Research › Search › Judgment

Orissa High Court · body

2022 DIGILAW 15 (ORI)

Puppala Ishramma @ Rajani v. Puppala Dhanaraju

2022-01-10

D.DASH

body2022
JUDGMENT D. Dash, J. - The Appellant by filing this Appeal under Section-100 of the Code of Civil Procedure (hereinafter called as 'the Code') has assailed the judgment and decree passed by the learned District Judge, Gajpati in MAT Appeal No.02 of 2013. By the said judgment and decree, while dismissing the Appeal filed by the present Appellant (Opposite Party-wife) under section-96 of the Code, the First Appellate Court has confirmed the judgment and decree passed by the learned Civil Judge (Senior Division), Parlakhemundi in MAT Case No.12 of 2010 in dissolving the marriage between the parties by passing a decree of divorce as sought for by the Petitioner (husband). 2. For the sake of convenience, the parties hereinafter have been referred to per the position assigned in the original Court i.e. the Appellant as the (Opposite Party-wife) and the Respondent as the (Petitioner- husband). 3. The case of the Petitioner (husband) is that his marriage with the Opposite Party (wife) was solemnized on 16.03.2001 as per their caste and custom. It is alleged that from the very first infatuate night, the Petitioner found the Opposite Party (wife) to be frigid. The Petitioner (husband) then thought that it was due to some mental shock that the Opposite Party (wife) was not in a position to cooperate with him to enjoy the marital life. Having carried that idea in mind, he did not disclose this secret to others and returned to his place of work. The couples were invited by the parents of the bride after a fortnight of their marriage. The Petitioner (husband) being engaged in his place of service could not go to his in-laws place, when the Opposite Party (wife) had only gone to her parents house after fortnight of their marriage. She thereafter did not return inspite of repeated request. So, the Petitioner (husband) went to father-in-laws place with the husband of his sister to bring back the Opposite Party (wife). It is alleged that then they were not treated properly and the responses from the side of the Opposite Party (wife) and her family members were very cold and shocking. The matter was then reported to the well wishers of the parties. Accordingly a meeting being convened in the village, there was further persuasion to bring back Opposite Party (wife) which however did not yield any fruitful result. The matter was then reported to the well wishers of the parties. Accordingly a meeting being convened in the village, there was further persuasion to bring back Opposite Party (wife) which however did not yield any fruitful result. The Petitioner (husband) then approached the local Legal Services Authority for amicable settlement. When the Opposite Party (wife) despite notice did not come forward for the same, the Petitioner (husband) initiated a proceeding under section-9 of the Hindu Marriage Act (for short hereinafter called the HM Act). The proceeding being allowed, the Opposite Party (wife) did not obey the same and on the other hand, she initiated a proceeding under Section-125 of the Cr.P.C. The Court then directed her to obey the decree. So, she went with the Petitioner (husband). But then also the Petitioner (husband) was not allowed to enjoy his conjugal rights. The Court then being apprised of the said fact, when asked the Opposite Party (wife), she instead blamed Petitioner (husband) that he insisted her not to return to his house. It is stated that thereafter, the Opposite Party (wife) withdrew herself from the society of the Petitioner (husband) and then imposed a condition that the Petitioner (husband) should separate himself from his parents for seeing her return. The proceeding under section-125 of the Cr.P.C. in the meantime ended with an order of payment of monthly maintenance of Rs.1,500/- to the Opposite Party (wife). It is said that thereafter, the petition for enhancement of maintenance has been filed by the Opposite Party (wife). All these being stated to have caused mental agony to the Petitioner (husband), he sought for a decree of dissolution of marriage. 4. The Opposite Party (wife) denying the averments taken in the petition made certain counter allegations. It is stated that from the beginning, the Petitioner (husband) and parents were not interested in her as they were insisting for dowry articles to be given which had not been fulfilled. It is also stated that at the time of marriage as per the demand, the parents of the Opposite Party (wife) had given cash of Rs.1,50,000/- and two tolas of gold ornaments as also household articles worth of Rs.25,000/- . The Opposite Party (wife) was tortured by the Petitioner (husband) and his parents when her parents did not meet further demand of dowry. She was meted out with cruelty in various ways. The Opposite Party (wife) was tortured by the Petitioner (husband) and his parents when her parents did not meet further demand of dowry. She was meted out with cruelty in various ways. It is stated during the first stay of 10 days in the house of the Petitioner (husband), the parties had led happy conjugal life. Thereafter, the problem started from the side of the Petitioner (husband) and it is the Petitioner (husband) who deserted her for which she ultimately had to take shelter in her father's place. It is her case that the Petitioner (husband) is not interested in her and therefore has made all such false allegations. It is further stated that although the Court in seisin of the case under section-125 of the Cr.P.C. had given an opportunity to the Petitioner (husband) to take her and lead happy conjugal life, that did not materialize solely for the fault of the Petitioner (husband) and although she had all along expressed her readiness and willingness to join the Petitioner (husband) for leading happy conjugal life, it is the Petitioner (husband) who intentionally did not made any progress in that direction. 5. The Trial Court on the above rival pleadings has framed seven issues. It has answered the crucial issue by holding that it is the Opposite Party (wife), who has voluntarily withdrawn from the society of the Petitioner (husband). In respect of issue framed with regard to the allegation made by the Opposite Party (wife), the Trial Court has answered those against the Opposite Party (wife). Finally, answering issue no.4, it has been held that the Petitioner (husband) is entitled to the relief of decree of divorce as prayed for. The lower Appellate Court being moved by the unsuccessful Opposite Party (wife) has confirmed all those finding recorded by the Trial Court. 6. The Appeal is admitted on the following substantial questions of law:- (i) Whether the findings of the lower Appellate Court that for the intentional default of the Appellant (Opposite Party-wife) in joining the Respondent (Petitioner- husband) for restitution of conjugal rights, the Respondent (Petitioner-husband) is entitled to the decree for dissolution of marriage under Section- 13(1)(ib) of the Hindu Marriage Act, 1955 is sustainable in the eye of law? and (ii) Whether the Trial Court as well as the lower Appellate Court have erred in law by not granting permanent alimony to the Appellant (Opposite Party-wife), while passing decree of dissolution of her marriage with the Respondent (Petitioner-husband)? 7. Mr. S.S. Rao, learned Counsel for the Appellant submitted that the findings of the lower Appellate Court that the Opposite Party (wife) has voluntarily withdrawn from the society of the Petitioner (husband) and has separated herself for all these years is completely against the weight of evidence on record and that finding is the outcome of perverse appreciation of evidence on record. He further submitted that the Courts below have completely forgotten the duty cast on them that here in the case, when the Opposite Party (wife) is having no source of income and earning to maintain herself and when is in receipt of paltry sum of monthly maintenance in the proceeding under Section-125 of the Cr.P.C., she ought to have been awarded with permanent alimony for her living in the days to come in maintaining in the same status which the Petitioner (husband) enjoys in the society, by taking into account all the other surrounding factors. 8. Mr. A.K. Mishra, learned Counsel for the Petitioner (husband) submitted all in favour of the finding rendered by the by the Courts below. According to him, the Petitioner (husband) has no fault in the matter of separation which has taken place after the marriage between himself and the Opposite Party (wife) and the evidence on record would clearly suggest that it is the Opposite Party (wife) who has withdrawn from the society of the Petitioner (husband) without any justifiable cause. He submitted that the Petitioner (husband) has been complying with the order of payment of maintenance as awarded in the proceeding under section-125 of the Cr.P.C. He submitted that the Petitioner (husband) being a Sikshya Sahayak has not yet been regularized as he lacks in some eligibility criterias and now he is earning a sum of Rs.27,000/- per month. He however, did not oppose to the idea as to award of permanent alimony in favour of the Opposite Party (wife). In stating so, he contended that the quantum of permanent alimony in that event has to be fixed looking at the income of the Petitioner (husband) as also all his liabilities and other relevant factors. 9. He however, did not oppose to the idea as to award of permanent alimony in favour of the Opposite Party (wife). In stating so, he contended that the quantum of permanent alimony in that event has to be fixed looking at the income of the Petitioner (husband) as also all his liabilities and other relevant factors. 9. Keeping in view the submission made, I have carefully gone through the judgments passed by the Courts below. 10. The present age of the Petitioner (husband) is about 50 years; whereas that of the Opposite Party (wife) is 40 plus. Their marriage had taken place about 20 years back. They have together remained under one roof for a very short period after marriage. The Petitioner (husband) had filed the petition under section-9 of the H.M. Act in the year, 2007 which had been allowed on 13.04.2009 by directing the Opposite Party (wife) to join the Petitioner (husband) for restitution of conjugal rights. However, the Opposite Party (wife) having not questioned the same has preferred to initiate a maintenance proceeding and has been getting maintenance a sum of Rs.1,500/- per month which is said to have been paid by the Petitioner (husband). There has been several attempts for reunion between the parties. The parties have led evidence in support of their allegations and counter allegations. When Petitioner (husband) has stated that it was the Opposite Party (wife) who has withdrawn herself from his society without any justification and lawful excuse; the Opposite Party (wife) has alleged that the fault lies with the Petitioner (husband) and she had no contribution to it, in further stating the situation was made such that it was not possible in her to join the Petitioner (husband). Evidence on record is there to show that there has been several attempts for reconciliation by the intervention of the well wishers of the parties and all those have proved to be the exercise in futility. This Court having also called the parties once for reconciliation had the occasion of observing the mind set and attitude of the parties. The question of reunion is now stands as a foregone conclusion. This Court having also called the parties once for reconciliation had the occasion of observing the mind set and attitude of the parties. The question of reunion is now stands as a foregone conclusion. In view of all these above, when the Courts below on examination of evidence and upon their evaluation have ultimately found that a case for dissolution of marriage of the parties is made out, in the absence of any such grave infirmity, this Court finds no justification or reason to interfere with the same at this stage after such long lapse of time which is also likely to serve no useful purpose for the parties and in my considered opinion would not stand to their welfare. However, having said above, this Court, finds that while passing the decree for dissolution of the marriage between the parties the Courts below were under legal obligation to bestow their attention in directing the Petitioner (husband) to make provision as to the permanent alimony for the Opposite Party (wife), who is having no income of her own and is a dependant. It is submitted from the side of the Petitioner (husband) that he is paying the monthly maintenance to the Opposite Party (wife) in terms of the order passed in a proceeding under section-125 of the Cr.P.C. It is also not stated that the Opposite Party (wife) has in the meantime been able to have any earning of her own and that is also evident from the fact that for citing any such change in the situation or showing any such development in that regard, the Petitioner (husband) has not filed any application for modification of the order of maintenance. In that view of the matter, taking into account all the relevant factors and viewing the surrounding circumstances this Court is of the considered view that it would be just proper and reasonable to award permanent alimony of Rs.7 lakhs to be paid by the Petitioner (husband) to the Opposite Party (wife). 11. In the result, the Appeal stands allowed in part without cost. While confirming the judgments and decrees as to dissolution of marriage between the parties; the Petitioner (husband) is directed to pay a sum of Rs.7 lakhs to the Opposite Party (wife) within a period of six months hence towards permanent alimony. 11. In the result, the Appeal stands allowed in part without cost. While confirming the judgments and decrees as to dissolution of marriage between the parties; the Petitioner (husband) is directed to pay a sum of Rs.7 lakhs to the Opposite Party (wife) within a period of six months hence towards permanent alimony. It is further directed that the decree for dissolution of marriage would stand to operate on payment of permanent alimony as aforesaid within the period specified or earlier as the case may be. It is further made clear that the Opposite Party's (wife's) entitlement to the monthly maintenance in terms of the order passed in the proceeding under section- 125 of the Cr.P.C. till payment of the entire amount of permanent alimony shall remain unaffected and till the decree for dissolution of marriage comes to operate the field on payment of permanent alimony as above directed. In the event, permanent alimony is not paid and consequentially, the decree for dissolution of marriage does not stand to operate, the order passed in the proceeding under section-125 of the Cr.P.C. or any other proceeding subsequent thereto shall remain in force. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No. 4587 dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.