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2010 DIGILAW 657 (ORI)

SAGARIKA MOHANTY v. BHANU KISHORE BISWAL

2010-09-17

B.P.RAY, L.MOHAPATRA

body2010
JUDGMENT : L. Mohapatra, J. - This appeal is directed against the judgment and order dated 23.11.2005 passed by the learned Judge, Family Court, Cuttack, in Civil Proceeding No. 424 of 1999 allowing the application filed by the Respondent u/s 13(1)(a) and (b) of the Hindu Marriage Act for dissolution of marriage by the decree of divorce. 2. The case of the Respondent, who was the applicant before the learned Judge, Family Court, Cuttack is that the marriage between him and the Appellant was performed on 14.2.1997 according to Hindu rites and after marriage both of them stayed together as husband and wife in the house of the Respondent. The further case of the Respondent is that the Appellant did not want to bear a child and therefore, she refused cohabitation without use of contraceptive whereas the Respondent wanted cohabitation for the purpose of maintaining the heredity. He also alleged that the Appellant was suffering from schizophrenia and was not preparing food nor taking his care. She was always quarreling with him and his family members and on one occasion threw plates on his face without any reason. She was also in the habit of humiliating him in public and seven months after the marriage she left for her paternal home without his permission and never came back in spite of several approaches made by him. Respondent also alleged that while living separately, he met with a motor accident and was medically treated but the Appellant never turned up to see him during the period of treatment. On these grounds, the application for divorce was filed alleging cruelty and desertion. The allegations of the Respondent against the Appellant were denied by the Appellant whereas marriage between the parties was admitted. It is the case of the Appellant that the Respondent never wanted to have a child and was using contraceptive in spite of her objection. There was a demand of dowry of Rs. 1,00,000/- which could not be paid by her parents and no fulfillment of the dowry demand, has led to the present situation. It was also specifically pleaded by the Appellant that she was driven out from the house by the Respondent and she had never deserted the Respondent or behaved in a cruel manner, as alleged by the Respondent. 1,00,000/- which could not be paid by her parents and no fulfillment of the dowry demand, has led to the present situation. It was also specifically pleaded by the Appellant that she was driven out from the house by the Respondent and she had never deserted the Respondent or behaved in a cruel manner, as alleged by the Respondent. The learned Judge, Family Court taking into consideration the pleadings of the parties and the evidence adduced before him came to a conclusion that the plea set out by the Respondent with regard to demand of dowry is based on no material and on certain occasions the Appellant had behaved in a cruel manner with the Respondent and his family members. The court also found that the Appellant was guilty of desertion and cruelty. On the above findings, the learned Judge, Family Court allowed the application but did not grant any alimony. 3. At the time of hearing of this appeal, the Court found that the parties are living separately since 1997 and there was no scope for living together. As a matter of fact, the Respondent was not willing to take the Appellant at all and he also expressed the very same view before the trial court when the case was pending. The learned Counsel for the Appellant, therefore, argued the case on merit and also prayed for permanent alimony in the event, the appeal is dismissed. 4. We have carefully gone through the pleadings of the parties and the evidence led before the learned Judge, Family Court. The admitted facts as appear from the evidence and the pleadings are that the marriage between both the parties was solemnized on 14.2.1997 and both the husband and wife had stayed together for about five to seven months after marriage. The Respondent alleged that the wife did not allow cohabitation without contraceptive whereas the wife alleged that for non-fulfillment of the dowry demand, the Respondent did not allow cohabitation without use of contraceptives. Both the parties led evidence supporting their respective claims in this regard. Therefore, it is difficult to come to a conclusion as to who was guilty in not permitting other for having cohabitation without contraceptive. The trial court also could not come to any conclusion in this regard. Both the parties led evidence supporting their respective claims in this regard. Therefore, it is difficult to come to a conclusion as to who was guilty in not permitting other for having cohabitation without contraceptive. The trial court also could not come to any conclusion in this regard. So far as cruelty is concerned, it appears from the evidence of the witnesses such as father, brother and mother of the Respondent that the behavior of the Appellant towards the family members of the Respondent as well as the Respondent was not good and when the Respondent had met with an accident, the Appellant though had been intimated about the same, did not ever care to find out the condition of the Respondent. All these materials clearly establish the allegations of the Respondent that he and his family members had been subjected to mental cruelty. So far as desertion is concerned, the finding of the learned Judge, Family Court that the Appellant left the matrimonial home on her own is established by way of evidence and there is nothing on record to show that the Appellant had been driven from the house either by the Respondent or his family members. Therefore, there is hardly any scope to interfere with the impugned judgment on merits. 5. So far as alimony is concerned, the learned Judge, Family Court has not granted any permanent alimony in favor of the Appellant. At the time of hearing of the appeal, the Court suggested that permanent alimony of Rs. 5,00,000/- shall meet the ends of justice but the Respondent expressed his inability to pay such amount as permanent alimony. Keeping in mind the status of the parties, the income of the Respondent from different sources, we are of the view that permanent alimony of Rs. 4,00,000/- would be just and proper in the facts and circumstances of the case. 6. We, therefore, while declining to interfere with the impugned judgment, direct the Respondent to pay permanent alimony of Rs. 4,00,000/- (Rupees Four lakhs) to the Appellant within a period of three months from today. The appeal is disposed of accordingly. Appeal disposed of.