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2008 DIGILAW 800 (ORI)

AMITA PANI @ KAR v. KEDARNATH KAR

2008-09-05

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : Indrajit Mahanty, J. - The Appellant Smt. Amita Pani @ Kar has filed the present appeal against the order and judgment dated 6.3.2006 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 326 of 2001, by which the learned Judge, Family Court has allowed the application filed by the Respondent-Kedarnath Kar u/s 13 of the Hindu Marriage Act for a decree of divorce dissolving his marriage with the present Appellant with a further direction that the Respondent-husband shall pay Rest. 1,00,000/- to the wife-respondent No. 1 towards her permanent alimony, within two months from the date of the order, failing which to pay monthly maintenance to.the wife (present Appellant) at the rate of Rest. 600/- per month. 2. Learned Counsel for the Appellant, inter alias, asserted that while the learned Judge, Family Court, in the impugned order has arrived at a finding that husband-husband was unable to prove his allegations against wife-wife, he ought not to have allowed the application and granted the decree of divorce. He further submitted that while the allegations of extra marital relationship had been made both, i.e. by husband-husband as well as by wife-wife, the said allegations were made out of anger and frustration and since there is nothing on record to indicate that the parties expressed their unwillingness to live together, the decree of divorce ought not to have passed and the trial court should have given another chance to the parties to attempt re-conciliation and re-union since the parties were separated only four months after their marriage. 3. Learned Counsel for husband-husband, on the other hand, supported the impugned judgment but pressed his cross objection challenging the quantum of alimony fixed by the trial court and stated that the Respondent is not in a financial position to comply with the said direction and stated that the determination made by the Judge, Family Court of the Respondent's income at Rest. 30,000/- per annum, was erroneous and the Judge, Family Court ought to have accepted the certificate granted by the Tahasildar to the Respondent, certifying the Respondent's annual income at Rest. 10,000/-. Accordingly, learned Counsel for the Respondent submitted that the quantum of alimony/maintenance, ought to be suitably reduced. 4. 30,000/- per annum, was erroneous and the Judge, Family Court ought to have accepted the certificate granted by the Tahasildar to the Respondent, certifying the Respondent's annual income at Rest. 10,000/-. Accordingly, learned Counsel for the Respondent submitted that the quantum of alimony/maintenance, ought to be suitably reduced. 4. On consideration of the rival contentions and on perusal of the impugned order u/s 13 of the Hindu Marriage Act, we find that very serious allegations have been made by the respondent in his petition against the Appellant as well as in the written statement. The marriage between the parties had been solemnized on 14.7.1999 and it is alleged that they did not have any physical relationship nor slept in the same bed till 17.11.1999. The Respondent has made various allegations against the Appellant on the ground of alleged post-marital relationship between the Appellant and her brother-in-law. The impugned order also indicates that the Respondent had lodged an F.I.R. at Dhamanagar Police Station which indicates that he had made various personal approaches to try and bring back the Appellant to his matrimonial home and on his failure to do so, he has lodged another F.I.R. on 14.1.2001 at Mangalpur Police Station vide S.D. Entry No. 260 dated 18.1.2001. The F.I.R. lodged before Dhamnagar Police Station was registered vide Station Diary Entry No. 424 dated 21.2.2001. It is further noticed that the Appellant also lodged an F.I.R. against the Respondent and his family members. Thereafter, the Respondent filed a petition u/s 13 of the Hindu Marriage Act seeking divorce on the ground of desertion since 17.11.1999 and cruelty, besides the allegations of extra marital relationship. 5. The Appellant, on the other hand, in her written statement while denying all the allegations made by the husband, raised various issues, such as, demand of dowry as well as allegations against the family background of the Respondent and also lodged a report before the H.R.P.C. on the ground of torture. The Appellant also made allegation of suspicion on the circumstances in which the Respondent's sister-in-law died due to poisoning and the fact that the Respondent and his family members have been arrested in the said case and had faced trial and, thereafter, acquitted. She also made allegation about extra marital relationship between the Respondent and his sister-in-law. The Appellant also made allegation of suspicion on the circumstances in which the Respondent's sister-in-law died due to poisoning and the fact that the Respondent and his family members have been arrested in the said case and had faced trial and, thereafter, acquitted. She also made allegation about extra marital relationship between the Respondent and his sister-in-law. The Appellant in her written statement stated that she had not visited her matrimonial home after 14.11.1999 and further stated that the Respondent and his family members did not take any step to bring her back to the matrimonial home. While stating so, she has admitted that the Respondent and his father had approached various gentlemen to settle the matter between them but the same could not be fruitful due to non-cooperation of the family members of the Respondent. 6. The Respondent examined four witnesses whereas the Appellant examined three witnesses to substantiate their respective cases. On a discussion of the evidence led by the parties, the learned Judge, Family Court took note of the fact that the Respondent husband had deposed that the Appellant had not kept any sexual relationship with him though she stayed in matrimonial house only for four months after marriage and further deposed that once he attempted to cohabit with the Appellant but she gave a kick to his scrotum and teeth bite to his hand which was resulted in grave mental and physical pain. This statement of the Respondent was not believed by the trial court on the ground that the Respondent failed to show any document for his treatment for the pain nor did any other witness give evidence to corroborate that evidence. 7. The trial court came to conclude that the allegation of alleged misbehaviour by the Appellant and adulterous life of the Appellant was not proved. The trial court thereafter, discussed various other evidences and came to conclude that although the allegation made by the Respondent about the sexual relationship of the Appellant with her brother-in-law was not proved satisfactorily, yet, he came to hold that the Appellant had been cruel to her husband by making unsubstantiated allegations about the illicit relationship of the Respondent with his sister-in-law. The trial court came to hold that although the same is not proved but the making of such allegation by the Appellant, has been found amount to cruel-conduct on the part of the Appellant against husband-husband. The trial court came to hold that although the same is not proved but the making of such allegation by the Appellant, has been found amount to cruel-conduct on the part of the Appellant against husband-husband. The trial court also took into account the various attempts made by the parties for conciliation and re-union and the failure of the parties to be re-united, was also recorded. Taking the aforesaid facts into consideration, the trail court came to conclude that the parties having lived together only for a period of four months and, thereafter, both blamed each other for alleged extra marital relationship and which the learned trial court concluded this is a fit and appropriate case to grant separation rather than to compel them to join together. 8. The submissions advanced by the learned Counsel for the parties has to be considered keeping in view a very important development during the tendency of the appeal, i.e. the Respondent has already married for the second time and has begotten a child from his second wife. It appears that after the decree of divorce was passed by the trial court vide judgment dated 6.3.2006, the Appellant filed the present appeal on 11.5.2006 along with Misc. Case No. 38 of 2006 for condo nation of delay in filing of the appeal. This Court by order dated 29.6.2006 issued notice on the question of limitation and condoned the delay on 18.12.2006 on payment of cost, whereas, Misc. Case No. 37 of 2006 praying for stay of operation of the impugned judgment, was disposed of as "infructuous" by this Court vide Order No. 8 dated 18.6.2008, taking into consideration the fact that Respondent No. 1 had already in the meanwhile married for the second time and the second wife had begotten a child. 9. The aforesaid orders as noted hereinabove, clearly. indicate that since no order of stay was granted in the present appeal against the impugned judgment passed by the learned Judge, Family Court, the Respondent got married in the interregnum and the second wife had already begotten a child. 9. The aforesaid orders as noted hereinabove, clearly. indicate that since no order of stay was granted in the present appeal against the impugned judgment passed by the learned Judge, Family Court, the Respondent got married in the interregnum and the second wife had already begotten a child. Keeping this fact in view, we are of the considered opinion that no fruitful purpose would be served in trying any reconciliation between the parties., More so, by now, over nine years have already elapsed and the parties have lived together only for a period of four months, subsequent to solemnization of their marriage in the year 1999. Therefore, we are afraid that we cannot accept the contention of the Appellant as raised in the present appeal pertaining to a further attempt to try and reconcile the parties. 10. In so far as, the fixation of alimony of Rest. 1 laky is concerned, while the learned Counsel appearing for the Respondent husband has filed a cross-objection challenging the fixation of the aforesaid amount as alimony, we find that although the trial court in the impugned judgment did not accept the contention advanced by the present Appellant that the Petitioner-respondent was earning Rest. 1 laky per annum. But, at the same time, the trial court also took into account the Respondent's income as an employee of an Ash Brick factory and as a L.I.C. Agent, apart from the income of nearly two lakes from agricultural land, computed the income of the Respondent to be about Rest. 30,000/- per annum and accordingly, fixed permanent alimony at Rest. 1 laky. 11. On consideration of the submissions advanced and the evidence adduced in course of the trial, it is found that the joint family landed property of the Respondent is about Ac.9.00 and odd and the Respondent has three other brothers. Therefore, even accepting the aforesaid facts, the income from agriculture land is about Rest. 20,000/per annum. The Respondent is a young man of approximately 36 years of age and was an employee in a private bricks factory and even assuming that he has been paid a minimum wage of Rest. 100/- per day. His monthly income on this score, would be approximately Rest. 3000/- per month and, therefore, Rest. 36,000/- per annum. Therefore, the income of the Respondent from all sources would be approximately Rest. 56,000/- or Rest. 60,000/- per annum. 12. 100/- per day. His monthly income on this score, would be approximately Rest. 3000/- per month and, therefore, Rest. 36,000/- per annum. Therefore, the income of the Respondent from all sources would be approximately Rest. 56,000/- or Rest. 60,000/- per annum. 12. In the present circumstances, since the Respondent has already married once again during tendency of this appeal and that the Appellant remains unmarried, we estimate that the lump sum permanent alimony for the Appellant, should be fixed at Rest. 1,50,000/(Rupees one laky and fifty thousand) and we direct accordingly. We further direct that the said amount be paid in three equal monthly instalments from the date of this judgment. 13. With the aforesaid modification in fixation of alimony, this appeal and cross-appeal are disposed of. All other directions contained in the impugned judgment are affirmed. L. Mohapatra, J. 14. I agree.