Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 111 (ORI)

Sudhir Nayak v. Lili Kumari Nayak

2021-03-10

D.DASH

body2021
JUDGMENT : D. Dash, J. 1. The appellant, being aggrieved by the judgment and decree passed by the learned Additional District Judge, Chatrapur (Ganjam) in Mat. Appeal No. 04 of 2016, has filed this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'). 2. For the sake of convenience and clarity as also to avoid confusion; the parties hereinafter have been referred to in the same rank as assigned to them in the original proceeding before the Trial Court i.e. the appellant as 'the Petitioner' whereas the respondent as 'the Respondent. 3. The Petitioner, had filed an application before the learned Senior Civil Judge, Chatrapur (Ganjam), which stood numbered as Mat Case No. 02 of 2014 for dissolution of her marriage with the Respondent with further prayer for return of Streedhan Articles and permanent alimony. The suit having been dismissed, the petitioner (wife) had preferred the appeal. The lower appellate court has set aside the judgment and decree passed by the trial court and accordingly, the appeal has been allowed. The case of the petitioner is that her marriage with the Respondent had taken place on 27.05.2005. In the said marriage, as per the demand made by the Respondent and other family members, a sum of Rs. 70,000/-, one Hero Honda motorcycle, one Gold Chain, Ring, Watch, cash of Rs. 40,000/- towards dress and other household articles, colour TV etc. had been given and she had also been separately presented with Gold Ornaments. It is her further case that after consummation of marriage, the period of happiness in her marital life was too short. It is stated that shortly after the marriage, the Respondent and his family members expressed their dissatisfaction over the dowry articles and started torturing her. The petitioner, finding no other alternative when informed her parents, who use used to reside in the same village, they had requested the Respondent to refrain from doing that. However, that did not provide any fruitful result and the state of affairs as before in so far as the torture upon the petitioner is concerned, continued. The petitioner went to join the respondent at his place of service at Meerut. However, that did not provide any fruitful result and the state of affairs as before in so far as the torture upon the petitioner is concerned, continued. The petitioner went to join the respondent at his place of service at Meerut. It is stated that while residing at Meerut, the Respondent mentally tortured her by not allowing her to talk with anybody and most of the time was keeping her under lock and key when the Respondent was going out. During those periods, the Respondent started saying that had he married somewhere-else, he would have got much more dowry. It is the further case of the petitioner that she was being forced by the Respondent (husband) to do all the household work right from the morning till night that to even during her pregnancy when she was not well. During this period, she felt very weak and, therefore, as requested by her parents, she went to their house where she gave delivery. The child, however, died shortly after birth. It is stated that during that period, neither the Respondent nor any of his family member came to see her and take any care of the petitioner. Although the parental house of the Respondent is situated in the same village where the parental house of the petitioner is situated, the behavior shown was completely different and unusual. It is her further case that due to profuse bleeding at the time of delivery, she had gone to comma stage and those being duly informed to the Petitioner and other members of his family from time to time, none had shown any response from in any manner. It is further stated that despite all these, with utter hope of leading a happy marital life, in the Month of February, 2007, the petitioner again joined the house of the Respondent. That hope of establishing a happy marital life got shattered soon when the very night, the Respondent and his family members repeated the old practice of abusing her and then they also assaulted her. That hope of establishing a happy marital life got shattered soon when the very night, the Respondent and his family members repeated the old practice of abusing her and then they also assaulted her. Such being the attitude and behavior of the Respondent and his family members, the petitioner found herself unsafe to continue in the company of the Respondent and his family members when they also often openly expressed in posing threats that if the matter was somehow reported to police, her life would be at stake, the petitioner was compelled to come back to her father's house. Despite all her desire and hope of continuing to live with the Respondent, the situations so created that the petitioner had no other alternative but to leave. Thus being compelled to leave the marital home and separately stay at her father's house, the petitioner after some time just made a grievance before the District Magistrate, Ganjam, who in turn asked the local police to look into the matter. An attempt at that level being made for conciliation, however, failed. Finally, a criminal case was initiated against the Respondent and his family members and police having found a prima facie case as to commission of offence under section 498(A)/341/294/506 read with section 34 of the IPC, had submitted charge sheet placing them for trial in the court of law. It is her case that since February, 2007, the Respondent made no such attempt to take her back and did not even bother to look after her maintenance or take information as to how she was living much-less to say of sending money. Life of the petitioner thus being miserable, in that way continued for a long period of seven years. Therefore, the petitioner thought it wise to have the marital tie snapped by the order of the court. So, she moved the court of Senior Civil Judge, Chhatrapur, Ganjam by carrying an application under section 13 of the Hindu Marriage Act praying for a decree of dissolution of her marriage with the Respondent. 4. The Respondent being summoned, filed his written statement. The averments as to torture, ill-treatment, demand of dowry etc are all denied. It is his case that every time although he was interested to have the medical check-up of the petitioner, she was avoiding. Finally on 19.09.2006, he had to leave for Bengaluru. 4. The Respondent being summoned, filed his written statement. The averments as to torture, ill-treatment, demand of dowry etc are all denied. It is his case that every time although he was interested to have the medical check-up of the petitioner, she was avoiding. Finally on 19.09.2006, he had to leave for Bengaluru. On that very day, he got information about the death of the child soon after the birth at Chhatrapur hospital. It is his case that although he had made all sincere endeavour to restore the marital life, it could not be possible for the flat denial from the side of the petitioner. It is stated that for the said reason, he also filed an application under section 9 of the Hindu Marriage Act for restitution of the conjugal right. According to him, the divorce proceeding is a counterblast to the proceeding that he had initiated for restitution of conjugal right. Based upon these pleadings, the trial court had framed eight issues out of which, the crucial issues are Issue Nos. iii, iv and v, which concern with the factual aspects in so far as the main prayer of the petitioner is concerned, i.e., dissolution of the marriage. Issue Nos. iii, iv and v are as under:- "iii) Whether the Respondent has treated the Petitioner with cruelty consisting ground for dissolution of their marriage?; (iv) Whether the Respondent is the guilty of desertion, which is also a ground for divorce; and (v) Whether the marriage of the present Petitioner has been dissolved by a decree of divorce?" 5. The issues being interlinked, the trial court appears to have rightly taken up those together for decision. On going through the evidence on record both oral and documentary, the ultimate conclusion of the trial court is that the petitioner has failed to establish the fact that cruelty had been meted out at her from the side of the Respondent and other members of his family to that extent so as to justify her withdrawal from the society of the Respondent and have a separate living and residence and thus it is said that her withdrawal from the company of her husband was without any reasonable excuse. The above conclusion has led to the dismissal of the proceeding in its entirety. Being aggrieved by the above, the petitioner carried an appeal. The above conclusion has led to the dismissal of the proceeding in its entirety. Being aggrieved by the above, the petitioner carried an appeal. The lower appellate court has reversed the finding rendered by the trial court on those Issue Nos. iii, iv and v. Having recorded the answer on those crucial issues in favour of the petitioner, the prayers of the petitioner have been allowed to the extent as aforestated. In view of that the Respondent (husband) is before this Court in filing the second appeal. 6. Mr. S.S. Rao, learned counsel for the Respondent (husband) submitted that this case involves, the followings are the substantial questions of law:- "A) Whether the learned lower appellate court erred in relying upon the principles of preponderance of evidence to conclude findings on cruelty and desertion in a civil dispute seeking divorce?; (B) Whether the learned lower appellate court in the facts and circumstances of this case, erred in reversing the judgment and decree passed by the learned trial court, only on the findings that the appellate is more responsible?' (C) Whether the learned lower appellate court committed errors of record in observing that the appellant failed to produce any document, when it is the admitted case that it is the appellant who filed an application under section 9 of the Hindu Marriage Act, much prior to the FIR lodged by respondent?; and (D) Whether in the facts and circumstances of the case, learned lower appellate court erred in fixing permanent alimony at Rs. 5,00,000/-" Mr. Rao submitted that the lower appellate court has completely erred in appreciating the evidence let in by the parties in recording the answers to Issue Nos. iii, iv and v and accordingly the finding in favour of the petitioner as to have established the grounds of cruelty and desertion for the dissolution of the marriage suffers from the vice of perversity. 7. Keeping the above submissions in mind, I have carefully perused the judgments of the trial court as well as that of the lower appellate court. The law is well settled that the court of first appeal has all the power to re-appreciate the evidence within the four corners of law for good reasons may either agree with the finding of the trial court, or to take the view/s to the contrary. The law is well settled that the court of first appeal has all the power to re-appreciate the evidence within the four corners of law for good reasons may either agree with the finding of the trial court, or to take the view/s to the contrary. Upon re-appreciation of evidence, if the lower appellate Court arrives at a conclusion at its level that the finding rendered by the Trial Court is against the weight of evidence, it would be well within its right to record its own finding. The law is also well settled that the second appeal would lie if the case involves any substantial question of law. Law is no more res integra that in so far as the finding on factual aspect of a case is concerned, which is the outcome of appreciation of evidence, the same can be taken as a substantial question in the second appeal, if it is shown that such appreciation of evidence has been wholly perverse and had it been properly made, the finding would have been otherwise. 8. The Respondent has attacked the finding of the lower appellate court on those three issues, i.e., Issue Nos. iii, iv and v, as has been rendered contrary to what had been concluded by the trial court on the ground that the same is the result of perverse appreciation of evidence without keeping in view the settled law in the field so as to record such a finding for being taken as the ground of dissolution of marriage. 9. In the backdrop of the above, reasons in support of the finding recorded by the lower appellate court on those three issues being pulled out from the evidence on record are required to be gone through. The marriage between the parties was solemnized on 27.05.2005. The Respondent was then working as Havildar in Army. Admittedly, the petitioner after her marriage was dependant upon the Respondent and was having no source of income of her own. It has been the version of the petitioner on oath that after about a month of marriage, she faced the difficulties in her in-law's house when the Respondent and other members of his family started expressing their dissatisfaction over the dowry articles and suddenly changed their behavior towards her. She has also stated that when she went to Meerut and stayed with the petitioner, there also she was mentally tortured. She has also stated that when she went to Meerut and stayed with the petitioner, there also she was mentally tortured. In her evidence, she has also described as to other details. Her evidence has been corroborated by her father, who has been examined in the proceeding as P.W. 2. The Petitioner has also stated about the manner in which the petitioner was treated during the period when she was pregnant and during when other events took place. The evidence of P.W. 1 is corroborated by the evidence of P.W. 2 on material particulars. From the side of the Respondent, it is he, who has only been examined. The Respondent has not established the fact through evidence that he had at any time during the separate stay of the petitioner provided her with any money for even meeting her bare necessity. The evidence on record being given a careful reading shows that it is the Respondent who is responsible for the Petitioner's leaving in her father's place and that she had sufficient reason to do so. The long separate stay of the parties that to in the same village in two different houses and there being no response from the Respondent during the period in any manner whatsoever, also amounts to a conduct so as to inflict upon the Petitioner, the mental cruelty of that nature that it cannot be reasonably expected that could have lived together. With such evidence on record, the appellate court having said that the Respondent being more responsible than the petitioner for their bitter matrimonial dispute ultimately compelling the petitioner in coming to stay at her father's house, appears to have committed no wrong so as to be attached with the stigma that the same is the outcome perverse appreciation of evidence in leading to say that the finding on that score suffers from the vice of perversity. Looking at the salary of the Respondent and all other relevant aspects as well as the surrounding circumstances, the grant of permanent alimony to the petitioner, who is within the age group of 30-35 on the face of it, does not appear to be unjust and unreasonable. Having said so, the submission of the learned counsel for the appellant as to involvement of substantial question of law in the case as indicated at paragraph-6 of this judgment stands repelled. 10. Having said so, the submission of the learned counsel for the appellant as to involvement of substantial question of law in the case as indicated at paragraph-6 of this judgment stands repelled. 10. In the wake of aforesaid, the appeal does not merit admission and accordingly, stands dismissed. In the peculiar facts and circumstances, however, there shall be no order as to costs.