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2012 DIGILAW 407 (ORI)

Bhagaban Sahu v. Maya @ Mayabini @ Mayabati Sahu

2012-09-13

B.K.PATEL

body2012
JUDGMENT B.K. PATEL, J. This second appeal is directed against judgment and decree dated 5.9.1998 passed by the learned District Judge, Ganjam-Gajapati, Berhampur dismissing Title Appeal No.45 of 1997 and confirming ex parte judgment and decree passed by the learned Civil Judge (Senior Division), Berhampur in O.S.No.45 of 1997 by which appellant-plaintiff’s application under section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) for a decree of divorce was dismissed. 2. Appellant-plaintiff is respondent-defendant’s husband. Marriage between them was solemnized in the year 1979. A son was born to them in the year 1981. 3. Plaintiff’s case is that defendant went to her parents’ house for delivery but did not return after birth of their son. Instead, she expressed that she was not able to live with the plaintiff’s family members and asked him to be separated from his parents. Plaintiff’s attempt to get defendant back to his company having failed, plaintiff filed T.S.No.88 of 1983 for restitution of conjugal rights under section 9 of the Hindu Marriage Act. As there was compromise between the parties during pendency of T.S.No.88 of 1983 plaintiff allowed the suit to get dismissed. However, soon after dismissal of the suit, defendant again deserted the plaintiff for which plaintiff had to file O.S.No.42 of 1984 for restitution of conjugal rights. Defendant contested the suit and pleaded that plaintiff’s family members ill-treated her for which it was not possible on her part to live along with the plaintiff’s family members in his house. Defendant’s plea was accepted and O.S.No.42 of 1984 was dismissed by the court with an observation that plaintiff may seek restitution of conjugal rights only after he has separate residence. Alleging that as per direction of the court he has separated himself from his family members and set up a separate residence but the defendant refused to join his company though Advocate’s notice was sent and also defendant approached through bhadraloks, plaintiff filed a suit for decree of divorce. 3.1 Defendant filed written statement but did not participate in the hearing of the suit for which she was set ex parte. In her written statement defendant denied the allegations made against her by the plaintiff and pleaded that she never deserted the plaintiff. She alleged that plaintiff’s family members consistently tortured her and threw her out of the house. 3.1 Defendant filed written statement but did not participate in the hearing of the suit for which she was set ex parte. In her written statement defendant denied the allegations made against her by the plaintiff and pleaded that she never deserted the plaintiff. She alleged that plaintiff’s family members consistently tortured her and threw her out of the house. It was categorically pleaded that plaintiff never sent any letter, notice or bhadralok to join him in a separate residence. 3.2 In order to substantiate his case plaintiff examined himself as P.W.1 and relied upon documents marked Exts. 1 to 6 of which Ext.1 is copy of Advocate’s notice issued on behalf of the defendant addressed to the plaintiff and his father; Ext.2 is copy of the reply to Ext.1; Ext.3 is copy of Advocate’s notice to the defendant; Ext.4 is copy of reply to Ext.3; Ext.5 is the certified copy of order-sheet in T.S.No.88 of 1983 and Ext.6 is the certified copy of decree in O.S.No.42 of 1984. On appraisal of materials on record, trial court and the lower appellate court dismissed the plaintiff’s suit for divorce. 4. The second appeal has been admitted on the following substantial questions of law as indicated in ground nos.2(a), (b) and (c) of the memorandum of appeal. “(a)Whether the decree drawn out in O.S.No.42/1984 on 17.1.1986 directing the appellant to seek for restitution of conjugal rights effects desertion by the respondent for a continuous period of more than two years after 17.1.1986? (b) Whether refusal of the respondent to stay with the appellant independent of in-laws in a separate house amounts to reasonable cause for staying away from the appellant? and (c) Separate living without any reasonable cause on the part of the respondent having not been disputed whether the trial court is justified in dismissing the suit.” 5. Learned counsel for the appellant in support of the appeal placed reliance mainly the provision under section 13(1-A) of the Act to urge that in view of judgment and decree passed in O.S.No.42 of 1984 both the courts below ought to have held that the respondent deserted the appellant without any reasonable cause for more than one year after passing of the judgment and decree in the said suit. 6. None appeared on behalf of the respondent at the time of hearing of the appeal. 7. 6. None appeared on behalf of the respondent at the time of hearing of the appeal. 7. Admittedly, parties were entangled in different matrimonial litigations long before the present suit was filed. It is apparent from Ext.5 that by order dated 31.8.1984 T.S.No.88 of 1983was dismissed as infructuous in the court of learned Subordinate Judge, Berhampur. Operative portion of the decree in O.S.No.42 of 1984 of the court of Subordinate Judge, Berhampur under Ext.6 reads: “It is ordered and decreed that the suit is and the same be dismissed on contest against the defendant with costs. But the right of the plaintiff to renew his prayer for restitution of conjugal rights when he would be in a position to live separately from his parents shall remain unaffected by the present refusal to give him a decree.” Thus judgment in neither of the two earlier suits filed by the husband for restitution of conjugal rights is of any help to the appellant. Both the suits were dismissed. In T.S.No.42 of 1984 grant of decree of restitution of conjugal rights was specifically refused. Appellant did not prefer any appeal against judgment and decree passed in T.S.No.42 of 1984 nor did he file any application for restitution of conjugal rights to satisfy that he was living separately from his parents. Provision under section 13(1-A) of the Act reads: “1-A- Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” There being neither decree for judicial separation nor a decree for restitution of conjugal rights the appellant has no scope to avail any benefit out of section 13(1-A) of the Act. 8. 8. Under section 13(1) of the Act ‘desertion’, inter alia, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party. Finding as to whether a party to a marriage is guilty of desertion would depend on the facts and circumstances of the case. In the present case, concurrent finding of both the courts below is that the respondent-wife has not deserted the appellant so as to entitle the appellant for a decree of divorce. Appellant’s assertion to have taken steps by issuing notice and sending bhadraloks to the respondent for joining him has been disbelieved. Appellant has been held to have failed to satisfy any change in circumstance after passing of the judgment and decree in O.S.No.42 of 1984. There is no scope in this second appeal for interfering with such concurrent findings of the courts below. It further appears that in the meanwhile respondent filed O.S.No.11 of 1999 and judgment and decree have been passed therein directing payment of maintenance by the appellant. Said judgment and decree has attained finality in appeal bearing MATA no.2 of 2004 preferred by the appellant. Thus, none of the substantial questions of law formulated in the present appeal justifies interference with the judgment and decree passed by the courts below. 9. There is no merit in the appeal. Accordingly, the second appeal is dismissed. Judgment and decree passed by both the courts bellows are confirmed.