Full Judgment
B. Panigrahi, J.
1. This appeal is directed against the
JUDGMENT / ORDER
passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 131 of 1995 filed under Section 12(1)(b) of the Hindu Marriage Act (here-in-after referred to as the 'Act').
2. The facts leading to filing of this appeal are as follows :-
Undisputedly the appellant is the wife of the sole respondent whose marriage was solemnised on 7-6-1998 according to Hindu rites and customs. Immediately after marriage the parties lived peacefully for some time, but thereafter, bitter feeling arose in their conjugal life as the appellant asked the respondent to live separately from his parents. Since the respondent did not agree to the suggestion, therefore there was ill-feeling and dissension between them. The respondent in order to satisfy the appellant brought her to Cuttack for some time, but the position did not improve. Out of their wedlock a daughter was born to them who is admittedly residing with the sole respondent. Since respondent did not take care of the appellant nor provide her maintenance, therefore, she was obliged to file a CriminalProceeding under Section 125 of the Code of Criminal Procedure in which the Court directed the respondent to pay the appellant Rs. 350/- per month. The appellant claimed that she could not endure the ill-treatment, harassment and torture meted out to her by the respondent, and, therefore, she has taken shelter in her parents' house.
3. Respondent-husband had claimed that the appellant voluntarily withdrew herself from the society of the respondent and there is no chance of joining them together. Therefore, in the aforesaid circumstance, there should be a decree of divorce passed against the appellant.
4. The respondent examined himself before the learned Judge, Family Court. On the other hand, the appellant besides examining herself also examined her brother. The learned Judge, Family Court on assessment of evidence came to the conclusion that the appellant since withdrew herself from the society of the respondent and there is no further chance of her joining, thus, in the aforesaid situation, the prayer of the respondent for granting a decree of divorce could be granted. Thus being aggrieved by and affected with the judgment passed by the learned Judge, Family Court, the appellant-wife preferred this appeal.
5. Learned counsel appearing for the appellant has strongly contended that the learned Judge, Family Court, has misread the evidence adduced before him. The learned Judge, Family Court has only utilised a portion of the evidence which is suitable to respondent although there was adequate evidence placed by the appellant. He has highlighted that the appellant in unequivocal terms stated to have made several attempts to join with the respondent, but however, such attempts became fruitless. Therefore, she finding no other way out had to approach the Family Court claiming monthly maintenance under Section 125, Cr. P. C.
6. Merely, the appellant filed an application for her maintenance under Section 125, Cr. P. C. the Family Court without properly weighing the evidence has held that she voluntarily withdrew herself from the society of the respondent. It is true that the respondent has been living with the second wife i.e.Gitanjali. But during the subsistence of the first marriage, the respondent was legally incompetent to enter into marriage with anybody else. In this background the decree of divorce should be set aside. Since this Court has earlier directed to enhance the rate of maintenance from Rs. 350/- to Rs. 650/- the respondent should pay at that enhanced rate.
7. None has appeared on behalf of the respondent. But hearing the submission made by the appellant, we found that there is no dispute with regard to the marriage of the parties. It has been further established that the wife has been residing separately atleast from 1988. The appellant has claimed that she has no inclination to join with the husband. Since the respondent has been living with another lady by name Gitanjali, it would not be practicable for the appellant to stay under one common roof.
8. From the judgment of the Family Court, we found that practically, the learned Judge has not discussed the evidence produced before him by the appellant. The learned Judge only narrated some portions of the evidence of the husband-petitioner in which it seems that he claimed to have brought the appellant to Cuttack and kept her for some time. From this part of the statement it can not be inferred that she voluntarily abondoned the matrimonial house. On the contrary we found that the wife-appellant claimed that her husband asked the appellant's brother to come and take her to their house for some time and thereafter, he did not come to take her, as a result of which she has been constrained to stay in the parents' house. The factual scenario of the case may now be considered. From the submission made by the appellant the respondent has been residing with another lady by name Gitanjali. It appears that there has been a separate case initiated under Section 494, I. P. C. We do not want to express any opinion with regard to second marriage of the respondent as claimed by the appellant. It shall be independently decided by the learned Court before whom the case is pending, according to the evidence placed before him. But, suffice it to say that in this background it is incompatible for the appellant to continue to stay withthe respondent as his wife. Therefore, the marriage has come to an irretrievable end and the relationship cannot be restored in the present context.
9. In the above backdrop, we are to consider whether the appellant can be awarded some lump sum amount towards her maintenance for the rest of her life. Learned counsel appearing for the appellant has brought to our notice that in case the respondent is directed to pay Rs. 650/-- per month, difficulty will arise as regards realisation of the amount from him. Therefore, in order to meet the ends of justice, we direct the respondent to make a lump sum deposit of Rs. 60,000/- (Rupees sixty thousand) to be kept in fixed deposit so that from the interest the appellant shall maintain herself throughout her life. This amount is to be deposited in any Nationalised Bank in the name of the appellant within eight weeks from the date of the judgment. Till such amount is deposited, the respondent shall go on paying the monthly maintenance at the rate of Rs. 650/- per month without fail. We do not award separate maintenance amount for the female child since she is staying with her father. It is open to the appellant to claim for maintenance in future, if such occasion arise at any time before marriage of the child.
In the result, the appeal fails in the light of the above judgment. The decree of divorce is hereby affirmed subject to the observations made above.
M. Papanna, J.
10. I agree.