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2008 DIGILAW 1478 (JHR)

Anil Kumar Tirkey v. Neelam Kumari Kachhap

2008-12-18

JAYA ROY, M.Y.EQBAL

body2008
JUDGMENT : M. Y. Eqbal, J. This appeal by the husband under Section 19 of the Family Court Act is directed against the judgment and order dated 21.4.2004 passed by the Principal Judge, Family Court, Jamshedpur in Matrimonial Suit No. 14 of 2000 whereby the aforesaid suit filed by the appellant under Sections 22 and 23 of the Indian Divorce Act, 1869 has been dismissed. 2. The facts of the case lie in a narrow compass: Both the appellant and the respondent are by faith Christians and were married in October, 1995 at Ranchi. After marriage, the respondent started living with the appellant at his residence in Jamshedpur. Out of the wedlock, a daughter was born. The appellant’s case was that the respondent lived with the appellant at Jamshedpur till November, 1997 and thereafter, she deserted the appellant. It was contended that despite repeated requests and reminders, the respondent did not turn up and started living with the appellant. On the other hand, the respondent’s case was that before the marriage, she was in service since 1987 in the Irrigation Department and posted at Ranchi. Before the marriage, it was agreed that she will continue her service even after the marriage. The appellant gave consent to the marriage and wedding took place. The appellant thereafter started insisting her to leave the job and live with the appellant. The Court below after considering the evidence adduced by the parties came to the conclusion that the appellant failed to prove the case and accordingly, the suit was dismissed. 3. We have heard Mr. P.C. Tripathy, learned counsel appearing for the appellant and, Mr. D.K. Chakravorty, learned counsel appearing for the respondent. In course of argument, efforts were made for conciliation, but both parties did not agree to start their conjugal life. On 24.11.2008, this Court passed the following orders:- “Perused the report dated 16.10.2008 submitted by Conciliator. In the concluding portion of the report, it is stated that during the conciliation session, it was found and observed that neither party is generous and eager for restoration of conjugal tie. In the aforesaid premises, this appeal is to be decided on merit. Learned counsel for the appellant is not present in Court. On his behalf, a prayer has been made for adjournment of the case. Put up this case on 28th November, 2008. In the aforesaid premises, this appeal is to be decided on merit. Learned counsel for the appellant is not present in Court. On his behalf, a prayer has been made for adjournment of the case. Put up this case on 28th November, 2008. On that day, if the counsel for the appellant is not present, then appropriate order shall be passed.” 4. Both Mr. P.C. Tripathy, learned counsel for the appellant and Mr. D.K. Chakravorty, learned counsel for the respondent submitted that the marriage may be dissolved. 5. On 26.11.2008, an application was filed by the respondent-wife under Section 41 of the Indian Divorce Act, 1869 claiming maintenance to the minor daughter living with her mother. In the said application, it is stated that the entire expenses of maintenance and education of the minor child is borne by the respondent who is in her custody and the appellant has never paid any amount for meeting the expenses of the daughter. On 01.12.2008, an affidavit was filed by the respondent stating inter alia that both the appellant and the respondent have been living separately since 01.12.1997 and there is no chance of cohabitation of the parties and as such, a judicial separation may be allowed. She has further stated that she does not want to claim any maintenance for herself but for the welfare of the daughter, who is now about 11 yeas old, the appellant be directed to pay a lump sum amount for meeting the marriage and educational expenses of the daughter. 6. After the affidavits were filed by the parties, the appeal was finally heard on 03.12.2008. 7. Mr. P.C. Tripathy, learned counsel for the appellant, on instruction submitted that the appellant is not in a position to pay lump sum amount for meeting the marriage and educational expenses of the daughter of the respondent. Learned counsel submitted that the appellant could not be able to pay more than a sum of Rs. One lakh. 8. After considering the entire facts of the case and the welfare of the minor daughter living with the respondent, we are of the view that the appellant must pay a lump sum of Rs. Five Lakhs to the respondent which amount shall be spent by the respondent for meeting the marriage expenses of the daughter. 9. The appeal is, therefore disposed of by dissolving the marriage between the appellant and the respondent. Five Lakhs to the respondent which amount shall be spent by the respondent for meeting the marriage expenses of the daughter. 9. The appeal is, therefore disposed of by dissolving the marriage between the appellant and the respondent. The appellant shall pay a sum of Rs.5,00,000/-(Rupees Five Lakhs) to the respondent within three months from today.