Allowed

Rajendra Mishra v. Jayashree Panda

Orissa HC6 Aug 2019MATA/110/2014

Case brief

AI extract

What is this about?

In this appeal against a Family Court order rejecting a divorce petition, the High Court held that the wife’s unproven allegation of the husband’s adultery and their living separately for over a decade constitute cruelty and make the marriage defunct, thus granting the decree of divorce.

What did the court decide?

Appeal allowed; impugned judgment set aside; petition for decree of divorce allowed; marriage annulled by decree of divorce.

Rajendra Mishra Vs Jayashree Panda — Matrimonial and Divorce | Orissa HC (2019)

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MATA No.110 of 2014

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06.08.2019 Heard learned counsel for the appellant and the learned counsel for the respondent.

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For the purpose of appreciation, the appellant will be called as appellant-husband and the respondent will be referred as respondent-wife.

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The appellant-husband has challenged the judgment and decree passed on 03.09.2014 by the learned Judge, Family Court, Bhubaneswar in Civil Proceeding No.300 of 2010 rejecting the prayer of the appellant-husband for grant of decree of divorce on the ground of desertion and cruelty.

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The admittedly facts has been reflected in paragraphs 3 and 4 of the impugned judgment. So, we are not repeating the same for the sake of brevity. The learned Judge, Family Court, Bhubaneswar has come to a conclusion that the appellanthusband has failed to prove desertion and cruelty on the part of the respondent-wife. However, it is borne out from the record that the respondent-wife has all along made consistent allegation that the petitioner has some affair with one Alice. Even she has stated the aforesaid fact in the reply to the pleader notice sent to her by the appellant-husband. The respondent-wife further stated that when she told the aforesaid fact to her parents-in-law, she was assaulted. This fact was not relied upon by the learned Judge to grant the relief claimed by the appellant-husband. 5. Having scanned the judgment impugned, we are of the opinion that the onus to prove the appellant that he was living in adultery is the wife-respondent and there is no cogent material except the bald testimony of the respondent-wife before the learned Judge, Family Court. No other witness has been

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examined to prove that the appellant-husband is having an extra marital relationship with the said Alice. The full name and address of the Alice has not been given. In that view of the matter, we are of the opinion that when the respondent-wife makes allegation that the appellant-husband is living in adultery and fails to discharge the onus that is heavily burden on her, itself amounts to cruelty. So, on that ground, the learned Judge, Family Court should have allowed the application of the appellant-petitioner.

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Secondly, it is also seen that the respondent-wife has admitted that she is not willing to accompany the petitioner as she apprehends danger to her life. It is also admitted by the petitioner that criminal case has been initiated by the wife and the same is pending before the court of magistrate. When the respondent is not willing to join the society of the appellant, it would be improper to force the appellant to take back the respondent to his society. The learned counsel for the appellant relies upon the reported case of Naveen Kohli vs. Neelu Kohli, (2006) 4 SCC 558, wherein the Hon’ble Supreme Court at paragraph-86, has held as follows:

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“ 86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto . To keep the sham is

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obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.”

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This observation is squarely applicable to the present case. It is admitted by the appellant that for the last 10 years, they are living separately and multiple proceeding has been initiated in different criminal and civil courts. So, in this context, the marriage between appellant and the respondent has become defunct. By passing an order of dissolution of marriage between the parties will be conducive to public interest and also will be just for the parties because they are living separately without any hindrance. So, we are inclined to allow the appeal.

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The learned counsel for the respondent relies upon certain judgments. Firstly, the case of Rajendra vs. Smt. Meena , AIR 2005 Madhya Pradesh 166, wherein the Madhya Pradesh High Court has held that it cannot be said that the cumulative conduct was serious to say that from a reasonable person’s point of view after a considerable of any excuse which the respondent might have in the circumstances conduct is such that appellant ought not to be called upon to endure it. Where there is no evidence on record except the bare statement of the husband and his relative that the wife is used to misbehave with him or other members of the family or she commits suicide, the allegation of the husband cannot be relied upon for granting of decree of divorce. Unfortunately, this observation has made by the Hon’ble Madhya Pradesh High Court on the facts of the case. As discussed earlier, we have come to the conclusion that the allegation of adultery and failure to establish it amounts to cruelty. Even the judgment is not applicable to the case at hand.

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The learned counsel for the respondent also relies the case of Vipin Kumar Sharma vs. Mithlesh Kumari, II (2009) DMC 111, wherein the petition under Section 9 of the Hindu Marriage Act filed by the appellant was dismissed as she did not approach the Court with clean hands. This is also not applicable to the case at hand as it is not found by the learned Judge, Family Court that the appellant did not approach the court with clean hands. The 3^rd judgment relied upon by the learned counsel for the respondent is Jalagam Kantha Rao vs. Jalagam Uma Maheswari, AIR 2014 Andhra Pradesh 53, where the husband filed an application for divorce on the ground of desertion and it was found that it was the husband, who left the matrimonial home abruptly, without intimating his wife about his whereabouts. This is not the case here. In this case, the wife has left the matrimonial house to stay with her parents. We are not inclined to accept any of the judgments cited by the learned counsel for the respondent. On the other hand, it is a fit case where a decree of divorce should be granted.

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It is also brought to the notice of the Court that the respondent has admitted in a criminal proceeding, a sum of Rs.10,000/- has been awarded in her favour. So, at this stage, there is no need to pass any order regarding permanent alimony. However, if the respondent is not satisfied with the maintenance granted or have any other grievances, she can file appropriate application before the learned Judge, Family Court, Bhubaneswar under Section 25 of the Hindu Marriage Act. Section 25 of the Hindu Marriage Act can be invoked even after disposal of the main case.

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With such observation, we allow the appeal, set aside

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the judgment impugned and allow the petition filed by the appellant before the learned Judge, Family Court for grant of decree of divorce. We also annul the marriage between the parties by a decree of divorce. However, there shall be no orders as to the costs.

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The MATA is disposed of.

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Urgent certified copy of this order be granted on proper application.

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…………………… S.K. Mishra,J.

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………..…….………… DR. A.K. Mishra, J.

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Interim Application No.720 of 2018

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03.12.2018 In the interim, it is directed that there shall be stay of operation of Annexure-4 and no coercive action shall be taken against the petitioner till the next date.

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Urgent certified copy of this order be granted as per

rules.

……………………

S.K. Mishra,J.

pcd