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2014 DIGILAW 541 (ORI)

Khirod Moharana v. Sanjukta Moharana

2014-09-01

S.K.SAHOO, VINOD PRASAD

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Judgment This is an appeal by the appellant-husband Khiroda Moharana under Section 19(1) of the Family Courts Act, 1984 challenging the impugned judgment and order dated 26.3.2011 of the learned Judge, Family Court, Puri passed in C.P. No.49 of 2010 in dismissing the petition of the appellant under Section 13 (1) of Hindu Marriage Act, 1955 praying for dissolution of marriage by granting a decree of divorce and also challenging the imposition of cost of Rs.10,000/-on him to be paid to the respondent. 2. It is the case of the appellant that his marriage with the respondent was solemnized on 12.3.2000 in accordance with the Hindu rites and customs at Jatni and after the marriage both of them lived as husband and wife in the residence of the appellant for about two years and out of their wedlock a son was born on 18.7.2001, who is staying with the respondent. It is the further case of the appellant that respondent withdrew from the society of the appellant since four and half years of filing the divorce petition on the false pretext of visiting to her father’s place and thereafter she did not return to the company of the appellant in spite of the repeated request made by the appellant. Accordingly, the appellant sent a notice to the respondent. It is the further case of the appellant that the respondent used to harass him physically and mentally on various occasions and on 9.6.2006 the respondent lodged an F.I.R. at Mahila Police Station, Bhubaneswar and she was also leading an adulterous life. Since according to the appellant, it was not possible to live with the respondent, the divorce petition was filed. 3. Being noticed the respondent appeared and filed her written statement denying the averments made in the divorce petition. It is her case that she was tortured by the appellant on account of the demand of dowry and when her father expired on 25.8.2007, she visited her father’s place and since then she is staying there. She has further stated that she instituted a criminal case against the appellant and his family members under Section 498-A I.P.C. which is subjudiced in the court of learned S.D.J.M., Bhubaneswar and after completion of investigation, charge sheet has been submitted in the said case under Sections 498-A/494/ 506 read with section 34 I.P.C. and section 4 D.P. Act. She has further stated that she instituted a criminal case against the appellant and his family members under Section 498-A I.P.C. which is subjudiced in the court of learned S.D.J.M., Bhubaneswar and after completion of investigation, charge sheet has been submitted in the said case under Sections 498-A/494/ 506 read with section 34 I.P.C. and section 4 D.P. Act. She further stated in her written statement that the appellant is leading an adulterous life with one Babi Moharana and that she is maintaining herself with much difficulty and her minor son was prosecuting study in English Medium School at Jatni and accordingly prayed for dismissal of the divorce petition. 4. During hearing of the case before the Family Court, three witnesses were examined on behalf of the appellant. The appellant examined himself as P.W.1. One Sita Devi who is the mother of the appellant was examined as P.W.2 and one Parbati Ojha who is the aunt of the appellant was examined as P.W.3. Nine documents were exhibited on behalf of the appellant. The defendant examined herself as R.W.1 and she has also exhibited three documents. 5. Learned Judge, Family Court, Puri vide impugned judgment and order dated 26.3.2011 came to hold that the plea of desertion taken by the appellant is not acceptable and the appellant had constructively deserted the respondent by making serious allegations on her character and chastity which forced her to leave the husband’s house and as such, it cannot be said that the respondent had deserted the appellant. The learned Judge, Family Court, Puri further held that there is no credible evidence from the side of the appellant to show that the respondent was leading an adulterous life. The learned Judge further held that the F.I.R. lodged by the respondent against the appellant was investigated upon and charge sheet against the appellant was filed and cognizance was taken and as such, the case of the appellant that the respondent was lodging F.I.R. just to harass him physically and mentally cannot be accepted. The learned Judge further held that the appellant has made false and wild allegations against the respondent in order to divorce her to cover up his own lapses and there is no material on record to prove that the respondent had committed any matrimonial offence of desertion, cruelty or adultery. 6. The learned Judge further held that the appellant has made false and wild allegations against the respondent in order to divorce her to cover up his own lapses and there is no material on record to prove that the respondent had committed any matrimonial offence of desertion, cruelty or adultery. 6. During pendency of the appeal before this Court, the appellant and the respondent along with their counsels appeared on 24.7.2014 and this Court vide order dated 24.7.2014 observed as follows:- “Both husband and wife along with their respective counsel are present before us. We have heard them at great length. The possibility of re-union and induction of the wife in the family of the husband seems to be impossible. Husband has already remarried. The safest course is to grant a permanent settlement amount to the wife. Learned counsel for the husband wants some time so that he may consult his client for paying the amount as above. List this appeal again in the cause list on 21st of August, 2014. Both the husband and wife along with their respective counsel are directed to be present on the next date. The amount of Rs.2,000/-(Rupees two thousand) which were directed on the last occasion has been paid to the wife and the wife acknowledges the receipt of the same.” The matter was again listed on 21.8.2014 and the following order was passed:- “On the question of quantum, after some deliberation we direct this matter will come up again on 1st September, 2014 for further argument, as part heard. Both the husband and the wife are directed to appear in person before this Court on the next date.” 7. The matter was taken up today. The learned counsel for the respondent submits that the appellant has already married to one Tila Moharana of Kerandiapur of Chandanpur Police Station in Puri district and out of their wedlock a male child has been born. He further submits that the appellant’s father who was a school teacher has already expired and his mother was also a school teacher and she was getting pension and the brother of the appellant was doing business. He further submits that the appellant is now serving as an Assistant School Teacher in U.G.U.P. School, Murkar and his monthly salary is around Rs.13,000/-. He further submits that the appellant is now serving as an Assistant School Teacher in U.G.U.P. School, Murkar and his monthly salary is around Rs.13,000/-. It is further submitted by the learned counsel for the respondent that the respondent is working as a daily labourer and her son is now prosecuting his studies in school and therefore, appropriate order may be passed towards permanent alimony of the respondent as well as for maintenance and the educational expenses of the minor son. The respondent had filed Misc. Case No.7 of 2013, which was an application for interim maintenance and litigation expenses. The appellant has filed objection to the said Misc. Case. The learned counsel for the appellant submitted that in view of the liability of the appellant and his salary, it is not possible on his part to give a lump sum amount towards permanent alimony. He further submits that the net salary of the appellant is Rs.10,388/-and the appellant has got a L.I.C. policy in the name of his son, Krishan Ritesh Maharana and paying the premium amount regularly. The appellant who is present in court agreed for deduction of salary by the authorities for meeting the maintenance of the respondent and the child so also the educational expenses of the child. Considering the submissions of the respective counsel and hearing the appellant as well as respondent in person, we find that there is no possibility of re-union between the appellant and the respondent. There is no dispute that the appellant is serving as an Assistant Teacher in U.G. U.P. School, Murkar. The learned counsel for the respondent filed the salary certificate of the appellant for the month of April, 2013 issued by the District Inspector of Schools, Koraput which she had obtained from the Public Information Officer and the said pay particulars indicates that the net salary of the appellant for the month of April, 2013 was Rs.12,487/-. The learned counsel for the respondent filed the salary certificate of the appellant for the month of April, 2013 issued by the District Inspector of Schools, Koraput which she had obtained from the Public Information Officer and the said pay particulars indicates that the net salary of the appellant for the month of April, 2013 was Rs.12,487/-. Considering the salary of the appellant and his liability vis-à-vis necessity of the respondent to maintain herself as well as her child and to meet the educational expenses of the child and also considering the incapacity of the appellant to pay a lump sum amount towards permanent alimony, we feel it appropriate to direct the District Inspector of Schools, Koraput to deduct Rs.7,000/-(Seven thousand) from the salary of the appellant every month and deposit the same in the account of the respondent. The respondent shall open an account in her name in any Nationalized Bank and furnish the details of the same to the District Inspector of Schools, Koraput within two weeks. The process of deduction from the salary of the appellant will start from the month of September, 2014. It is made clear that if there is any enhancement in the salary of the appellant in future, 25% of the enhanced amount will be additionally deducted from his salary and be deposited in the account of the respondent in addition to Rs.7,000/-. We feel it appropriate to direct the appellant to continue in depositing the premium amount of the L.I.C. policy, which stands in the name of their son Krishan Ritesh Maharana till its date of maturity. The respondent shall allow the appellant to visit their son once in every fortnight, if the appellant so desires preferably on holidays in between 4.00 p.m. to 6.00 p.m. 8. Accordingly, keeping in view the totality of the circumstances, the impugned judgment and order dated 26.3.2011 of the learned Judge, Family Court, Puri in C.P. No.49 of 2010 is set aside and the prayer for divorce of the appellant is allowed and the marriage between the appellant and the respondent stands dissolved, subject to the following directions:- (i) The District Inspector of Schools, Koraput shall deduct Rs.7,000/-(Seven thousand) from the salary of the appellant every month and deposit the same in the account of the respondent. (ii) The respondent shall open an account in her name in any Nationalized Bank and furnish the details of the same to the District Inspector of Schools, Koraput within two weeks. (iii) The process of deduction from the salary of the appellant will start from the month of September, 2014. (iv) In case of any enhancement to the salary of the appellant in future, 25% of the enhanced amount will be additionally deducted from his salary and be deposited in the account of the respondent in addition to Rs.7,000/-. (v) The appellant shall continue to deposit the premium amount of the L.I.C. policy, which stands in the name of their son Krishan Ritesh Maharana till the date of its maturity. (vi) The respondent shall allow the appellant to visit their son once in every fortnight if the appellant so desires preferably on holidays in between 4.00 p.m. to 6.00 p.m. The parties shall bear their respective costs.