Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 610 (ORI)

Santilata Choudhury v. Nimain Charan Patra

2019-10-14

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This is an Appeal under the provision of Section 39 of the Special Marriage Act, 1954 involving the judgment and decree dated 12.7.2010 & 26.7.2010 passed by the District Judge, Khurda at Bhubaneswar in O.S. No.20 of 2001 thereby allowing the suit dissolving the marriage between the appellant-wife, who has already reached at the age of 66 years and the respondent-husband, who has also reached at the age of 77 years presently. 2. Short background involving the case is that the respondent, as the plaintiff in O.S. No.20 of 2001, being Hindu entered into marriage with defendant-appellant solemnized on 17.8.1998 at Jeypore in the District of Koraput. After the marriage, both of them were in jointness. In August, 1998 both of them came to Bhubaneswar where the respondent was serving as an Assistant Commandant of the Traffic Training Institute. Plaintiff alleged that after the marriage, till the suit was filed the defendant was treating the plaintiff with constant mental and physical cruelty with her aggressive behaviour. Plaintiff also alleged that the defendant was not hesitating in behaving the plaintiff with discourteous language in presence of his son, junior employees, Orderly, friends and relatives. Plaintiff also alleged that he was being abused in disparaging, derogatory and ugly remarks, such as BUDHA, ROGIA & RAIJALA. Plaintiff also alleged that the defendant never shared bed with the plaintiff and she was all through sleeping separately. Defendant was not even cooking food. She was not hesitating to ill-treat the daughters, son-in-laws, grandson and the son most of whom through the first wife of the plaintiff. In July, 1999 the plaintiff visited Puri with the defendant to perform his duty during Car Festival. A relative of the plaintiff came to the room of the hotel where she treated him discourteously. On the date of Car Festival when the plaintiff returned to the hotel late in the night after performing duty, the wife got furious and quarreled with the plaintiff. The wife also misbehaved him by dragging his Lungi and making him naked in presence of relatives. It was also alleged therein that the wife used to assault the husband in a filthy manner. The wife also misbehaved him by dragging his Lungi and making him naked in presence of relatives. It was also alleged therein that the wife used to assault the husband in a filthy manner. Involving several such incidence and ultimately as the matter went out of control, tolerance and the cruelty at the instance of the wife reaching at its height, the plaintiff was constrained to file the suit for decree of divorce. Defendant contested the suit by filing written statement denying each and every allegation. On the other hand, the defendant's case was that the son of the plaintiff through the first wife died prior to second marriage was the root cause of all disturbances, who at the instance of daughters and in-laws was trying to get rid of her from the family and was engaged in brainwashing the plaintiff. In the result, the husband was always subjecting her to cruelty and torture and thus filed the suit with such evil design. She also alleged that it is the husband used to manhandling her without just and reasonable cause and making her life miserable. But for having no other alternative she used to tolerate all such nuisances by the whole family. She also complained that she was being used less than a Maid Servant in the house of the plaintiff and she was leading a horrible life under the shelter of the plaintiff. She attempted to deny any incident claimed to have taken place in Puri during Car Festival and thus prayed for dismissal of the family dispute at the instance of the husband. 3. On the basis of the pleading, the trial court framed the following issues :- "(I) Whether the suit is maintainable ? (II) Whether there is cause of action for the suit ? (III) Whether the petitioner treated the opposite party with cruelty since the solemnization of their marriage ? (IV) Whether the cruelty is such as is sufficient for the dissolution of their marriage ? (V) To what relief the petitioner is entitled?" 4. To satisfy their case, the plaintiff-respondent examined P.W.1 to P.W.3 and similarly defendant-appellant examined O.P.W.1 to O.P.W.3. Both parties also exhibited Ext.1 to Ext.11 and Ext.A to Ext.B/1 respectively. (IV) Whether the cruelty is such as is sufficient for the dissolution of their marriage ? (V) To what relief the petitioner is entitled?" 4. To satisfy their case, the plaintiff-respondent examined P.W.1 to P.W.3 and similarly defendant-appellant examined O.P.W.1 to O.P.W.3. Both parties also exhibited Ext.1 to Ext.11 and Ext.A to Ext.B/1 respectively. Based on the pleading of the parties both oral and documentary and the submissions of the parties, trial court answered the issues believing the case of the plaintiff-husband and disbelieving the case of the defendant-wife allowed the suit thereby decreeing the suit for divorce and thus dissolving the marriage between the parties resulting in filing of the present Matrimonial Appeal at the instance of the wife-defendant. 5. Filing the present Appeal, the wife contended that the impugned judgment is not only illegal but also contrary to law. The appellant also alleged that the trial court failed to appreciate the evidence particularly in the matter of harassment at the instance of the husband. It is also alleged in the Appeal that the trial court failed to appreciate the meaning of 'Cruel Treatment' so as to arrive at a conclusion to grant decree for divorce, particularly keeping in view that the wife has nobody to support for survival and she was subjected to cruelty by each member of the husband's family. There is also wrong appreciation of the evidence available on record, as alleged by the appellant. 6. Taking into the grounds available on record, the pleadings of the parties and the materials available on record and further the oral evidence, Sri G.N.Sahoo, learned counsel for the wife-appellant submitted that there has been not only wrong appreciation of the material available on record but the impugned judgment also suffers for being contrary to the decision of the Hon'ble apex Court in the matter of grant of divorce. It is in the premises, Sri Sahoo appearing for the appellant claimed for interference of this Court in the impugned judgment and setting aside the same. Sri Sahoo also took the decision of the Hon'ble apex Court in Chetan Dass vs. Kamla Devi, (2001) 4 SCC 250 , and another decision of the Bombay High Court in A. vs. H., (1993) AIR Bombay 70. 7. Sri Sahoo also took the decision of the Hon'ble apex Court in Chetan Dass vs. Kamla Devi, (2001) 4 SCC 250 , and another decision of the Bombay High Court in A. vs. H., (1993) AIR Bombay 70. 7. Sri U.C. Mishra, learned counsel for the respondent, on the other hand, taking this Court to the allegations at the instance of the husband involving the original suit, the evidence both oral and material to support such claim of the husband in the suit and for the support of the decisions of the Hon'ble apex Court in A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22 & Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 , to the case of the husband contended that there has been justified consideration of the case involved herein. Sri Mishra for the respondent further contended that the relationship between the husband and the wife even taking into consideration the allegation made by the wife alone deserves a case for divorce. Further for the strain relationship and the distance between the wife and husband for nearly two decades and further for the failure of attempts by the court below as well as this Court involving conciliation between the parties resolving the issue and the continuing differences between the both, more particularly keeping their age though permanent alimony attempt has failed, there involves a strong case for grant of divorce thereby requiring not interfering with the impugned judgment. 8. Considering the rival contentions of the parties, in the first hand this Court takes up the material evidence supporting the case of the husband and the developments taking place in the trial court as well as pendency of the case in High Court and finds, the first attempt for conciliation of the matter appears to have been failed and the result therein has been quoted in paragraph-8 of the trial court judgment, which is re-produced herein below :- "8. The aforesaid being the evidence on record it is now to be examined in the light of the decisions referred to by the parties how far the plea of cruelty has been established and whether it is sufficient to sustain a decree for divorce. As has been seen by now the plea of the petitioner is that the constant mental and physical torture of the opposite party was unbearable. He has stated the same in his evidence. As has been seen by now the plea of the petitioner is that the constant mental and physical torture of the opposite party was unbearable. He has stated the same in his evidence. It is admitted by the opposite party that at least on one occasion she had abused the petitioner using words like RAIJALA, ROGIA BUDHA in presence of his relative. The evidence of p.ws.2 and 3 shows that she was abusing the petitioner very often without earring and even in presence of his son who is a major person. In his evidence the petitioner had said that the opposite party never shared bed with him. On cross-examination when a question was put to the petitioner, he replied that he had no knowledge about the physical disability of the opposite party for keeping physical relationship with him since she did not share bed with him. From this type of evidence it appears probable that there was no sharing of bed by the parties after the marriage. It is to be kept in mind that their marriage took place in August, 1998. About three months after the marriage they had shifted to Bhubaneswar where after their relationship became bad and so much so that in the year 2001 the present suit was filed and in 2002 the petitioner with his son went away leaving the residence and lived separately. The petitioner stated in his evidence that at times the opposite party did not cook food for him for which he along with his son had to take food outside. Though the opposite party has admitted it she has tried to explain that she did so when the petitioner and his son did not allow her to cook food for them and they cooked their own food first. There is no corroboration of this evidence of the opposite party. In any case this shows that the marital comfort of a house was not available with the parties. It is the evidence of the petitioner that the opposite party did not treat the daughters and the sons-in-law property when they happened to come to the petitioner's house. There is no corroboration of this evidence of the opposite party. In any case this shows that the marital comfort of a house was not available with the parties. It is the evidence of the petitioner that the opposite party did not treat the daughters and the sons-in-law property when they happened to come to the petitioner's house. In the face of the evidence of the petitioner that the opposite party sat in front of the television putting the pitch high, there has been an evasive denial of the same during the cross-examination of the petitioner and no rebuttal evidence has been led by the opposite party. It has been admitted that sometimes the parties did not talk to each other. Some of the slips admittedly issued by the opposite party were containing very peculiar and ridiculous notes like "20 TANKA RE SABU JINISA HOI PARIBA NAHIN. AHI BISAYA KU NEI MAHILA COMMISSION RE ABIJOGA DIA JIBA CHAULA NAHIN, GHARE DALI, TELA, SUKI O PANI PARIBA JETIKI ACHHI 10 DINA BA 12 DINA JIBA. ATA GHARE MOTE NAHIN, ATA O EHI SABU JINISA SARIBA PARE JINISA ANIBAKU TANKA DIA HEBA" (Exts.7 & 8). During his argument the learned counsel for the opposite party argued that the opposite party was bound to issue the slips as the petitioner was not talking to her and even after the slips were issued he was paying Rs.10/- when Rs.100/- was necessary. Rebutting the same the learned counsel for the petitioner submitted that it was the opposite party who was not talking to the petitioner ad was issuing the slips to put pressure on him and harass him. These slips have been exhibited on behalf of the petitioner. Though the opposite party tried to deny the alleged incident of the Car Festival day, she later on admitted the allegation but explained that she had to abuse the petitioner ad raise her hand when the petitioner assaulted her severely. The explanation has not been established by cogent evidence and rather appears to be an afterthought. The evidence of the petitioner is that the opposite party was assaulting him very often. The explanation has not been established by cogent evidence and rather appears to be an afterthought. The evidence of the petitioner is that the opposite party was assaulting him very often. Similarly the opposite party has tried to deny the allegation relating to Moha Siva Ratri day altogether, but in her letter exhibited in this case she had admitted that some such incident had taken place and she had shut the door by force due to which the scooter of the petitioner was pushed forward. In her evidence the opposite party stated that she was severely tortured by the petitioner since 2001. When the petitioner was undergoing cardiac operation admittedly the opposite party did not go to see him. She had explained that she did not go as she was not informed about the operation. In her evidence in para-12 she had rather tried to evade the question whether the petitioner was suffering from blood pressure or cardiac problem and she stated that she did not know it. She has also admitted that once she had complained against the petitioner before the police. The sum total of this evidence is that the relationship between the parties has deteriorated to such an extent that it would be impossible for them to live together without mental agony, torture or distress. The foundation of a sound marriage like tolerance, adjustment and respecting one another is seriously missing in this case. The marriage is rather totally dread and nothing will be gained by trying to keep the parties tried for ever to a marriage which in fact has ceased to exist. During the pendency of this case sincere attempt was made by this Court for effecting reconciliation between the parties. The same had failed. In spite of that they were given opportunity to think thrice before breaking the home and were referred to the Mediation Centre for conciliation. There also they failed to help themselves. In the circumstances, as picturised above the parties cannot reasonably be expected to live together and a decree of divorce is the only alternative." Above discussions go to show that the trial court even attempted for conciliation between the parties but however attempt for conciliation could not be materialized. 9. There also they failed to help themselves. In the circumstances, as picturised above the parties cannot reasonably be expected to live together and a decree of divorce is the only alternative." Above discussions go to show that the trial court even attempted for conciliation between the parties but however attempt for conciliation could not be materialized. 9. Again when the case was pending in this Court, this Court again undertook an exercise of conciliation particularly keeping in view the age of both the parties and by order dated 16.12.2011 on failure of a similar attempt has come to observe as follows :- "Pursuant to the direction of the Court, the parties are present in person. Learned counsel for the respective parties are also present. I spoke to the parties in my Chambers in absence of the advocate and also in presence of their advocates. I found that the relations between the parties are so biter that there is hardly any scope for reconciliation. Though the wife is willing to stay with the husband, but the husband is not agreeing to stay with her. It is also submitted by the learned counsel for the appellant that though there is an order of payment of maintenance of Rs.2000/- per month to the appellant by the respondent, but nothing has been paid in compliance to such orders of the Court. The respondent says that the appellant is receiving Rs.2000/- per month as house rent which has been let out by him. This the appellant stoutly denied. The appellant described her plights as to how without assistance from the respondent she is leading a life of destitute depending upon the alms and charity of her brothers and other relations. She also complains that nothing has been paid to her towards her maintenance by her husband despite the orders of the Court since 2003. After hearing the parties and their counsel the respondent is directed to carry out the orders of the Court in letter and spirit pursuant to the direction of the learned District Judge, Khurda at Bhubaneswar in I.A. No.537 of 2002 which has also been confirmed by this Court in W.P.(C) No.8991 of 2003. Accordingly, let the respondent deposit a sum of Rs.25,000/- (rupees twenty five thousand) in Court on 21.12.2011 towards maintenance des of the appellant. Accordingly, the matter be listed on 4th January, 2012 for hearing. Accordingly, let the respondent deposit a sum of Rs.25,000/- (rupees twenty five thousand) in Court on 21.12.2011 towards maintenance des of the appellant. Accordingly, the matter be listed on 4th January, 2012 for hearing. L.C.R. be called for from the Court of the learned District Judge, Khurda at Bhubaneswar." This Court again made an attempt for resolution of the dispute between the parties for at least resolving the dispute by way of permanent alimony in an attempt to see both parties achieve peace for the rest part of life. The attempt of this Court again failed, as discussed by orders dated 6.8.2019 and 17.9.2019, which run as follows :- "6.8.2019-Heard in part. List this matter on 16.8.2019. Learned counsel for the appellant is directed to take instruction from the appellant involved herein on the offer of the learned counsel for the respondent for payment of permanent alimony of Rs.4.00 lakh by the next date." "17.9.2019. Heard Sri Sahoo, learned counsel for the appellant and Sri U.C. Mishra, learned counsel for the respondent. Conciliation attempt through the Court for settling the dispute on payment of Rs.4,00,000/-, as permanent alimony, in favour of the wife by the husband even though accepted by the husband but wife did not agree with the same for which there is requirement of final disposal of the appeal herein. Hearing concluded. Judgment reserved. All the parties are directed to submit their respective written note of argument along with citations by 23.9.2019." 10. Coming back to the background involving the case, there has been allegation and counter allegation by both the parties involved herein in the matter of cruelty by the respective parties to the other. Reading the allegation through O.S. No.20 of 2001 and the allegation against the husband by the wife in the written statement, this Court finds, both the parties had attempted to reach the extreme height of making allegation of cruelty against the other. Evidence recorded by the trial court rather establishes the case in favour of the husband, who is able to satisfy a case of cruelty by the wife. Wife has even gone admitting some allegations. Further it appears, both the parties are in no mood of getting together. As a matter of fact, both of them are residing separately for nearly two decades after a short time of their marriage and still busy in accusing the other. Wife has even gone admitting some allegations. Further it appears, both the parties are in no mood of getting together. As a matter of fact, both of them are residing separately for nearly two decades after a short time of their marriage and still busy in accusing the other. There is also no tolerance by both ever since the time of their marriage in August, 1998. Through the evidence also both parties have attempted to damage the reputation of the other partner to the maximum level. 11. From the pleadings as well as the attempts through the evidence by both the parties, this Court observes, the damage in the relationship between the parties reached at such height making it just impossible to repair such damage. Further keeping in view the age of the respective parties, not only that the trial court made a sincere endeavour to achieve peace between the parties involved herein through conciliation but failed in its endeavour. As indicated in the judgment of the trial court in paragraph-8 quoted clearly indicating about the failure attempt. Attempt of this Court through different Judges also failed with clear observation that the husband is ready to accept the wife but the wife remains reluctant to stay with husband or even accepting the offer of money by the husband. 12. For the observations and findings of the trial court and the observations and findings of this Court keeping in view the repeated failure of attempts by both the courts to achieve a conciliation between the parties, this Court finds, the distance between the husband and wife, who are in their 76 and 66 years of age has reached such bad height and it is a case beyond repair and there is absence of positive expectation. Presently, husband even though showing interest to take the wife back to his home but the wife as usual refusing to join back the husband. Husband though remained flexible but from the attitude of the wife, this Court also observes, the wife involved herein is in no mood of arriving at an amicable conciliation to provide peace to both ends and from the submission of her Counsel involving the wife, it appears, wife is having an eye on the house of the husband situated at Bhubaneswar rather than getting to the fold of the husband. The relationship between the husband and wife is beyond repair. 13. The relationship between the husband and wife is beyond repair. 13. For the factual aspect involved herein and observations of this Court as well as the lower court, this Court finds, none of the decisions cited at Bar fits to the case at hand. 14. In the circumstance and for the justification by the District Judge granting a decree of divorce on sufficient ground and the reasoning assigned herein above, this Court finds no scope for interfering with the impugned judgment, which is hereby confirmed. 15. The Matrimonial Appeal stands dismissed. In the circumstance, there is no order as to cost.