The High Court · 2023
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 Corrected IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 433 of 2023 (From the judgment dated 3rd October 2023 of learned Judge, Family Court, Dhenkanal passed in C.P. No.11 of 2023) Kalpana Tripathy Arun Kumar Panda -versus- …. …. Advocate(s) appeared in this case:- Appellant Respondent For Appellant
Legal Reasoning
: Mr. Pulakesh Mohanty, Advocate For Respondent : None CORAM: JUSTICE B.P. ROUTRAY JUSTICE CHITTARANJAN DASH JUDGMENT 2nd May, 2025 B.P.Routray,J. 1. Heard Mr. P.Mohanty, learned counsel for the Appellant – Wife. 2. None appears on call for the Respondent-Husband and as seen from the order sheet the Respondent remains absent for last two consecutive dates. MATA No. 433 of 2023 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 3. Present appeal is directed against impugned judgment dated 3rd October 2023 of learned Judge, Family Court, Dhenkanal passed in C.P. No.11 of 2023, wherein the prayer of the husband was allowed granting decree of divorce with further direction to pay the permanent alimony of Rs.8,00,000/- in favour of the wife. 4. The parties married on 18th April 2014 and blessed with two daughters out of their wed-lock. As per the facts revealed, the wife is residing separately along with two minor daughters at Kamakhyanagar. The husband is serving in clerical cadre in Indian Army and as per the materials produced on record he was drawing monthly salary of Rs.64,355/- in the year 2023. The learned Family Judge granted the decree of divorce by dissolution of marriage on the ground of mental cruelty and desertion. 5. It is true that allegations and counter allegations have been labeled on the part of both parties against each other and the criminal case was also registered at the instance of the wife against the husband. Both parties have examined their respective witnesses, including themselves, to substantiate their case. The husband has MATA No. 433 of 2023 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 examined himself as P.W.1 and the wife examined herself as R.W.1. The wife has also examined her mother as R.W.2. It is the admitted case that since 25th February 2019 both parties are staying separately from each other and the civil proceeding for divorce was filed by the husband on 17th January 2023. Section 13 (1) (i-b) prescribes the ground for divorce for a period of continuous desertion of two years or more immediately preceding the date of institution of the proceeding. As seen from the evidence of the wife (R.W.1) and husband (P.W.1), and read conjunctively, we are satisfied with the finding of the learned Family Judge that the desertion on the part of the wife is not substantiated with any valid reason. It is true that the cause of desertion is a matter of inference to be drawn from the facts and circumstances of each case and the conduct of the parties. The conduct parties, pre and post separation, is important to be looked into because the same would reveal their intention. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati, AIR 1957 SC 176, the Supreme Court has explained the concept of desertion as the same is a course of conduct existing independently. It is held as follows:- MATA No. 433 of 2023 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 “The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or, where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence. Thus the quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.” Further, in the case of Sanat Kumar Agarwal vs. Nandini Agarwal (1990) 1 SCC 475, it is held that:- “It is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.” 6. Taking note of the conduct of the parties as evinced from their respective statements made in course of their examination and cross- MATA No. 433 of 2023 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 examination, we are satisfied that the fact of desertion accountable on the part of the wife is established to grant the decree of divorce in favour of the husband. The learned Family Judge has made detailed discussion of such facts in the impugned judgement, which we don’t want to repeat here. As such, we are not inclined to interfere with the impugned order whereby the marriage of both parties has been dissolved. 7. Next coming to the part of alimony, it is not in dispute that the wife-Appellant has no source of income, who is living along with two minor daughters. Learned Family Judge has granted permanent alimony to the tune of Rs.8,00,000/- in favour of the wife without any direction for maintenance for the minor daughters. While dealing with the present appeal we are thus constrained to proceed in terms of Section 26 of the Hindu Marriage Act, since it is alleged against the Husband-Respondent that he is living with another woman in the meantime. At the same time, looking into the income of the husband-Respondent as brought on record in course of trial and taking note of the circumstances that the wife is staying separately in her parents’ house along with her minor daughters, we are inclined to enhance the quantum of permanent alimony. Taking MATA No. 433 of 2023 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa Date: 16-May-2025 15:57:04 all such factors and circumstances of the case, the permanent alimony amount is enhance to Rs.12,00,000/- to be paid in favour of the wife. Further, the husband is directed to pay the monthly maintenance of Rs.10,000/- each for two daughters with immediate effect. 8. Accordingly, the appeal is disposed of by confirming the decree of divorce with further direction to the Husband-Respondent to pay permanent alimony Rs.12,00,000/-(Twelve Lakhs) in favour of the Wife-Appellant and also to pay monthly maintenance of Rs.10,000/- (Ten Thousand) each for two daughters with immediate effect. It is made clear that failing to pay the permanent alimony amount or maintenance amount, the wife-Appellant is at liberty for execution for the same, in accordance with law. (B.P. Routray) Judge (Chittaranjan Dash) Judge S.Das, Sr.Steno MATA No. 433 of 2023 Page 6 of 6