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2009 DIGILAW 723 (ORI)

SABITA SAMAL v. BIJOYA KRUSHNA NAYAK

2009-09-11

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the order dated 238.2007 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 595 of 2004 holding the aforesaid civil proceeding maintainable. 2. Appellant is the wife of the Respondent. The marriage took place on 9.3.1989 and a child was born to them in the year 1991. Thereafter, dissension arose and they started living separately. The child is now under the custody of the Respondent. The Appellant filed C.P. No. 308 of 2000 u/s 18 of the Hindu Adoption and Maintenance Act, 1956 claiming monthly maintenance from the Respondent as well as for a decree of separate residence. The Respondent similarly had filed C.P. No. 20 of 1997 u/s 13 of the Hindu Marriage Act, 1955 praying for a decree of divorce by dissolution of marriage on the ground of desertion and cruelty. The learned Judge, Family Court, Cuttack tagged both the cases and by a common judgment dated 11.7.2002 dismissed the Civil Proceeding No. 20 of 1997 for dissolution of marriage filed by the Respondent and so far as C.P. No. 308 of 2000 filed by the Appellant for maintenance and separate residence is concerned, the learned Judge, Family Court found the Respondent guilty of desertion and directed for payment of monthly maintenance of Rs. 500/- and the liberty to the Appellant to live separately. After such decree was passed and the parties were living separately, the Respondent again filed C.P. No. 595 of 2004 on 15th September, 2004 in the court of the learned Judge, Family Court, Cuttack for dissolution of marriage on the very same ground of desertion and cruelty. The Appellant after appearing in the said case filed a petition under Order 14, Rule 2. CPC to decide the question of maintainability as a preliminary issue on the ground that the earlier proceeding filed by the Respondent vide C.P. No. 20 of 1997 the question of desertion and cruelty had been decided and the Appellant having been given liberty to live separately, the question of desertion does not arise. So far as the ground of cruelty is concerned, the very same allegations having been repeated in the subsequent proceeding, the same is not maintainable. The learned Judge, Family Court in the impugned order found, the proceeding to be maintainable and the said order is subject matter of challenge in this appeal. 3. So far as the ground of cruelty is concerned, the very same allegations having been repeated in the subsequent proceeding, the same is not maintainable. The learned Judge, Family Court in the impugned order found, the proceeding to be maintainable and the said order is subject matter of challenge in this appeal. 3. Shri B.K. Nanda, the learned Counsel appearing for the Appellant submitted that in the earlier C.P. No. 20 of 1997 a prayer for dissolution of marriage was made on the ground of desertion and cruelty. The statutory period of desertion having not been expired, the proceeding as such was not maintainable. However, the learned Judge, Family Court not only decided the question of desertion but also the question of cruelty and found the Appellant is not guilty of the alleged cruelty. In the subsequent proceeding the very same prayer was made for dissolution of marriage on very same ground which had earlier been taken in C.P. No. 20 of 1997. Therefore, the trial court should have dismissed the subsequent proceeding as not maintainable. The learned Counsel for the Respondent submitted that so far as desertion is concerned, admittedly the earlier proceeding had been instituted prior to expiry of the statutory period and, therefore, the learned Judge, Family Court was justified in holding that the proceeding is not maintainable on the ground of desertion. However, the subsequent proceeding having been initiated in 2004 much after the parties started living separately, the question of desertion could be decided. Apart from the above, the grounds of cruelty were not the same in both the proceedings and, therefore, on that count also the proceeding was maintainable. 4. Admittedly, the parties got married on 9.3.1988 and a son was born in the year 1991. They lived together for sometime and thereafter got separated. In 1997 the Respondent filed C.P. No. 20 of 1997 for dissolution of marriage whereas the Appellant filed C.P. No. 308 of 2008 for maintenance and separate residence. Both the proceedings were disposed of in a common judgment dated 11.7.2002. The learned Judge, Family Court in the said judgment held that the statutory period of desertion had not expired and therefore, the proceeding for dissolution of marriage on the ground of desertion cannot be entertained. Both the proceedings were disposed of in a common judgment dated 11.7.2002. The learned Judge, Family Court in the said judgment held that the statutory period of desertion had not expired and therefore, the proceeding for dissolution of marriage on the ground of desertion cannot be entertained. So far as allegations of cruelty are concerned, the learned Judge, Family Court did not accept the same and dismissed the said proceeding for dissolution of marriage. However, C.P. No. 308 of 2008 filed by the Appellant was allowed and she was not only granted maintenance of Rs. 500/- per month but also right to separate residence. This judgment was not challenged by either party and the same attained finality. Again in 2004 the Respondent filed the present civil proceeding for dissolution of marriage. The question that arises for consideration in this appeal is as to whether the ground of desertion is available to the Respondent while seeking for dissolution of marriage and as to whether the allegations of cruelty are same in both the proceedings. So far as ground desertion of is concerned, in the judgment dated 11.7.2002 delivered in the earlier proceeding it was specifically held by the learned Judge, Family Court that statutory period had not been expired and therefore, the prayer for dissolution of marriage on the ground of desertion was not available to be taken. Admittedly, in the impugned order also the Appellant was granted liberty for separate residence and since then both the parties are living separately. The Appellant having been granted permission to live separately with maintenance of Rs. 500/- per month, such separate living cannot be construed to be desertion on the part of the Appellant. Therefore, such ground of desertion was not available to be taken by the Respondent in the present proceeding. 5. So far as allegation of cruelty is concerhed, law is well settled that it can be physical or mental or both. It is not necessary for the parties to live together in order to suffer mental cruelty. In the earlier proceeding the Respondent alleged that the Appellant was misbehaving with him and his family members and due to such mis-behaviour, the mother of the Respondent expired on 7.2.1996. The Appellant thereafter was brought to Cuttack where the Respondent was working and they stayed in a rented house. In the earlier proceeding the Respondent alleged that the Appellant was misbehaving with him and his family members and due to such mis-behaviour, the mother of the Respondent expired on 7.2.1996. The Appellant thereafter was brought to Cuttack where the Respondent was working and they stayed in a rented house. The Appellant used to keep relationship with others and did not take care of his child. On 8.8.1996 the Appellant left the house by taking her wearing apparels and gold ornaments as well as cash of Rs. 5,000/- and went to her father's house. It was also alleged that the Appellant was keeping illicit relationship with the husband of his youngest sister. In the present proceeding it is alleged that the Appellant misbehaved with the Respondent and his mother for which, his mother expired on 7.2.1996. The Appellant was not taking care of the child and in August, 1996 left her matrimonial house along with her wearing apparels, ornaments and cash of Rs. 5,000/-. It is also alleged in the proceeding that after the death of father of the Respondent, he was not in a position to manage the residential house in his village and requested the Appellant to come and reside in the village and take care of the son, but she did not turn up. On perusal of the allegations made in both the proceedings, it will be found that the only allegation in the present proceeding which had not been taken in the earlier proceeding is that the Respondent requested the Appellant to join him after his father's death to maintain the household in the village and look after the child, but the Appellant did not turn up. The rest of the allegations in both the proceedings are same. Whether the additional allegation made in the present proceeding will amount to mental cruelty or not lis a matter to be decided in the proceeding. Therefore, the submission of the learned Counsel for the Appellant is that the allegations of cruelty in both the proceedings are exactly same does not appear to be correct. We are therefore of the view that in the present proceeding the dissolution of marriage on the ground of desertion cannot be considered but the ground of cruelty can be considered. 6. We are therefore of the view that in the present proceeding the dissolution of marriage on the ground of desertion cannot be considered but the ground of cruelty can be considered. 6. We, therefore, dispose of the appeal with the following directions: The learned Judge, Family court shall decide the dispute solely on the ground as to whether the Appellant is guilty of cruelty or not. The ground of desertion taken in the petition is not available to be taken and, therefore, no issue with regard to desertion need be framed. The impugned order is modified to the above extent.