The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.396 of 2023 Sujit Kumar Biswal …. Appellant -Versus- Chinmayee Rout …. Respondent Advocates appeared in this case : For Appellant
Legal Reasoning
: Mr. Tushar Kanta Sahoo, Advocate For Respondent : Mr. Gajendra Nath Rout, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------------- Date of hearing and Judgment: 1st February, 2024 ------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Sahoo, learned advocate appears on behalf of appellant- husband and submits, his client is aggrieved by judgment dated 21st July, 2022, refusing to grant divorce. The refusal was because the petition for dissolution of the marriage made under section (1-A)(ii) Page 1 of 6 in Hindu Marriage Act, 1955 was presented before expiry of one year after passing of the order for restitution of conjugal rights in the proceeding, to which both his client and respondent-wife were parties. The learned Civil Judge (Senior Division) had made order dated 9th March, 2018 directing restitution of conjugal rights. The direction was for restitution within three months. The petition for dissolution of the marriage on ground of non-compliance by respondent-wife was presented by his client on 26th February, 2019. Hence, it was 11 days short of period of one year required by clause (ii) in section 13 (1-A). 2. Mr. Rout, learned advocate appears on behalf of respondent- wife and submits, the premature presentation is fatal to the cause. By reason of the petition filed, his client thereby was prevented from complying within the time prescribed. On query from Court Mr. Rout submits, his client did not prefer appeal against said order dated 9th March, 2018 for directing restitution. 3. Appellant-husband had presented the petition 11 days prior to expiry of the period. We have no doubt in our minds that notice of the case did not reach her before expiry of said 11 days. The order sheet reveals appellant-husband had put in requisites much later, on 17th June, 2019 in taking steps for service. We are distressed that a MATA no.396 of 2023 Page 2 of 6 point of maintainability was decided against appellant-husband by impugned judgment, passed more than two and half years after the petition was so presented. 4. We reproduce paragraphs 10 and 11 from the petition of appellant-husband. “10. That during subsistency of proceeding u/s. 9 of Hindu Marriage Act before the Hon’ble court the opp. party cunningly filed a D.V. case bearing no.33/2017 before the learned J.M.F.C.(P) Kujang u/s. 12 of D.V. Act and claimed maintenance and other ancillary relief with view to harass the petitioner and initiated execution proceeding no.16/2018 arising out of crl. misc. Case no.33/2017 which is pending for disposal. 11. That as the opp. party intentionally avoided to oblique the order passed by the Hon’ble court in C.P. no.101/16(57/16) after lapse of mandatory period of time the petitioner constrained to file a proceeding for dissolution of marriage as the opp. party neglected and deserted the petitioner for more than two years.” There is clear indication of mistake made by the learned advocate engaged by appellant-husband in the family Court to have calculated the period of one year. Notwithstanding, we find from order sheet, on 9th January, 2020 learned advocates engaged by respondent-wife had filed Vakalatnama in the family Court. Several dates later, on 29th MATA no.396 of 2023 Page 3 of 6 March, 2022 said learned advocates filed ‘no instruction’ memo and obviously retired from the case. Subsequent thereto impugned judgment was made, ex parte against respondent-wife. 5. We are presented with appellant-husband being aggrieved because the family Court found the premature presentation of the petition by 11 days to be fatal to his case for seeking dissolution of the marriage. There has been no assertion before us on behalf of respondent-wife that at any time during pendency of the civil proceeding in the family Court or thereafter till date, respondent-wife had rejoined society of appellant-husband. We also notice that between 9th January, 2020 and 29th March, 2022, when respondent- wife was represented in the family Court, she took no step to point out to the Court that the petition had been presented prematurely. We say this because respondent-wife is before us opposing grievance of appellant-husband regarding ground of dismissal of the petition. Respondent-wife having had been represented by learned advocates, she was obliged to take the point of maintainability at the earliest opportunity. That is the settled position in law. 6. By clause (ii) under sub-section (1-A) in Hindu Marriage Act, 1955 the Legislature permitted a spouse in a marriage to present a petition after one year or upwards from passing of a decree for MATA no.396 of 2023 Page 4 of 6 restitution of conjugal rights in a proceeding, to which the spouses were parties. That there was order dated 9th March, 2018 made in the proceeding for restitution of conjugal rights between the parties is a fact. The Legislature also by Act of 1976 reduced the period from two years to one year with effect from 27th May, 1976. The indication is clear that the Legislature by inserting the substitution by amendment intended that a spouse, who had obtained decree for restitution cannot be expected to await compliance for long period. In this case the facts are, order dated 9th March, 2018 for restitution within 3 months therefrom had not been complied with by respondent-wife till date. More than five years have passed and in the circumstances, for us to confirm impugned judgment and require appellant-husband to again file for dissolution of the marriage under the ground will not serve the cause of justice. 7. We hold omission on part of respondent-wife to assert her objection regarding premature filing of the petition by appellant- husband for dissolution of the marriage as evidence of her intention to have the marriage dissolved. Considering the provision by section
Decision
13(1-A) (ii) to be an enabling provision we hold that in the facts and circumstances the premature filing of the petition by 11 days cannot MATA no.396 of 2023 Page 5 of 6 be a ground fatal to it. Substantial compliance is the inevitable conclusion on the facts aforesaid. 8. Impugned judgment is reversed in appeal. The marriage solemnized on 17th July, 2013 is dissolved by decree of divorce hereby granted on the ground under section 13 (1-A)(ii). Mr. Rout submits, permanent alimony be directed. Respondent-wife can so claim under section 25 before the family Court. 9. The appeal is allowed and disposed of. The decree be drawn up expeditiously. (Arindam Sinha) Judge (M.S. Sahoo) Judge Jyoti Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Feb-2024 16:44:48 MATA no.396 of 2023 Page 6 of 6