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2016 DIGILAW 310 (ORI)

Madan Sundar Behera v. Pratima Sahu

2016-04-19

BISWANATH RATH, VINOD PRASAD

body2016
JUDGMENT : Biswanath Rath, J. This is a Matrimonial Appeal filed by the appellant-husband against the judgment and order dated 14th July, 2014 passed in Civil Proceeding No.31 of 2013 (Matrimonial Case No.144 of 2012) by the Judge, Family Court, Bhawanipatna rejecting an application under Section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955. 2. Short fact involved in the case is that the marriage between the parties was solemnized as per their caste, custom and rituals on 22.2.2006 in the respondent-wife’s parents house at Kumbharpada in Bhawanipatna. The parties were blessed with a girl child on 13.1.2007. It is alleged by the appellant-husband that the matrimonial dispute arose in between them when the respondent-wife started ill-treating him after her return to her matrimonial home with the new born child and insisted the appellant to sleep in a separate bed. In the month of March, 2007, while the respondent was washing clothes of the child, respondent-wife threw the bucket in the well showing her abnormal behaviour and she also threatened to commit suicide, unless she is taken to her parental house in Bhawanipatna immediately. It is further alleged that since then the abnormal behavior and attitude of the respondent-wife towards the appellant as well as his parents increased day-by-day so much so that, even the respondent went to the extent of asking the appellant to leave their village by selling his parental property and to stay at Bhawanipatna, which the appellant refused. It is further submitted by the appellant that in order to bring change in the mindset of the respondent, the respondent was taken to her parental house and while she was staying there, she got admission in Hindi Ratna and Computer in the year 2008 and at a subsequent point of time, the respondent joined as a teacher in a English Medium School at Bhawanipatna without any information to the appellant. It is further averred that since January, 2010 there is no marital relationship between the parties and the respondent continued to behave in an abnormal manner and refused to return to the matrimonial home for which the appellant convened a meeting involving responsible persons of their caste society for settlement of the dispute, where the respondent disclosed that she cannot stay with the appellant at her matrimonial place but she is agreed to stay with her husband at Bhawanipatna. It is further alleged that respondent lodged a report at Bhawanipatna Town Police Station against the appellant, his parents and sister for offences under Sections 507/498-A/506/34 of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act. The mother of the appellant was arrested and there was also seizure of some of the properties. The appellant claimed that under the circumstances, there is total breakdown in the marital relationship between the parties and consequently by filing the aforesaid matrimonial case, the appellant requested for a decree of divorce by way of dissolution of marriage. 3. In opposition, the respondent by filing a written statement contended that there exists marriage in between the appellant and the respondent and they have also been blessed with a girl child but she alleged that ill-treatment, both physically and mentally was inflicted on her after she gave birth to a girl child. Denying the allegation that the respondent left the matrimonial home on her own volition, she contended that she was forced to leave the matrimonial home in the month of May, 2010 to stay in her parents house. It is further contended that when the dispute was taken up for reconciliation, the parents of the appellant demanded Rs.1,50,000/-to enable the appellant to get a job of Panchayat Secretary and when she realised that she realized that she will never be accepted by the appellant, unless the aforesaid amount is given to them, she was compelled to lodge a report at Bhawanipatna Town Police Station against the appellant and his parents. On the basis of the aforesaid pleadings, evidence as well as the material documents, the matrimonial case was finally decided by the Family Court on 14th July, 2014 with the following order: “That the petition filed by the petitioner under U/s. 12(1) (ia) (ib) of the Hindu Marriage Act, 1955 against his wife-respondent is dismissed on contest, but without any cost in the peculiar facts and circumstances of the case.” 4. Upon hearing the contentions of the respective parties, an attempt for conciliation was undertaken by this Court and on 16.12.2014 this Court, after due deliberation, passed the following order: “Both the spouses along with their respective counsel and parents are present before us. Upon hearing the contentions of the respective parties, an attempt for conciliation was undertaken by this Court and on 16.12.2014 this Court, after due deliberation, passed the following order: “Both the spouses along with their respective counsel and parents are present before us. The wife has got apprehension from her father-in-law, who, according to her statement, may create disturbance inasmuch as in the past he had assaulted her many a time. She wants to live with her husband, but in a separate house. The husband does not have any objection to the above proposition. In view of the above, we direct as follows: (1) Both the spouses shall search for a house in the village for themselves away from the parental house of the husband and live there together. (2) The father of the husband shall not interfere in any manner in the life of the spouses, although he can make visit to his grand-daughter as and when he likes. (3) The local police is directed to visit the residence of the spouses at least twice a week and make enquiry from the wife regarding her welfare. (4) If the father of the husband unnecessarily interferes in the life of the couple, police is directed to arrest him, keep him in jail and produce him before us. Both the spouses are directed to appear before us again on 13.3.2015, when this appeal shall be listed for further orders. After the aforesaid order was passed, the wife seemed to be very insistent. We, therefore, direct that the above order shall remain in abeyance. List this appeal on 31.01.2015. Meanwhile, the spouses shall consult each other and express before us whether they want to live together.” 5. The matter was subsequently taken up on 20.02.2015 on which date finding impossibility for re-conciliation, this Court passed the order as follows: “Both the parties along with their respective counsels are present in Court today. All our efforts to see the spouses live together since last two or three attempts has not yielded any result. We do not see existence of any reason for it as on date also and now all hopes of re-uniting the family has dwindled out. Appeal has to be decided judicially and therefore in joint agreement with both the sides list this appeal on 12th March, 2015 for final argument. Personal appearance of both sides is dispensed with. We do not see existence of any reason for it as on date also and now all hopes of re-uniting the family has dwindled out. Appeal has to be decided judicially and therefore in joint agreement with both the sides list this appeal on 12th March, 2015 for final argument. Personal appearance of both sides is dispensed with. Let the trial court record be summoned.” 6. On failure of conciliation and finding that there is no agreement between the parties to stay together and the case hinges only on adjudication of permanent alimony, on affording sufficient chance to the parties to arrive at a joint conciliation in the matter of divorce on grant of appropriate permanent alimony, finally on 10.11.2015 and 9.12.2015 the respondent as well as appellant filed their respective affidavits arriving at a joint decision to have the decree of divorce on payment of fixed permanent alimony of Rs.5,00,000/-(Rupees five lakhs) with further condition that upon grant of a decree of divorce with payment of permanent alimony of Rs.5,00,000/-, the respondent-wife shall withdraw all cases filed against the appellant. The affidavits of the respondent-wife as well as appellant-husband dated 10.11.2015 and 9.12.2015 respectively are on record. The matter was next taken up on 30.3.2016 on which date this matter was concluded finally recording the consent of the parties for a decree of divorce subject to payment of Rs.5,00,000/-(Rupees five lakhs) as permanent alimony with the condition that the respondent shall withdraw all cases pending involving their matrimonial issue in courts. This Court also recorded that the husband has tendered a draft of Rs.5,00,000/-(Rupees five lakhs) bearing No.788208 dated 16.3.2016 from State Bank of India in Court and said draft was handed over to the respondent-wife, who was allowed to get it encashed. The criminal proceeding between the parties vide P.S. Case No.139 dated 13.7.2012 under Section 507/498(A)/ 506/34 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act pending before the S.D.J.M., Bhawanipatna in C.T. Case No.538 of 2012, which matter is now pending vide Criminal Appeal No.29 of 2015, is directed to be decided in terms of the compromise by the appellate court concerned. From the affidavit of the appellant it also appears that there is another criminal proceeding in between the parties vide Criminal Proceeding No.42 of 2014 arising out of an order dated 6.9.2014 passed by the Judge, Family Court, Bhawanipatna in Criminal Proceeding No.152 of 2013. The respondent in her affidavit dated 10.11.2015 in paragraph-3 has stated as follows: “3 xxx xxx xxx (i) The appellant/ husband shall pay Rs.5,00,000/-towards permanent alimony to the respondent-wife. ii) That, the respondent wife undertakes to withdraw all the cases filed against her husband appellant and shall appear before the appropriate Court where the cases are pending for the purpose of compromise/withdrawal of the proceedings/cases after receipt of entire amount of Rs.5,00,000/-towards permanent alimony.” 7. In the matter of scope of withdrawal of the criminal cases involved between wife and husband, in a recent decision K.Srinivas Rao v. D.A.Deepa, Civil Appeal No.1794 of 2013 disposed of on 22.2.2013, the Hon’ble Apex Court in paragraph-35 and 36 has held as follows: 35. We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes. 36. We, therefore, issue directions, which the courts dealing with the matrimonial matters shall follow: (a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit. (b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case. (c) All mediation centers shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage. 8. Following the settlement between the parties to resolve their dispute to pronounce a decree of divorce annulling their marriage subject to the payment of Rs.5,00,000/-(Rupees five lakhs) as permanent alimony in favour of the respondent-wife and further subject to condition that the respondent-wife shall withdraw all criminal cases initiated by her, therefore following the principles laid down by the Hon’ble Apex Court in the case of K.Srinivas Rao v. D.A.Deepa (supra), we dispose this MATA proceeding in terms of the settlement between the parties as clearly indicated in the affidavits dated 10.11.2015 and 9.12.2015 by granting a decree of divorce between the parties on payment of Rs.5,00,000/-(Rupees five lakhs) as permanent alimony, which amount has already been paid in the Court. Further, according to the terms of the settlement so arrived, this Court directs that all criminal cases pending between the parties shall be disposed of consequent upon the respondent taking necessary steps in the respective courts within a period of one month from the date of this judgment in that regard. 9. The matrimonial appeal stands allowed as aforesaid. However, there shall be no order as to cost.