Dismissed

Paresh K.Parichha v. Anita Kumari Parichh

Orissa HC8 Apr 2021RSA/134/2011

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed an appeal filed under Section 100 CrPC against the Additional District Judge's order reversing a divorce decree. The bench upheld the lower appellate court's finding that the appellant failed to prove desertion and was denying support to his mentally challenged daughter.

What did the court decide?

Writ of certiorari issued to quash the impugned appeal order.

Paresh K.Parichha Vs Anita Kumari Parichh — Matrimonial and Divorce | Orissa HC (2021)

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HIGH COURT OF ORISSA, CUTTACK R.S.A. NO. 134 OF 2011

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From the judgment and decree dated 28.02.2011 & 10.03.2011 respectively passed by the learned Addl. District Judge, Parlakhemundi in MAT Appeal Case No.01 of 2010 reversing the judgment and decree passed by the learned Civil Judge (Senior Division), Paralakhemundi in MAT Case No. 13 of 2007.

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………

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Paresh Kumar Parichha :::: Appellant. -:: VERSUS ::-

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Smt. Anita Kumari Parichha & Another :::: Respondents.

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For Appellant :::: M/s. N.C. Pati, B. Pati, B. Das, B. Pati, Advocates. For Respondents :::: M/s. S.D. Das, Sr. Advocate, M.M. Swain, S. Biswal, H.K. Behera, Haripad Mohanty, Advocates.

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………

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PRESENT :

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THE HON’BLE MR. JUSTICE D.DASH

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----------------------------------------------------------------------------------------Date of Hearing & Judgment:: 08.04.2021

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----------------------------------------------------------------------------------------

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The Appellant by filing this Appeal under Section-100 of the

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Code of Civil Procedure (hereinafter called as ‘the Code’) has assailed

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the judgment and decree dated 28.02.2011 & 10.03.2011 respectively

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passed by the learned Addl. District Judge, Parlakhemundi in MAT

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Appeal Case No.01 of 2010 reversing the judgment and decree passed

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// 2 //

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by the learned Civil Judge (Senior Division), Paralakhemundi in MAT

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Case No. 13 of 2007.

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2 . For the sake of convenience, in order to avoid confusion and

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bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the Trial Court, i.e. ‘the Appellant’ as ‘the Petitioner’ and the Respondent as in the same name as before the Trial Court.

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3. The Appellant (husband) had filed a suit for grant of a decree of dissolution of his marriage with the Respondent. The Trial Court had decreed the suit in dissolving the marriage. The Respondent (wife) being aggrieved by the same had carried the Appeal. The Appellate Court having found that the grounds upon which the decree for divorce are based are not so available in the facts and circumstances of the case as obtained in evidence as well as in the eye of law has reversed the judgment and decree passed by the Trial Court. The Appellant has thus been non-suited.

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4 . Heard Mr. B. Das, learned counsel for the Appellant (Petitioner) and Mr. S.D. Das, learned Sr. Advocate appearing on behalf of the Respondent (Respondent) at length. I have carefully gone

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// 3 //

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through the judgments passed by the Trial Court as well as the Appellate Court.

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5. The Trial Court found that the parties have been stayed separately for a long time and having deserted each other for more than two years, there is no likelihood of reunion between them and the relationship between them has irretrievably broken down. Having said so, the decree for dissolution of the marriage as prayed for by the Petitioner has been passed. The lower Appellate Court on detail discussion of the evidence on record has found that the Petitioner has

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failed to establish the factum of desertion during the entire period of separate stay and then also the most important facet that it was at the instance of the Respondent without any just and probable cause so as to form the basis for passing the decree for divorce. A careful reading of the judgment of the Appellate Court goes to show that the settled legal principles which had been over looked by the Trial Court, the Appellate Court as within its power and competence has rectified the same with which in my considered view no fault can be found with.

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In the facts and circumstances of the case and obtained evidence, in my opinion, the lower Appellate Court has rightly refused to accept the prayer for grant of decree for divorce at the instance of

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// 4 //

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the Petitioner (husband) as against the Respondent (wife), who is living with a mentally and physically challenged daughter now of 18 years of age without any sort of support from the Petitioner during all these long period. Taking a cue from that to conclude that their relationship has irretrievably broken down, the Trial Court having committed grave error both on fact and law in decreeing the suit, the Appellate Court has rightly put it in order by setting the said finding at naught in finally dismissing the suit.

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The findings of the Courts below on factual setting of the case were no doubt in conflict with the settled position of law holding the field. But the findings so recorded by the Appellate Court are found to be based on just and proper appreciation of the totality of the facts and circumstances obtained in evidence being so appreciated in the back drop of the settled legal position. This Court finds no such illegality or infirmity therein.

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All these aforesaid discussion and reasons persuade this Court to record that no such question of law surfaces in this case meriting admission of this Appeal.

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Accordingly, the Appeal stands dismissed. No order as to

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cost.

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// 5 //

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As the restrictions due to the COVID-19 situation are

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continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at

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par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020.

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack Date 8^th April, 2021/ Narayan .

Paresh K.Parichha v. Anita Kumari Parichh

Case brief

What is this about?

What did the court decide?

Paresh K.Parichha v. Anita Kumari Parichh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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