The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 211 of 2022 Sanjeeb Deepak Sahu …. Appellant -versus- Sukanti Mala Bagh @ Sahu …. Respondent Advocates appear in the case: For appellant: Mr. Brundaban Rout, 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 and Judgment:30th July, 2024 -------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The appeal has been preferred by the husband. He says the parties are Christian and their marriage was solemnized on 6th February, 2007 in J.E.L. Church, Koraput by the Reverend. According to him respondent resided in` the matrimonial home for 45 days only, during which time she frequently visited her parent’s house. In his Page 1 of 9 petition he said he had earlier filed petition under section 10 of Divorce Act, 1869, dismissed on 10th January, 2014. On 14th April, 2014 respondent along with her father, her advocate and others had formed unlawful assembly in front of residence of his mother. Complaint was lodged before the police, registered as F.I.R. on that day under sections 147, 148, 454, 294, 506 and 149 in Indian Penal Code, 1860. Police arrested, inter alia, respondent and she along with others were forwarded to the Court in G.R. Case no.213 of 2014. On 20th January, 2017 petitioner happened to meet husband of his sister- in-law. From him he came to know of respondent’s promiscuity. Inter alia, on such pleadings appellant had filed for divorce. 2.
Legal Reasoning
Mr. Rout, learned advocate appears on behalf of appellant but none appears on behalf of respondent. Coordinate Bench on order dated 17th March, 2023 recorded that notice had been delivered to respondent but there is no representation. This was reiterated by said coordinate Bench on 17th April, 2023. Reproduced below are paragraphs 3 to 5 from said order dated 17th April, 2023. “3. It transpires from the record that the LCRs have already been received. Further, from the tracking report, it appears that registered letter containing the notice has been received by the respondent, but none has entered in the appearance for the respondent. MATA no. 211 of 2022 Page 2 of 9 4. Let the matter be listed again on 27.06.2023. 5. In the meanwhile, if none appears to represent the respondent, the matter will proceed in absentia.” Another Bench, to which one of us was party (M.S. Sahoo, J.), adjourned hearing of the appeal to give opportunity to respondent. Reproduced below are paragraphs 2 and 3 from order dated 23rd February, 2024. “2. Though notice is made sufficient against the respondent, none appears at the time of call. 3. To give an opportunity to the respondent, put up this case after three weeks.” We by our order dated 24th June, 2024 had requested Mr. Rout to communicate website copy of the order to learned advocate, who had appeared for respondent in the Family Court. By order dated 15th July, 2024 we recorded that Mr. Rout had filed memo dated 5th July, 2024 in the department saying, the order was served on Mr. Manoj Pattnaik, learned advocate in the Family Court, who had represented respondent. The memo is in the file. The appeal has been called on for hearing. We cannot keep on adjourning the appeal in hope that respondent will appear. MATA no. 211 of 2022 Page 3 of 9 3. Mr. Rout submits, the Family Court by impugned judgment dated 3rd August, 2022, dismissed his client’s petition for dissolution of the marriage on saying, it was barred by res judicata. The marriage had broken down with no reconciliation. His client should not be tied to respondent just because his earlier attempt to obtain divorce had resulted in dismissal order dated 10th January, 2014. Ground is continuing cruelty. He seeks interference in appeal, for impugned judgment to be reversed. 4. We have perused materials on record before the Family Court. In addition to events mentioned in paragraph-1 above, we find from the record appellant had, earlier to his dismissed proceeding, filed for divorce which proceeding he withdrew. 5. On analysis of the pleadings it emerges that incident occurred on 14th April, 2014 resulted in, inter alia, respondent being taken into custody. It had happened when respondent along with her father and others had visited residence of appellant’s mother. Respondent in her cross-examination admitted to having been taken into custody by the police on that day. Case initiated consequent to the incident remains pending. We focus on this event because it is included in the cause of action pleaded by appellant in his petition. The event took place after MATA no. 211 of 2022 Page 4 of 9 dismissal of his earlier proceeding filed for divorce, dismissed by order dated 10th January, 2014. 6. We also note petitioner in paragraph-6 alleged promiscuous behavior of respondent. He alleged he came to know from chance meeting with husband of his sister-in-law. We reproduce below paragraph-6 from his petition. “6. That prior to this proceeding the petitioner had filed a petition under Section- 10 of the Indian Divorce Act in this court which was dismissed on 10.01.2014. Since the said date there was no resumption of marriage between the parties and that they are living separately in other words the petitioner have been living at Bariniput, Jeypore on the other hand the Respondent has been living at Koraput without any access to each other. On 20.01.2017 the Petitioner had interview with his co- brother (husband of elder sister of the respondent whose name is Manoj Suna) at 11.30 A.M. on that day the Petitioner suddenly met him near Bariniput chowk when the said Manoj Kumar Suna driving his official vehicle was going to Bhubaneswar alone he halted his vehicle and that the Petitioner talked with him and that during course of conversation the petitioner had kept open the Voice recording of his mobile on and kept the same in his front pocket, the discussion continued nearly half-an hour during such discussion, the said Manoj Suna disclosed about the leading of adulterous life, her engagement for MATA no. 211 of 2022 Page 5 of 9 purpose of sexual intercourse with the C.R.P.F. Jawans at Koraput, her moving with the said Advocate- Rajat Khora, Koraput verily and their night halt at Lodge at Jeypore and her going with said Rajat Khora to Cuttack and her night halt at Cuttack, purchasing of dress for the Respondent by the said Rajat Khora on the occasion of last Christ Mas 2016.” There is reference to the allegation in the written statement. Respondent said it was an attempt to assassinate her character. She did not specifically deny the allegation of chance meeting. 7. There were three witnesses on side of appellant and two from respondent’s side. Appellant himself, his sister and an acquaintance were three witnesses from his side. It is sufficient for us to deal with evidence adduced by appellant and respondent. As aforesaid, respondent in her evidence admitted the incident occurred on 14th April, 2014. No question was asked of her in cross-examination regarding her promiscuity. We have also perused the documents tendered in evidence. We are convinced the incidents happened on 14th April, 2014, mentioned as aforesaid, are facts. 8. Section 10 in Divorce Act, 1869 provides for grounds, on which a marriage may be dissolved. Clause (x) in the section is reproduced below. MATA no. 211 of 2022 Page 6 of 9 “10. Grounds for dissolution of marriage.- (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent- xxx xxx xxx xxx xxx xxx (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.” 9. In this case while appellant alleged that togetherness lasted 45 days since solemnization of the marriage, respondent alleged that togetherness was for four months. Togetherness ceased long before earlier prosecuted civil proceeding for divorce filed by appellant was dismissed on 10th January, 2014. There is no evidence on record that the parties reconciled soon thereafter. Instead, aforesaid occurrence on 14th April, 2014 requiring the police to physically remove respondent from residence of petitioner’s mother, who subsequently died on 17th September, 2016. There is nothing wrong in a wife wanting to and returning to her matrimonial home but doing so in company of several persons from her side, including her advocate, requiring intervention MATA no. 211 of 2022 Page 7 of 9 of the police is a serious thing. Where the parties had not reconciled after dismissal of petitioner’s earlier prosecuted civil proceeding on 10th January, 2014, respondent’s conduct leading to her being taken into custody from residence of appellant’s mother does indicate cruelty. There is evidence on record that appellant was employed as driver and subsequently lost his regular job. Also there in the evidence is that parties used to live with appellant’s mother and appellant, at the material time, used to be away on doing his job during the day. Appellant was not present at the time of occurrence on 14th April, 2014. The parties being bound together in the marriage, it cannot be said that adjudication on their relationship up to a certain point would be true for their relationship as might unfold on their equation in the facts and circumstances as would happen in future. In the premises, we must presume that it was culmination of cruelty signified by the occurrence and not beginning of it. 10. Appellant was not able to prove promiscuity of respondent before the Family Court. We are not inclined to probe this additional cause alleged. However, as appears from our scrutiny of the materials on record, ground under clause (x) stands attracted. It cannot be gainsaid that respondent’s conduct in the occurrence on 14th April, 2014 was deliberate. MATA no. 211 of 2022 Page 8 of 9 11. We dissolve the marriage solemnized on 6th February, 2007 on aforesaid ground. On query from Court Mr. Rout submits, the wife did not present petition for expenses of the proceeding or alimony, pending the suit. We note that there is also available in the record, respondent is with the son. 12.
Decision
The appeal is disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 31-Jul-2024 17:49:49 MATA no. 211 of 2022 Page 9 of 9