Panchanan Mishra Vs. Smt. Arati Panda - Court Judgment

Excerpt:
family - divorce - section 10 of the hindu marriage act, 1955 - appellants and respondent filed separate suit in which one for divorce by appellant herein and other restitution of conjugal rights by respondent - both suits are dismissed however passed decree under section 10 of act for judicial separation with direction to appellant to pay maintenance - hence, present appeal by both party separately - held, from evidenced led in matrimonial proceeding, it appears that parties are accusing each other on different grounds and both of them are apprehensive of rebuilding confidence for peaceful and happy married life - in circumstances, instead of decreeing petition for divorce, in order to allow parties to rethink and reconcile situation and to give scope to rebuild confidence, decree of judicial separation as granted by lower court cannot be held to be illegal - in such view of matter and in special facts and circumstances of case and keeping in view status and education of parties, decree of judicial separation cannot be interfered with - in result, both appeals are dismissed - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but, instead of purchasing the house site in his (husband's) name, the wife got the sale deed executed in her name against the express instructions given by the husband'.it is further alleged that as the husband refused the undue demands of the wife she frequently picked up quarrels on minor matters and ill-treated the husband in several ways like non-sharing bed, using taunting words and the like and she also used to call him 'maichia' (impotent). she took sadistic pleasure in hurting the petitioner in denying him access to her person. therefore, feeling unsafe, the husband and his mother left the house -the mother-in-law went to the house of a relative and the husband shifted to a friend's house and informed his father-in-law about the incident. the husband started to ill-treat her and never cared to look after her well being. her inability to bear further child was like adding fuel to the fire and resulted in more torture being inflicted on her as being a curse to their family and her mother-in-law suggested to her son that he should divorce her wife and marry again. he also states that she was worshipping goddess kali in secrecy and she was also well versed with the 'black art'.hestates that on one occasion she had offered him to partake some prasad and after consuming it, he suffered from severe head reeling and nausea and thereafter became unconscious and was treated by a doctor. she admits that she had never complained before the father or brother of her daughter-in-law about her conduct. 18. the wife has claimed restitution of conjugal rights and complained of desertion of her husband. he has stated that the husband's mother was not quite happy with her daughter-in-law because of her abortions on two occasions and giving birth to a stillborn baby on one occasion. 21. thus, taking an overall view of the facts and circumstances on record, we are satisfied that the judge, family court was quite justified in forming an impression with respect to the conduct of the parties 'that none of them have approached the court of equity with clean hands. 25. it was contended on behalf of the husband that assuming for the sake of argument that a case for divorce on the ground of desertion and cruelty is not made out, the facts on record clearly indicate that this is a case of irretrievable breakdown of marriage and as such, it will be for the interest of both, if the relationship of .husband and wife is severed by a decree of divorce. on a perusal of the petitions filed by both the husband and the wife-the husband for divorce and the wife for restitution of conjugal rights, the written-statement and the evidenced led in the matrimonial proceeding, it appears that the parties are accusing each other on different grounds and both of them are apprehensive of rebuilding confidence for a peaceful and happy married life.p.c. naik, j. 1. civil proceeding no. 145 of 1992 was filed before the judge, family court, cuttack, by shri panchanan mishra (hereinafter referred to as 'the husband') against smt. arati panda (hereinafter referred to as 'the wife') for a decree of divorce. on the other hand, civil proceeding no. 85 of 1991 was filed by the wife against her husband for restitution of conjugal rights. the judge, family court, cuttack disposed of these two civil proceedings, by a common judgment on 30.8.1997. both the cases, namely, that filed by the husband for divorce and the one file by the wife for restitution of conjugal rights, were dismissed on contest. however, a decree under section 10 of the hindu marriage act (in short, 'the act') for judicial separation was passed with a direction to the husband (the petitioner in civil proceeding no. 145 of 1992) to pay maintenance of rs. 2,000/-per month to the wife (respondent in that proceeding).2. aggrieved with the judgment of the family court, the husband has preferred civil appeal no. 33 of 1997 praying for a decree of divorce and the wife has preferred civil appeal no. 34 of 1997 for setting aside the order of the court below and for decreeing her claim for restitution of conjugal rights. since both the appeals arise out of a common judgment, they were heard analogously and are being disposed of by this common judgment.3. admittedly, the parties are hindus are their marriage was solemnized at berhampur town on 30.1.1981. thereafter, they resided together as husband and wife at kendrapara where the husband was posted as a lecturer in english. in the meantime, he was transferred to sambalpur where the parties last cohabitated. it is the case of the husband that after their marriage, the wife tried to keep him under her absolute control and demanded that her mother-in-law should not live with them and that the entire salary should be handed over to her. the husband did not agree to this though he was handing over 50% of his salary to the wife who used to purchase 'lesser quantity of dal, oil, etc., and brought stale vegetables at cheaper rate and save some money for herself and purchasegold with such savings. this she did not desist from doing in spite of repeated request from the husband. it is further alleged that the wife tried to keep the entire savings under her absolute control. she had expressed her desire that they should purchase a house site at bhubaneswar where they could reside after retirement for which the husband gave rs. 30,000/- to his father-in-law. but, instead of purchasing the house site in his (husband's) name, the wife got the sale deed executed in her name against the express instructions given by the husband'. it is further alleged that as the husband refused the undue demands of the wife she frequently picked up quarrels on minor matters and ill-treated the husband in several ways like non-sharing bed, using taunting words and the like and she also used to call him 'maichia' (impotent). she took sadistic pleasure in hurting the petitioner in denying him access to her person. it is also the case of the husband that his wife used to worship an idol which she called 'kalika' and that she used to go out of the house at odd hours at night after locking the doors from outside when her husband and his mother fell asleep. on an occasion or two, when the husband woke up and asked his wife as to why she had gone out at an odd hour, the wife replied that she had gone to worship the deity. the husband alleges that his wife used to chant some 'mantras' in front of the said idol in the nude at night. it is his further case that on 27.12.1983, the wife had given some 'prasad' to the husband and on eating a portion thereof, he felt reeling of his head, stomach upset and became senseless. his mother sent for a doctor, but by the time the doctor arrived, he had regained his sense and it was diagnosed that he was suffering from food poisoning. on being compelled, the wife gave out that she had obtained the 'prasad' from a gunia to keep the husband under her control. therefore, feeling unsafe, the husband and his mother left the house - the mother-in-law went to the house of a relative and the husband shifted to a friend's house and informed his father-in-law about the incident. thereafter on 7.1.1985, wife's father and brother came and took her away from sambalpur and it was only after they left her at sambalpur, the husband and his mother returned to their residential house. accordingly, it was the case of the husband that the wife was practicing witchcraft and has also treated him with cruelty and as such he was entitled to a decree of divorce.4. denying each and every allegation made by her husband, the wife prayed for dismissal of the proceeding for divorce. it is the wife's case that she never insisted that her mother-in-law should stay apart from them, that she never purchased sub-standard goods for the household as alleged nor was she practicing any witchcraft.she denies that she had withdrawn from the society of her husband by not cohabiting with him. she denies to have addressed her husband as 'maichia'. it is also pleaded that she never ill-treated or quarreled with her husband, but on the contrary, acted the part of a dutiful wife taking all care for the household. she denies to have gone out of the house at odd hours of night by locking the husband and her mother-in-law inside the house and indulged herself in practicing witchcraft. she also denies that she was in the habit of chanting 'mantras' in front of the idol in the nude. she denies that she had given some 'prasad' to her husband who after eating the same became unconscious and suffered from food poisoning. she denies that she had obtained the 'prasad' from a gunia to give it to her husband so that he would be under her absolute control. she denies that it is because of the fear that they may be harmed by the wife that the husband and her mother-in-law went away to live elsewhere. she denies that on being informed, her father and brother came and took her away on 7.1.1984. according to the wife, all the allegations levelled against her are 'false, baseless, imaginary, concocted and fictious...'. the real facts leading to the problem according to the wife is that the husband and his family were dissatisfied with the dowry and began teasing her and insisting on her that she should bring more articles as dowry befitting the status of her husband's family. she expressed her inability to obtain more gifts, money, from her father's house and as they were unable to satisfy the demands, she tolerated the 'pasturing' of her husband. this brought about the dissension between them and resulted in more torture being inflicted on her. the husband started to ill-treat her and never cared to look after her well being. she was also physically assaulted on several occasions and because of physical and mental torture, she developed ill health and sickness. in spite of that, she was not provided proper medical assistance. being a lecturer, her husband started freely roaming around with some girt students and when she objected to his conduct, she was physically assaulted. her husband also got addicted to liquor. all these facts were brought to her father's notice who on a few occasions came to sambalpur in order to amicably settle their differences but of no avail. on one occasion, when her father was on a visit to sambalpur and she was narrating her miseries to him, the husband slapped her. however, there was some patch up and her father left. it is her further case that due to constant physical assault, she had two abortions and her third conception resulted in she giving birth to a stillborn child. her inability to bear further child was like adding fuel to the fire and resulted in more torture being inflicted on her as being a curse to their family and her mother-in-law suggested to her son that he should divorce her wife and marry again. it is further alleged that time and again she had been pressurized by her husband to ask her father to purchase & land in her name and as she did not agree, she was subjected to ill treatment. it is her further case that the husband used to come home in a drunken stage and physically assault her. on 29.12.1983, her husband took her to cuttack and left her at her father's house. thereafter, he never cared about her welfare not did he bother to send any amount towards her maintenance. her father also tried to reason with her husband but to no avail and on the contrary, he replied that he would be filing a suit to divorce her wife so that he could marry again. being destitute and helpless, the wife approached the orissa legal aid and advice board, cuttack (presently known as the orissa legal services authority, cuttack) for reconciliation, but the husband did not turn up. fearing that the wife may take proceedings for restitution of conjugal rights, the husband filed t.s. no. 51 of 1990 (on transfer, c.p. no. 145 of 1992) for a decree of divorce 'to counter-blast and defeat the case of the respondent'. considering the status and salary of the husband, she laid claim for maintenance of rs. 5,000/-, as she had no income to support herself and she was also compelled to file o.s. no. 36 of 1990 before the subordinate judge, first court, cuttack, for restitution of conjugal rights which was subsequently transferred to the judge, family court.5. in view of the pleadings of the parties and considering that the two matters were being considered analogously, the court below framed three issues, namely (a) whether the husband has been able to establish the grounds enshrined under section 13 of the hindu marriage act to succeed in the case of divorce, (b) whether the wife has been able to bring home the salient ingredients enshrined under section 9 of the hindu marriage act to succeed in her application for restitution of conjugal rights, and (c) to what other just and proper relief the parties shall be entitled to, in view of the proved facts and circumstances of the case.6. in support of their respective case, the husband examined three witnesses including himself and brought on record two letters written by him to his father-in-law. the wife examined four witnesses including herself and relies on some letters, which are marked exts. a to e. on a consideration of the oral and documentary evidence on record, the judge, family court, in paragraph 22 of his judgment held that 'the totality of the proved circumstances established by the parties creates an impression in the mind of the court that none of them have approached the court of equity with clean hands. the real genesis of their marital discord has been materially suppressedby them and they have come up with concocted versions.' it accordingly came to the conclusion that no ground for divorce has been made out. it further held that 'in the instant case, the fact 'desertion' by any of the spouse has not been established on evidence,' and that 'none of the parties have been able to establish the case of desertion against the other, but due to some ill-feeling which may be teething problems of marital life they have been living separately'. accordingly, in the hope that the parties may sometime in future effect amicable re-union, it was thought appropriate to grant the decree of judicial separation under section 10 of the hindu marriage act and it was ordered accordingly. hence, as observed above, both the parties are before this court in appeal.7. the basic issues, which need consideration in these two appeals and on which contentions were advanced by the learned counsel for the respective party, are the same, which were agitated before the court below. we shall, therefore, now proceed to deal with the same.8. as has been observed in the earlier part of our judgment, the husband claim divorce on the ground of cruelty and desertion whereas the wife claim restitution of conjugal rights on the ground that she has been deserted by the husband. we shall now proceed to take the issues one by one.9. according to the husband, the wife was inflicting cruelty on him because she desired that her mother-in-law should not reside with them; that he should be under her absolute control which she sought to achieve by practicing witchcraft and that she did not permit conjugal marital relation with him. as regards desertion, it is the case of the husband that the wife left the marital home with her father and brother and thereafter did not come back to the marital home nor did she care about her husband. he has also alleged that though he had specifically asked his father-in-law to whom he had advanced money for purchase of a plot in his (the husband's) name, that was not done and instead, the sale deed was registered in the name of his wife (the respondent).10. in his statement as p.w. 1, the husband states that his wife insisted that his old aged mother who was a chronic diabetes and high blood pressure patient, should be persuaded to leave their house and stay in her native home. since he did not agree to the said proposal, the relationship between them was soured. the wife also insisted that the complete financial control should be with her. she was also objecting to occasional gifts being made to his sister. he also states that she was worshipping goddess kali in secrecy and she was also well versed with the 'black art'. hestates that on one occasion she had offered him to partake some prasad and after consuming it, he suffered from severe head reeling and nausea and thereafter became unconscious and was treated by a doctor. thereafter, apprehending danger to his life, he left his home and stayed elsewhere and stayed for eight to nine days and his mother was left with his paternal uncle baikuntha mohapatra who was staying at sambalpur. he states that he had written a letter to his father-in-law and 'requested him to take his daughter'. accordingly, on 7.1.1984, the brothers of the respondent came to sambalpur and took his wife (the respondent) from cuttack to sambalpur. in cross-examination, he admits that he does not remember the date on which it came to his knowledge his wife was practicing witchcraft. initially, he had not informed anyone about the same but later, apprehending danger to his life, he disclosed the same to others.11. p.w. 2 (mother of p.w. 1) states that she was treating her daughter-in-law as a daughter. however, both the spouse was often quarrelling with each other. she states that her daughter-in-law was offering some puja from 5 p.m. to 8 p.m. in the evening and that by offering puja she, i.e. the daughter-in-law, was trying to put her (p.w.2) and her son (p.w. 1) under her absolute control. she states that on one occasion, her daughter-in-law had administered some material to her son (p.w. 1) who suffered and had to be treated by a doctor. in her cross-examination, she states that the respondent was also attending to household works at sambalpur and at times, she was cooking food for the family. she admits that she had never complained before the father or brother of her daughter-in-law about her conduct. she further states that she, her son and the daughter-in-law, all used to go to the market for purchasing household articles. she further admits that she had no knowledge about the type of puja offered by her daughter-in-law and it was only after her daughter-in-law had left sambalpur that she came to know that she was offering kali puja. she denies that she was torturing her daughter-in-law because of the demand for dowry.12. p.w. 3 prakash chandra behera, is a friend of p.w. 1 from their college days. he has stated that he has close family relationship with p.w. 1 at sambalpur with whom he was on visiting term and that he felt that conjugal relationship between the husband and the wife was not cordial. he has further stated that while the wife used to sleep, her mother-in-law was doing the household work. he has also stated that his friend's mother had informed him about his friend's illness after eating some prasad offered to him by the wife. thereafter, his friend (p.w. 1) went to state atthe 'yoga vidyalaya' and her friend's mother (p.w.2) went to stay in the house of a neighbour baikuntha mohapatra. further, his friend's wife (the respondent) had told him that she had sent intimation to her father and brother to take her to her parental home. he has further stated that after his friend's wife had left, the locker of a steel almirah belonging to her was broken open wherein some puja material was found 'suggesting art of witchcraft' and that on his advice, his friend immersed it in the river. he admits in the cross-examination that he knows witchcraft and he had learnt from his friend (p.w. 1) that his wife (the respondent) was practising that art. he further admits that he did not probe into that matter any further he had given some mantras to his friend by chanting which he (his friend) would not be affected. he admits that though he knew the father and mother of his friend's wife, he had never informed them that their daughter was practising witchcraft. he has further stated that his friend (p.w. 1) was giving half of his salary to his wife to meet the daily expenses and that groceries and other essential commodities were being purchased by his friend, p.w. 1.though it has come in the evidence of p.ws. 1, 2 and 3 that p.w.1's wife had administered some 'prasad' to p.w. 1 which made him ill and that apprehending danger to his life, he along with his mother had to leave their house in order to live elsewhere, no independent witness has been examined on this point. according to p.ws. 1 and 3, p.w. 1's mother was taken to the house of a relation baikuntha mohapatra where she stayed and later came back to her house. however, said baikuntha mohapatra has not been examined. though p.w. 1 does not say so, according to p.w. 3, p.w. 1 stayed at 'yoga vidyalaya' for about seven days, but no one from that 'yoga vidyalaya' has been examined to substantiate the same nor has any reason been assigned as to why said baikuntha mohapatra or someone from the yoga vidyalaya has not been examined.13. in her statement as d.w. 4, the wife has specifically denied the averment that she was practising witchcraft. she denies that she had administered 'prasad' to her husband due to which he fell ill and had to be treated by a doctor. she denies that she was offering kali puja at late hours of the night in the nude and that she was leaving her house at odd hours of the night for performing puja. she has also stated that during her stay at sambalpur with her husband, she had never met prakash chandra behera (p.w. 3) nor was he visiting their house.14. d.w. 3, the father of p.w. 4 - the wife, while admitting that he had received rs. 20,000/- (twenty thousand) from his son-in-law for purchase of land, states that as the said amount wasinsufficient and a plot was not available at that price, he had refunded the money to his son-in-law in person in december, 1982. he had further stated that he does not know whether his daughter has purchased a plot out of the fund of her husband.15. though in the plaint the husband has alleged that his wife used to call him 'maichia' (impotent), he has not stated so in his evidence as p.w. 1. he admits that they had conjugal life for a period of one year after the marriage, but thereafter there has been no cohabitation and that the respondent-wife did not co-operate for cohabitation and thereby brutally tortured him, which caused him mental torture. the wife, however, has denied this averment. it is, however, admitted by the husband and also by the witness on his behalf that the respondent - wife conceived thrice but on two occasions she aborted and the third conception resulted in a' stillborn birth in 1983. in view of this admitted position, it is difficult to accept the statement of the husband that there was no cohabitation between the parties after one year of their marriage.16. from the evidence on record, we are also not impressed with the averment and the evidence adduced on that score that the wife (d.w. 4) was practising witchcraft which fact has stoutly been denied by her. find of a picture of goddess kali along with some puja material in the almirah of the wife, cannot lead to the conclusion that this was used for practising witchcraft. in a conservative or indian hindu society, presence of a photograph of a goddess or some puja material in some personal belonging of a person cannot be said to be unusual. kali worship also does not by itself indicate practice of witchcraft. of course, the husband (p.w. 1) has stated that his wife used to offer puja in the nude and was in the habit of leaving the house late in the night after locking them inside the house. but, this does not impress the court because it is admitted by p.w. 1 (husband) that the house which they were occupying was a double-storied building and they were staying on the first floor of it and that both the houses - the one where they were staying earlier and the other which they had subsequently shifted, had a common entrance and the respective landlords were staying on the ground floor. thus, had the wife been locking the husband and his mother inside the house and was going out, obviously she would have required to lock the landlord also in which event the landlord would definitely have noticed this. moreover, it is also difficult to believe that she was going out through a common entrance in the nude and that no one could ever notice the same. even p.w. 2 has not made any positive statement in this regard. of course, the husband's friend (p.w. 3) has made a statementthat his friend's wife was practising witchcraft but this is only because some puja material was found from her cupboard.17. as regards the case of the husband that the wife had deserted him by leaving the matrimonial home also cannot be accepted. in paragraph 5 of his deposition, it is stated by him (p.w. 1) that he wrote a letter to his father-in-law and requested him to take his daughter. it is further stated that on 7.1.1984, the brothers of the respondent came to sambalpur and took his wife to cuttack along with her belongings. this under no stretch of imagination can be treated as a voluntary act on the part of the wife in leaving the matrimonial home. on the contrary, she had left the matrimonial home at the instance of the husband, probably because he did not want his wife to stay with him. of course, in paragraph 3 of his deposition, p.w. 3 has stated that his friend's wife had asked him to send words to her father and brother to take her to cuttack, i.e. to her parental home. but, in view of the statement made by the husband, the statement of p.w. 3 in this regard cannot be accepted. therefore, the plea of the husband that his wife had voluntarily deserted him by leaving the matrimonial home, cannot be accepted.18. the wife has claimed restitution of conjugal rights and complained of desertion of her husband. in her statement as o.p.w. 4 she has stated that on the 29th of december, 1983, her husband consoled her and stated that they could visit puri on new year's eve. accordingly, they came to cuttack on the 29th night where they stayed together and maintained cordial relationship. however, on the morning of the 1st of january, 1984, the husband went away and thereafter he has never visited her either at cuttack or at bhubaneswar in spite of efforts made by friends and relatives. o.p.w. 2, who is the father-in-law of the respondent-wife's brother, has stated that he had gone to sambalpur in order to meet the petitioner-husband with a view to bringing about amicable settlement but it bore no result as the petitioner-husband stated that he was not interested to re-open the issue of amicable settlement any more. o.p.w. 33, the wife's father also states that he had made efforts for an amicable settlement of the marital differences between his daughter and her husband, but all his attempts proved futile. he has also stated that he had also met the husband's mother who also refused for any amicable settlement and told him to await the decision of the court. he has stated that the husband's mother was not quite happy with her daughter-in-law because of her abortions on two occasions and giving birth to a stillborn baby on one occasion. he has further stated that the petitioner-husband and his (petitioner's) wife had come to cuttack and stayed together and thereafter the husband went away on 1.1.1984 and after that, he has neither visitedhis house nor bothered about his wife, in her statement, the wife has also made a reference to some demand for dowry and assault on her person by her husband. her father o.p.w. 3 supports her version on this score. he has also stated that on one occasion, the husband had slapped the wife (his daughter) in his presence.19. from the evidence on record, it is, therefore, apparent that there existed differences and there was marital discord between the husband and the wife, each alleging cruelty and desertion against the other. at this stage, we may make a reference to ext. a, a letter written by the husband to his brother-in-law (wife's brother) wherein he admits that he was influenced by the prejudicial representations made by his mother and sister against his wife. therefore, it is quite possible that these representations made by the mother and sister of the husband against his wife probably resulted in the misunderstanding between the husband and the wife leading to their marital discord.20. as regards desertion, though one hand, we find that the husband had written a letter to his father-in-law to visit sambalpur and take back his daughter to the parental home, on the other hand we have the evidence of the wife and her father that the respondent (his daughter) and her husband had come to cuttack where the husband and the wife stayed together for a day or two and thereafter, the husband went away leaving his wife behind. but, one thing is clear that both the husband and the wife have been staying apart long since january, 1984 and steps to bring about a reconciliation and settlement proved futile. at this stage, we may mention that this court also tried to bring about a reconciliation for which it passed an order pursuant to which both of them were personally present in court. before the court, though the wife stated that she has no grievance against the husband and that she was prepared to live with him, the'husband stated that he was not prepared for any reconciliation. accordingly, the attempt made by this court to bring about a reconciliation also proved futile.21. thus, taking an overall view of the facts and circumstances on record, we are satisfied that the judge, family court was quite justified in forming an impression with respect to the conduct of the parties 'that none of them have approached the court of equity with clean hands. the real genesis of their martial discord has been materially suppressed by them and they have come up with concocted versions.' this brings us to the question as to whether or not the court below was justified in passing the decree of judicial separation on the facts and circumstances of the case and what relief, if any, the parties may be granted.22. obviously, both the husband and the wife are dissatisfied with the decree passed by the court below. the case of the husband is that he was entitled to a decree of divorce on the ground of desertion and cruelty whereas it is the case of the wife that the family court erred is not decreeing her claim for restitution of conjugal rights. as has been indicated above, both the husband and the wife are living apart long since january, 1984, but the only question is as to whether the husband left the wife at her parental home at cuttack, as alleged by the wife, or was it the relatives of the wife who went to sambalpur to bring her back to cuttack, the matrimonial home after receiving the letter from p.w. 1.23. the husband has stated that he had written to his father-in-law to come and take back his daughter, but his father-in-law has not stated as to whether or not any such letter had been received by him. the husband has stated that his wife's brother had come to sambalpur and taken her away to cuttack on 7.1.1984, but p.w. 2, i.e. the mother of p.w. 1. does not even whisper about the same.24. in reply to the claim of divorce filed by the husband, the wife in paragraph 16(d) of her written-statement, has alleged that the husband 'being a lecturer and taking advantage of his position was roaming with a number of girl students whose names are not known to the respondent to implead them as parties in c.p. no. 85/91, with ulterior motive to which the respondent was objecting constantly from time to time and that for such protest of the respondent, the petitioner was assaulting her inhumanly or with beastly ferocity unbecoming of a gentleman. this gave rise to a lot of troubles and dissentions in their conjugal relationship. added to this, the petitioner was also taking liquor and became a habitual drunkard.' it may be mentioned that even in the petition filed by the wife for restitution of conjugal right, she, in paragraph 5, has stated that taking advantage of his position, her husband was roaming around with a number of girl students and when she protested, she was assaulted inhumanly with beastly ferocity. she has also stated that the husband was taking liquor and had become a habitual drunkard. in her cross-examination as o.p.w. 4, she has admitted that the averments made in her petition are true to her knowledge and instructions. making a reference to above averments, it was contended by the learned counsel for the husband that these amounted to cruelty and as such, the court below ought to have passed a decree of divorce. per contra, it was the contention of the learned counsel for the wife that the aforesaid averments would not amount to cruelty and the court below was justified in not taking any notice of the same. thus, it becomes an admitted position that these averments have been made by the wife against her husband consciously.25. it was contended on behalf of the husband that assuming for the sake of argument that a case for divorce on the ground of desertion and cruelty is not made out, the facts on record clearly indicate that this is a case of irretrievable breakdown of marriage and as such, it will be for the interest of both, if the relationship of . husband and wife is severed by a decree of divorce. the contention raised, cannot be accepted. the ground on which a divorce can be granted, have been provided for by the statute and a marriage can be severed by a decree of divorce on the grounds provided for in the statute. though a divorce can now be granted on mutual consent under section 13-a of the hindu marriage act, the legislature has not included 'irretrievable breakdown of marriage' as a ground for divorce. it is no doubt true that the apex court in ramesh chander v. savitri (smt.), (1995) 2 supreme court cases 7, has granted a decree of divorce on the ground of irretrievable breakdown of marriage. but, it should be remembered that the apex court exercises the powers under article 142 of the constitution of india where it can pass an appropriate order in a given set of circumstances for doing 'complete justice between the parties'. and, the said power was exercised in granting relief in that case. reference may now be made to the case of reynold rajamani and another v. union of india and another, air 1982 supreme court 1261, where it has been held by the apex court that a divorce cannot be granted on grounds other than those laid down in the relevant statute. this aspect has also been noticed by us in civil appeal no. 39 of 1996 (kanchan sahu v. premananda sahu) - disposed of on 27.08.1998. accordingly, the contention of the learned counsel that the husband is entitled to a decree of divorce on the ground of irretrievable break down of marriage is repelled. however, the effect of the contention of the earned counsel for the husband that the wife was guitty of inflicting cruelty on the husband by making allegations in the written-statement, and that of the learned counsel for the wife that the husband has accused her of doing tantra puja and giving prasad due to which he became unconscious, need to be considered.26. in view of the findings recorded above, considering the state of mind, the status of parties and the prevailing situation of the society to which the parties belong, it appears that a state of ill-feeling and tension existed between the parties. the accusation of the wife against her husband that he was roaming around with young girl students and was a drunkard and similarly the accusation of the husband against the wife that she was practising witchcraft and tried to administer poison, speaks of the apprehension and distrust of the spouse against the other. any amputation against the character of one found on the other without any foundation onthe basis of mere suspicion would amount to a mental cruelty. on a perusal of the petitions filed by both the husband and the wife-the husband for divorce and the wife for restitution of conjugal rights, the written-statement and the evidenced led in the matrimonial proceeding, it appears that the parties are accusing each other on different grounds and both of them are apprehensive of rebuilding confidence for a peaceful and happy married life. in the circumstances, instead of decreeing the petition for divorce, in order to allow the parties to rethink and reconcile the situation and to give a scope to rebuild confidence, a decree of judicial separation as granted by the judge, family court, cannot be held to be illegal.27. in such view of the matter and in the special facts and circumstances of the case and keeping in view the status and education of the parties, we feel that a decree of judicial separation cannot be interfered with.28. in the result, both the appeals are dismissed, but there shall be no order as to costs.p.k. mohanty, j.29. i agree.