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2003 DIGILAW 599 (ORI)

Bholeswar Sahu v. Basanti Sahu

2003-09-24

P.K.TRIPATHY

body2003
JUDGMENT P. K. TRIPATHY, J. — Petitioner of O.S. No.68 of 1991 is the appellant. Respondent No.1 Basanti Sahoo is his legally married wife. Petitioner filed the suit for a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (in short, ‘the Act’). The totality of the pleading advanced by the petitioner projected a case of desertion by the wife and also leading an adulterous life with respondent No.2. Such pleas are covered by the provision in Clauses (i) and (1-b) under Sub-section (1) of Section 13 of the Act. Respondent No.1 (wife) contested to that issue and denied to the allegations both of desertion and adul¬tery. The trial Court decided the suit in favour of the petition¬er and granted a decree of divorce on assessment of oral evidence of P.Ws.1 to 4 and D.Ws. 1 and 2. No document was admitted on evidence from either side. The trial Court recorded the finding on the basis of the oral evidence that by conduct respondent No.1 has proved that she has deserted the petitioner and the plea of adultery is not an imagined one. 2. As against that judgment and decree passed by learned Civil Judge (Sr. Division), Angul in O.S. No. 68 of 1991, respon¬dent No.1 preferred Title Appeal No.15 of 1997 in the Court of District Judge, Dhenkanal and the same was re-numbered as Title Appeal No.15/16 of 1997-98 in the Court of Addl. District Judge, Angul. On 3.12.1999 learned Addl. District Judge delivered the impugned judgment. Learned Addl. District Judge set aside the decree of divorce on the grounds that there was no credible evidence to prove the plea of desertion and adultery so as to grant a decree of divorce in favour of the petitioner. He also found the judgment and decree to be non-sustainable in view of the failure of learned Civil Judge in attempting reconciliation between the parties before hearing the suit and delivering the judgment. 3. Learned counsel for the appellant, Mr. Ghose argues that if no effort for reconciliation is the ground for setting aside the decree of divorce, then instead of dismissing the suit learned Addl. District Judge should have remanded the case for reconciliation. Mr. 3. Learned counsel for the appellant, Mr. Ghose argues that if no effort for reconciliation is the ground for setting aside the decree of divorce, then instead of dismissing the suit learned Addl. District Judge should have remanded the case for reconciliation. Mr. Mishra, learned counsel for respondent No.1 on the other hand states that the aforesaid factum being not the sole criteria or the dominant reason for setting aside the decree of divorce, therefore, there was no justification to remand the suit. Both the parties also argue that keeping in view the nature of the proceeding and the evidence available on record, this Court may decide the issue instead of making a further remand of the matter either to the lower appellate Court or to the trial Court. 4. Marriage between the petitioner and respondent No.1 was performed on 31.4.1979 and the dispute has surfaced through Court litigation at least since 1985 when respondent No.1 filed appli¬cation under Section 125, Cr.P.C. claiming for monthly main¬tenance and thereafter in the year 1991 when petitioner filed the suit for divorce. In her pleading and evidence, respondent No.1 has alleged that petitioner has accepted a second wife and has begot children through her, but she has not been able to prove the same through proper evidence. In fact, her admission in course of her cross-examination is about acquittal of the peti¬tioner and the co-accused in the criminal proceeding for the offence under Section 494, I.P.C. supports to the stand advanced by the petitioner in that respect. Be that as it may, petitioner is to succeed in the suit if he proves the aforesaid two allega¬tions against respondent No.1 relating to adultery and desertion. In that respect though petitioner has pleaded about the adul¬terous life led by respondent No.1 by moving to different hotels at different places along with respondent No.2 and both respon¬dent Nos.1 and 2 having taken joint photograph to exhibit their relationship as couple, yet petitioner has tendered no evidence in support of such plea. Therefore, the trial Court was absolute¬ly wrong in its opinion that the factum of adultery is not to be disbelieved. 5. In his pleading petitioner has stated that he was staying at his place of posting which is away from his native place and he complained against the conduct of respondent No.1 for not staying at his native place but frequently visiting her parents’ house. 5. In his pleading petitioner has stated that he was staying at his place of posting which is away from his native place and he complained against the conduct of respondent No.1 for not staying at his native place but frequently visiting her parents’ house. The aforesaid allegation ipso facto does not amount to substantiate the plea of desertion. The evidence ad¬duced by both the parties in that context no way solve the problem for an easy decision on the issue. The overlapping and confused evidence from both the sides is so confusing that even by adopt¬ing the principle of preponderance of probability a correct deci¬sion cannot be arrived at on the allegation of desertion. Admit¬tedly, respondent No.1 has claimed for maintenance on the ground of desertion and cruelty by the petitioner and in that context her contention has been accepted and she has been granted monthly maintenance under Section 125, Cr.P.C. Therefore, the evidence adduced by her about her places of stay after 1985 is of little relevance in support of the plea of desertion. Thus, this Court finds that the plea of desertion has also not been clearly proved by the petitioner. 6. When the matter stands thus, the factual position is also not disputed by the parties that for more than one and half decade petitioner and respondent No.1 are living separate and there has been no re-union. It is therefore appropriate that they should be given a scope to re-think about their re-union. When respondent No.1 has claimed of ill-treatment and cruelty by the petitioner, instead of rejecting the application under Section 13 of the Act this Court finds it appropriate that a decree for judicial separation be granted in favour of the parties in accor¬dance with the provision in Section 13-A of the Act. But, that decree is made operative subject to fulfilment of the following conditions by the petitioner. In other words, if the petitioner shall not fulfil the following conditions then this decree for judicial separation under Section 13-A of the Act shall be treat¬ed as non-est and consequentially the application under Section 13 shall be deemed to have been rejected and consequentially resulting in dismissal of the proceeding under Section 13 of the Act. Such conditions are : (i) Both the parties agree that keeping in view the facts and circumstances of the case petitioner shall pay month¬ly maintenance @ Rs. Such conditions are : (i) Both the parties agree that keeping in view the facts and circumstances of the case petitioner shall pay month¬ly maintenance @ Rs. 500/-(five hundreds) to respondent No.1 from May, 2000 till September, 2003. That payment shall be in satis¬faction of the order which learned Addl.District Judge has passed on 29.4.2000 on the application filed by respondent No.1. That amount @ Rs. 500/-shall inclusive of the amount of Rs.200/- granted U/s.125, Cr.P.C. In other words, if the monthly main¬tenance @ Rs.200/- has been paid to the respondent No.1 during the relevant period, then the petitioner’s liability is at the rate of remaining Rs.300/- (three hundreds) towards the monthly maintenance for the said period. Such arrear amount shall be paid by the petitioner in monthly instalments within a period of four months. The first monthly instalment shall be due on 15th Octo¬ber, 2003. The remaining instalments be paid on 15th November, 2003, 15th December, 2003 and 15th January, 2004; (ii) Petitioner shall pay the monthly maintenance @ Rs.1,000/- (one thousand) with effect from October, 2003 and the monthly maintenance shall continue at that rate until a re-union is made between the parties or until any other appropriate order is passed by any competent Court of law; (iii) Monthly maintenance as per Clause (ii) above shall be paid regularly by 15th of the succeeding month. For instance, monthly maintenance due for the month of October, 2003 shall be paid by 15th November, 2003 and such payment shall be in addition to clearing the arrear maintenance as per Clause (i) of the above noted conditions; (iv) In the event petitioner shall pay the monthly maintenance @ Rs.1,000/-(one thousand), then he shall not be liable to pay maintenance U/s. 125, Cr.P.C. and in that respect if application shall be filed by the petitioner in the Court of the Magistrate concerned, then the order of maintenance u/s.125, Cr.P.C. be accordingly rescinded with a stipulation to revive the same as and when such occasion will arise; (v) It is up to the petitioner either send the money towards maintenance and arrear maintenance by Money Order to the respon¬dent No.1 or by depositing the due amount in the trial Court; (vi) Any amount already paid towards the interim maintenance or monthly maintenance by the petitioner to the respondent No.1 be adjusted towards the arrear claim and in that respect, in case of any dispute, learned Civil Judge shall determine the amount petitioner is liable to pay. In that respect learned Civil Judge may also pass any appropriate order to regulate such payment; (vii) During the period of one year from the date of the decree for judicial separation, either or both the parties jointly may apply for conciliation and in such event it will be obligatory on the part of the Civil Judge (Sr. Division) to take prompt step and sincere attempt for a conciliation, and in the event of success of such reconciliation it will be open to the learned Civil Judge to pass appropriate order modifying or re¬scinding the decree for judicial separation. 7. In view of the above order while setting aside the decree passed by the Addl. District Judge, Angul in Title No.15/16 of 1997-98 conditionally (as per the preceding conditions), the decree of divorce passed by learned Civil Judge (Sr. Division) in O.S. No.68 of 1991 is also set aside. In the event the petitioner (husband) shall make payment of the arrear maintenance and the current maintenance in terms of the conditions laid down in the preceding paragraph, then the decree for judicial separation shall be enforceable from the month of October, 2003. Division) in O.S. No.68 of 1991 is also set aside. In the event the petitioner (husband) shall make payment of the arrear maintenance and the current maintenance in terms of the conditions laid down in the preceding paragraph, then the decree for judicial separation shall be enforceable from the month of October, 2003. On the other hand, as noted above, the decree of dismissal of the suit as per the impugned judgment of the lower appellate Court shall be maintained. Because of the above manner of disposal of this Second Appeal, parties are directed to bear their respective cost of litigation. Hearing fee is assessed at contested scale. 8. So far as the Civil Revision No.280 of 2002 is con¬cerned, on reconsideration of the prayer for interim maintenance as per the order passed by this Court on 4.2.2002 in Civil Revi¬sion No.287 of 2000, learned Addl. District Judge, Angul on 25.2.2002 rejected the application of the respondent No.1. In view of the order which this Court has passed for pendenti lite and future interim maintenance, that order of learned Addl. Dis¬trict Judge passed on 25.2.2002 in M.J.C. No.24 of 2002 is deem¬edly superseded. Therefore, the impugned order is set aside and the Civil Revision is accordingly allowed. Appeal disposed of and Revision allwed.