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2005 DIGILAW 169 (ORI)

DAMAYANTI DEI v. PABLTRA MOHAN SRLCHANDAN

2005-03-04

P.K.TRIPATHY, PRADIP MOHANTY

body2005
DASH, J. ( 1 ) LEARNED counsel for the appellant, and Mr. Acharya, learned counsel for the respondent. ( 2 ) THE Civil appeal stands disposed of in the following manner : ( 3 ) RESPONDENT filed Civil Proceeding No. 186 of 1997 before the Judge, Family Court, cuttack with the prayer to declare his marriage with the appellant void in accordance with the provision in Section 12 (1) (b) of the hindu Marriage Act, 1955 (in short the Act ). Bone of contention of the respondent, in support of that prayer, was that soon after the marriage he could discover that appellant was suffering from epilepsy and that fact was suppressed while negotiating, finalising and performing the marriage and also on the ground that by the date of marriage she was only 17 years old. Admittedly, the marriage was solemnized on 21-5-1983 and the civil proceeding was initiated on 19-7-1997, i. e. to say about 14 years after. ( 4 ) APPELLANT contested the case denying to all such allegations. She put forth her defence that she never suffered from epilepsy, she was deserted on account of demand of dowry of Rs. 4000/- and on 24-6-1985 the respondent married for the second time and through her he has begotten children in the meantime. She filed a complaint case registered as ICC Case No. 1 of 1986 under Section 494, IPC and the respondent was convicted in that criminal case and the criminal revision against that order of conviction was pending in the High Court. She also filed an application under Section 125, Cr. P. C. for monthly maintenance and that was allowed in her favour and against that order also a Criminal Revision is pending in the High Court. In that Criminal revision direction has been made for payment of interim maintenance at the rate of rs. 200/- per month. ( 5 ) SINCE conciliation between the parties failed, learned Judge, Family Court, cuttack recorded evidence of the parties, heard them and disposed of the civil proceeding vide the impugned judgment delivered on 10-12-2001. Before the Judge, Family Court, Cuttack, the applicant-respondent examined himself as the solitary witness and the appellant examined herself as well as her father as two witnesses from her side. No documentary evidence was relied on by either of the parties. Before the Judge, Family Court, Cuttack, the applicant-respondent examined himself as the solitary witness and the appellant examined herself as well as her father as two witnesses from her side. No documentary evidence was relied on by either of the parties. Learned Judge, Family court, Cuttack on appreciation of the pleadings and the evidence of the parties found that the relief claimed under Section 12 (1) (b)of the Act is not available in favour of the respondent. However, he took into consideration the admitted factual position on record that parties are living separately for over a period of 14 years and there is no possibility of restitution of conjugal life. He also took note of the statement of the appellant that she got herself treated for the shivering of the hand. From such circumstances, the trial Court found it appropriate to formulate the opinion that there has been a voluntary desertion by the appellant for a period of over two years constituting a valid ground under Section 13 (1) (ib) of the Act to grant a decree of divorce by enlarging the scope of the prayer in the prayer portion of the application in sub-paragraph (b ). Accordingly, he granted the decree of divorce. Simultaneously, he also considered about the permanent alimony. The respondent suggested to pay Rs. 25,000/ -. The appellant said to have claimed Rs. 80,000/- and in that context produced the xerox copy of the certified copy of the Records-of-Rights that the respondent possesses ten acres of landed properties and after recording such facts and without assigning any reason, the family Court determined the permanent alimony at Rs. 35,000/ -. ( 6 ) WHILE challenging to the aforesaid judgment and decree of the Family Court, learned counsel for the appellant argues that the second prayer in the application under section 12 (1) (b) of the Act cannot be read as a prayer to grant a decree of divorce under Section 13. In the alternative, he argues that even if it is assumed that such a prayer was made, then also the ground of desertion, as provided in Section 13 (1) (i-b) of the act, is not made out from the admitted fact and evidence on record. Accordingly, appellant prays to set aside the impugned judgment and decree of divorce. In the alternative, he argues that even if it is assumed that such a prayer was made, then also the ground of desertion, as provided in Section 13 (1) (i-b) of the act, is not made out from the admitted fact and evidence on record. Accordingly, appellant prays to set aside the impugned judgment and decree of divorce. ( 7 ) BEFORE dealing with that contention, we prefer to quote the relevant portion from section 13 of the Act :"13. Divorce (1) Any marriage solemnized, whether before or after the commencement of this act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - (i) and (ia) xx xx xx xx xx (ib) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or (ii) and (iii) xx xx xx xx xx explanation - xx xx xx xx explanation - In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. " ( 8 ) FROM the above quoted provision of law, it is clearly readable that desertion by the defaulting spouse must be without reasonable cause and without the consent or against the wish of other spouse and that also includes willful neglect of the applicant by the other spouse. In this case, the fact pleaded by the appellant about the second marriage of the respondent has not been disbelieved by the Family Court. That marriage took place in the year 1986. So, when a second spouse is living in the house, appellant could not have volunteered to join the respondent on the face of such cruelty. Therefore, appellant's staying separately from the respondent cannot be termed as a voluntary desertion from her side. There is no evidence worth the name on the record to show or suggest that appellant stays in her parents' house without the consent of the respondent or against his wish or because of the willful neglect by the appellant. Therefore, appellant's staying separately from the respondent cannot be termed as a voluntary desertion from her side. There is no evidence worth the name on the record to show or suggest that appellant stays in her parents' house without the consent of the respondent or against his wish or because of the willful neglect by the appellant. Therefore, the factum of desertion, as noted in the above Explanation, to constitute a valid ground for a decree of divorce, as provided in above quoted clause (ib) of Section 13 (1) of the Act, is squarely not made out. Under such circumstance learned Judge, family Court, Cuttack has absolutely gone wrong in interpreting separate living for 14 years as the proved ground of desertion by the appellant to the respondent. Hence, the decree of divorce is non-sustainable in the eye of law and the same is accordingly set aside and the Civil Appeal is allowed with cost all throughout to the appellant. ( 9 ) MR. N. K. Acharya, learned counsel for the respondent states that pursuant to the direction in the impugned decree, respondent has already paid Rs. 25,000/- (twenty five thousand) to the appellant towards the permanent alimony. Learned counsel for the appellant states that he has no instruction in that respect. Since this court did not direct for making such payment, therefore, we leave the matter to be considered by appropriate forum for refund of such amount, if applied for, in accordance with law and/or for adjustment of the said sum or the interest thereof towards the monthly maintenance ordered in favour of the appellant. As noted above and without expressing any opinion in that respect, at this stage, we leave that matter to be decided by the appropriate forum in accordance with law. Appeal allowed.