IN THE HIGH COURT OF ORISSA, CUTTACK MATA NO. 104 Of 2011 From the judgment and ...

19 Pages·2015·0.1 MB·English

IN THE HIGH COURT OF ORISSA, CUTTACK

MATA NO. 104 Of 2011

From the judgment and order dated 23.09.2011 passed by the
learned Judge, Family Court, Puri in C.P. No.162 of 2010.
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Usharani Pradhan ..…… Appellant

-Versus-

Brajakishore Pradhan ………. Respondent

For Appellant: - M/s. Debi Prasad Dhal
S.K. Dash, A. Behera

For Respondent: - M/s. Dinesh Kumar Mohanty
Deepak Kumar Rath
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO

…………………………………………………………………………………………………………
Date of argument- 29.10.2015 : Date of Judgment-19.11.2015
…………………………………………………………………………………………………………

S. K. Sahoo, J. “A home with a loving and loyal husband and wife
is the supreme setting in which children can be
reared in love and righteousness and in which
the spiritual and physical needs of children can be
met.”
- David A. Bednar
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This case depicts the sordid episode of the life of a
woman who spoiled her homely environment and family
relationships running after the politics and politicians forgetting
her solemn duties and responsibilities of a matrimonial life and
neglecting her husband and children. She was cautioned and
reminded of her pious obligations but she was mesmerized so
much by the political thoughts and quite adamant that she failed
to understand the consequence of her negligent attitude. When
she faced the reality and started realizing her wrongdoings, by
that time it was too late and much water had flowed under the
bridge.
This matrimonial appeal has been filed by Usharani
Pradhan (hereafter “the appellant”) under section 28 of Hindu
Marriage Act, 1955 read with section 19(1) of Family Courts Act,
1984 challenging the impugned judgment and order dated
23.09.2011 passed by the learned Judge, Family Court, Puri in
Civil Proceeding No.162 of 2010 in allowing the petition filed by
Brajakishore Pradhan (hereafter “the respondent”) under section
13 of Hindu Marriage Act, 1955 and dissolving the marriage
between the parties with a decree of divorce subject to payment
of alimony of monthly maintenance @ Rs.3,000/- by the
respondent-husband to the appellant-wife.
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2. It is the case of the respondent-husband that he
married the appellant on 22.05.1991 in accordance with the
caste, custom and rites and both of them stayed together as
husband and wife and out of the wedlock, they were blessed with
a daughter and a son. It is the further case that since the
appellant was interested in political activities, she neglected the
family and she used to return back home in the late hour of the
night. Even though the respondent raised objection but the
appellant did not bother about the same. She was not preparing
food for her family members and behaving very badly with her
husband and even gone to extent of instituting false police cases
against him for which he was taken into custody. The appellant
left her in-laws’ house on 07.03.2007 and started residing at
another place. After desertion of the appellant for a period of
more than two years, the respondent instituted a divorce
proceeding on the ground of cruelty and desertion.
3. On being noticed, the appellant appeared and filed her
written statement and denied the averments made in the divorce
petition. She put forth a case that after her maternal aunt
expired giving birth to a female child, she and her husband
adopted that child as their own daughter but when both of them
were blessed with a daughter and son, the respondent lost
interest in the adopted child and pressed the appellant to hand
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over the child back to her father. As the appellant did not agree
to such proposal of her husband, there was dissention between
the couple and for that reason the respondent started taking
liquor and assaulting the appellant mercilessly causing serious
injuries for which she instituted G.R. cases. The respondent also
started maintaining distance from the appellant as a result of
which their relationship deteriorated. It is her further case that
after being mercilessly assaulted, she was driven out of her in-
laws house with her adopted daughter for which she was
constrained to take shelter in her paternal place at Jatani. The
appellant denied the allegations leveled against her by the
respondent regarding cruelty and desertion and it is her case
that such allegations have been concocted just to get a decree of
divorce and prayed to dismiss the divorce petition.
4. The learned Family Judge formulated the following
points for determination:-
(i) Whether the respondent was entitled to divorce the
appellant on the ground that she had treated him with
cruelty?
(ii) Whether the appellant had deserted the respondent
for a continuous period of not less than two years
immediately preceding the presentation of the petition?
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5. In order to prove his case, the respondent examined
himself as P.W.1 and proved certain documents. Ext.1 and Ext.3
are the certified copies of the FIR, Ext. 2 and 4 are the certified
copies of the charge-sheet, Ext.5 series is the notice issued by
Mahila Commissioner and Ext.6 series is the cash receipt issued
by Sovaniya Sikhashram.
The appellant examined himself as R.W.1.
6. The learned Family Judge while discussing the evidence
on record has been pleased to observe that the case of the
appellant that the respondent had kept the seized articles in the
house of a Muslim at Tiadi Sahi which was seized by police is not
correct inasmuch as the articles were seized from the house of
the respondent as per seizure list and was left in the Zima of the
appellant.
It was further held that the allegation that the
respondent had history of contact with home guard Netramani
Dei has not been substantiated anywhere rather such allegation
amounts to cruelty to her better half. It was further held that the
claim of the appellant-wife about her separate living since 2009
or 2010 is contradicted by the recital in the FIR vide Ext.1 which
indicates that they were living separately since 2007. It was
further held that living in another house in the same town away
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from her husband is humiliating to the husband and it also
amounts to cruelty.
The learned family Judge further held that the appellant
had deserted her husband since the year 2007 by living
separately from her husband and children which might be due to
her involvement in Mahila Samiti work or any other office work
at Puri beyond the normal office hour. It was further held that it
is abundantly clear that the appellant had deserted her since
2007 for a period of more than two years by the time of filing of
the petition in the year 2010 and she had also subjected her
husband to cruelty beyond repair and toleration with
unsubstantiated allegation of involvement with another woman.
7. On 29.10.2015 both the spouses and their children
were present before us in person. We had a long deliberation
with each of them and when we asked the children, who are
staying in the company of their father as to whether they are
interested to stay with their mother, both of them bluntly denied
and stated that when they were small kids, their mother had left
them and their father is treating them with all care and affection
and they are prosecuting their studies and the girl is staying in a
hostel and her father used to visit her regularly. Though the
appellant expressed her willingness to stay in the company of
her husband but the manner in which she responded to our
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query indicated that she had also no real inclination to stay in
the company of her husband. The respondent also denied to stay
in the company of the wife and according to him, he and his
children are living peacefully and happily and they do not want
any further disturbance in their life.
8. The learned counsel for the appellant-wife while
challenging the impugned judgment and order of the learned
Family Judge contended that there was no proper conciliation
which is mandated in the statute and the factum of desertion as
alleged has not been proved with cogent evidence. It was also
urged that the learned Family Judge has failed to appreciate that
the respondent was torturing and humiliating the appellant and
inspite of that she was living with her husband and looking after
the children. It was further urged that when the appellant is still
interested to live in the company of her husband and children to
save her marriage, it was not proper on the part of the learned
Family Judge to pass a decree of divorce in favour of the
respondent and it would also not be proper for this Court to give
a stamp of approval to such a decree.
The learned counsel for the respondent on the other
hand while supporting the impugned judgment and order
contended that the findings are based on the materials available
on record and from the evidence, the respondent appears to
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have discharged his burden of proof regarding desertion by the
appellant. It was further urged that the manner in which the
appellant neglected to perform her duty as a wife, as a mother
keeping high ambition of becoming a politician and also
instituted false cases against the respondent after deserting him,
the Family Judge was quite justifed in granting decree of divorce.
9. Adverting to the contentions raised by the learned
counsels for the respective parties, perusing the materials
available on record and the documents proved by the
respondent, we find that the appellant had instituted two police
cases i.e. one in the year 2005 and the other in the year 2007
which led to the arrest of the respondent. The case of the
appellant that she was driven out of the house in the year 2009
which she had pleaded in her written statement as well as in the
year 2010 which she has stated in her evidence appears to be
not acceptable in view of the institution of aforesaid two police
cases and the averments made in the F.I.R. The appellant
alleged that the respondent had illicit relationship with a home
guard namely Netramani Dei which she had mentioned in the FIR
dated 19.04.2007 vide Ext.1. This allegation has not been
substantiated by any evidence. The materials available on record
rather indicate that the appellant was involved in Mahila Samiti
activities for which she was neglecting her family. She did not
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even bother to take care of her small children and deserted her
husband for which since last eight years, the respondent was
looking after the children with all care and attention and also
providing them good education. It further appears that the case
of the appellant is inconsistent with her pleadings and
contradicted by the two FIRs vide Exts.1 and 2.
10. Desertion of one of the spouses by the other for a
continuous period of not less than two years immediately
preceding the presentation of the divorce petition as well as
treating the spouse with cruelty are some of the grounds of
divorce.
According to the Explanation provided under Section 13
of Hindu Marriage Act, 1955, “desertion” means the desertion of
the one party by the other party to the marriage without
reasonable cause and without consent or against the wish of
such party and includes willful neglect of the petitioner by the
other party to the marriage.
In case of Adhyatma Bhattar Alwar –Vrs.- Adhyatm
Bhattar Sri Devi reported in AIR 2002 SC 88, it is held as
follows:-
“6. 'Desertion' in the context of matrimonial law
represents a legal conception. It is difficult to give
a comprehensive definition of the term. The
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essential ingredients of this offence in order that it
may furnish a ground for relief are :
1. The factum of separation;
2. The intention to bring cohabitation permanently
to an end- animus deserendi;
3. The element of permanence which is a prime
condition requires that both these essential
ingredients should continue during the entire
statutory period;
8. The clause lays down the rule that desertion to
amount to a matrimonial offence must be for a
continuous period of not less than two years
immediately proceeding the presentation of the
petition. This clause has to be read with the
Explanation. The Explanation has widened the
definition of desertion to include 'willful neglect' of
the petitioning spouse by the respondent. It states
that to amount to a matrimonial offence, desertion
must be without reasonable cause and without the
consent or against the wish of the petitioner. From
the Explanation, it is abundantly clear that the
legislature intended to give to the expression a
wide import which includes willful neglect of the
petitioner by the other party to the marriage.
Therefore, 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