Partly allowed

Sasmita Jena v. Ajit Kumar Samantray

Orissa HC5 Apr 2023MATA/65/2021

Case brief

AI extract

What is this about?

On a challenge to a dismissal of an application for recall of the divorce decree and the quantum of alimony, the High Court reappraised the alimony amount based on the parties' financial statements. The court upheld the decree but enhanced permanent alimony.

What did the court decide?

Permanent alimony enhanced from Rs. 4,20,000/- to Rs. 15,00,000/-, with directions for revalidation of the expired draft and payment of the balance amount within four months.

Sasmita Jena Vs Ajit Kumar Samantray — Maintenance and Alimony | Orissa HC (2023)

¶1

AFR

¶2

IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 65 of 2021

¶3

An application under Section 19(1) of the Family Courts Act, 1984 from the judgment dated 16.09.2021 delivered in C.M.A. No. 8 of 2018 arising out of Civil Proceeding No.145 of 2015.

¶4

--------------
Sasmita Jena ..…. Appellant
-versus-
Ajit Kumar Samantray …… Respondent
-------------------------------------------------------------------------
For Appellant : Mr. B.B. Mishra-2, Advocate
For Respondent : Mr. T.K. Mishra, Advocate
-------------------------------------------------------------------------

¶5

CORAM: HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO

¶6

JUDGMENT 05^th April, 2023

¶7

S. Talapatra, J Heard Mr. B.B. Mishra, learned counsel appearing for

¶8

the Appellant and also Mr. T.K. Mishra, learned counsel appearing for the Respondent.

¶9

By means of this appeal, filed under Section 19(1) of

¶10

the Family Courts Act, 1984, the Appellant has challenged the

¶11

Page 1 of 7

¶12

MATA No. 65 of 2015

¶13

judgment dated 16.09.2021 delivered in C.M.A. No. 8 of 2018 arising out of Civil Proceeding No.145 of 2015 and also the judgment dated 18.12.2017 delivered in Civil Proceeding No. 145 of 2015. By the judgment dated 18.12.2017 delivered in Civil Proceeding No. 145 of 2015, the Judge, Family Court, Bhubaneswar has dissolved the marriage between the Appellant and the Respondent which was solemnized on 18.11.2011. At the time of passing of the said judgment, the permanent alimony of Rs.4,20,000/- was settled in favour of the Appellant. It may be noted that the Appellant instituted the Civil Proceeding No.145 of 2015 seeking dissolution of marriage under Section 13 (1) (i-a) of the Hindu Marriage Act on the ground of cruelty. By the order dated 16.09.202, delivered in C.M.A. No. 8 of 2018, the Judge, Family Court, Bhubaneswar has dismissed the application under Order 9 Rule 13 of the C.P.C. which was filed by the Appellant herein seeking recall of the said judgment dated 18.12.2017, inasmuch as, she did not lead any evidence in support of her suit. As stated, the said application for recalling the order

¶14

Page 2 of 7

¶15

MATA No. 65 of 2015

¶16

dated 18.12.2017 delivered in Civil Proceeding No.145 of 2015, Annexure-5 to the memorandum of appeal has been dismissed. Being aggrieved thereof, this appeal has been preferred.

¶17

It has been stated by Mr. Mishra, learned counsel that the Appellant does not have any grievance against the decree of divorce. There cannot be, as the matrimonial suit seeking divorce was instituted by her. The Appellant has projected the challenge against the process that had been followed by the Family Court. According to her, the said process cannot be considered valid, as based on the evidence of the Respondent, the said judgment dated 18.12.2017 has been passed. It may be observed at this juncture that the procedure that has been followed by the Judge, Family Court is not proper, but since the Judge, Family Court had exercised his discretion under the Family Courts Act, 1984 that cannot be amenable to the judicial scrutiny unless it is shown that a serious prejudice has been caused. The Judge, Family Court can exercise his

¶18

discretion in respect of the procedure.

¶19

Page 3 of 7

¶20

MATA No. 65 of 2015

¶21

In this context, we may refer to Section 10(3) of the

¶22

Family Courts Act, 1984. The said provision lays down that nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the

¶23

one party and denied by the other.

¶24

The Judge, Family Court is not bridled by the strict procedural rule as laid down in the CPC, even though the Code has been adopted for purpose the procedure. In this case, it is pertinent to note that the suit was instituted by the Appellant for dissolution of marriage, but thereafter, she did not adduce any evidence. The Judge, Family Court allowed the Respondent to adduce his evidence and on that basis, the impugned judgment has been passed.

¶25

Nowhere in the memorandum of the appeal, the Appellant has asserted that she would have withdrawn the suit. On the contrary, her application under Order 9 Rule 13 of the

¶26

Page 4 of 7

¶27

MATA No. 65 of 2015

¶28

C.P.C. was for recall of the impugned judgment on the ground that she could not adduce any evidence.

¶29

Mr. Mishra, learned counsel appearing for the Appellant has clearly submitted that the Appellant will not continue her challenge against the decree of divorce and the appeal, therefore, be confined to the quantum of the alimony

¶30

as settled by the Judge, Family Court.

¶31

We have heard Mr. T.K. Mishra, learned counsel

¶32

appearing for the Respondent. Mr. Mishra, learned counsel has at the outset submitted that the Respondent has deposited the sum of Rs.4,20,000/- which has been settled as the permanent alimony by a demand draft in the Court of the Judge, Family Court, Bhubaneswar. Mr. Mishra, learned counsel has contended further that the Respondent does not have enough resource to pay further alimony. As such, taking that aspect into consideration, the quantum of alimony may be revisited.

¶33

The Appellant and the Respondent have filed their respective statements on resources and liabilities in terms of

¶34

Rajnesh Vrs. Neha & another : (2021) 2 SCC 324 . We have

¶35

Page 5 of 7

¶36

MATA No. 65 of 2015

¶37

perused their statements. We have also considered the age of the parties and their liabilities in their family life.

¶38

According to us, a sum of Rs.15,00,000/-, in lieu of Rs. 4,20,000/- will be the reasonable alimony. The demand draft of Rs.4,20,000/- as deposited by the Respondent in the Court of the Judge, Family Court has expired its validity. Hence, we direct the Appellant to revalidate the said bank draft and handover the same to the Respondent forthwith. The Judge, Family Court, Bhubaneswar shall allow the Respondent to take back the said bank draft for purpose of revalidation. The remainder of the amount i.e. Rs.10,80,000/- shall be paid by separate bank draft within a period of four months from today. It is made clear that if the said amount is paid in instalment,for any reason, the amount of Rs.15,00,000/- shall invariably be paid by the stipulated time i.e. four months from today. It is made absolutely clear that no extension of time will be provided to the Respondent for paying the alimony.

¶39

Having observed thus, this Appeal stands partly allowed. Decree be drawn accordingly.

¶40

Page 6 of 7

¶41

MATA No. 65 of 2015

¶42

If the LCRs are still lying in the registry, those shall be

¶43

returned forthwith.

¶44

………………………….
(S. Talapatra, J)
[
. I agree .
………………………….
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 05 th day of April, 2023.
S.K. Behera, Senior Stenographer.

¶45

Page 7 of 7

¶46

MATA No. 65 of 2015

Sasmita Jena v. Ajit Kumar Samantray

Case brief

What is this about?

What did the court decide?

Sasmita Jena v. Ajit Kumar Samantray

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S.Shyam Metalics and Energy Ltd. Vs the Assistant Commissioner of Sales Tax

Harekrushna Patra Vs Principal Commissioner of Income Tax, Sambalpur

Chittaranjan Das Vs State of Orissa

Subrat Sahoo Vs State of Odisha

Urban Co-Operative Vs Drt,Cuttack

M/S.Gmr Kmalanga Energy Ltd. Vs State of Orissa