of the D.P. Act against the Petitioner No.1 and his family members. 6. Due to continuous disturbance and harassment, the Petitioner was compelled to come to Bhubaneswar on Page 2 of 8 // 3 // 25.12.2019. But, at Bhubaneswar also she maintained her similar attitude and behavior of neglect and disrespect towards the Petitioners and towards the daughter. She always insisted the Petitioner No.1 to stay away from the house of the parents of the Petitioner No.1. 7. In such situation, the Opposite Party left the matrimonial house at Bhubaneswar on 16.04.2020 along with all her moveable assets including cash, gold jewelry and certificates, leaving the Petitioner No.1 and his daughter who was only aged about five years at that time. Since then the Opposite Party has been staying with her parental house at Niali and never caring even to enquire about the wellbeing of the daughter. The daughter is being looked after very well by her grandmother and grandfather. The child never craves for the company of her mother, rather, she despise and hates her mother for the torture received from her in the past till she was staying with her at Bhubaneswar. 8. Although several steps were taken for conciliation by intervention of well-wishers and gentlemen and family members of the both the sides, all the attempts became futile. In such circumstances, the Petitioner No.1 was compelled to file a proceedings under Section 13(1) of the Hindu Marriage Act, 1955 before the learned Page 3 of 8 // 4 // Principal Judge, Family Court, Bengaluru on 18.4.2022 vide M.C. No.2473 of 2022 praying for a decree of divorce. 9. The Opposite Party being known about the divorce case filed against her, she filed an application under Section 12 of the D.V. Act, 2005 before the court of the learned S.D.J.M., Bhubaneswar vide Criminal Misc. CaseNo.336 of 2022 on 22.6.2022 claiming Rs.50,000/- per month towards her maintenance and the daughter. She also claimed for custody of the daughter under Section 21 of the said Act. 10. The Petitioners submitted their show-cause reply refuting the allegation and disputing the claim of Rs.50,000/- per month towards maintenance. 11. Learned J.M.F.C. (L.R.), Bhubaneswar vide order dated 06.03.2023 disposed of the C.M.C. No.336 of 2022 filed by the Opposite Party/wife directing the Petitioner No.1/ husband to pay interim monthly maintenance of Rs.25,000/- to the Opposite Party/wife till final is passed. But the prayer of the Opposite Party/wife for custody of the child was rejected. 12. Being aggrieved by the order dated 06.03.2023 passed by the learned J.M.F.C. (L.R.), Bhubaneswar in C.M.C. No.336 of 2022 , the Petitioner No.1/husband Page 4 of 8 // 5 // filed Criminal Appeal No.37 of 2023 and the Opposite Party/ wife filed Criminal Appeal No.35 of 2023 before the learned 3rd Additional Sessions Judge, Bhubaneswar. 13. Learned 3rd Additional Sessions Judge, Bhubaneswar vide common judgment dated 28.07.2023 disposed of both the aforesaid Criminal Appeals dismissing the Criminal Appeal No.27 of 2023 filed by the Petitioner No.1/husband and allowing the Criminal Appeal No.35 of 2023 filed by the Opposite Party/wife. The Petitioner No.1/husband was also directed to pay interim maintenance of Rs.25,000/- per month to the Opposite Party/ wife for her expenses from the date of application and Rs.20,000/- towards the maintenance of their minor daughter from the date of order. The Petitioner No.1/husband was also directed to hand over the temporary custody of the minor daughter to the Opposite Party/ wife with certain arrangements. Hence, the Petitioners are compelled to file this CRLREV. 14. Learned counsel for the Petitioners submits that the Appellate Court while passing the impugned judgment did not take care to know about the oasis of the child who has reached the age of discretion to express her likes and dislikes and she is thoroughly competent to decide where she wants to stay. Hence, the custody of the Page 5 of 8 // 6 // child should not have been decided in a hasty manner by the lower Appellate Court. Therefore, the Petitioners have challenged the impugned judgment dated 28.07.2023 under annexure-9 passed by the learned 3rd Additional Sessions Judge, Bhubaneswar. 15. Learned counsel for the Opposite Party/wife submits that the mother is a pillar of emotional support to the child. No one can replace her in life to her children. He further submits that the learned 3rd Additional Sessions Judge, Bhubaneswar has rightly passed the impugned judgment. There is no scope to interfere with the same. 16. In this case, on earlier occasion, this Court tried to reconcile the dispute between the Parties. Therefore, this matter was listed on 18.10.2023 in Chamber at 1.30 P.M. and the Petitioner No.1/ husband and the Opposite Party/wife were directed to appear personally for amicable settlement of their dispute. However, after interaction with the Petitioner No.1/ husband and the Opposite Party/wife personally, this Court did not find any way to reconcile the dispute between them. 17. Considering the facts and circumstances of the case and the interaction conducted by this Court with the Petitioner No.1, his wife and the child in Chamber on Page 6 of 8 // 7 // 18.10.2023, this Court is of the view that the child is not interested to go to the custody of the mother. However, considering the motherly affection and her deprivation of the child’s love for about three years, this Court directs the Petitioner No.1/husband to allow the Opposite Party/wife to visit his house once a week on every Sunday for three hours and the Petitioner No.1’s family members shall facilitate the same and shall not create any hurdle in meeting the child. They will also convince the child and promote the feeling that mother is also equally important for the life of the child. In other words, a congenial atmosphere shall be created by the family members of the Petitioners when the mother (Opposite Party) is in the family. The family members of the Petitioners shall behave normally with the mother and offer food and shelter during her visit. 18. With the above modification, the CRLREV is allowed in part. The impugned common judgment dated 28.07.2023 under annexure-9 passed by the learned 3rd Additional Sessions Judge, Bhubaneswar in Criminal Appeal Nos.27 and 35 of 2023 so far it relates to the direction of custody of the child is set aside. However, the direction given by the learned 3rd Additional Sessions Judge, Bhubaneswar vide the impugned judgment for Page 7 of 8 // 8 // payment of interim maintenance of Rs.25,000/- per month by the Petitioner/ husband to the Opposite Party/wife remains unaltered.
Decision
19. Accordingly, the CRLREV is disposed of. (Dr. S.K. Panigrahi) Judge Sumitra Signature Not Verified Digitally Signed Signed by: SUMITRA NAYAK Designation: Jr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Nov-2023 16:08:01 Page 8 of 8