The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.279 of 2023 Bhagyashree Bisi Animesh Padhee -versus- …. …. Appellant Respondent Learned advocates appeared in the case: For appellant For respondent : : Mr. Trilochan Nanda, Advocate Mr. D.K. 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 Dates of hearing: 16th April, 2024, 26th June, 2024, 11th July, 2024 and 8th August, 2024 Date of Judgment: 8th August, 2024 --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Wife in the marriage, dissolved by impugned judgment dated 5th August, 2023 of the Family Court, is before us in appeal. She is aggrieved.
Legal Reasoning
Mr. Nanda, learned advocate appears on her behalf and Mr. Mishra, learned advocate for respondent. Page 1 of 10 2. It appears, as found by the Family Court, desertion was proved. It is a ground available in Hindu Marriage Act, 1955 for dissolution of marriage. Clause (i-b) under section 13(1) is reproduced below. “13. Divorce – (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xxx xxx xxx (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.” 3. The lower Court record is before us or at least scanned copy thereof. It appears from the order sheet, on 9th May, 2022 the Family Court recorded that respondent had filed for divorce. Allegation made in the petition is that appellant had left in intervening night of 24th and 25th January, 2020. Clearly, the petition was presented, after the time in which it could not be. Thus, the petition was maintainable. 4. It further appears, appellant was precluded from filing written statement. Pursuant thereto, respondent adduced evidence and was cross- examined. However, appellant was not allowed to adduce evidence as she had been precluded from filing written statement. The trial proceeded to result in impugned judgment and appeal has been preferred. As such, we MATA no.279 of 2023 Page 2 of 10 need not detain ourselves regarding correctness of procedure followed culminating in impugned judgment because it was not challenged by appellant. 5. Reproduced below is sub-para(a) from paragraph-2 in respondent’s petition for divorce. “(a) That the Respondent left the matrimonial home on 24th January 2020 at midnight when the Petitioner was not present at home and was doing night duty in his office. She left the house with her belongings. Thereafter, she never came back. The petitioner tried to bring her back but she did not. Next day morning on 25.01.2020 the Petitioner’s parents visited the parents of the Respondent at their Sambalpur residence. But the parents of the Respondent did not cooperate and misbehaved with them. The respondent has deserted the petitioner without any reasonable and justifiable cause. The respondent continues to live separately since the day she left till today which is more than 2 years.” The written statement is available in the record as also annexed in the appeal papers. It was not taken cognizance of by the Family Court in deciding the case. We feel fit to reproduce a part of sub-paragraph B under paragraph-5 from it. “B. At para 2(a) of the petition, the Petitioner states he was “not present at home” and “doing night duty”, the respondent left the house “at midnight” and “she left the house with her MATA no.279 of 2023 Page 3 of 10 belongings. Thereafter she never came back”. The above is not true. The Respondent visited her brother on 19 January 2020 as constant and continuous demand for money by the petitioner had created a toxic environment. The petitioner was present in the house. I stayed with my brother, and I returned to the rented house on 24.1.2020 to collect my Passport and other documents. The petitioner was in the house. I kept my valuables in the cupboards in our rented house, locked them. These keys are still with me. That it is true that the parents of the Petitioner visited my Parents on 25 January 2020. As against the allegation, my parents fully cooperated and there was no such “misbehave”. The petitioner was not present in Sambalpur on 25 January 2020. Obviously, the parents of the Petitioner have misinformed, instigated, and forced him to record this false statement that my parents “did not cooperate and misbehaved with them”. I have not “deserted” the Petitioner then nor I have any intention to “desert” him now. On 19/20 January 2020, the Respondent was forced by the Petitioner to transfer Rs.3,00,000/- (Rupees Three lakhs only) to him. That this is a “reasonable and justifiable” cause for removing myself from the toxic environment temporarily. xxx xxx xxx” 6. Moving on to the evidence on affidavit of respondent, reproduced below is paragraph-6 in it. MATA no.279 of 2023 Page 4 of 10 “6. I say that the parents of the Petitioner were going to Bangalore to visit their son on 25th January, 2020. On 24th January, 2020 night the Respondent came from her brother’s house after 4 to 5 days stay and started to pack off her belongings to leave the matrimonial house. The Petitioner requested her to wait till the morning to discuss the matter, if any, as he was leaving for office on night shift. But the Respondent left the house at midnight leaving a text message that she wants time and space and asked the husband to focus on Azure Certificate and Australia PR (Permanent Residency). A copy of the print-out of the screen-shot from Petitioner’s mobile phone is annexed and marked as Ex-5.” 7. As aforesaid, respondent was cross-examined. He stuck to his statements in answer to questions put to him in cross-examination. He said, inter alia, in paragraph-22 of his deposition dated 27th June, 2023, his wife had deserted him in the month of January, 2020. He went on to say in paragraph-25 of said deposition that much prior to their marriage his wife was working at USA being sponsored by Infosys, Bangalore. With knowledge of it he had agreed to marry. They had completed 9 years of marriage. In between he had been to USA for one month in year 2015. He went on to say in paragraph-27 that after knowing financial and social status, so also salary package of both parties, they had agreed to marry. In paragraph-39 of said MATA no.279 of 2023 Page 5 of 10 deposition, in answer to question put to him in cross-examination, respondent admitted as a fact that on 20th January, 2020 appellant had transferred ₹3,00,000/- to his account towards rent and Euro trip. We reiterate, the statements were made in answer to questions put to respondent in cross-examination. As such, they carry weight of evidence. 8. Mr. Nanda relies on view taken by a learned single Judge in the High Court of Chhatisgarh. It was by judgment dated 26th November, 2018 in Hemant Parasar vrs. Kamini Parasar, reported in AIR 2019 CHH 11. He draws attention to paragraphs-12 and 13 in Manupatra print. The learned single Judge was of view that wife accepting job at a place removed from her matrimonial home cannot amount to desertion. He also relies on view taken by a Division Bench in the High Court of Bombay by judgment dated 4th October, 2022 in Family Court Appeal nos.75 and 76 of 2018 (Pundlik Martandrao Yevatkar vrs. Ujwala), paragraph-23 in Manupatra print. He submits, the Division Bench was of view that mere staying separate does not amount to cruelty. 9. Mr. Nanda submits further, cruelty was erroneously found to have been proved. Finding and holding there was desertion by his client was also result of the Family Court not being able to appreciate Page 6 of 10 MATA no.279 of 2023 the facts and committing error of law. Impugned judgment be reversed in appeal. 10. Mr. Mishra submits, no interference is warranted in appeal. Appellant accepted being precluded from filing written statement. His client adduced evidence in support of his pleadings. He was cross- examined on behalf of appellant. Fact of desertion was proved before the Family Court. It was a case where appellant alleging dowry demand had left the matrimonial home without consent of his client. In spite of every effort his client could not bring her back because appellant completely removed herself to go to USA and thereby refused to return to his client. 11. We have recited the facts as appearing from analysis of pleadings of respondent and answers given by him in cross- examination. Appellant’s case before the Family Court was, there was toxic atmosphere in the matrimonial home on demand of money made by respondent. On her behalf questions were asked in cross- examination, when respondent admitted that on 20th January, 2020 she had transferred ₹3,00,000/- to his account. He explained, it was for rent and Euro trip. We must place this admission in context of the statements made by respondent, those we have referred to earlier. He said, he knew appellant was working on a project in USA at the time Page 7 of 10 MATA no.279 of 2023 there was negotiation for the marriage. Both were earning. Both were aware of their social status and salaries. They had agreed to marry. There was no cross-examination. Picture emerges of a partnership, at least financial on expenses incurred between the spouses, performed by them during the time they were together. Hence, we are inclined to accept the explanation that ₹3,00,000/- was given by appellant towards rent and Euro trip. We understand the trip to have been to visit places in Europe. 12. Appellant attached significance to the transfer of ₹3,00,000/-. According to her the transfer was on demand for money. We do not say that no demand was made. We have only tried to put things in perspective. Appellant having used the incident of transfer as reason for her to separate herself from company of her husband, at a time when he was away from home performing night shift, found as a fact by the Family Court and thereafter admitting that his parents went over to her brother’s house, convinces us she left without consent obtained from respondent. Appellant in urging toxic atmosphere due to demand for money did not therefore say she took her husband’s consent to leave. Subsequently, instead of displaying conduct of hoping for reconciliation, she left for the USA. On query from Court, we have not been shown any material in the record or otherwise to Page 8 of 10 MATA no.279 of 2023 demonstrate she was reunited with her husband prior to filing of the petition. We do not have anything in the materials on record for us to say that the parties even came face to face after appellant had left respondent on 24th January, 2020. 13. In Hemant Parasar (supra) view taken was on following decision by the Supreme Court as referred to in relied upon paragraph- 12 in Manupatra print, reproduced below. “12. The Supreme Court in the case of Joseph Shine v. Union of India (MANU/SC/1074/2018) has observed that the wishes of the husband to throw a choice to the wife to hear to his wishes to make a choice as has happened in this case will slaughter her core identity. Further the husband and wife are to be equally treated and if the wife opted to join the job at a different place, she cannot be otherwise forced at the behest of the husband or his family members to remain at her matrimonial home alone. It is true, in modern days inflation is so high, the couple wants to augment their income but to have it peacefully the husband and wife has to workout the solutions which may continue with the matrimonial ties and social status of better living. If the wife has got the job on the basis of her merit and got selected at a place far away other than from her matrimonial home, it cannot be said that she is guilty of desertion. It is the mutual respect of husband & wife for each other which keeps the family alive and if anyone acts in sudden spark with a knee MATA no.279 of 2023 Page 9 of 10 jerk reaction and the husband tries to act as a mater and dictate the wife to be at a particular place non-adherence thereto alone would not amount to willful desertion.” 14. We have already noticed that respondent was successful in demonstrating that appellant was working in a project in the USA at the time of negotiation, thereafter when the marriage took place and subsequent thereto. She continues to work in the USA. Extending the view to cover parties in the appeal would be stretching it too far. So also in Pundlik Martandrao (supra) view taken by the Division Bench of the Bombay High Court is in similar line and distinguishable on facts. 15. We find no error in impugned judgment, either on appreciation of facts or the law in respect of finding on desertion. Clause (i-b) in section 13(1) provides as a ground, desertion for dissolution of marriage. In addition, cruelty, if alleged, need not be proved because any one ground is sufficient. We confirm impugned judgment.
Decision
16. The appeal is dismissed. Signature Not Verified Digitally Signed Signed by: GAGAN BIHARI SAMAL Reason: Authentication Location: ohc123 Date: 09-Aug-2024 16:12:17 Radha/Gs MATA no.279 of 2023 ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Page 10 of 10