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2008 DIGILAW 638 (ORI)

Narendra Kumar Mishra v. Binapani Sarangi

2008-08-05

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — This appeal is directed against the judgment and order dated 22.1.2004 passed by the learned Judge, Family Court, Cuttack, in Civil Proceeding No.358 of 1995 dis¬missing the said petition. 2. The appellant had filed an application under Section 13 of the Hindu Marriage Act, 1955 against the respondent seeking dissolution of marriage. 3. The case of the appellant before the learned Judge, Family Court, Cuttack is that the respondent has come from a poor family and was brought up and educated by the elder brother of the appellant and after completion of her studies, she was ap¬pointed as an Asst. Teacher in Ranigola M.E. School. The appel¬lant was also working as a teacher at the relevant time. As per the proposal given by the elder brother of the appellant, the marriage of the appellant was solemnized with the respondent in the year 1971 according to Hindu rites and customs. Four daugh¬ters and one son (mentally retarded) were born to them in between 1971 to 1985. It is alleged by the appellant that after 1985, the respondent started interfering with the joint family affairs and developed hatredness towards his brothers and on one occasion she slapped his elder brother. It is also alleged by the appellant that the respondent persuaded him to sale his share of property and to reside in her village. Due to the differences for the aforesaid reasons, the respondent left her matrimonial home in the year 1987 and never came back in spite of all efforts made by the appellant. It is also alleged in the petition filed before the learned Judge, Family Court that the appellant once had gone to the village of the respondent and stayed with her from 9.3.1994 to 19.3.1994 in order to persuade her to come with children but it did not yield any result and during the said period, the respondent also denied to perform the marital rights of the appellant. The intervention of the gentlemen also did not yield any result and the respondent never came back to the matrimonial house with the children. The children thereafter filed an appli¬cation under Section 125 Cr.P.C. for maintenance and the order passed by the learned Magistrate was being complied with by the appellant. The intervention of the gentlemen also did not yield any result and the respondent never came back to the matrimonial house with the children. The children thereafter filed an appli¬cation under Section 125 Cr.P.C. for maintenance and the order passed by the learned Magistrate was being complied with by the appellant. Having failed in his efforts to bring back the re¬spondent and the children, the appellant had no other option except seeking for a decree of dissolution of marriage by filing the aforesaid Civil Proceeding. The respondent contested the case by filing a written state¬ment. She in her written statement not only admitted her marriage but also admitted birth of five children and the maintenance proceeding initiated by the children. It was the case of the respondent that the appellant was working in Sital High School and she was working in Sundargaon High School and that the appel¬lant not only misbehaved with her but also misbehaved with the children. It was also the case of the respondent that the appel¬lant has been staying with one Meenarani and therefore it was not possible on her part to go back to the matrimonial house. In course of the proceeding before the learned Judge, Family Court, four witnesses were examined on behalf of the appellant and four witnesses were also examined on behalf of the respond¬ent. On analysis of the evidence adduced before the Court, the learned Judge, Family Court came to hold that the respondent and her children are not willing to stay with the appellant due to presence of Meenarani in the company of the appellant and there¬fore, it is the appellant who is responsible for such separation and accordingly declined to grant a decree for divorce. 4. The learned counsel for the appellant assailed the impugned judgment on the ground that the Civil Proceeding was initiated by the appellant on two grounds, i.e., desertion and cruelty. The learned Judge, Family Court instead of deciding the aforesaid two issues got swayed away by the evidence that the appellant was staying with one Meenarani and refused to grant the relief. The learned Judge, Family Court instead of deciding the aforesaid two issues got swayed away by the evidence that the appellant was staying with one Meenarani and refused to grant the relief. The learned counsel for the respondent also drew atten¬tion of the Court to the evidence adduced before the learned Judge, Family Court and submitted that it is the appellant who created a situation where it became impossible on the part of the respondent and the children to stay with the appellant and there¬fore the learned Judge, Family Court was justified in denying the relief claimed. 5. Admittedly the marriage between the appellant and the respondent took place in the year 1971 and by the year 1985 they had been blessed with five children out of whom four are daugh¬ters and one is a son stated to be mentally retarded. Admittedly the Civil Proceeding was initiated at the instance of the appel¬lant on the ground of desertion and cruelty. The appellant exam¬ined four witnesses and the respondent also examined four wit¬nesses before the Court below. P.W.1 is the elder brother of the appellant. He in his deposition has stated that he has been living separately from the appellant since last four years and prior to that the respondent was behaving properly. Just before separation the respondent complained before him that the appel¬lant is getting his support in neglecting her and the children. When the father of the appellant died, the respondent did not attend the funeral ceremony and the relationship became strained. He tried his best to bring back normalcy in the relationship between the appellant and the respondent but neither of them cooperated and remained adamant. In cross-examination, he has stated that neither the respondent nor her children are willing to stay with the appellant due to presence of Meenarani in the company of the appellant. P.W.2 has stated that about ten years back prior to his examination he had once been to Dhanmandal with the appellant to purchase calf. In his presence both the appellant and the respondent quarrelled and the respondent was proposing the appellant to sell away all his immovable assets in his village and purchase some property at Dhanmandal. But the appellant turned down the said proposal. P.W.3 is another witness examined on behalf of the appellant who was known to the family of the parties for a long time. But the appellant turned down the said proposal. P.W.3 is another witness examined on behalf of the appellant who was known to the family of the parties for a long time. He in his deposition has stated that the respondent deserted the appellant and was cruel in her attitude and stayed all along in the house of her father. The appellant tried his best to bring her back but all his efforts were of no use. He has further stated that the appellant was all along willing to maintain the respondent by bringing her back but the respondent did not oblige. P.W.4 is the appellant himself who has supported his own case. In cross-examination he denied to have any relationship with Meenarani Dash. O.P.W. 1 examined on behalf of the respondent has stated that the parties are staying separately since last 7 to 8 years on account of the fact that they are not pulling on well with each other and he has denied the suggestion that the respondent was misbehaving with the appellant. O.P.W. 2 is a resident of the village of the appellant and she is also the niece of the appellant. She has stated that there was a woman in the house of the appellant who did not allow the respondent and her children to enter inside the house and her name is Meenarani Dash. She has further stated that on many occasions she has seen Meenarani Dash not allowing the respondent into the house of the appellant. She has further stated that Meenarani is staying with the husband of the respondent for last two to three years. This witness was examined on 4.12.2001. O.P.W. 3 is the daughter of the parties and she has stated in her deposition that the appellant is staying at Tola Gopinathpur with another lady, namely, Meenarani Dash and she has been stay¬ing there before her marriage in the year 1989. O.P.W. 4 is the respondent herself who has also stated about the presence of Meenarani Dash in the house of the appellant and she has also stated that she does not have any marital relationship with the appellant since 1985. 6. O.P.W. 4 is the respondent herself who has also stated about the presence of Meenarani Dash in the house of the appellant and she has also stated that she does not have any marital relationship with the appellant since 1985. 6. On analysis of the evidence of the witnesses, it ap¬pears that the allegation of the respondent that the appellant is staying with another lady in the name of Meenarani Dash is not only stated by the witnesses examined on behalf of the respondent but also is admitted by P.W.1, who is the elder brother of the appellant. It appears from the evidence that since 1987 the parties are staying separately. According to O.P.W. 3, the said Meenarani Dash has been staying with the appellant prior to 1989 whereas the O.P.W. 2 has stated that Meenarani Dash is staying in the house of the appellant for two to three years prior to her examination on 4.12.2001. O.P.W. 3 in examination-in-chief stated that Meenarani Dash was staying with the appellant prior to her marriage in the year 1989. She was not sure as to from which year the appellant is staying with the aforesaid Meenarani Dash as in cross-examination she stated that her father, the appellant has kept Meenarani as a mistress before 1994. Even accepting the evidence of O.P.W. 3 that Meenarani Dash has been staying with the appellant since 1994, the admitted position is that both the appellant and respondent are staying separately since 1987. There was scope for the respondent to come back to the matrimonial house in between 1987 and 1994. If the evidence of O.P.W. 3 is accepted to the extent that the appellant has been staying with Meenarani Dash since 1994, that may be a cause for the respondent to decide not to come back to the matrimonial house. But from 1987 to 1994 there was no reason for the respondent to stay in her father’s house and decline to come back to matrimonial house in spite of efforts made by the appellant as stated by the wit¬nesses. Therefore, we are of the view that the respondent is guilty of desertion at least from 1987 to 1994 and the respondent has herself admitted in cross-examination that she had no marital relationship with the appellant since 1985. 7. Therefore, we are of the view that the respondent is guilty of desertion at least from 1987 to 1994 and the respondent has herself admitted in cross-examination that she had no marital relationship with the appellant since 1985. 7. In view of the discussions above, the plea of the appellant that the respondent deserted him in the year 1987 and that he was dealt with cruelty finds support from the evidence adduced before the learned Judge, Family Court. There is abso¬lutely no material on record to show that the appellant was staying with Meenarani Dash in between 1987 to 1994 and admitted¬ly the respondent denied the appellant the marital relationship during the said period. We, therefore, hold that the respondent is not only guilty of desertion but also mental cruelty by deny¬ing marital relationship to the appellant between 1987 to 1994. Considering such conduct of the respondent, we are of the view that the application filed by the appellant for dissolution of marriage should have been allowed by the learned Judge, Family Court, Cuttack. 8. We, accordingly allow the appeal, set aside the impugned judgment and pass a decree for dissolution of marriage. However, we direct that the appellant shall pay a sum of Rs.1,50,000/- (one lakh and fifty thousand) for maintenance of the mentally retarded child and such amount shall be kept in fixed deposit and the interest therefrom shall be spent for treatment and maintenance of the said son. I. MAHANTY, J. I agree. Appeal allowed.