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2012 DIGILAW 155 (ORI)

KIRAN KUMAR PARIDA v. PRAVEENA SAMAL

2012-03-21

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.P. DAS, J. Both the appeals have been filed by the appellant-Kiran Kumar Parida under Section 19 of the Family Court’s Act. 2. Both these two appeals are heard analogously and disposed of by this common judgment. 3. Two applications were filed before the Judge, Family Court, Cuttack, one is under Section 13 of the Hindu Marriage Act bearing Civil Proceeding No.478 of 2004 filed by the husband-appellant for dissolution of marriage by decree of divorce on the ground of cruelty and desertion and the other is Civil Proceeding No.482 of 2008 under Section 9 of the Hindu Marriage Act, 1955 filed by the respondent-wife for restitution of conjugal rights. 4. Briefly stating, both the parties, i.e., husband and wife are working in Government Organisation. The parties were married to each other on 14.07.1991 and after their marriage they resided in the house of husband at Village-Raghunathpur. Since both the parties are Government servants and the appellant-husband was prosecuting his study in Orissa University of Agriculture and Technology, Bhubaneswar and respondent-wife was serving as Ophthalmic Assistant at Bangirposhi Community Health Centre they went to their respective service places and stayed there. 5. It is alleged in the application under Section 13 of the Hindu Marriage Act that after some days of marriage it was detected that the respondent-wife was physically handicapped having been affected by Polio disease and she was suffering from genetical and gynecological problems along with Lucodoma (white patches). It is further alleged that the wife being a working lady she is very adamant and never cares and gives respect to the husband-appellant and never treated the husband-appellant in usual manner and she also did not behave properly. Husband-appellant’s efforts to maintain peace and harmony in the family went in vain due to attitude of the wife-respondent. The wife-respondent conceived in the year 1992 and a male child was born on 15.07.1993, who was found mentally retarded and physically handicapped and died in the year 2002. The second child was born to them on 26.09.2004 and the child was physically and mentally retarded and also died. After a medical check-up it is found that the children born to the parties suffered from “MUCO-POLY-SACHHARIDE” which is a genetic disease and caused due to genetical problem suffered by the respondent-wife. The second child was born to them on 26.09.2004 and the child was physically and mentally retarded and also died. After a medical check-up it is found that the children born to the parties suffered from “MUCO-POLY-SACHHARIDE” which is a genetic disease and caused due to genetical problem suffered by the respondent-wife. The wife was also treated at AIIMS where it was advised that the disease is not curable and the wife should take rest during the first three months of pregnancy. Thereafter the fourth child was conceived, but according to the appellant-husband as the wife did not adhere to the advice of the doctor and moved from Cuttack to Dhenkanal as well as to her village by bus for which there was miscarriage of pregnancy for three times, i.e., from 2003 to 2004. It is also alleged that, from 1995 to 1998 the wife-respondent cut off all relationships with the appellant-husband and did not come to the husband-appellant nor allowed him to come to her and their conjugal life was totally disrupted. The case of appellant-husband before the Judge, Family Court was that due to non-cooperation of respondent-wife, the family life of the appellant-husband was seriously affected and the appellant suffered from serious mental agony and torture. It is further alleged that on 07.02.2004 the respondent-wife with some of her men attacked the husband-appellant with deadly weapons for which it is not possible for him to stay with his wife-respondent as he apprehends danger to his life. 6. Another application under Section 9 of the Hindu Marriage Act was filed by the wife-respondent for restitution of conjugal rights. In her petition and also in the written statement in the divorce proceeding the wife –respondent averred that she tried her best to keep good relation with the husband-appellant and she also did not hesitate to keep his nephew and niece, i.e., the son and daughter of elder brother of her husband and to educate them. She was bearing all expenses towards their boarding, dress and education. According to her, she always received the husband cordially and due to the death of four children on account of ailments, husband-appellant in one plea or other wants to get rid of her by getting an order of divorce and go for a second marriage. She was bearing all expenses towards their boarding, dress and education. According to her, she always received the husband cordially and due to the death of four children on account of ailments, husband-appellant in one plea or other wants to get rid of her by getting an order of divorce and go for a second marriage. According to her, the mentally retarded child was born in 1993 and could survive till 2005, which was only due to the care and nursing given by her. The allegation of husband that there is no co-operation on the part of the wife is totally false and that they have got cordial relationship and their marital life was also consummated for which she bore four children and she is interested to stay with the appellant-husband and according to her, the appellant-husband is not accepting her as his wife as he wants to go for a second marriage after divorce. 7. In order to substantiate his claim in his application under Section 13 of the Hindu Marriage Act the husband-appellant examined as many as four witnesses and marked three documents as exhibits. Wife-respondent also examined four witnesses and marked seven documents as exhibits in C.P.No.478 of 2004. In C.P.No.482 of 2008 the wife was examined as P.W.1 and the husband was examined as OPW.1, but no document was exhibited from either side. 8. After evaluating the evidence on record the Judge, Family Court, Cuttack came to a conclusion that the husband-appellant has not discharged the burden of proof cast upon him to prove that the husband-appellant has been subjected to mental and physical cruelty and desertion due to conduct of the respondent-wife and held that the husband-appellant is not entitled to get the decree of divorce and also allowed the application under Section 9 of the Hindu Marriage Act against the husband-appellant. 9. We have gone through the evidence on record. 10. Learned counsel for the appellant-husband, Mr. B.H. Mohanty files a written note of argument. Save and except revealing that the children born by the wife could not survive and that there was some quarrel between the parties which usually occurs in one’s family there is nothing on record to show that the wife was giving mental or physical torture and deserted the husband. The fact that four children were born out of their wedlock is ample proof of their good relationship. The fact that four children were born out of their wedlock is ample proof of their good relationship. Learned counsel for the appellant relies upon the judgment of the apex Court in the case of A. Jayachandra v. Aneel Kaur; 2005 (I) OLR (SC) 457 and submits that in order to do complete justice and shorten the agony of the parties engaged in long drawn legal battle the Court should give direction for dissolution of marriage. In the said judgment also in paragraph-12, the apex Court held as follows : “12. To constitute cruelty, the conduct complained of should be ‘grave and weighty’ so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ‘ordinary wear and tear of married life’ ” We do not find anything on record to consider that the conduct of the wife complained of is grave and weighty. So also the judgment in the case of Rakesh Sharma v. Surbhi Sharma; AIR 2002 RAJASTHAN 138 is not applicable as the facts and circumstances of that case are different from that of the present one. 11. Mr. Mohanty, learned counsel for the appellant also relies upon a decision of this Court in the case of Satya Sundar Tripathi v. Mamata Tripathi; 2008 (Supp.-II) OLR926 which is also factually totally different. That was a case where the husband totally deserted the wife and neglected the wife. 12. Mr. S.P. Mishra, learned counsel for the wife-respondent draws our attention to the decision of the apex Court in the case of Gurbux Singh v. Harminder Kaur : 2010(II) CLR (SC) 1093. In paragraph-11 of which it is held as follows: “11. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein. We have already pointed out that in the petition for dissolution of marriage, the appellant has merely mentioned Section 13 of the Act and in the body of the petition he highlighted certain instances amounting to cruelty by the respondent-wife. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to him. No prior assumptions can be made in such matters. Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis-à-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty.” In view of such, after examining the facts and circumstances and getting into the evidence on record we find no such conduct of the wife which may amount to cruelty. Rather it is a case where the husband has withdrawn from the society of the wife without reasonable cause. We have therefore no hesitation to dismiss the appeals and confirm the orders of the Judge, Family Court, Cuttack. 13. Both the appeals are accordingly dismissed and orders of the Judge, Family Court are confirmed. Appeals dismissed.