The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.462 of 2023 Pintu Jena ..... Appellant Kajal Patro ..... Respondent versus- Advocates appeared in this case: For appellant
Legal Reasoning
: Mr. S.K. Mahanty, 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: 3rd January, 2025 and 15th January, 2025 Date of judgment: 15th January, 2025 ------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Mahanty, learned advocate appears on behalf of appellant-husband and submits, impugned is judgment dated 16th October, 2023 made by the Family Court dismissing his client’s petition under section 27(1)(d) of Special Marriage Act, 1954, ex MATA no.462 of 2023 Page 1 of 6 parte against respondent-wife. He points out from impugned judgment, in paragraph-3 stands recorded that respondent-wife did not appear in the case although service against her was held to be sufficient. Accordingly she was set ex parte on 20th March, 2023. 2. We gave direction for issuance of notice of appeal. Learned advocate entered appearance on behalf of respondent. However, she went unrepresented. We reproduce below paragraphs-1 and 2 from our order dated 27th June, 2024. “1. Mr. Das, learned advocate appears on behalf of appellant-husband and presses for hearing. None appears on behalf of respondent-wife though she had entered appearance through learned advocates. 2. We adjourn hearing of the appeal on making it clear, if on adjourned date or thereafter respondent-wife goes unrepresented, the appeal is likely to be taken up for hearing and disposal, ex-parte against her.” Subsequently on 27th November, 2024 we requested Mr. Mahanty to communicate website copy of order made that day. Reproduced below is paragraph-3 from said order dated 27th November, 2024. “3. Mr. Mahanty is requested to communicate website copy of this order to learned advocate(s) for respondent and file the acknowledgement on adjourned date. We make it clear, we will proceed with hearing of MATA no.462 of 2023 Page 2 of 6 the appeal on adjourned date or soon thereafter irrespective of respondent being represented.” Mr. Mahanty duly filed memo bearing print of WhatsApp message sent to respondent herself. She still goes unrepresented. 3. Referring to the petition, Mr. Mahanty relies on paragraph-6 onwards to submit, interference by his client’s mother-in-law was cause for disruption in the marital relationship. The mother-in-law was carrying on money lending business and induced respondent to engage herself as recovery agent, going from door to door to collect. It hurt his client’s family prestige but respondent did not listen. There was disruption in the joint family. Parents of his client moved away. His client was also denied physical intimacy. In fact, respondent refused to discharge her obligations in the marriage. There was cruelty as pleaded. 4. His client filed evidence on affidavit to prove statements made in the petition. Respondent chose to go unrepresented. His client’s evidence thus was to be treated as good evidence. There is nothing in the evidence adduced, to deny his client finding of cruelty. 5. We see from impugned judgment that respondent was sufficiently served but did not appear to contest. Choosing to go MATA no.462 of 2023 Page 3 of 6 unrepresented does give rise to presumption that respondent did not have any defence. She goes unrepresented here as well. The Supreme Court in Juwarsingh v. State of M.P., reported in AIR 1981 SC 373 declared the law regarding reliance on unchallenged testimony. Under the declaration, something must appear from the evidence to give rise to disbelief. In impugned judgment we do find reference to the pleading and evidence adduced by appellant, to be basis of doubt, causing the Court to have disbelieved appellant on his contention of cruelty. 6. Basis for the Family Court to disbelieve appellant was, inter alia, bare statement of the husband without corroboration. No one else on side of appellant took the box to corroborate his allegations of cruelty. No worker came and said that respondent in furthering her suspicion had made enquiries regarding appellant. Neither parents nor brother of appellant took the box to say they were denied entry or unwelcome in the matrimonial home. The Family Court went on to say, regarding involvement of appellant in money lending business, it does not seem to be such an act which could be considered derogatory to the owner and prestige of a person. This was supported by reliance of the Family Court on declaration of law MATA no.462 of 2023 Page 4 of 6 made by the Supreme Court regarding mental cruelty in G.V.N. Kameswara Rao v. G. Jabilli, reported in (2002) 2 SCC 296. 7. Mr. Mohanty relies on view taken on order dated 20th November, 2023 by a Division Bench in the Allahabad High Court in First Appeal no.1210 of 2023 (Smt. Jyoti Verma v. Prashant Kumar Verma) to submit, in a matrimonial case the Family Court had dissolved the marriage ex-parte against the wife. The appeal to the Division Bench was dismissed. Special Leave Petition filed in the Supreme Court was also dismissed. 8. It appears from Smt. Jyoti Verma (supra), the wife had made an application for setting aside the ex-parte decree. On being unsuccessful, appeal was preferred to the High Court on delay. The application for condonation of delay was rejected by the order made. The Supreme Court refused to interfere. In those facts the view taken is inapplicable to this case. 9. Allegations made by appellant in his petition referred to other persons. It is but natural that the Family Court would have required corroboration, particularly when respondent went unrepresented. In the circumstances, absence of corroborative evidence gave rise to MATA no.462 of 2023 Page 5 of 6 disbelief. In view of aforesaid, there is no reason for us to interfere with impugned judgment. It is confirmed in appeal.
Decision
10. The appeal is dismissed. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Prasant Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT Date: 15-Jan-2025 16:44:47 Sks MATA no.462 of 2023 Page 6 of 6