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2018 DIGILAW 250 (ORI)

Baikuntha Nath Sahoo v. Kumudini Sahoo

2018-03-14

D.DASH

body2018
JUDGMENT The appellant by filing this appeal under Section 100 of the Code of Civil Procedure challenges the judgment and decree passed by the learned Addl. District Judge, Nayagarh in T.A. No. 04 of 2001 setting aside the judgment and decree passed by the learned Civil Judge (Sr. Divn.), Nayagarh, in T.S. No. 36 of 1995. It is pertinent to state here that the appellant (plaintiff) in the suit has prayed for passing of a decree of dissolution of his marriage with the respondent (defendant) stating that sufficient mental cruelty has been meted out at him at the behest of the respondent (defendant) and that has been projected as the sole ground for dissolution of their marriage, the trial Court had decreed the parties with a direction to the appellant (plaintiff) to pay a sum of Rs. 250/- per month for the maintenance of their son while declining to grant maintenance to the respondent (defendant). The respondent (defendant) being aggrieved by the said judgment and decree had called those in question by filing the above noted first appeal. The lower appellate Court recording the findings, contrary to what had been returned by the trial Court and answering those against the present appellant (plaintiff) has allowed the appeal. Consequent upon the same, the judgment and the decree of dissolution of marriage of the plaintiff and the defendant have stood annulled. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. The plaintiff’s case in short is that his marriage with the defendant had taken place on 30.01.1990 and thereafter they had stayed ;together under one roof in their house at Khalisahi for about two weeks. It is stated that the defendant thereafter went to her parents house at Ranpur where she was serving as a school teacher. The plaintiff used to often visit the defendant at her parents place at Ranput. It is next stated that sometime thereafter, the defendant began misbehaving and ill-treating the plaintiff and also refused to have the sexual relationship. It is alleged that the defendant has taken away cash of the plaintiff, his Life Insurance and National Savings Certificates as well as other bank documents. Later, she refused to come and stay with the plaintiff in his village. It is alleged that the defendant has taken away cash of the plaintiff, his Life Insurance and National Savings Certificates as well as other bank documents. Later, she refused to come and stay with the plaintiff in his village. Plaintiff states that all the best efforts for resolution of the dispute even through mediators, did not yield any fruitful result. So, it is stated that the defendant has willfully deserted the plaintiff after subjecting him to cruelty. The plaintiff (husband) therefore has prayed for a decree of dissolution of his marriage with the defendant (wife). 4. The defendant contested the proceeding. She admits to be serving as a school teacher and to have stayed 23 days in the house of the plaintiff after the marriage before coming to rejoin her service at her father place. She has stated that during her stay in-the laws place, she was duly performing her duties towards the family members of the plaintiff and also attending all required household works to the best of her ability. It is stated that she was frequently visiting the father-in-laws house whenever she was finding time from her service place and attending all the family functions. It is further stated that she was paying a part of her salary to the plaintiff and were leading happy conjugal life, have also begotten a son. She has denied the allegation made against her by the plaintiff about misbehaving and ill-treating plaintiff, further about denial of keeping the sexual relationship. It is her counter allegation that the plaintiff used to pick up quarrel with her and assault her frequently that every time he was insisting her to quite the job. It is alleged that the plaintiff who also serves as a school teacher then married one Tuni Sahoo, daughter of Nishamani Sahoo of village Kainfulia and stayed with her as husband and wife. The defendant has also stated about the factum of lodging of FIR after said second marriage of the plaintiff. With all the above pleadings, the defendant resisted the suit for dissolution of her marriage with the plaintiff by a decree of divorce and urged for its dismissal. 5. On the above rival pleadings, the trial Court has framed as many as five issues. With all the above pleadings, the defendant resisted the suit for dissolution of her marriage with the plaintiff by a decree of divorce and urged for its dismissal. 5. On the above rival pleadings, the trial Court has framed as many as five issues. Taking up issue No. 4 relating to the ground projected by the plaintiff in seeking the decree for divorce i.e. mental cruelty being inflicted upon him by the defendant and willful desertion by the defendant which in fact in the most crucial issue and the determining factor for the fate of the suit upon analysis of evidence on record, the trial Court has answered the same in favour of the plaintiff in finally saying that the plaintiff has proved his case in establishing the ground for dissolution of marriage with the defendant. Thereafter coming to the issue of alimony, in view of the fact that both the parties are serving as school teacher and as such earning, the trial Court while declining to grant any alimony to the defendant has, of course granted alimony of Rs. 250/- per month to be paid by the plaintiff to his son who was then under care and custody of the defendant. The lower appellate Court proceeding to judge the sustainability of the finding on that issue regarding the establishment of the ground in seeking the decree for dissolution of marriage has finally concluded that the case in had does not warrant passing of decree for dissolution of marriage. 6. The unsuccessful plaintiff thus has moved this Court in this second appeal. The appeal has been admitted on the substantial question of law as stated hereunder:- “Whether filing of criminal case by wife against the husband relating to dowry amounts to mental cruelty when the case is subjudice?” 7. Learned counsel for the appellant at the outset submits that the parties have now approached the age of fifty five years and are fighting out legal battle for more than two decades by residing separately having no such relationship. He further submits that when even during this period, all the efforts to reunite them have failed and they have not yet compromised the dispute, existence of this legal relationship of husband and wife had become meaningless and the marriage has irretrievably broken down. He further submits that when even during this period, all the efforts to reunite them have failed and they have not yet compromised the dispute, existence of this legal relationship of husband and wife had become meaningless and the marriage has irretrievably broken down. He next contends that the conclusion of the lower appellate Court that since the defendant lodged criminal case against the plaintiff, the same is sufficient reason for the defendant to live separately, is erroneous. According to him, the lower appellate Court ought to have taken that as a ground to hold that the plaintiff has been meted out with the cruelty by such institution of criminal case by the defendant causing undue harassment till he was acquitted after undergoing the serious trauma of a criminal trial. Therefore according to him, the lower appellate Court ought to have confirmed the decree for dissolution of marriage between the plaintiff and the defendant. 8. Learned counsel for the respondent submits that the lower appellate Court has rightly arrived at a conclusion that the plaintiff has failed to establish that it was the defendant who had treated him with cruelty and thereafter had willfully deserted him. According to him, in a matrimonial dispute seeking the dissolution of marriage, the grounds described as per the provisions of the statute are to be established. It is submitted that when no such perversity in the matter of appreciation of evidence on record is seen, it is not permissible for this Court in seisin of a second appeal to take a view to the contrary upon reappreciation of evidence at its level. According to him, there is no denial of the fact that the defendant had lodged an FIR and that fact she has not suppressed which had ultimately put the plaintiff on trial in a criminal case. It is submitted that rather in FIR has been proved by her which has been marked. Ext. G. He further submits that the same is no ground to say that the plaintiff in view of such action of the defendant in lodging the FIR against him is entitled to a decree for divorce taking that as the factum of establishment of cruelty of that nature and degree as to have been meted out at him providing the justification for dissolution of marriage. 9. 9. On carefully going through the rival case projected by the parties and the discussion as well as analysis of evidence as has been made by the lower appellate Court at para-4 and 5 of its judgment, this Court on through search is not in a position to locate any perversity therein in saying that any such material evidence available on record let in by the plaintiff has been overlooked or that some such facts and circumstances which have not emanated from the evidence on record have been taken into consideration which have weighed in the mind of the Court. 10. It’s case whether the marriage had taken place on 30.1.1990 and the suit has been filed by the husband on 20.06.1995. The lower appellate Court has taken into consideration two letters dated 7.9.1993 and 4.11.1993 proved from the side of the defendant. The letters had been written by the plaintiff to the defendant and have been admitted in evidence marked as Exts. A and B. Having gone through the contents of the same the lower appellate Court has found that at that point of time, the relationship between the parties was good. Taking the cue from the plaintiff that the defendant was treating the plaintiff with cruelty and has fastly deserted him. Undeniably, it is the defendant who has lodged the FIR against the plaintiff under Ext. G. It had given rise to the registration of a case against the plaintiff and so-called second wife for alleged commission of offence under Sections 498-A/323/494/ IPC. Police had investigated the case and submitted a charge sheet. Now it is submitted at the Bar that the plaintiff has been acquitted of those charges. From the evidence on record the Court is not in a position to render a positive finding that such allegations are pulpably false. Moreover, the absence of any such finding being recorded by the Court in seision of the criminal case, initial presumption in that light cannot also be drawn. Thus, in any considered view said action of the defendant in lodging the FIR giving rise to the criminal case against the plaintiff cannot be taken to be an act of cruelty of such nature and degree entitling the plaintiff to a decree of dissolution of his marriage with the defendant. Thus, in any considered view said action of the defendant in lodging the FIR giving rise to the criminal case against the plaintiff cannot be taken to be an act of cruelty of such nature and degree entitling the plaintiff to a decree of dissolution of his marriage with the defendant. During the course of hearing, nothing has also been placed by the learned counsel for the appellant in order to arrive at a conclusion that FIR which had been lodged by the defendant was based on falsehood. Therefore, the substantial question of law receives the answer that such institution of the criminal case by the defendant against the plaintiff for alleged commission of offence under Sections 498-A/323/494 IPC and even taking the fact of his facing the criminal trial do not amount to an act of cruelty in saying that the plaintiff’s prayer for grant of a decree for dissolution of his marriage with the defendant merits acceptance. In that view of the matter, no fault is found with the ultimate result returned by the lower appellate Court by non-suiting the plaintiff. 11. In the wake of aforesaid, the appeal stands dismissed. In the facts and circumstances of the case, however no order as to cost is passed. Appeal dismissed.