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2019 DIGILAW 543 (ORI)

Prasant Kumar Pradhan v. Bharati Behera

2019-08-26

A.K.MISHRA, S.K.MISHRA

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JUDGMENT : A.K. Mishra, J. Both the appeals are taken up for disposal for being preferred against a common Judgment dtd. 12.11.2013 by the learned Judge, Family Court, Rourkela in C.P. No.250 of 2012 and C.P. No.210 of 2011. 2. Regardless of party position in the appeal memorandums, the Judgment to follow hereinafter shall refer the wife and the Husband for convenience. 3. Marriage between Smt. Bharati Behera, the wife and Mr. Prasant Kumar Pradhan, the husband was solemnized on 19.01.2004 at Kansabahal as per Hindu rites and customs. On 16.12.2004, they were blessed with a son, namely, Dibyansu Pradhan (one of the respondents to seek maintenance in C.P. No.210 of 2011 in the lower Court). Dissension started between the couples. On 15.01.2005, the wife left the house of her husband and went to her paternal house with baby son. Thereafter, till October, 2005 mediation through local gentries was taken up to resolve the dispute but could not yield any result. On 05.11.2005 husband issued a notice through his lawyer to wife asking her to return to his company, the wife refused to join. On 20.07.2006 the husband filed C.P. No.149 of 2006 for restitution of conjugal rights. On 15.09.2006, the wife lodged FIR at Sector-7 Police Station, Rourkela under section 498(A) IPC and 4 DP Act vide G.R. Case No.1805 of 2006. The husband and his father were arrested and remained in custody for some time. On 25.09.2006 the husband was released on bail. Both husband and his father were suspended from their services. On 26.04.2007 the husband withdrew the case for restitution of conjugal rights, i.e., C.P. No.149 of 2006. On 11.10.2008 the husband filed C.P. No.199 of 2008 in the Court of Judge, Family Court, Rourkela for divorce on the ground of cruelty and desertion under section 13(I-A)(i) of the Hindu Marriage Act, 1955. In that divorce case both parties adduced oral evidence examining themselves. On behalf of husband, advocate notice reply, certified copy of the FIR and suspension orders were marked Exhibits-1 to 5. Learned Family Judge considering the evidence on record came to the conclusion that factum of desertion as pleaded by the husband was not proved and he was debarred to take advantage of his own wrong as per section 23 of the Hindu Marriage Act. Similarly, the husband had failed to establish the allegation of cruelty as pleaded. Learned Family Judge considering the evidence on record came to the conclusion that factum of desertion as pleaded by the husband was not proved and he was debarred to take advantage of his own wrong as per section 23 of the Hindu Marriage Act. Similarly, the husband had failed to establish the allegation of cruelty as pleaded. Then learned Family Judge felt that it was just and proper to grant judicial separation instead of divorce only on the failure of the wife to prove the allegations of extra marital relationship of her husband with another woman leaving a room for reconciliation between the spouses. And then a decree of judicial separation was granted vide Judgment dated 25.08.2011. 4. This judicial separation decree dtd.25.08.2011 becomes a frontier for both the spouses thereafter. C.P. No.250 of 2012 was filed by the husband praying divorce on the ground that more than one year had been elapsed since the passing of the decree of Judicial Separation on 25.08.2011 in C.P. No.199 of 2008 and there was no resumption of co-habitation between the parties. Further there was no possibility of reunion between them. The wife filed written statement admitting marriage and the decree of Judicial Separation. But urged about non-payment of interim maintenance granted by the Court. She had also pleaded that during her stay in the house of husband, she was cruelly treated and her effort to resume co-habitation by sending letter on 14.08.2012 had not been responded. She prayed to dismiss the prayer for dissolution of marriage. 5. Wife and her minor son filed C.P. No.210 of 2011 under section 18 and 20 of Hindu Adoption and Maintenance Act against husband/father stating that since 29.03.2005 she being driven out, had been staying in her father's house. She had no independent source of income. Her son was pursuing study in an English Medium School, at Kansabahal. Husband was working as a Junior Executive in Rourkela Steel plant having monthly income of Rs.32,000/-. She claimed Rs.12,000/- for herself and 6,000/- per month for her son towards subsistence. The husband/father filed counter admitting relationship. He disputed the grounds for separate living. He stated that he was drawing Rs.26,500/- salary per month out of which he was repaying loan installment and insurance. She claimed Rs.12,000/- for herself and 6,000/- per month for her son towards subsistence. The husband/father filed counter admitting relationship. He disputed the grounds for separate living. He stated that he was drawing Rs.26,500/- salary per month out of which he was repaying loan installment and insurance. He asserted that he was paying interim maintenance Rs.3000/- per month as per order passed under section 24 of Hindu Marriage Act in C.P. No.199 of 2008. He had expressed his readiness to pay Rs.3000/- per month as he was unable to give the claimed amount Rs.18000/- to both wife and son. 6. Learned Judge, Family Court, analogously heard both the cases and framed following three issues:- (i) Whether there has been no resumption of cohabitation as between the petitioner and the respondent for a period of one year or upwards after passing of the decree for judicial separation in C.P. No.199 of 2008? (ii) Whether the respondents(wife and son are entitled to get maintenance from the petitioner and if so to what extent? (iii) To what other relief, the parties are entitled to? Both the parties adduced oral evidence examining themselves in support of their respective cases. Learned Judge, Family Court, held that:- "Though, decree for judicial separation has been passed on 25.08.2011, the petitioner filed the present proceeding on 3.9.2012 which is after one year of the passing of the decree for judicial separation. So, the petitioner is entitled to the relief as claimed in the petition." Further on the issue of maintenance, it was found that husband's monthly income was Rs.40,000/- and considering the need of wife qua status granted monthly maintenance to wife at the rate of Rs.5000/- and to son Rs.3000/- Accordingly, the following order is passed:- "The petition filed by the petitioner-husband in Civil Proceeding No.250 of 2012 is allowed on contest. The marriage solemnized between the petitioner and the respondent No.1 on 19.1.2004 is hereby dissolved by a decree of divorce to be effective from the date of the decree. The petition filed by the respondents within the scope of section 18 and 20 of Hindu Adoption and Maintenance Act is also allowed on contest. The petitioner (husband/Father) is directed to pay Rs.5000/-(rupees five thousands) per month to the respondent no.1 and Rs.3000/- (rupees three thousands) per month to respondent no.2 towards their maintenance with effect from the date of its application, i.e., 24.08.2011. The petitioner (husband/Father) is directed to pay Rs.5000/-(rupees five thousands) per month to the respondent no.1 and Rs.3000/- (rupees three thousands) per month to respondent no.2 towards their maintenance with effect from the date of its application, i.e., 24.08.2011. The petitioner is further directed to pay the maintenance of respondent no.2 through respondent no.1. The respondent is further directed to pay the arrear maintenance of the respondents through respondent no.1 within a period of six months, hence, in six installments direct to the address of respondent no.1 failing which, the respondent no.1 is at liberty to realies the same through due process of law. The respondent is further directed to pay the arrear dues of the respondent after making adjustment of the amount already paid to them. In the circumstances of the case, there is no order as to cost". 7. The above order is now assailed, in these two appeals filed by the wife and husband separately. The minor son being not before us, the order of maintenance passed in his favour in C.P. No.210 of 2011 has attained its finality. Wife has assailed the impugned order in MATA No.109 of 2013 with prayer to set aside the order dated 12.11.2013 passed by the learned Judge, Family court, Rourkela in Civil Proceeding No.250 of 2012. The husband in MATA No.36 of 2014, prayed to nullify the part of the learned Family Court's (Rourkela) Judgment dtd.12.11.2013 passed in Civil Proceeding No.250 of 2012 about payments of monthly maintenance of Rs.5000/- to the Respondent (Respondent No.1 in Court below) vis-a-vis directing to this Appellant for payment of Rs.2,00,000/- (Rupees two lakhs) as permanent alimony within four months after the date of final disposal of this appeal so also confirming the legality on the decree of divorce as passed therein 8. Learned counsel for the wife submits that:- (i) The decree for judicial separation in favour of husband was passed despite his failure to prove cruelty and desertion in a proceeding for divorce and that decree being not challenged, is found to have attained finality. In such backdrop, when the husband has not taken any step to resume cohabitation, he cannot be allowed to seek divorce only on the ground of expiry of one year from the date of judicial separation. Because the husband had not acquired any vested right on expiry of one year. In such backdrop, when the husband has not taken any step to resume cohabitation, he cannot be allowed to seek divorce only on the ground of expiry of one year from the date of judicial separation. Because the husband had not acquired any vested right on expiry of one year. He further submits that plea of cruelty and desertion in absence of appeal against the decree of judicial separation, cannot be questioned in this appeal and the husband should not be allowed to take advantage of his own wrong. He relied upon a decision; Hirachand Srinivas Managorkar v. Sunanda, 2001 AIR(SC) 1285. Nextly he submits that the decree of divorce cannot be stated to have been passed on the ground of irretrievable break down of marriage as the same was not available under law. For that he relied upon the decisions (1) Vishnu Datta Sharma v. Manju Sharma, 2009 AIR(SC) 2254 and (2) Nilam Kumari V. Dayarani, 2010 AIR(SC) 201. 9. Learned counsel for the husband submits that the happenings between the spouses establish that the wife has not only subjected the husband with cruelty but also deserted him. She has taken resort to legal proceedings to harass the husband and his family members both mentally and financially. Drawing support from above submission, he proceeded to make a point that when wife has not come forward to stay with the husband, the resumption of cohabitation after judicial separation was a distant dream. The decree of divorce on that ground was not only permissible but also legally sustainable. Further he submits that granting of maintenance on monthly basis is unjust and unreasonable for which his offer to convert the same to a gross sum of Rs.2,00,000/- (rupees two lakhs) as permanent alimony should be accepted. He relied upon the decision Raveen Mehta v. Inderjit Mehta, 2002 AIR(SC) 2582 Pankaj Mahajan V. Dimple Alias Kajal, 2011 (12) SCC 1 . 10. Perused the record patiently. Heard the submissions anxiously. The marital lives between the parties have already suffered a roughweather, spending more time in litigations than with the minor son under one roof. Relationship is admitted. The litigating relationship has placed their minor son at the victim's end. 10(a). On the basis of allegation and counter allegation, both husband and wife reached the stage of Judicial Separation vide order dtd.25.08.2011 in C.P. No.199 of 2008. Relationship is admitted. The litigating relationship has placed their minor son at the victim's end. 10(a). On the basis of allegation and counter allegation, both husband and wife reached the stage of Judicial Separation vide order dtd.25.08.2011 in C.P. No.199 of 2008. The Said case was filed by the husband for divorce on the ground of desertion and cruelty. Learned Court found that the husband had failed to establish both the grounds and in order to give a chance for reconciliation, while denying the decree for divorce, Judicial Separation was granted. 10(b) The version and counter version throughout are chameleonic. In course of litigation, parties have allowed the situation to move in such a way that it is difficult to draw a baseline to test their conduct vis-a-vis the ground for divorce. As the impugned divorce order is passed on the ground of non-resumption of cohabitation despite elapse of one year from the date of Judicial Separation decree dtd. 25.8.2011, we feel it proper to test the said ground urged uninfluenced by any other grounds which could have been taken by the parties. The authority of appeal also commands the same. Irretrievable breakdown of the marriage is no more a ground to decree a divorce. It is settled in the decision, Vishnu Datta Sharma v. Manju Sharma, 2009 AIR(SC) 2254 and 2010 (1) SC 201 Neelam Kumar V. Dayarani. 11. In the case at hand, husband has admitted in his cross examination evidence as P.W.1 that "after decree of Judicial Separation, I have taken no steps for reunion". On the other hand, wife as R.W.1 has stated that she on 14.08.2012, she sent a letter by registered post to the husband which was returned un-served and (she) tried her best to contact over phone but hearing her voice, the husband disconnected the same. Having carefully gone through the testimonies of both parties, we are satisfied to record that after passing of decree of Judicial Separation, the husband had not taken any initiative to resume cohabitation with the wife till filing of divorce. Wife may not be free from blame to make allegation but divorce has been granted under section 13(I-A)(i) of the Hindu Marriage Act. Wife may not be free from blame to make allegation but divorce has been granted under section 13(I-A)(i) of the Hindu Marriage Act. The said provisions reads thus:- "(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties." Husband filed divorce petition on the ground of cruelty and desertion. It was dismissed but decree for Judicial Separation was granted. Husband was the decree holder. He filed divorce petition on the ground that one year has been elapsed from the date of decree of Judicial Separation. He is found to have not made any effort to resume cohabitation with wife. The wife, had tried to resume cohabitation but her effort was frustrated by the husband. Is husband taking advantage of his own wrong? 12. Law on this point has been well analyzed by the Hon'ble Apex Court in the decision 2001 (2) Supreme Court Hirachand Srinivas Managorkar v. Sunanda, 2001 AIR(SC) 1285. The relevant portion having direct bearing to the question at hand reads thus:- "12. xxx xxx. The object of sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it compulsive that a petition for divorce presented under sub-section (1-A) must be allowed on a mere proof that there was no cohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the conditions mentioned in the subsection are satisfied, and not otherwise. Therefore, the contention raised by the learned counsel for the appellant that the provisions of Section 23(1) are not relevant in deciding a petition filed under sub-section (1-A) of Section 13 of the Act, cannot be accepted. 15. xxx xxx. If the provisions in Section 13(1A) and Section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree o divorce against the other party merely on showing that the ground in support of the relief sought are stated in the petition exists. 15. xxx xxx. If the provisions in Section 13(1A) and Section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree o divorce against the other party merely on showing that the ground in support of the relief sought are stated in the petition exists. It has to be kept in mind the relationship between the spouses is a matter concerning human life. Human life does not run on dotted lines or charted course laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be make to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society whether the relief of dissolution of the marriage by a decree of divorce is to be granted or not depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application. 17. xxx xxx. As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore, the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. Therefore, the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship." In the light of above law, on consideration of facts presented we are satisfied that to grant a relief of divorce to husband would be to permit him to take advantage of his own wrong. The decree of divorce granted vide order dated 12.11.2013 in C.P. No.250 of 2012 is liable to be set aside. As the decree of divorce is set aside, the offer of husband to pay rupees two lakhs as permanent alimony merits no consideration. The granting of maintenance to wife at the rate of Rs.5000/- per month in the impugned order is based on factors required to be considered under section 18 of the Hindu Adoptions and Maintenance Act, 1956. The amount is just and reasonable having regards to the salary of the husband. At the cost of repetition, but to keep the record straight, we reiterate that the lower courts order granting maintenance to minor son has attained finality and this order shall in no way make any inroad to that case, save and except what law permits. In the wake of above analysis, the MATA No.109 of 2013 is allowed and the decree of divorce granted in the impugned judgment dated 12.11.2013 in C.P. No.250 of 2012 stands set aside. The MATA No.36 of 2014 stands dismissed. There shall be no order as to cost.