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2015 DIGILAW 31 (ORI)

Kishore Kumar Sahoo v. Baijantimala Sahoo

2015-01-16

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : S.K. Sahoo, J. “A happy marriage doesn’t mean you have a perfect spouse or a perfect marriage. It simply means you’ve chosen to look beyond the imperfections in both.” - Fawn Weaver This appeal has been filed by the appellant-husband against the judgment and order dated 28.9.2007 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 852 of 2006 in dismissing the divorce petition filed by him. 2. The appellant filed a Divorce Proceeding against respondent-wife on the ground of desertion and cruelty. It is the case of the 2 appellant that some days after the marriage, the respondent started quarrelling with him and persuaded him to live separately from the joint family. To satisfy the respondent and to keep the family peace, the appellant shifted to the quarters in Sector-1 at Rourkela and stayed there with the respondent. The respondent insisted the appellant to bear the expenses of her parental house, the study expenses of her brother and also the treatment expenses of her mother. Though the appellant satisfied the demand of the respondent to some extent but when all the demands could not be fulfilled, the respondent picked up quarrel with the appellant. She was not performing the household works and staying at her parental house for most of the time and keeping away herself from the society of the appellant. The appellant tolerated the disturbance created by the respondent. Both of them were blessed with a female child in April, 1991 but the respondent did not change her attitude and she was keeping the child away from the appellant and was very cruel towards the friends and relatives of the appellant. The respondent also refused to keep sexual relationship with the appellant. It is further case of the appellant that on 6.3.1994, the respondent went away to her parental house taking some valuable gold ornaments, articles and cash along with the infant daughter during the absence of the appellant. The appellant attempted a lot to bring back the respondent to his company but failed. The appellant filed a divorce proceeding under Section 13 of Hindu Marriage Act, which was registered as O.S. No. 2 of 1995 and the same was dismissed being not maintainable on 14.3.1995. He filed another divorce petition bearing O.S. No.13 of 1996, which was withdrawn on 22.4.1996 with a permission to file fresh suit. The appellant filed a divorce proceeding under Section 13 of Hindu Marriage Act, which was registered as O.S. No. 2 of 1995 and the same was dismissed being not maintainable on 14.3.1995. He filed another divorce petition bearing O.S. No.13 of 1996, which was withdrawn on 22.4.1996 with a permission to file fresh suit. In the meantime the respondent left Rourkela and went to her native village at Puri. The appellant then filed another divorce petition vide C.P. No. 182 of 1996. As the respondent did not contest in that proceeding, she was set ex parte and the marriage between the parties was dissolved on 3.9.1996. The respondent filed Misc. Case No. 138 of 1998 under Order 9 Rule 13 CPC to set aside the ex parte order, which was allowed and the case was posted for hearing. The respondent filed a writ application before this Court vide OJC No. 11635 of 1995 to quash the entire proceeding pending before the Family Court but this Court directed to expedite the disposal of the divorce petition. Thereafter, the divorce petition was dismissed for default on 6.11.2002. There was a direction to the appellant to pay maintenance to respondent and their daughter and in that connection, Execution Case No.15 of 1997 was filed by the respondent. The respondent filed a criminal case against the appellant which corresponds to G.R. Case No. 1461 of 1997 in the Court of learned SDJM, Rourkela. 3. The respondent filed her written statement denying the averments made by the appellant in the divorce petition and contended that they shifted to Sector -1 house at Rourkela as there was only one bed room in the house of the appellant at Uditnagar and there were five members in the family for which it was not convenient for all of them to stay together. She further stated that there was good relationship between her and the appellant and the girl child was born on 10th April, 1991. It is the further case of the respondent that she discovered some love letters addressed to the appellant in her house and also found that the appellant had extra marital relationship with one Sunita Satpathy, who was a girl of immediate neighbourhood of the quarters of the appellant. When the respondent confronted to the appellant about such illicit relationship, she was subjected to ill treatment and cruelty. When the respondent confronted to the appellant about such illicit relationship, she was subjected to ill treatment and cruelty. The appellant and his paramour got a child out of their illicit relationship and ultimately the appellant withdrew himself from the society of the respondent. It is the further case of the respondent that she was assaulted by the appellant and driven out of his house for which she and her daughter came back to the in-laws house at Uditnagar and took shelter there. The elders and relations of the families of the appellant made an attempt to patch up the dispute and differences between the parties, but the appellant did not obey them and expressed his intention for second marriage. It is the further case of the respondent that while she was staying at her in-laws house at Uditnagar, she received a notice in the divorce case vide O.S. No. 2 of 1995, which was dismissed by the learned Judge, Family Court, Rourkela. She further stated that she filed a case for restitution of conjugal rights vide O.S. No. 100 of 1995 and the judgment was delivered on 7.12.1996, but the appellant didn’t obey the said order. It is the case of the respondent that the appellant was living with her beloved Sunita Satpathy since 2000 under one roof and they have also got one male child. 4. The divorce petition which was initially filed before the learned Judge, Family Court, Rourkela was transferred to the learned Judge, Family Court, Cuttack for disposal as per the judgement of this Court in TRP (C)No. 45 of 2005 vide order dated 14.11.2006. 5. It is not disputed by the parties that earlier three other divorce proceedings were instituted by the appellant against the respondent. The first one is O.S. No. 2 of 1995, which was dismissed as not maintainable on 14.3.1995, the second one is O.S. No. 13 of 1996, which was withdrawn by the appellant on 22.4.1996 and the third one is C.P. No. 182 of 1996, which was allowed ex parte on 3.9.1996 and the ex parte order was set aside on 22.2.1999 and thereafter the proceeding was dismissed for default on 6.11.2002. 6. From the side of the appellant, three witnesses were examined. P.W. 1 is the appellant himself, P.W. 2 is one Rabindra Kumar Swain 6 and P.W. 3 is one Jagabandhu Behera. 6. From the side of the appellant, three witnesses were examined. P.W. 1 is the appellant himself, P.W. 2 is one Rabindra Kumar Swain 6 and P.W. 3 is one Jagabandhu Behera. The appellant filed certain documents which were marked as exhibits. Ext. 1 is the certified copy of the order sheet in O.S. No. 2 of 1995, Ext.2 is the Xerox copy of the order in the OJC No. 11365 of 1999, Ext. 3 is the Xerox copy of the F.I.R. in Rourkela Mahila P.S. Case No. 10 of 1997 dated 16.9.1997, Ext. 4 is the notice of the SAIL, Rourkela Steel Plant to the petitioner to appear before the Mahila P.S., Rourkela and Ext. 5 is the copy of the judgment in C.P. No. 182 of 1996. The respondent examined herself as D.W. 1, but no document has been exhibited from the side of the respondent. 7. The learned Judge, Family Court, Cuttack discussing the materials available on records held that the appellant was very loyal to the second wife and children and rigid to the respondent and their daughter. It was further held that after being aware that the appellant was staying with Sunita and her children, the respondent was mixing with the appellant and having physical relation with him and the appellant was exploiting her sentiment, love and affections. While deciding the question as to whether the husband has any fresh cause of action after 6.11.2002, which is the date of dismissal order of C.P. No. 182 of 1996, the learned Court further held there is no fresh cause of action to substantiate the grounds of cruelty and desertion and accordingly, the divorce petition was dismissed. 8. During course of hearing, learned counsel for the parties after taking necessary instruction submitted that there is no chance of reunion between both the parties in as much as after obtaining the ex parte decree of divorce on 3.9.1996, the appellant has got married to Sunita Satpathy on 9.11.1998 and out of the second marriage, he has got two children namely, Debabrata Sahoo who was born on 25.11.1999 and Sibabrata Sahoo who was born on 23.2.2004. According to the respondent, she was staying separately from the appellant since 1996 and she was having a daughter, namely, Nirupama Sahoo. 9. The appellant filed Misc. According to the respondent, she was staying separately from the appellant since 1996 and she was having a daughter, namely, Nirupama Sahoo. 9. The appellant filed Misc. Case No. 126 of 2014 before this Court for stay of operation of the judgment and order dated 7.5.2014 of the learned Judge, Family Court, Rourkela passed in Civil Proceeding No. 143 of 2008, which was filed by the respondent and her daughter namely, Nirupama Sahoo against the appellant under Section 25 of Hindu Adoptions and Maintenance Act, 1956 and the learned Judge, Family Court, Cuttack has directed the appellant to pay Rs. 7,000/-per month to the respondent and Rs.3,000/-per month to her daughter Nirupama Sahoo towards their maintenance from the date of application. 10. Learned counsel for the appellant submitted that since the parties are living separately since long and the appellant-husband has already got married for the second time and blessed with two children and in such circumstances, the respondent-wife is not inclined to live in the company of the appellant and the marriage has been irretrievably broken down between the parties, it would not be proper to compel one party to stay with the other and therefore, he submitted that the marriage between the appellant and the respondent should be dissolved by way of a decree of divorce and permanent alimony should be fixed. Learned counsel for the respondent, on the other hand, while not opposing the prayer for grant of decree of divorce, submitted that the appellant is working in Rourkela Steel Plant and his income per month is around Rs. 70,000/- and therefore, the permanent alimony should be fixed at Rs. 25 lakhs so that the respondent can live a decent life and she can also maintain her daughter. 11. In case of Naveen Kohli Vs. Neelu Kohli reported in AIR 2006 SC 1675 , the Hon’ble Supreme Court held as follows:- “68. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court”. It is not disputed by the learned counsel for the appellant-husband as well as the respondent-wife that the appellant and respondent are staying separately since 1996. It is also not disputed that the appellant has already got married to one Sunita Satpathy and they are blessed with two sons namely Debabrata Sahoo and Shibabrata Sahoo. The separation for such a long period as well as the marriage of the appellant to another lady has created in unbridgeable distance between the two. We are satisfied that the marriage between the appellant-husband and the respondent-wife has irretrievably broken down and it is beyond repair on account of bitterness between the parties and they are not willing to stay together. The Hon’ble Supreme Court in the case of K. Srinivas Rao Vs. D.A. Deepa, reported in AIR 2013 SC 2176 has held as follows:- “26......Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1995. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up, there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree”. 12. We are of the view that the appellant-husband has caused mental cruelty to the respondent-wife and the situation has become such that the respondent also cannot be asked to put up with such conduct of the appellant and live with him. In case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 , Hon’ble Supreme Court held as follows:- “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty”. Having dispassionately considered the materials before us and the fact that the appellant-husband and the respondent-wife had been living separately for 18 years as of now and they are not interested to live with each other, it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. Court grants a decree of divorce only in those situations in which the Court is convinced beyond doubt that there is absolutely no chance of the marriage surviving and it is broken down beyond repair. Since both the parties are not willing to stay with each other, even if we uphold the impugned judgment and order of the Judge, Family Court, Cuttack and refuse the decree of divorce to the appellant, there are hardly any chances for both of them staying together to lead a happy conjugal life and therefore, it is a fit case where a decree of divorce must be granted. 13. Now the question is what would be the proper quantum of permanent alimony. In case of Vinny Parmvir Parmar Vrs. Parmvir Parmar reported in AIR 2011 SC 2748 , it is held as follows:- “12. As per Section 25 of Hindu Marriage Act, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the Court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony.” In case of U. Sree Vs. U. Srinivas reported in AIR 2013 SC 415 , it is held as follows:- “33...........Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations..... 34......Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune”. We have considered the respective submissions on the quantum of permanent alimony. It appears that the appellant-husband is serving in Rourkela Steel Plant and his gross earning per month as per the salary certificate filed by the respondent-wife is Rs.68,133/-(Rupees Sixty eight thousand one hundred thirty three) and after deduction under different headings, his net pay is Rs. 39,367/-. This was the position in October 2014. Taking into account in 1/4th of the net pay of the appellant-husband as the entitlement of the respondent-wife towards her maintenance, it comes to Rs.10,000/-per month and thus annually it comes to Rs.1,20,000/-. The respondent-wife is now aged about 47 years. 39,367/-. This was the position in October 2014. Taking into account in 1/4th of the net pay of the appellant-husband as the entitlement of the respondent-wife towards her maintenance, it comes to Rs.10,000/-per month and thus annually it comes to Rs.1,20,000/-. The respondent-wife is now aged about 47 years. Taking into the consideration the quantum of monthly earnings of the appellant-husband and the need of their respective families, we are of the view that it would be just and expedient to fix the quantum of permanent alimony under Section 25 of the Hindu Marriage Act, 1955 payable to the respondent-wife at Rs. 20 lakhs. Accordingly, the appeal is allowed and the impugned judgment and order is set aside and the marriage between the parties namely appellant-husband Kishore Kumar Sahoo and respondent-wife Smt. Baijantimala Sahoo is dissolved by a decree of divorce with a further direction under Section 25 of the Hindu Marriage Act, 1955 to the appellant to pay Rs. 20 lakhs to the respondent towards permanent alimony. The said amount of Rs. 20 lakhs (rupees twenty lakhs only) shall be deposited by the appellant-husband by way of bank draft before the trial court within a period of six months and the same shall be handed over to the respondent-wife by the trial Court on proper identification failing which the wife shall be at liberty to realize the same from the husband with due process of law. The parties shall bear their respective costs. 14. Before parting we would quote, “Divorce isn't just the person, it's everything that goes with it -your kids, the adjustment, everything”. - Peter Andre The appeal is allowed in the aforestated terms. Vinod Prasad, J. : I agree.