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2019 DIGILAW 321 (ORI)

Ashok Kumar Rath v. Annapurna Rath

2019-04-15

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : J.P. Das, J. This matrimonial appeal is directed against the judgment dated 26.08.2011 passed by the learned Judge, Family court, Rourkela in Civil Proceeding No.42 of 2007 rejecting the application of the present appellant, who sought for a decree of divorce against the opposite party-respondent wife. The petitioner-appellant initiated a proceeding under Section 13 of the Hindu Marriage Act, 1955 with the contentions that he married the respondent-wife on 10.06.1995 at Rourkela according to Hindu Rites and Customs and stayed jointly along with his parents. A son was born out of their wedlock on 11.08.1996. He alleged that after the birth of the son, the respondent-wife started behaving differently and suggested the appellant husband to stay separately from his parents. He further alleged that with further visit of the brother and parents of the respondent-wife frequently to their house on the pretext of seeing the new born baby and on their instigation, the suggestion of the wife-respondent for separate house turned to be a demand resulting in matrimonial disturbance between the parties. The respondent-wife started behaving differently towards the parents-in-law and the appellant-husband submitted a report at Mahila Police Station, Rourkela with regard to the same. On the intervention of the police, both the parties agreed to stay separately from their parents with the new born baby and accordingly, shifted to a quarters at a different place in Rourkela leaving the parents at their old house. They led a happy life for some time and one daughter was born to them on 20.10.2001. The husband-appellant further alleged that the wife-respondent asked the petitioner-appellant to help her brothers with financial aid of Rs.50,000/- to each of them to carry on their business. The husband-appellant expressed his incapability while the respondent-wife insisted to get the money from his parents as they had received a substantial amount as retiral benefits. Since the appellant-husband did not concede to her demand, the respondent-wife created further disturbances and even adopted methods to assault the appellant-husband with the help of club members and her brother. The mother of the appellant husband came to their quarters on 19.04.2003 to pacify the matter but on the next day morning, i.e., 20.04.2003, the respondent-wife left the matrimonial house along with the children withdrawing herself from the society of the appellant-husband without any rhyme or reason. The mother of the appellant husband came to their quarters on 19.04.2003 to pacify the matter but on the next day morning, i.e., 20.04.2003, the respondent-wife left the matrimonial house along with the children withdrawing herself from the society of the appellant-husband without any rhyme or reason. Repeated efforts made by the appellant-husband yielded no result to bring her back and when the appellant-husband went to the school where his son was reading, he learnt that the respondent-wife had already taken transfer certificate of their son on 10.07.2003. The appellant-husband again lodged a report at Mahila Police Station on 24.07.2003 and informed about the incidents, pursuant to which a Station Diary was made and the respondent-wife was called to the Police Station but she refused. Thereafter, the respondent-wife filed a proceeding claiming maintenance for herself and her children in the year 2005 and the appellant-husband also filed a proceeding under Section 9 of the Hindu Marriage Act in the same year praying for restitution of conjugal rights. The proceeding filed by the appellant-husband was dismissed since the respondent-wife did not agree to join the company of the husband. Thereafter, the appellant-husband filed the present proceeding praying for divorce with the submission that the respondent-wife deserted him voluntarily and was residing separately for a long period. 2. The respondent-wife entering appearance assailed the maintainability of the application for divorce with the pleadings that the application for restitution of conjugal rights filed by the appellant-husband on the ground of desertion having been rejected, the subsequent application for divorce on the self-same ground within a period of one year was not maintainable. She counter alleged that she was mentally and physically tortured on further demand of dowry by her husband and in-laws and she was also assaulted by the appellant-husband under influence of liquor. She also alleged that her husband had also assaulted their son for which he sustained some injuries and was taken to hospital for treatment. She submitted that since the appellant husband was not taking care of the family and the children, she had to pass sleepless nights and subsequently, she along with her children was driven out of the house by the appellant-husband on 20.04.2003 since when she had no other alternative than to stay with her parents. 3. She submitted that since the appellant husband was not taking care of the family and the children, she had to pass sleepless nights and subsequently, she along with her children was driven out of the house by the appellant-husband on 20.04.2003 since when she had no other alternative than to stay with her parents. 3. On the aforesaid pleadings, learned Judge, Family court, Rourkela framed three issues, as follows:- I. Whether the petitioner wife without any reasonable excuse has withdrawn herself from the society of petitioner-husband for more than two years; II. Whether the petitioner-husband is entitled to the relief for a decree of divorce; and III. To what other relief the parties are entitled. 4. Both the parties adduced their evidence in support of their respective contentions. The learned Judge, Family court observed that admittedly, the petitioner-husband had filed the proceeding under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights where the issue was whether the opposite party-wife without any reasonable excuse has withdrawn herself from the society of the petitioner-husband. The said proceeding was dismissed with the observation that the opposite party-wife had got reasonable excuse to withdraw from the society of the petitioner husband and the said findings were not challenged by the husband-petitioner in any higher forum. Thus, the learned Judge, Family court, Rourkela held that the findings that the wife had reasonable excuse to withdraw herself from the society of the petitioner-husband having reached finality, the proceeding initiated by the petitioner-husband on the self-same ground within a period of six months from the disposal of the earlier proceeding was not maintainable in law since because the ground taken by the appellant-husband in the present proceeding was also desertion. 5. Relying on certain judicial pronouncements, learned trial court held that once it is found by a court in a suit for restitution of conjugal rights that the wife left the house of her husband for reasonable cause, her living away from her husband does not become desertion for the purpose of divorce under Section 13 of the Hindu Marriage Act unless it is shown that the wife went to live with the husband thereafter and then again left him without reasonable cause. Thus, the learned trial court held that the prayer of the petitioner husband for restitution of conjugal rights on the ground of desertion having been rejected in an earlier proceeding, he cannot maintain a proceeding for divorce on the self-same ground of desertion within a period of six months thereafter. Learned trial court further observed that it was admitted case of the parties that the wife left the house of the petitioner-husband on 20.04.2003 where after the earlier proceeding was filed by the husband and at no point of time after 20.04.2003 the wife and husband had lived jointly. The learned trial court went on to observe that the earlier application having been rejected on the self-same plea of desertion, it would have effect of res judicata and the petitioner-husband was debarred to re-agitate the same question of fact again in the subsequent proceeding. Thus, the learned trial court held that the appellant-husband was not entitled for a decree of divorce on the ground of desertion. 6. Learned trial court further observed that as per Section 13(1-A) (II) of the Hindu Marriage Act, a judgment debtor spouse in decree of restitution of conjugal rights is entitled to seek divorce on ground of failure of resumption of cohabitation for one year or more from the date of said decree but in this case, the appellant-husband initiated proceeding only within a period of six months after disposal of the proceeding under Section 9 of the Hindu Marriage Act. Suffice it to say that such an observation was a misconception of law, since the quoted provision of the Hindu Marriage Act refers to failure in carrying out the decree for restitution of conjugal rights, whereas in the present case, the application for restitution of conjugal rights filed by the appellant-husband was rejected. 7. It has been submitted on behalf of the appellant in the present appeal that the learned trial court erred in law by observing that there was no desertion and was mostly guided by the thought that the earlier application for restitution of conjugal rights on the ground of desertion was rejected and hence, a prayer of divorce on self-same ground was hit by the principle of res judicata which was a misconception of law. However, it was submitted on behalf of the appellant that it was the specific case of the petitioner-appellant that after respondent-wife left the matrimonial house on 20.04.2003, the appellant-husband made several efforts to bring her back but, she did not agree. Learned counsel on behalf of the appellant submitted that the learned trial court has wrongly held that the petitioner-husband had not adduced any evidence to the effect and failed to appreciate that the refusal by respondent wife at subsequent stages for re-union being unreasonable amounted to desertion. It was further submitted that the proceeding for divorce was filed admittedly, after two years of the respondent-wife leaving her matrimonial house and the learned trial court failed to take note of the fact that the allegations made by the husband-appellant as regards behavior of the wife respondent towards him and his parents apart from the allegations of assault made to the husband-appellant and reports at the Police Station amounted to cruelty, thereby making it impossible and impracticable for the parties to again live jointly and lead a conjugal life. It was submitted that on those grounds, the appellant-husband was entitled to a decree of divorce. 8. Per contra, it was submitted by learned counsel on behalf of the respondent-wife that the findings and observations of the learned trial court based on settled position of law and cannot be interfered with. It was further submitted that since the appellant-husband prayed for a decree of divorce only on the ground of desertion, he cannot raise a further plea before this Court as to the cruelty, apart from the fact that the plea of desertion was rejected by the competent court shortly prior to filing of the proceeding for divorce and such findings remained unchallenged. 9. As discussed herein before, while narrating the observations of the learned trial court, the findings of the learned Judge, Family court as to the positions of law are not correct. To reiterate, it may be mentioned that a proceeding for divorce under Section 13 of the Hindu Marriage Act, 1955 cannot be said to be not maintainable, if filed within a period of one year after rejection of an application for restitution of conjugal rights. Further, the said rejection cannot also be said to operate as res judicata for a subsequent proceeding for divorce on the self-same ground of desertion. 10. Further, the said rejection cannot also be said to operate as res judicata for a subsequent proceeding for divorce on the self-same ground of desertion. 10. The sequence of the events between the parties remained undisputed that the marriage between the parties was in the year 1995, son was born out of their wedlock in the year 1996, the parties started living separately from the parents of the appellant-husband in another quarters, there a daughter was born to the parties in the year 2001 and on 20.04.2003, both the parties got separated from conjugal life. It has been the pleading of the appellant husband that after birth of their son, the attitude and the behavior of the respondent-wife changed towards the family members and she insisted for a separate house and mess, which was ultimately accepted by the appellant husband. It also remained undisputed that the appellant-husband had made two reports at Mahila Police Station, Rourkela. These factors having not been disputed create a presumption in favour of the husband, since because no son would leave his elderly parents to stay in a separate house in the same township taking his wife and children to another quarters. It was also the case of the husband-appellant that the wife-respondent with the help of her brother and others had tried to assault him and subsequent efforts of the husband appellant to bring back the wife to the matrimonial house failed. In this regard, it may be mentioned that a party comes to the court seeking dissolution of marriage when living jointly with the other spouse becomes impossible or impracticable for certain reasons or when one of spouse leaves the company of the other without any reasonable excuse. The first is termed 'cruelty' and the second is 'desertion'. Though both are separate grounds for claiming a relief of divorce still both are inter-linked for the reason that desertion without sufficient reason also amounts to cruelty for violating the rights of the other spouse to have the conjugal life. In the instant case as mentioned hereinbefore, the appellant has narrated the incidents and given the instances, which in our opinion also amounted to cruelty of course subject to establishment thereof on evidence, apart from the specific plea of desertion. In the instant case as mentioned hereinbefore, the appellant has narrated the incidents and given the instances, which in our opinion also amounted to cruelty of course subject to establishment thereof on evidence, apart from the specific plea of desertion. But the learned trial court has not taken note of such facts and, as stated earlier, has been swayed away with the only conception that a proceeding for divorce was not maintainable on the sole ground of desertion, such a plea having been negatived in an earlier proceeding within a preceding period of six months. 11. In view of the discussion of facts and circumstances of the case, we feel it appropriate to remand the matter back to the learned trial court to frame a specific issue as to cruelty and give a specific finding thereon after giving reasonable opportunity of hearing to both the parties, that being more so for the reason that both the parties are staying separately since the year 2003. 12. Accordingly, the judgment dated 26.08.2011 passed by the learned Judge, Family court, Rourkela in Civil Proceeding No.42 of 2007 is set aside and the matter is remanded back to the learned trial court who would do the needful as per our observations made in the preceding paragraph. Both the parties are directed to appear before the learned trial court on 2nd of May, 2019 to take further instruction in the matter and the learned trial court would do well to dispose of the proceeding as expeditiously as possible. The MATA is disposed of accordingly.