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2017 DIGILAW 1253 (ORI)

Swarnaprava Panigrahi v. Manoj Kumar Padhy

2017-11-03

I.MAHANTY, K.R.MOHAPATRA

body2017
JUDGMENT K.R. MOHAPATRA, J. - The Matrimonial Appeal has been filed by the wife, namely, Smt. Swornaprava Panigrahi assailing the ex-parte order dated 21.07.2015 passed by learned Judge, Family Court, Berhampur in Civil Proceeding No.126 of 2010, whereby he dissolved the marriage between the appellant and the respondent, namely, Dr. Manoj Kumar Padhy by a decree of divorce. 2. Shorn of unnecessary details, the facts relevant for proper adjudication of the appeal are that the respondent (for short, ‘the husband’) filed MAT Case No.84/2009 before learned Civil Judge (Senior Division), Berhampur under Section 13 (1) (1-a) of the Hindu Marriage Act for a decree of divorce alleging, inter alia, that the marriage between the parties were solemnized on 08.12.2002 as per the Hindu rites and rituals. They led a happy conjugal life for a period of six months. Thereafter, dissension arose between the parties. However, the couple was blessed with a son, but the wife instead of taking care of the child left the matrimonial home on 13th September, 2004 and continued to stay with her parents. When all attempts by the husband failed to bring her back to the matrimonial home, the husband filed MAT Case No.73 of 2005 in the Court of learned Civil Judge (Senior Division), Berhampur, which was subsequently withdrawn on the basis of a compromise entered into between the parties. But few days after, the wife again started harassing and torturing the husband and his family members both mentally and physically and lastly deserted the matrimonial home on 05.08.2008 leaving the minor son with her husband,. The husband made futile attempts to bring her back to the matrimonial home. After losing all hopes to lead a happy conjugal life, the respondent-husband filed the aforesaid proceeding. 3. The wife-appellant upon receiving summons appeared and filed her written statements along with counter claim for restitution of conjugal rights under Section 9 of the Hindu Marriage Act with a further prayer for custody of the son. She in her written statement alleged that at the time of marriage, there was demand of Rs.6.0 lakh from the family of her husband, but her parents could only arrange a sum of Rs.3.50 lakh. Household articles worth of Rs.2.50 lakh were also given at the time of marriage. For non-fulfilment of demand of dowry, the wife was being subjected to mental and physical torture. Household articles worth of Rs.2.50 lakh were also given at the time of marriage. For non-fulfilment of demand of dowry, the wife was being subjected to mental and physical torture. However, she in her written statement, admitted that the couple led a happy conjugal life for about six months. She further asserted that she was discharging her moral and social obligations to the family of her husband. Dissension arose between the couple when the husband demanded cash to purchase a four-wheeler. Due to non-fulfilment of such an unreasonable demand, the appellant-wife was subjected to mental and physical torture. Initially she tolerated the same with a hope that the situation would improve, but in vain. Further, in order to put pressure on the wife, the husband had filed MAT Case No.8 of 2005 for dissolution of marriage, which was subsequently withdrawn on compromise. The husband was a Physician and was posted at Tumudibandh Up-graded Primary Health Centre in the district of Kandhamal. The wife was also staying with him. Subsequently, her husband developed extra-marital affair with an ANM and at her instance and instigation, the appellant and her child were being neglected and harassed. She also made several other allegations in her written statement and counter-claim. However, she denied to have left her matrimonial home on 05.08.2008.Hence, she prayed for dismissal of the matrimonial case. 4. Vide order dated 16.07.2010, MAT Case No.84 of 2009 was transferred to the Court of learned Judge, Family Court, Berhampur and renumbered as CP No.126 of 2010.Although the appellant-wife had initially filed her written statement along with counter-claim, but subsequently failed to participate in the proceeding. As such, she was set ex parte vide order dated 10.03.2015. Subsequently, she filed a petition under Order 9 Rule 7 CPC to set aside the ex parte order dated 10.03.2015 and to provide her an opportunity to participate in the proceeding. However, vide order dated 20.04.2015, the said petition was dismissed. By that time, the respondent-husband had examined himself in the matter as P.W.1.After dismissal of the petition under Order 9 Rule 7 CPC, learned Judge Family Court, Berhampur proceeded with ex parte hearing and decreed the proceeding ex parte by dissolving the marriage between the parties by a decree of divorce, which is under challenge in this appeal. 5. By that time, the respondent-husband had examined himself in the matter as P.W.1.After dismissal of the petition under Order 9 Rule 7 CPC, learned Judge Family Court, Berhampur proceeded with ex parte hearing and decreed the proceeding ex parte by dissolving the marriage between the parties by a decree of divorce, which is under challenge in this appeal. 5. During pendency of the appeal, this Court, vide order dated 18.01.2017, directed both the parties to appear before lthe Coordinator, Mediation Centre of this Court to make an attempt for mediation. Due to non-cooperation of the parties, the mediation failed and a failure report was submitted by learned Mediator on 17.03.2017.The matter was again listed on 12.05.2017 for consideration of the report of learned Mediator. On that date, learned Counsel for both the parties submitted that both the parties are willing to attempt settlement through mediation. But, coming to Cuttack on each date of mediation involved heavy expenses and great deal of time, thereby delaying the mediation. Hence, both the parties prayed to take up the mediation at Berhampur. Accordingly, vide order dated 12.05.2017, the Secretary, District Legal Services Authority, Ganjam at Berhampur was directed to coordinate the mediation by engaging a Mediator at the Mediation Centre. Ultimately, the Secretary, District Legal Services Authority, Ganjam at Berhampur intimated this Court about the failure of mediation vide his letter dated 21.06.2017 along with a failure report. Today after perusal of the report of the Mediator, directed the learned Counsel for both the parties to make their submission on merit of the case. 6. Heard learned Counsel for the parties and perused the records of learned Judge, Family Court, Berhampur and the documents as well as affidavits filed along with the appeal. 7. Learned Counsel for the appellant submits that the wife-appellant has not been afforded with reasonable opportunity of hearing. Although the respondent-husband was directed to pay litigation expenses as well as pendente lite maintenance under Section 24 of the Hindu Marriage Act during pendency of the matrimonial proceeding, he has miserably failed to comply with such direction. Due to her financial stringency for non-payment of pendent lite maintenance as well as mental agony for consistent physical and mental torture meted out to her by her husband, she could not appear before the Court for which she was set ex parte. Due to her financial stringency for non-payment of pendent lite maintenance as well as mental agony for consistent physical and mental torture meted out to her by her husband, she could not appear before the Court for which she was set ex parte. Moreover, her petition under Order 9 Rule 7 CPC to set aside the ex parte order was not dealt with appropriately by the learned Judge, Family Court and the same was rejected vide order dated 20.04.2015.Immediately thereafter, the learned Judge Family Court proceeded with the matter to record ex parte evidence and passed the impugned order. The appellant-wife did not get any opportunity to challenge the said order. The appellant-wife was always diligent in participating in the proceeding and due to the reasons stated above she could not appear before the Court on 10.03.2015, for which she was set ex parte. He further submits that the learned Judge Family Court should not have dismissed the petition under Order 9 Rule 7 CPC and ought to have given an opportunity to the appellant-wife to contest the matrimonial case and ought to have made an attempt to dispose of the proceeding on contest. Hence, he prays for setting aside the impugned ex parte order of divorce and to remand the matter to the learned Judge Family Court for de novo hearing giving her an opportunity to participate in the proceeding. 8. Learned Counsel for the respondent-husband, on the other hand, referring to the order sheet of learned Judge, Family Court contends that the wife-appellant was very casual in her approach and all along remained absent despite repeated directions of the Court. On 10.03.2015, neither the wife nor her Counsel remained present in spite of repeated calls. Hence, the learned Judge, Family Court, Berhampur had no other opinion than to set the appellant-wife ex parte and proceed with the matter. By the time the appellant was set exparte, P.W. 1 had already been examined. The evidence of the witnesses of the husband remained un-challenged and accordingly the impugned order was passed. The appellant-wife has filed this appeal to drag the litigation and continue to harass the respondent-husband in spite of dissolution of marriage by a decree of divorce. As such, the impugned order needs no interference and the appeal is liable to be dismissed. 9. The appellant-wife has filed this appeal to drag the litigation and continue to harass the respondent-husband in spite of dissolution of marriage by a decree of divorce. As such, the impugned order needs no interference and the appeal is liable to be dismissed. 9. Upon hearing learned Counsel for the parties and on perusal of the case record of learned Judge, Family Court, Berhampur, it appears that the appellant-wife was directed to remain present on 12.11.2014, 26.12.2014 and on 28.02.2015. But she failed to appear in the Court. Providing another opportunity to her, the case was posted to 10.03.2015, on which date although a Hazira was filed by learned Counsel for the appellant-wife, none appeared when the matter was called. The matter was again taken up at 3.30 P.M. on 10.03.2015, but she did not remain present. Accordingly, the evidence of P.W. 1 was recorded and the matter was posted to 24.04.2015 for further evidence. In the interregnum, the appellant-wife filed a petition under Order 9 Rule 7 CPC to set aside the ex parte order and to provide her an opportunity to participate in the hearing. Learned Judge, Family Court, upon hearing learned Counsel for both the parties, proceeded to reject the same. Further, on perusal of the record, it appears on 10.03.2015, while setting the appellant ex parte, learned Judge, Family Court proceeded with recording of evidence of respondent-husband. Learned Judge, Family Court being hyper technical, instead of providing her an opportunity rejected the same. Law is well settled that Court should always make endeavours to dispose of the matter on contest instead of disposing of the same on hyper technicality. When the appellant-wife is interested to contest the proceeding, she should have been given an opportunity in the matter. 10. in that view of the matter, we are constrained to hold that the impugned order dated 21.07.2015 is not sustainable in the eyes of law and the same is accordingly set aside. The matter is remanded to the Court of learned Judge, Family Court, Berhampur for de novo trial providing reasonable opportunity to the parties to lead evidence. 10. in that view of the matter, we are constrained to hold that the impugned order dated 21.07.2015 is not sustainable in the eyes of law and the same is accordingly set aside. The matter is remanded to the Court of learned Judge, Family Court, Berhampur for de novo trial providing reasonable opportunity to the parties to lead evidence. Since the original MAT case was filed in the year 2009 and the parties are litigating the same, in that view of the matter, learned Judge, Family Court, Berhampur is directed to dispose of the C.P. Case No.126 of 2010, as expeditiously as possible, preferably by end of May, 2018 giving opportunity of hearing to the parties to participate in the proceeding. For the sake of convenience parties are directed to appear before the learned Judge, Family Court, Berhampur on 20th November, 2017 to receive further instructions in the matter. Needless to mention here that the parties shall cooperate with the learned Judge, Family Court, Berhampur for early disposal of the MAT Case and will not create unnecessary hurdles in disposal of the case. 17. With the aforesaid observations and direction, the Matrimonial Appeal is disposed of. No cost. Registry is directed to sent back the LCR immediately. Urgent certified copy of this order be granted on proper application. Appeal disposed of.