ORISSA HIGH COURT CUTTACK MATA No.64 of 2011 From the judgment and decree order dated 15.7.2011 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding Nos. 251 of 2003 and 204 of 2005. -------------------In MATA No.64 of 2011 Smt. Nibedita Dash .…… Appellant -versusSri Biranchi Narayan Satpathy ….… Respondent For Appellant : M/s. Bibekananda Bhuyan, B.N.Das, S.K.Panda, R.Ray A.K.Rout, B.N.Mishra, C.R.Swain, P.Mohanty, Ms.S.Sahoo & S.Samal For Respondent : M/s. K.C.Kanungo, H.V.B.R.K.Dora, & Chitra Padhi In MATA No.65 of 2011 Smt. Nibedita Dash .…… Appellant -versusSri Biranchi Narayan Satpathy & others ….… For Appellant : M/s. Bibekananda Bhuyan, B.N.Das, S.K.Panda, R.Ray A.K.Rout, B.N.Mishra, C.R.Swain, P.Mohanty, Ms.S.Sahoo & S.Samal For Respondents : M/s. K.C.Kanungo, H.V.B.R.K.Dora, & Chitra Padhi (R-1) Respondents 2 -------------------Date of Judgment:
27. 08.2013 -------------------P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJ.PANDA AND THE HONOURABLE DR. JUSTICE B.R.SARANGI ----------------------------------------------------------------------------------------------------S. Panda, J.Since both the appeals arise out of a common order, they were heard together and are being disposed of by this common judgment.
2. Challenge has been made in these appeals by the wife to the order dated 15.7.2011 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding Nos. 251 of 2003 and 204 of 2005.
3. The husband filed Civil Proceeding No.251 of 2003 under Section 12(1) (c) of the Hindu Marriage Act, 1955 (in short, “the Act”.) to declare the marriage with wife as void and in the alternative to grant a decree of divorce and permanently restrain her from claiming maintenance from him. The wife filed Civil Proceeding No.204 of 2005 under Section 9 of the Act for restitution of conjugal rights. The court below dismissed the application filed by the wife for restitution of conjugal rights on contest without cost and allowed the application filed by the husband on contest without cost and dissolved the marriage by a decree of divorce subject to payment of cost of Rs.3 lakhs as permanent alimony to the wife within three months from the date of the order.
4. Learned counsel for the appellant submits that C.P No.251 of 2003 was filed by the husband under Section 12(1)(c) read with Section 13(1)(i-a) of the Act. During pendency of the proceeding, by way of amendment, the relief claimed in the proceeding was only under Section 12(1)(c) of the Act and his prayer to declare the marriage as void on the plea of fraud, which could not be proved by him during trial. Therefore, the judgment and decree is liable to be reversed. The court below illegally granted relief under Section 13(1)(i-a) of the Act specifically when the said relief was deleted from the pleadings of the parties. The finding of the court below, that there is no chance of reunion without taking into consideration the application filed by the wife for restitution of conjugal rights, is illegal as the court below neither averred regarding desertion of wife not proved the said facts. Therefore, the said finding is 3 based on surmises and conjectures and not sustainable in the eye of law. It was further contended that ICC No.200 of 2006 was filed by the wife after threatening given by her to implicate the husband, his family members and relatives in a false case of torture and demand of dowry and the fraud practiced by the wife suppressing the facts that due to hormonal imbalance, moustache and beard were appeared on her from 1996 and on totality of the said facts, one can conclude that the husband has been subjected to cruelty by the wife and due to such harassment and mental agony practically there can be no reunion and therefore, the order passed by the court below granting divorce in favour of the husband is liable to be reversed. The application filed by the wife for restitution of conjugal rights should have been passed by the court below in view of the medical report that she is medically fit to lead a normal conjugal life. In support of his contention, he cited a decision of the Madhya Pradesh High Court in the case of Shrikant v. Smt. Saroj reported in AIR 200.Madhya Pradesh 94 and submits that in absence of any evidence to grant relief under Section 13 of the Act, the court below has exercised its power illegally in the absence of any evidence on record. Hence, the decree is liable to be set aside. He also cited a decision of the apex Court in the case of Dr.N.G.Dastane v. Mrs. S.Dastane reported in AIR 197.SC 153.and the decision of the Punjab & Haryana High Court in the case of Krishan Kumar v. Smt. Nidhi Arora reported in AIR 201.(NOC) 441 (P&H) wherein it has been held that in absence of positive pleading and evidence, the court has lack jurisdiction to grant such relief.
5. Learned counsel appearing for the respondent submitted that learned Judge, Family Court dissolved the marriage by a decree of divorce subject to payment of Rs.3 lakhs on the ground of admission by the wife that the father of the wife refused to send her to the matrimonial home and the rebuttal evidence of P.W.2, the brother of the husband, amounts to cruelty and desertion. As the wife has already received Rs.3 lakhs as permanent alimony on 8.8.2012 as directed by this Court, the judgment and decree passed by the court below need not be interfered with as the judgment is passed as per the provision of Order 12 Rule 6(1) of the Civil Procedure Code read with Section 18 of the Indian Evidence Act on the admission of the wife. The court has jurisdiction under Section 23(1)(a) of the Act to draw a decree on the basis of material evidence in the end of justice. She further submitted that implicating the entire family members in criminal case by filing ICC Case No.200 of 2006 amounts to cruelty. As the husband was frustrated and sustained huge financial 4 expenses for his frequent coming to court from his working place, there is no chance between the husband and the wife to lead a happy conjugal life. Therefore, the judgment and decree need not be interfered with. In support of his contention, the decisions of the apex Court in the case of Praveen Meheta v. Inderjit Mehta, reported in AIR 200.SC 258.and the decision of the Delhi High Court in the case of Sangeeta v. Hitesh Kumar reported in AIR 201.Delhi 83 and the decision of this Court in the case of Smt. Pratima Biswal v. Amulay Ku. Biswal reported in AIR 200.Orissa 125 have been cited.
6. From the rival submissions of the parties and after going through the LCR and pleadings of the parties, it appears that the husband filed Civil Proceeding No.251 of 2003 on 23.3.2003 under Section 12(1)(c) read with Section 13(1)(i-a) of the Act on the ground that he is a permanent employee of Indian Railways and working as TTI. The wife is a Graduate and her father is also an educated person and working in an organization at Jagatsinghpur. The marriage was solemnized between the parties on 28th February, 2002 as per Hindu rites and customs. It was an arranged marriage. The wife lived one month in matrimonial home and returned to her father’s house. The husband left for his service place. Thereafter, the wife went with him to his service place on 1st December, 2002 where she fell ill and was admitted to South Eastern Railway Hospital where it was detected ovarian tumor. The husband found moustache and beard on her face and on being asked, she disclosed regarding her hormonal imbalance. She was under regular treatment from 1996. She also disclosed that she was under treatment of ovarian tumor. Accordingly, he was shocked. He informed the said facts to her father who took her to the native place for better treatment. She was admitted in a nursing home at Cuttack and operated there. After discharging from the nursing home on 14.1.2003, the doctor advised her to take rest. It came to his knowledge that the right ovary had been removed by operation and left ovary had been scratch for removal of cyst as a result of which chance of conception was very remote. The said fact was disclosed to all the family members of the wife. Though the family members of the wife were aware about the said illness of the wife, they did not disclose the said fact before marriage. Had the said fact been brought to his notice and his family members, he would not have given his consent for such marriage. Since it was an arranged marriage and the marriage was held by obtaining fraud and misrepresentation of facts and this fraud gave mental shock and agony, he is entitled to decree of divorce. To resolve the dispute, his family members and well- 5 wishers arranged a meeting in his house on 23.4.2003. The father of the wife was invited to attend the meeting. He also admitted the above facts. It was disclosed before him that since the marriage was held by fraud and misrepresentation of facts and chance of wife to conceive was very remote, the husband was constrained to file an application for mutual divorce. The father of the wife did not agree to such proposal and threatened to implicate the family members in false case. As the matter was not settled amicably, he filed the proceeding under Section 12 of the Act.
7. The wife appeared and filed the written statement and it was stated therein that she was ill on 6.12.2002. She traversed all other allegations made by the husband. She stated that after marriage, she led a happy conjugal life for more than 10 months and the marriage was consummated. She also disclosed that she was admitted to a nursing home at Cuttack with prior intimation to the husband and his family members were very much present in the hospital on the date of the operation and took care of her. On 6.12.2002, the ovarian disease was detected. As per the opinion of the doctor, she was medically fit to lead a normal life; rather the husband forced her to remain with her parents and the relief sought by the husband should not be granted on a defamatory and unfounded allegations. Her father never threatened to file a false criminal case. She was ready and willing to join the company of the husband. Similar pleading was made in Civil Proceeding No.204 of 2005 filed by the wife for restitution of conjugal rights.
8. In support of their pleadings, the husband examined himself as P.W.1 and his brother as P.W.2. The wife examined herself as OPW 1.her father was examined as OPW 2 and her mother as OPW 3.They filed documents and letters which were marked as exhibits. On analyzing the evidence on record, the court below recorded a finding that the marriage was not in dispute. The court below held that the husband failed to establish convincingly that wife had growth of moustache and beard on her face and she had ovarian complication prior to her marriage. Therefore, he failed to establish the plea that by false representation and fraud, he had been given in marriage with respondent-wife. Under such circumstances, the marriage could not be held invalid or void. However, the court below taking into consideration the fact that the wife was operated on 11.1.2003 and after her discharge from nursing home, when her in-laws sought to bring her back to the matrimonial house, her father refused to send her with a plea that the doctor advised her rest for 6 months. Since the wife did not return to the matrimonial home and she preferred to stay at her father’s house, her 6 said act amounts to cruelty to the husband. In view of that and on totality of the evidence on record, one could conclude that the husband was subjected to cruelty by the wife and on such findings, the court below passed the impugned judgment and decree.
9. From the above findings of the court below, it appears that the court below passed a decree under Section 13(1)(i-a) of the Act on the ground of desertion without analyzing what amounts to desertion.
10. Law is well settled that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. The inference of desertion has to be made on a balance of probabilities.
11. In view of the above settled principle of law and the pleadings as well as the evidence led by the parties, in the present case, it does not reveal that the wife is guilty of desertion. She left the matrimonial home with an intention to return back to the matrimonial home after treatment. Her subsequent conduct appears that she is ready and willing to return to the matrimonial home and resume the conjugal rights. However, on a false plea the husband was not willing to bring her back to the matrimonial home; rather through P.W 2 (elder brother of the husband), he pressurized the wife for a divorce. Thereafter on a false plea filed the present proceeding with an allegation that consent of marriage obtained by fraud and misrepresentation and he failed to prove such plea during trial. Law is also well settled that the burden of proving desertion- the “factum”. as well as the “animus deserendi”. – is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the husband has still to satisfy the Court that the desertion was without cause (See AIR 196.SC 40.Lachman Utamchand Kirpalani v. Meena alias Mota and AIR 197.SC 1534.Dr. N.G.Dastane v. Mrs. S.Dastane). Hence, the husband has failed to prove the plea of desertion against the wife.
12. So far as cruelty is concerned, in the present case, the respondent- husband has not brought the wife to the matrimonial home. The appellant-wife when left the matrimonial home has not disclosed any intention of permanent forsaking or 7 abandonment of the spouse or she has left the matrimonial home without consent; rather she has left the matrimonial home for treatment. As per the doctor’s advice, she was overstayed to take rest. The said overstayed of wife in her parents house will not constitute cruelty towards husband. Accordingly, the finding of the court below is arbitrary and perverse so far as cruelty is concerned.
13. The decisions cited by the husband in the case of Praveen Meheta (supra), Sangeeta (supra) and Smt.Pratima Biswal (supra) are not applicable to the facts and circumstances of the present case. It appears that the criminal case has been filed by the wife in the year 2006 during pendency of the present proceeding. Therefore, the allegation made by the husband that the father of the wife threatened to file criminal case against the family members of the husband is not correct.
14. Accordingly, we set aside the judgment and decree passed in Civil Proceeding No.204 of 2005 and reverse the judgment and decree passed in Civil Proceeding No.251 of 2003 and dismiss the said civil proceeding filed by the husband to declare the marriage as void on the plea of fraud and directs him to pay maintenance at the rate of Rs.6000/- (rupees six thousand) per month to the wife from the date of the order as she has reasons to stay separate from the respondent-husband and has no income. The appeals are accordingly disposed of. ………..…………… SANJ.PANDA, J.Dr.B.R.Sarangi, J : I agree. ………..…………… Dr.B.R.Sarangi,J High Court of Orissa, Cuttack Dated 27th August, 2013/Pradeep