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2019 DIGILAW 602 (ORI)

Sujata Sahu v. Nihar Ranjan Mishra

2019-09-24

A.K.MISHRA, S.K.MISHRA

body2019
ORDER : 1. Heard Mr. Y. Mohanty, learned senior counsel for the appellant and Mr. K.A. Guru, learned counsel for the respondent. The appellant in this case, as respondent before the court below, has assailed the judgment and decree dtd. 28.11.2013 passed by learned Judge, Family Court, Berhampur in C.P. No. 20 of 2010. The application was filed U/s. 13(1) of the Hindu Marriage Act, 1955 for grant of divorce in favour of the present respondent. 2. Bereft of all unnecessary details, the, facts of the case is as follows:- The marriage between the petitioner and the respondent was solemnized on 07.03.1996 according to Hindu rites and customs. After marriage the newly wedded proceeded to the house of the petitioner to lead conjugal life. It is contended that both parties were from reputed family of Berhampur and both of them were well placed in their respective job at the time of marriage. It was a dowry free marriage. At the time of marriage the petitioner was working as Lecturer at Berhampur University while the respondent was working as an O.A.S. Officer under State Government of Odisha. It is the case of the petitioner that all his and his mother's expectations regarding the daughter-in-law were belied soon after the marriage because the respondent had personal vanity owing to her job and was arrogant, egoistic, instead of justifying the duties of a daughter-in-law, tried to dominate the petitioner and his old mother. She never showed any respect to the petitioner and his mother as husband and mother-in-law respectively. All co-operations and endeavours of the petitioner to change the attitude of the respondent proved in futile. It is further contended that the family members of the respondent also supported her and did not behave the petitioner with status of a son-in-law. The respondent proceeded to her parental house on 5.2.1997 for delivery. According to the petitioner during her stay at her parents' house whenever he used to visit his wife-respondent to enquire about her well-being, he was humiliated by the respondent and her family members, such behavior of the respondent caused mental disturbances and agony to the petitioner. On 29.4.1997 daughter was born at Menakshi hospital, Berhampur. But instead of coming to matrimonial house, the respondent went to her parents' house with the baby and even did not allow the petitioner and his family member to visit the new born. On 29.4.1997 daughter was born at Menakshi hospital, Berhampur. But instead of coming to matrimonial house, the respondent went to her parents' house with the baby and even did not allow the petitioner and his family member to visit the new born. It was the case of the petitioner that when the petitioner expressed his desire to perform the 'Amachhuan' function of the baby as per their family custom in his house, the respondent did not allow for the same' which was just like adding salt to the injury. Since the birth of the child the respondent has not returned to the petitioner despite his several request and attempts to get the mother and child back. It is alleged that being instigated by the family members, the respondent put-forth the demand for separate living from the old mother of the petitioner as a precondition of her joining with the petitioner to which he refuted. Therefore, since then the respondent is continuing at her paternal house with the daughter, as a result of which the petitioner is forced to lead a bachelor life and deprived of all marital rights, he has no access to the respondent and never cohabited since 1997, which no doubt cruelty towards him caused by the respondent. Further it is alleged that at the time of marriage the respondent had not brought any valuables or dowry articles, but his family members had gifted the respondent gold ornaments which she-had taken away while leaving for her paternal house for delivery. All efforts of the petitioner and his relatives and well-wishers to convince the respondent were of no avail, she was not to budge her decision. Therefore, finding no other alternative and without a ray of hope for reunion the petitioner brought the petition for dissolution of marriage by a decree of divorce. 3. The case of the respondent is that after marriage she proceeded to her matrimonial house with the petitioner with a hope to lead a happy conjugal life and performed all duties of a responsible wife and daughter-in-law following the custom and traditions of the petitioner's family. According to her at the time of marriage the petitioner was given gold ring, gold chain and cheque of Rs. 40,000/- along with other articles while prior to marriage another Rs. 40,000/- was given on demand of the petitioner. According to her at the time of marriage the petitioner was given gold ring, gold chain and cheque of Rs. 40,000/- along with other articles while prior to marriage another Rs. 40,000/- was given on demand of the petitioner. In spite all those, the petitioner was not satisfied with the articles brought by the respondent and soon after the marriage the petitioner and his family members started misbehaving and torturing her on demand of more dowry. Even the petitioner did not hesitate to come to the office of the respondent to ill-treat her by way of abusing and scolding in presence of her colleagues and staff and by that her official status was belittled. All these were tolerated by her with a hope for better future, but there was no change in the behavior of the petitioner and his family members. It is further alleged that during her pregnancy the respondent was not provided with nutritious food and rest as required. The respondent came to her father's house for delivery on 5.2.1997. Also at that time, on demand of the petitioner, she had to give a cheque of Rs. 3000/-. This shows the behavior of a husband towards his wife. According to her even at the time of delivery the petitioner was not present with her and when the doctor insisted for a surgery for the delivery, she was compelled to come on the request of her brother only to sign in some documents required by Hospital authority, Menakshi Hospital, Berhampur. The daughter was born on 29.4.1997, but neither the petitioner nor his family members getting that news came to visit the new born. On the other hand the petitioner expressed his rage and dissatisfaction over the birth of a female child declaring that the respondent was to take care of the baby as she gave birth to a female child, which expressed the cruel attitude of the petitioner, it is also contended that during November, 1997 the respondent was about to join the petitioner in spite of all unwarranted behavior of the petitioner, but all of a sudden, in the month of October, 1997 the petitioner barged into the office of the respondent and forcibly asked her to sign on a document to which she refused and by that the petitioner created an untoward incident. It is asserted despite all attempts by the family member of the respondent for an amicable settlement of the disputes between the parties, no co-operation was extended by the petitioner and thereby the petitioner is solely responsible for causing dismay to the family life of the parties: in the circumstances it is contended that the petition for divorce may be rejected. On the other hand contending that the respondent does not want to continue with the petitioner, the respondent demands for judicial separation as counterclaim. 4. On the basis of such pleading, learned Judge, Family Court cast as many as 11 issues taking all the aspects of the case. 5. The petitioner himself examined as P.W. 1 and the respondent herself examined as D.W. 1. No document or any other witnesses were examined on behalf of either party. 6. Learned Judge, Family Court, took up discussion of issue Nos. 2, 4, 8 and 10 simultaneously and came to conclusion that the petitioner before him has corroborated the facts stated by him in the plaint and has also stated that after such a long lapse of time he is not willing to stay with the respondent as husband and wife and also there is no chance of reunion between them. The respondent also gave oral evidence supporting her contention in the written statement. Learned Judge, Family Court has taken note of the fact that the respondent has stated in her evidence that she also does not want to reunite with the petitioner and to live together. However, the case of the petitioner regarding cruelty and desertion was not accepted by the learned court below. Learned Judge, Family Court, at paragraph 11 of his judgment has come to the conclusion that the marriage between them is irretrievably broken down. Here, it is appropriate to take note of the exact words used by learned Judge, Family Court at paragraphs 11 and 12 which are reproduced thus:- "11. Admittedly both the parties are staying separately since 5.2.1997. Attempts were made by the court to bring about reconciliation between the parties but it was not successful Both of them state that though their family members and well-wishers attempts were made to resolve the dispute, but alleged against each other to be responsible for its failure. But no supporting evidence is adduced by either side to show that in fact there was such attempts. But no supporting evidence is adduced by either side to show that in fact there was such attempts. The allegations made by the petitioner cannot be said a ground for divorce. But the facts that parties are staying separately for 15 years (by now) without cohabitation', that there was no chance of reunion, that there were allegations and counter allegations made by the parties, that marriage is dead and has broken down irretrievably are when taken together, the cumulative effect of it would justify the dissolution of marriage. Because no useful purpose will be served by keeping such a marriage alive on paper only, rather it would aggravate agony and hatredness between the parties. Therefore, for the better interest of the justice and betterment of the parties, the marriage should be dissolved since to drag such relationship in pen and paper is having no meaning. While dealing with a similar case the Apex Court in Ashok Hurra Vs. Rupa Ashok Hurrarupa Bipin Zaveri, dated 10.3.1997 (down load from Internet) observed that in cumulative effect of various aspects if indisputably point out that the marriage is dead both emotionally and practically, there is no chance at all for the same being revived and continuation of such relationship is only for name sake and when love is lost between the parties and there is long lapse of years since filing the petition and existence of such a state of affairs warrants xxxxxxxxx xxxxxx xxxx to grant a decree of divorce and to dissolve the marriage between the parties in order to meet the ends of justice. 12. Basing on the aforesaid authority when the present case is considered, it is found the marriage tie between the parties totally broken down and it is beyond repair and there is no hope for reunion. So appropriate step is to grant a decree of divorce. The decision filed on behalf of the respondent in Vishnu Dutta Sharma Vs. Manju Sharma reported in 2009 (II) OLR (S.C.) 802. At 804 it has been observed by the Apex Court that no such ground of irretrievable broken down of marriage is provided by the legislature for granting a decree of divorce under Section 13 of the Hindu Marriage Act. The Case of Ashok Hurra (supra) is pronounced in the year 1997 while the case of Vishnu Dutta Sharma (supra) declared in the year 2009. The Case of Ashok Hurra (supra) is pronounced in the year 1997 while the case of Vishnu Dutta Sharma (supra) declared in the year 2009. The law has been well settled that in case of two conflicting decisions of Division bench, earlier decision would prevail, 1961 AIR(Patna) 178 Jamuna Bai and Others Vs. Chandradip Ray and Others. In view of the above authorities; I accept the pronouncement of Apex Court in Ashok Hurra case which was earlier to that of Vishnu Dutta Sharma case." Thus, it is apparent that learned Judge, Family Court has granted a decree of divorce only on the ground of irretrievable breakdown of marriage between them. 7. Learned counsel for the appellant relies upon the case of Vishnu Dutta Sharma Vs. Manju Sharma, 2009 (II) OLR (SC) 802 wherein their Lordships at paragraph 12 have held that if they grant divorce on the ground of irretrievable breakdown, then they shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable break down of the marriage is also a ground for divorce. In their Lordships opinion, this can only be done by the Legislature and not by any court. It is for Parliament to enact or amend the law and not for the Courts. Hence their Lordships did not find force in the submission of the learned counsel for the appellant. The Division Bench of this Court in the case of Manoj Kumar Tripathy Vs. Mayarani Praharaj, 2010 AIR(Orissa) 131 : [2010 (Supp.I) OLR 214] has come to the conclusion that it is obvious that in some cases marriage was directed to be dissolved on the ground that the same has irretrievable broken down by the Hon'ble Supreme Court in exercise of jurisdiction under Article 142 of the Constitution of India which jurisdiction is not available to any other court including High Court. The Division Bench further observed that despite several recommendations, irretrievable breakdown is yet to be included by way of amendment as a ground for dissolution of marriage under Section 13 of the Act. Therefore, the Division Bench did not find any infirmity in the finding given by learned Judge, Family Court, Cuttack to the effect that evidence on record does not substantiate allegations of cruelty against the respondent. The evidence of respondent herself exhibits her eagerness to resume the matrimony. Therefore, the Division Bench did not find any infirmity in the finding given by learned Judge, Family Court, Cuttack to the effect that evidence on record does not substantiate allegations of cruelty against the respondent. The evidence of respondent herself exhibits her eagerness to resume the matrimony. Therefore, the Division Bench did not find any reason to interfere with the impugned judgment. 8. On the contrary, learned counsel for the respondent relies upon several judgments of Hon'ble Apex Court. Firstly, he relies upon the case of Satish Sitole Vs. Ganga, AIR 2008 SC 3093 . In the said case, at paragraph 10, Hon'ble Apex Court has observed that the power vested in that court under Article 142 of the Constitution was exercised in several cases and at paragraph 11 it is observed that having dispassionately considered the materials before them and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, they are convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. Thus, from the aforesaid judgment it is clear that whenever decree of divorce is granted on the ground of irretrievable breakdown of marriage, it has been done by resorting to the provision of Article 142 of the Constitution of India. Such power conferred upon the Supreme Court by the Constitution is not available to the High Court or to the Judge, Family Court. He further relies upon the case of K. Srinivas Rao Vs. D.A. Deepa, (2013) 5 SCC. 226 wherein the case of Samar Ghosh V. Jaya Ghosh, (2007) 4 SCC 511 was examined by the Hon'ble Supreme Court at paragraph 12 and on the fact that husband and wife having lived separately for more than sixteen years, came to the conclusion that the matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the wife: In that case mental cruelty meted out by the wife has been brought home by leading evidence. However, in the present case there appears to be no cogent evidence except the bald testimony of D.W. 1 about the cruelty meted out to the husband by the appellant wife. Learned counsel for the respondent further relies upon the case of Dr. However, in the present case there appears to be no cogent evidence except the bald testimony of D.W. 1 about the cruelty meted out to the husband by the appellant wife. Learned counsel for the respondent further relies upon the case of Dr. (Mrs.) Malathi Ravi, M.D. Vs. Dr. B.V. Ravi, M.D., AIR 2014 SC 2881 wherein the question of mental cruelty has been discussed. However, in this case learned Judge, Family court has not accepted the plea of mental cruelty, rather passed a decree of divorce only on the ground of irretrievable breakdown. So the ratio decided in this case is not applicable to the facts of the present case. Learned counsel for the respondent also relies upon the case of Samar Ghosh vs. Jaya Ghosh, (2007) 2 BLJR 1056 (SC) wherein at paragraph 71 Hon'ble Supreme Court has come to conclusion that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can be well presumed that the marriage has broken down The court, no doubt, should seriously make an endeavour to reconcile the parties, yet, it is found that the breakdown is irreparable, then divorce should not be withheld. As observed earlier, this order of Hon'ble Supreme Court granting decree of divorce on the ground of irretrievable breakdown is by taking recourse of Article 142 of the Constitution of Indian which is not available to this court. Finally he relies upon a judgment in the case of G.V.N. Kameswara Rao Vs. G. Jabilli, AIR 2002 SC 576 which is a case where the ground of cruelty has been taken and also been proved. So the judgment is also not relevant for the facts of the present case. 9. It is apparent from the aforesaid discussions that as the maters stand now and the law governing the field, decree of divorce cannot be granted only on the ground of irretrievable breakdown of marriage between the spouses and whenever any such judgment is passed by Hon'ble Supreme Court, it is only in view of the provisions of Article 142 of the Constitution of India. 10. 10. Learned counsel for the respondent also contends that there was desertion and mental cruelty by the appellant perpetuated on the respondent However, such desertion and mental cruelty has not been proved to the hilt or by preponderance of probability as only one witness is examined who supported his own case No other independent witness has come forward, even the parent's in law of the appellant have also not appeared in the court to depose about cruelty and desertion allegedly committed by the appellant. In that view of the matter, we find enough merit in this appeal to interfere with the impugned judgment Accordingly the appeal is allowed The judgment dtd. 28.11.2013 passed in C.P. No. 20 of 2010 by learned Judge, Family Court, Berhampur granting decree of divorce in favour of the respondent is hereby set aside However, there is no order as to cost Issue urgent certified copy on proper application L.C.Rs. be returned immediately.