Smt. Kalyani Dash Vs. Himansu Sekhar Panda - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. a.k. samantray, j. 1. this civil appeal is directed against the judgment and decree dated 19-1-1995 passed by the learned judge, family court, cuttack in civil proceeding no. 96 of 1994 allowing dissolution of marriage between petitioner-husband and the opposite party-wife. opposite party-wife is the. appellant before us.2. admittedly, the petitioner and the opposite party are legally married husband arid wife and the marriage took place according to hindu rites and custom on 20-6-1991.3. the petitioner stayed with the opposite party for 24 days but on various pretext the opposite party did not allow the petitioner to consummate the marriage by cohabitation during the said period. the petitioner when applied physical force for having cohabitation, she turned violent and bit him, the petitioner who served in the indian navy went to his place of service at visakhapatnam and the opposite party staying back in the house of petitioner for 3 months, left the matrimonial house and went to her parents place and did not return to the petitioner in spite of all persuasions by him to bring her back to establish conjugal relationship. ultimately, the opp. party came to visakhapatnam with her brother-in-law (elder sister's husband) but there also she did not allow him to have cohabitation. the petitioner suggested medical check up of opp. party to which she also bluntly refused. during her stay at visakhapatnam, petitioner discovered from a letter of the respondent addressed to her brother-in-law that she was having physical affairs with him. finally, she left the house of petitioner at visakhapatnam with her brother-in-law leaving a message with the neighbours of petitioner and reached the house of parents of the petitioner and left her matrimonial house finally on 28-9-1992 for her parents place.4. on the aforesaid background and circumstances, the petitioner filed the civil proceeding for dissolution of his marriage and decree of divorce. the opposite party did not appear to contest the case and was set ex parte and the learned judge, family court, cuttack allowed the prayer of the petitioner ex parte.5. we have patiently heard the learned counsel for the appellant who took us through the impugned order and the evidence of the petitioner-husband which goes unchallenged and unrebutted. the marriage being admitted and the appellant's non-cooperation in the consummation of marriage in spite of all attempts .from the husband during the period of her stay with him, for no reasonable cause certainly amounts to both mental and physical torture by the appellant and since the respondent lost all future hope of the appellant's coming back for leading conjugal life, he filed the petition for divorce which, as we find, is allowed rightly by the learned judge, family court. learned counsel for opposite party-appellant while not arguing for a remand to adduce evidence from her side, he could not convince us of any illegality in passing the impugned order. hence the order under challenge is upheld and the appeal is dismissed. as regards learned counsel's submission for execution of order of maintenance and realisation of arrear maintenance and litigation expenses through coercive measures from the respondent, we observe that the appellant may move the appropriate forum, for execution of the order dated 10-1-2000 of this court.6. the civil appeal and misc. case no. 60 of 2000 are disposed of accordingly. no costs.7. i agree.