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2014 DIGILAW 848 (ORI)

Arati Panigrahi v. Subala

2014-12-09

PRAMATH PATNAIK, VINOD PRASAD

body2014
JUDGMENT : Pramath Patnaik, J. 1. This appeal under Section 19 of the Family Court Act has been flied by the Appellant challenging the legality & propriety of the Order Dated 03.01.2014 passed in Civil Proceeding No. 19 of 2013 by the Learned Judge, Family Court, Bhawanipatna, district Kalahandi, wherein the Learned Judge, Family Court has been pleased to allow the petition under Section 9 of the Hindu Marriage Act, 1955 filed by the Respondent for restitution of conjugal rights thereby directing the present Appellant to join the society of her husband-Respondent within two months from the date of service of the copy of the Judgment/decree to lead their happy conjugal life failing which the Respondent is at liberty to take recourse to the process of law. The facts in nut shell are that the marriage of the present Appellant with the Respondent was solemnized on 18.02.2010 at village Jhalapali as per caste, custom & ceremonies according to Hindu rites & the marriage was consummated at village Jolko in the house of the Respondent. As per Respondent's averment at the time of marriage some dowry articles including gold ornaments were given to the Appellant by the father of the Respondent & after marriage as per tradition both the parties & their family members reciprocated by visiting to the house of the other side. It has been alleged by the Respondent that after some days of marriage in the month of June or July, 2010, the father of the Appellant telephoned the Respondent intimating the illness of the mother of the Appellant. After hearing the news of illness of her mother-in-law of the Appellant, father of the Respondent arranged a vehicle for both the Appellant & Respondent to see the ailing mother of the Appellant. To the utter dismay & consternation, it turned out to a hoax since on their arrival, the Respondent found her mother-in-law to be in a hale & hearty condition. The Respondent returned to his house & the Appellant stayed back in her parental home. On some pretext or other, the Appellant did not return to her in-laws place despite persistent & sincere efforts by Respondent. The obstinate attitude of Appellant led sort of misunderstanding resulting in discord between the parties. The Respondent returned to his house & the Appellant stayed back in her parental home. On some pretext or other, the Appellant did not return to her in-laws place despite persistent & sincere efforts by Respondent. The obstinate attitude of Appellant led sort of misunderstanding resulting in discord between the parties. During her stay in the parental house, the Appellant lodged an F.I.R. against the Respondent at Kesinga Police Station & the Respondent was sent to judicial custody for some days. Since the Appellant without any rhyme & reason has withdrawn from the society of the Respondent without reasonable excuse, the Respondent was constrained to approach the Learned Family Court under Section 9 of the Hindu Marriage Act for restitution of conjugal life. 2. The Appellant in the aforesaid matter filed written statement admitting the factum of marriage & the institution of case under Sections 498-A/294/506/34, I.P.C. read with Section 4 of the D.P. Act against the Respondent. Since the Appellant has been subjected to ill-treatment & desertion, she claimed for Rs. 5,000 per month towards maintenance. 3. On the pleadings of the parties, Learned Judge, Family Court framed the following issues for adjudication. "(i) Whether the marriage of both parties was valid & subsisting at the time of presentation of the petition. (ii) Whether the Respondent (present Appellant) withdrawn herself from the society of her husband without reasonable excuse. (iii) To what relief the Petitioner (present Respondent) is entitled to." 4. The Respondent in order to substantiate his case has examined himself as P.W.1 & his father as P.W.2 & Ext. 1 is the marriage invitation card & Ext. 2, is the certified copy of F.I.R. in Kesinga PS. Case No. 60 of 2011 corresponding to S.D.J.M., Bhawanipatna C.T. Case No. 283 of 2011 & the Appellant adduced no evidence in support of her written statement. 5. Learned Judge, Family Court, Bhawanipatna on perusal of pleadings from both the sides & due to non-rebuttal of the testimony of P.Ws. 1 & 2 by the Appellant has come to a categorical finding that the Appellant without any reasonable excuse has withdrawn from the company of the Respondent & therefore the Respondent has been granted the restitution of conjugal rights under Section 9 of the Hindu Marriage Act. 6. Heard Mr. B. Rout, Learned Counsel for the Appellant & Mr. S.K. Dash, Learned Counsel for the Respondent. 7. 6. Heard Mr. B. Rout, Learned Counsel for the Appellant & Mr. S.K. Dash, Learned Counsel for the Respondent. 7. It has been stated at the Bar that during pendency of the aforesaid proceeding before the Learned Judge, Family Court, Bhawanipatna, the Appellant filed TRP(C) No. 141 of 2013 under Section 24 of the C.P.C. praying inter alia for a direction to transfer the MAT Case No. 64/19 of 2011-2013 pending before the Judge, Family Court, Bhawanipatna in the district of Kalahandi to the Court of Learned Civil Judge (Sr. Division), Bargarh & this Court vide Order Dated 12.12.2013 has been pleased to issue notice indicating therein that the matter shall be disposed of at the stage of admission & in Misc. Case No. 164 of 2013 this Court has directed that as an interim measure, further proceeding in MAT Case No. 64/19 of 2011-2013 pending before the Learned Judge, Family Court, Bhawanipatna shall remain stayed till the next date. 8. Learned Counsel for the Appellant vehemently argues that since there was stay order passed by this Court in TRP(C) No. 141 of 2013, the Appellant could not adduce her evidence rebutting the contention of the Respondent in the matrimonial proceeding & before the order could be communicated the impugned order in Civil Proceeding No. 19 of 2013 has been passed on 03.01.2014 for which the Appellant has been grossly prejudiced. 9. No doubt after solemnization of marriage both the spouses are under moral as well as legal obligation to well maintain their conjugal relationship living together peacefully with a view to getting marital bliss. However, having regard to the admitted fact of separation between the parties since June/July 2010 as revealed from the averments of the Respondent. The question which arises for adjudication was whether there has been reasonable excuse on the part of Appellant for withdrawal from the society of the Respondent? In this regard, the burden was caste upon on the Appellant to establish that there was sufficient ground/reasonable excuse for her staying apart from the Respondent in view of explanation appended to Section 9 of the Act. 10. Though the Appellant pleaded in the written statement about the ill treatment & desertion but the same has not been substantiated by adducing any evidence. The aforesaid conduct of the Appellant militates against the veracity of alleged torture being meted out to her by the Respondent. 10. Though the Appellant pleaded in the written statement about the ill treatment & desertion but the same has not been substantiated by adducing any evidence. The aforesaid conduct of the Appellant militates against the veracity of alleged torture being meted out to her by the Respondent. On the evaluation of entire evidence on record & the evidence adduced by the Respondent, the mere statement by the Appellant in the written statement did not find favour with the Learned Judge, Family Court, Bhawanipatna. Due to non-rebuttal of evidences of the Respondent by the Appellant, Learned Judge, Family Court, Bhawanipatna has held that the Appellant has failed to establish that he has been subjected to cruelty of demand of further dowry by the Respondent. 11. Desertion in common parlance means the intentional permanent forsaking & abandonment of one spouse by the other without others without that other's consent & without reasonable cause. It is a total repudiation of the obligation of marriage. Desertion is not the withdrawal from a place of abode but from a State of things. The intention to snap the tie of sacrosanct marriage for all times to come has to be apparent from the conduct. If a spouse abandons the other for a temporary period under certain circumstances without intending to cease the co- habitation permanently it will not amount to desertion. 12. The Hon'ble Supreme Court in the case of Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 observed that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, & (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned; (1) the absence of consent & (2) absence of conduct giving reasonable cause to the spouse leaving In matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts & circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct & expression of intention, both anterior & subsequent to the actual acts of separation. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct & expression of intention, both anterior & subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation & the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation & the animus deserendi coincide in point of time; for example when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The, law in England has prescribed a three years period & the Bombay Act prescribes a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law & decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for the divorce have been commenced, desertion comes to an end & if the deserted spouse unreasonably refuses the offer, the latter may be in desertion & not the former. Hence, it is necessary that during all the period that there has been a desertion the deserted spouse must affirm the marriage & be ready & willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the Plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Courts. 13. It is also well settled that in proceedings for divorce the Plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law, the Courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the Courts. 13. After having gone through the contentions from the bath the parties, it appears that the Appellant with the bonafide impression of stay order passed in TRP(C) No. 141 of 2013 did not adduce any evidence in support of her pleadings nor has taken any steps for cross examining the P.Ws. 1 & 2 for which the Appellant has filed this appeal against the impugned Judgment dated 03.01.2014 in Civil Proceeding No. 19 of 2013 passed by the Learned Judge, Family Court, Bhawanipatna. 14. In the instant appeal, the prayer of the Appellant appears to be tenable & justified & the interest of justice would be best served if the Appellant is given opportunity to adduce furthers evidence in the aforesaid matter. In view of the discussion in the foregoing paragraphs, we are of the considered opinion that the Appellant ought to be given opportunity to adduce further evidence in the aforesaid case for just & proper adjudication of the matter. Accordingly, the Order Dated 03.01.2014 passed in Civil Proceeding No. 19 of 2013 by the Learned Judge, Family Court, Bhawanipatna is quashed & this appeal is remitted to the Learned Judge, Family Court Bhawanipatna to hear the matter afresh by giving opportunity to the Appellant to adduce evidence in support of her pleadings & for cross-examination of P.Ws. 1 & 2 & to pass appropriate orders in accordance with law as expeditiously as possible. It is needless, to say in view of our order, the pending application under Section 24 of the C.P.C. in TRP(C) No. 141 of 2013 stands disposed of being infructuous. In view of the aforesaid direction, MATA stands disposed of. Vinod Prasad, J. I agree.