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2014 DIGILAW 611 (ORI)

Birendra Sahoo v. Jyoshna Rani Sahoo

2014-09-22

S.K.SAHOO, VINOD PRASAD

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Judgment S.K.SAHOO, J. This appeal has been filed by the appellant-husband under Section 19 (1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and order dtd. 29.04.2011 of the Judge, Family Court, Bhubaneswar passed in Civil Proceedings No. 239 of 2011 (MAT Case No. 426 of 2009) in allowing the petition filed by the respondent-wife under Section 13 of Hindu Marriage Act, 1955 for a decree of divorce and thereby dissolving the marriage between the appellant and the respondent and further directing the appellant to pay Rs. 5 lakhs to the respondent within a month i.e., Rs. 1.5 lakhs towards her ornaments and the rest towards permanent alimony. It was observed that the appellant is at liberty to return the jewellery items of the respondent within a month and in that event he is not required to pay its money value of Rs. 1.5 lakhs. It was further observed that in case some of the ornaments are returned and some are withheld, then the estimated value of the withheld ornaments be calculated and payment to be made. The cost was assessed at Rs. 5,000. 2. The respondent-wife filed a petition under Section 13 of Hindu Marriage Act, 1955 stating therein that her marriage was solemnized with the appellant on 15.02.2002 at Bhubaneswar as per Hindu rites and customs. After the marriage, they lived together for a period of about 5-6 years but they had no issues. The appellant subjected her to both physical and mental cruelty in connection with demand of dowry and she lodged an F.I.R. in Balanga P.S. against the appellant, on the basis of which G.R. Case No. 424 of 2009 was instituted and the case was sub-judice. It is further stated in the divorce petition that since last two years prior to the filing of the petition for divorce, there had been no relationship between the appellant and the respondent and in between the appellant had married for a second time and he was blessed with a daughter. It is further stated in the divorce petition that since last two years prior to the filing of the petition for divorce, there had been no relationship between the appellant and the respondent and in between the appellant had married for a second time and he was blessed with a daughter. The appellant-husband filed his written statement denying the allegation of cruelty in connection with demand of dowry and further stated that the respondent could not adjust herself in the traditional atmosphere of village culture as she was brought up in Bhubaneswar city and a girl namely Saraswati was staying in the house of the appellant as a house-maid and the appellant further denied that he had married anybody for the second time. He further stated that since the respondent could not adjust herself in the house of the appellant, she voluntarily left the house and lodged a false F.I.R. just to put him into harassment and to cover up of her own fault. According to the learned counsel for the appellant, the matter was taken up on 17.01.2011 and since both the parties were absent, the learned Judge, Family Court directed both the parties to appear in person in Court for conciliation and settlement and the date was fixed to 02.02.2011. On 02.02.2011 both the parties were also absent and the appellant filed a petition seeking time along with a Xerox copy of the outdoor patient ticket and the case was further adjourned to 17.03.2011. On 17.03.2011 the respondent-wife was present but the appellant was absent and the case was adjourned to 07.04.2011 and it was directed that the Execution Case No. 4 of 2010 which arises out of an order under Section 24 of Hindu Marriage Act to be tagged with the proceedings. On 07.04.2011 the appellant was present but the respondent was absent for which the case was adjourned to 19.04.2011 and both the parties were directed to remain present in person. On 19.04.2011 the respondent was present along with her parents but the appellant was absent. According to the learned counsel for the appellant, a time seeking petition was filed on behalf of the appellant along with the outdoor patient ticket on 19.04.2011 stating therein that he was suffering from viral fever and was not in a position to remain present in the Court and accordingly time was sought for. According to the learned counsel for the appellant, a time seeking petition was filed on behalf of the appellant along with the outdoor patient ticket on 19.04.2011 stating therein that he was suffering from viral fever and was not in a position to remain present in the Court and accordingly time was sought for. The grievance of the appellant is that the time seeking petition was not taken note of by the learned Judge, Family Court and he proceeded with the matter and on that date i.e., 19.04.2011, the respondent and her father were examined in Court, the appellant’s evidence was closed, argument was heard and the case was posted to 25.04.2011 for judgment. Learned counsel for the appellant further submitted that on 25.04.2011 the judgment was not pronounced and on that day the appellant filed an affidavit in the Court indicating therein that the respondent had married to one Babu Sahu of district Ganjam and staying with him without taking divorce from the competent Court of law. The learned Judge, Family Court did not take into consideration the affidavit filed by the appellant and vide judgment and order dtd.29.04.2011 allowed the petition for divorce. Learned counsel for the appellant contended that non-consideration of the time seeking petition dtd. 19.04.2011 and non-forming such time seeking petition a part of the record, learned Judge, Family Court has committed irregularity and further contended that when an affidavit was filed by the appellant on 25.04.2011, the same should have been reflected in the order-sheet and taken note of. It was further contended that the learned Judge, Family Court has committed illegality in not considering the averments made in the written statement while passing the impugned judgment. It was finally urged that an opportunity of hearing should be afforded to the appellant to contest the case in accordance with law. It was further contended that the learned Judge, Family Court has committed illegality in not considering the averments made in the written statement while passing the impugned judgment. It was finally urged that an opportunity of hearing should be afforded to the appellant to contest the case in accordance with law. Learned counsel for the respondent on the other hand submitted that though the respondent was not present on 17.01.2011, 02.02.2011 and 07.04.2011 but she was very much present on 17.03.2011 and 19.04.2011 and the time seeking petition stated to have been filed on 19.04.2011 is not borne out from the record and since the appellant with a motive to delay the proceedings was not cooperating with the Court, therefore the learned Judge, Family Court was justified in examining the respondent and her father who were present in Court on 19.04.2011 and passing the impugned judgment on the subsequent date. 3. After considering the contentions raised by both the parties and on perusal of the order-sheet annexed to the appeal memo as Annexure-1, it is clear that on some dates the appellant 6 was absent and on some dates the respondent was absent and on some dates both were absent. The order dtd.19.04.2011 does not indicate about filing of any time seeking petition on behalf of the appellant though a copy of such time seeking petition has been annexed to the appeal memo as Annexure–2. In the time seeking petition though it is mentioned in the bottom that the outdoor patient ticket has been attached but the copy of the outdoor ticket is not annexed to the appeal memo. Moreover, the date given in the time seeking petition reflects that the appellant himself has signed the time seeking petition and the date is put as 14.04.2011. Thus, the contention raised by the learned counsel for the appellant that any time seeking petition was filed on 19.04.2011 is neither borne out from the order of the Judge, Family Court, Bhubaneswar nor the time seeking petition itself reflects that it was a time seeking petition dtd.19.04.2011. When the appellant himself has signed the time seeking petition and the date has been put as 14.04.2011, the viral fever plea which has been taken is also prima-facie not acceptable. When the appellant himself has signed the time seeking petition and the date has been put as 14.04.2011, the viral fever plea which has been taken is also prima-facie not acceptable. The copy of the time seeking petition was not served either on the counsel for the respondent or on the respondent who was present in the Court on that date. Similarly, the affidavit which is annexed in the appeal memo vide Annexure–3 indicates that the appellant was present in the Court in person on 25.04.2011 and sworn the affidavit before the Oath Commissioner at 12.45 p.m. There is nothing to show that the copy of this affidavit was served on the counsel for the respondent on that date. It was stated to have been filed in the Court of Judge, Family Court, Bhubaneswar on 25.04.2011. However, even though there are some laches on the part of the appellant but all the same we feel that in the interest of justice and equity, he should be afforded another opportunity of hearing in the Court of Judge, Family Court, Bhubaneswar to contest the case. The principles of natural justice concern procedural fairness to ensure a fair decision. A person must be allowed an adequate opportunity to present his case. Rules of natural justice is to prevent miscarriage of justice. The case arises out of a matrimonial dispute where one party seeks for a decree of divorce against the other. On 19.04.2011 the appellant was absent but no order was passed for ex-parte hearing rather two witnesses were examined on behalf of the respondent. The witnesses examined on behalf of the respondent were not cross-examined. The learned Judge, Family Court hurriedly closed the evidence from the side of the respondent on that day and heard the argument obviously from the side of the respondent and posted it for judgment. In case of Ayaaubkhan Noorkhan Pathan vrs. State of Maharashtra reported in AIR 2013 SC 58 , it is held that the right of cross-examination is an integral part of the principle of natural justice. The learned Judge, Family Court has not even considered the written statement filed by the appellant in its proper perspective and passed the impugned judgment. 4. State of Maharashtra reported in AIR 2013 SC 58 , it is held that the right of cross-examination is an integral part of the principle of natural justice. The learned Judge, Family Court has not even considered the written statement filed by the appellant in its proper perspective and passed the impugned judgment. 4. We, therefore, set aside the impugned judgment and order dtd.29.04.2011 passed by the Judge, Family Court, Bhubaneswar passed in C.P. No. 239 of 2011 (MAT Case No. 426 of 2009) and direct the concerned Court to afford another opportunity to the appellant to contest the case. The appellant will be given an opportunity to cross-examine the witnesses already adduced by the respondent i.e. P.W.1, who is the respondent herself and P.W.2 Bhimsen Sahoo who is the father of the respondent. Liberty will be granted to the respondent to examine any further witness if she so likes but at the same time opportunity of cross-examination is to be provided to the appellant. After the examination from the side of the respondent is over, the appellant shall be provided due opportunity to adduce his evidence and after hearing the arguments from both the sides, the learned Judge, Family Court shall pass judgment afresh. The entire exercise should be completed within three months from the date of receipt of the judgment copy of this Court. The parties are at liberty to produce the certified copy of this judgment before the Judge, Family Court, Bhubaneswar and the learned Judge shall take note of such certified copy and proceed in accordance with law. The appellant is directed to pay a sum of Rs.10,000/-to the respondent prior to commencement of cross-examination of the witnesses of the respondent. In the result, MATA No. 43 of 2011 is allowed and the impugned judgment and order dtd.29.04.2011 is set aside.