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2002 DIGILAW 592 (ORI)

SUSMITA ACHARYA v. RABINDRA KUMAR MISHRA

2002-09-12

BASUDEVA PANIGRAHI, P.K.MISRA

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B. PANIGRAHI, J. ( 1 ) THESE appeals arise out of a common order and the judgment passed by the learned Judge, Family Court, Cuttack under Section 13 of the Hindu Marriage Act and also under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act. ( 2 ) THE appellant is the wife of the respondent-husband in both the appeals one against the order refusing maintenance to her and the other against the order granting divorce by snapping the marital tie between both the spouses. The appellant married the respondent according to the Hindu rites and customs prevalent in the society on 7-3-1988 and after such solemnisation of marriage it was consummated immediately thereafter. Out of their lawful wed-lock a female child was born. The respondent-husband was working as a Doctor and is also continuing as such in S. C. B. Medical College at the moment. Immediately after the marriage, they could not lead a happy conjugal life, as there was frequent dissension, dispute and bitterness between both the spouses. According to the appellant there was unabated torture and ill treatment on her as a result of which it was impossible to continue in the matrimonial house, and later on she was forced to come back to her parents_s house with female child sometimes in the year 1993. The respondent husband on the other hand had filed an application for granting divorce before the learned Judge, Family Court, Cuttack on the ground of wilful desertion and cruelty by the appellant. It is stated by the respondent-husband that the appellant being self employed after obtaining M. FIL degree and has been practising as an Advocate, therefore there is no need to provide maintenance to her. ( 3 ) THE learned Judge, Family Court on an elaborate resume of the evidence granted a decree of divorce by snapping the marital tie between both the spouses and also directed maintenance @ Rs. 500/- to the minor female child till her marriage. Therefore, being aggrieved by the observation of the learned Judge, Family Court, the wife has filed both the aforesaid appeals. ( 4 ) DURING the pendency of the appeals, we made all endevour to make both the spouses join together. 500/- to the minor female child till her marriage. Therefore, being aggrieved by the observation of the learned Judge, Family Court, the wife has filed both the aforesaid appeals. ( 4 ) DURING the pendency of the appeals, we made all endevour to make both the spouses join together. But even after great amount of presumption to the appellant wife as well as the respondent husband we found that the latter did not like to take the appellant wife to his matrimonial house. Therefore, both the parties addressed the appeals on merit. ( 5 ) FROM the facts so emerged, it has been established that the relationship between both the parties came to an irretrievable breakdown. Even after much persuasion the respondent did not agree to take the appellant to his house. It has further been established that the appellant has been staying at a place other than the matrimonial home and both the spouses mutually deprived from getting the company of each other. Even though they appeared to have maintained normal health, but it is quite likely to affect their mental condition, if they are allowed to continue to fight out the litigation against each other for a longer period. ( 6 ) THE evidence adduced by both spouses in the learned Family Court was placed before us. PW 1, the respondent himself had deposed that the appellant wife behaved with him in an unusual manner and had been regularly going to her parents house without even informing anybody in the in-laws house or even the respondent. She was also not attending to the household works and sometimes she was getting irritated on a very trifling ground. It has been further stated that since May, 1993, as the wife did not return to the matrimonial house, the respondent was prevented from having the conjugal happiness. The appellant in her turn specifically denied the above averments. From the submission in our Chamber it also appeared to us that she was a always willing and ready to join the respondent husband. The appellant in her turn specifically denied the above averments. From the submission in our Chamber it also appeared to us that she was a always willing and ready to join the respondent husband. The expression of mental cruelty_ came for consideration before the Supreme Court and the Supreme Court in the case of G. V. N. Kameswar Rao v. V. G. Jabilli, reported in (2002) 2 SCC 296 , has held as follows (para 12 of AIR) : the Court has to come to a conclusion whether the acts committed by the counter petitioner amount to cruelty and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriage in a community life, the Court should consider whether the conduct of the counter petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find there is cruelty on the part of the counter Petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances. " ( 7 ) SINCE about nine years have passed in the meantime and both the appellant and respondent are separately residing, their chance of joining together has become very dim and bleak. The female child is with the appellant wife and is prosecuting her studies. As it is not expected in the long run that the respondent will take his wife to his matrimonial house, we find, there is no reason to keep the matter pending any longer. ( 8 ) MR. Kar, the learned counsel appearing for the respondent has, however, advanced a contention that the appellant herself being an Advocate is otherwise capable of maintaining herself and as well as the minor daughter. But, we find such contention does not help his client so much so there is nothing on record to suggest that the appellant has sufficient income particularly, when he or she does not have any earth of income out of profession. The respondent is working in a Medical College and drawing a salary of Rs. 16,000/- (sixteen thousand) and odd per month. The respondent is working in a Medical College and drawing a salary of Rs. 16,000/- (sixteen thousand) and odd per month. No income whatsoever has been shown to have been derived by the appellant so that they could sustain out of it. ( 9 ) IN the aforesaid background, keeping the family status and also social life led by both the parties and in order to meet the ends of justice, we direct the respondent to pay a lump sum amount of Rs. 5,00,000/- (rupees five lakhs) towards the educational expenses, maintenance, marriage expenses of the female child and also for maintenance of the appellant. The aforesaid amount shall be payable in four equal instalments. The first instalment shall be payable on or before 31st Oct. 2002 and the three other instalments shall be payable by the end of 31st January, 2003, 30th April, 2003 and 31st July, 2003 respectively. Till all the instalments as directed above are paid, it shall be obligatory on the part of the respondent to pay Rs. 1,000/- (rupees one thousand) per month for the maintenance and educational expenses of their daughter which shall be payable by first week of each succeeding month. In case all the instalments to the tune of Rs. 5,00,000/- are paid by the respondent to the appellant, the decree of divorce shall be operative, failing which the application filed by the respondent in the Family Court under Section 13 of the Hindu Marriage Act shall be deemed to have been dismissed and it will be open to the appellant to take recourse to the due process of law. In the event the lump sum amount is paid by the respondent to the appellant and their daughter, no further litigation in respect of the properties and/or marital status can be claimed by the appellant and their daughter, at any time in future. ( 10 ) OUT of the lump sum amount of Rs. 5,00,000/- paid to the appellant as directed above, a sum of Rs. 1,25,000/- shall be kept in fixed deposit in the names of the appellants in Civil Appeal No. 42 of 1999 till appellant No. 2 attains majority. The quarterly instalments shall be paid in shape of Bank draft in the joint names of both the appellants. 5,00,000/- paid to the appellant as directed above, a sum of Rs. 1,25,000/- shall be kept in fixed deposit in the names of the appellants in Civil Appeal No. 42 of 1999 till appellant No. 2 attains majority. The quarterly instalments shall be paid in shape of Bank draft in the joint names of both the appellants. If such Bank draft is received, it will be kept in a fixed deposit in the joint names of the appellant and the minor daughter and the interest accrued thereon shall be provided to the appellant No. 2 for the educational expenditure and maintenance as well as of the appellant-mother. ( 11 ) IN view of the discussions made above, Civil Appeal Nos. 42 and 43 of 1999 are disposed of. The decree of divorce has been granted under Section 13 (1) of the Hindu Marriage Act as per the above conditions. ( 12 ) P. K. MISRA, J. :- CHI agree. Order accordingly.