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2002 DIGILAW 577 (ORI)

PRANATI KUMARI BISWAL v. BANSIDHAR BISWAL

2002-09-05

B.PANIGRAHI, P.K.MISRA

body2002
JUDGMENT : B. Panigrahi, J. - Since both the Civil Appeal and the Criminal Revision arise out of the common order, the same are heard together and disposed of by this common judgment. 2. Appellant-petitioner along with her daughter filed an application u/s 125, Cr.P.C. for maintenance against the respondent-opposite party before the learned Judge, Family Court, Cuttack, which was registered as Criminal Proceeding No. 430 of 1996. Similarly, the respondent-opposite party filed an application u/s 13 of the Hindu Marriage Act, read with Section 7 of the Family Courts Act for a decree of dissolution of marriage on the ground of cruelty and desertion against the appellant-petitioner, which was registered as Civil Proceeding No. 471 of 1998. The learned Judge, Family Court took up both the proceedings and disposed of the same by the impugned order allowing the divorce subject to payment of Rs. 50,000/- by the husband and dismissing the criminal proceeding. Being aggrieved, the wife has filed the present Civil Appeal as well as the Criminal Revision. 3. Undisputedly, the marriage between the parties was solemnised on 13.5.1990 according to Hindu rites and customs. After marriage, both the spouses led their happy conjugal life for a short period of about two months. It was alleged by the respondent that while the appellant was in the matrimonial house, there was frequent quarrel, dissension and misunderstanding and therefore, the family peace was disturbed to a great extent. It was further alleged that she voluntarily withdrew from the society of the respondent and deserted him. The appellant also filed a criminal case against the respondent u/s 498-A, IPC alleging that she was subjected to cruelty, ill-treatment and torture. In the aforesaid case, not only the husband, but also his other relations were arrested. Therefore, the appellant in such a situation could not continue to live with the respondent. Thus, a decree for divorce was sought for. 4. The appellant on the other hand controverted the allegations by filing her written statement before the learned Judge, Family Court, cuttack alleging that her husband demanded a cash for purchase of a scooter. But when such demand could not be fulfilled, she was subjected to ill-treatment and cruelty. Apart from that the appellant filed a case u/s 125, Cr.P.C. claiming monthly maintenance for herself and the daughter. 5. In the impugned order, it is reflected that the husband was. But when such demand could not be fulfilled, she was subjected to ill-treatment and cruelty. Apart from that the appellant filed a case u/s 125, Cr.P.C. claiming monthly maintenance for herself and the daughter. 5. In the impugned order, it is reflected that the husband was. examined in the divorce proceeding, but the appellant did not turn up to challenge the testimony by cross-examining her husband. Nor did she choose to adduce any evidence on her behalf. Therefore, the matter was closed and fixed for final disposal as this Court in MJC No. 237 of 2000 had directed the learned Judge, Family Court to dispose of the same. 6. Mr. C. R. Nanda, learned counsel appearing for the appellant-wife submitted that although there was a direction of this Court but that itself would not be sufficient for the learned Judge. Family Court to shut out opportunity of the appellant from leading.evidence. During the period when the matter was taken up, there was all Orissa Strike call given by the lawyers, as a reason whereof, the appellant's lawyer could not attend the Court, nor he could sent intimation to his client. The learned Judge, Family Court only on the basis of unchallenged evidence which was recorded ex-parte passed the impugned order. He submitted that in case the impugned order is not set aside, the appellant would suffer severe prejudice. Therefore, he prayed that the matter may be remitted back to the learned Judge. Family Court, Cuttack for disposal in accordance with law. 7. Mr. K. Ghosh, learned counsel appearing for the respondent-husband, has supported the judgment of the learned Judge, Family Court, Cuttack and contended that since the appellant-wife did not avail the chance of cross-examining the respondent, at this stage it would work out hardship and injustice if the case is remitted back to the learned Judge, Family Court. 8. There is no dispute as regards the strike call given by the Bar through the State. Therefore, the appellant as well as her counsel presumably remained absent due to such strike call. In case the ex parte order which was recorded by the learned Judge, Family Court on 13.3.2001 is not set aside, the appellant shall suffer severe prejudice. 9. Accordingly, we hereby set aside the impugned order subject to payment of cost of Rs. Therefore, the appellant as well as her counsel presumably remained absent due to such strike call. In case the ex parte order which was recorded by the learned Judge, Family Court on 13.3.2001 is not set aside, the appellant shall suffer severe prejudice. 9. Accordingly, we hereby set aside the impugned order subject to payment of cost of Rs. 300/- (rupees three hundred only) within two weeks to the learned counsel appearing for the respondent in this Court. Upon payment of such cost, the matter shall be remitted back to the learned Judge, Family Court, Cuttack for disposal in accordance with law. 10. Needless to say that the learned Judge, Family Court will record the evidence from the stage where the appellant-wife could not participate in the proceeding. Since the decree for divorce has been set aside, it will be open for the wife to move the learned Judge, Family Court to dispose of the application filed by her u/s 125, Cr.P.C. afresh. 11. The Civil Appeal and the Criminal Revision are disposed of accordingly. Ch. P.K. Misra, J. 12. I agree.