Swadesh Kumar Biswal v. Seema Smaraki Ray

Orissa HC2 May 2024MATA/11/2022

Case brief

AI extract

What is this about?

cruelty-ground divorce appeal allowed; MATA 11/2022 Orissa HC Cuttack; Swadesh Kumar Biswal v Seema Smaraki Ray; Family Court Jeypore judgment 15.12.2021 reversed; decree of divorce; secret marriage 21.04.2008, solemnization 08.12.2008; dowry demand defence unproved and improbable (Rs.5,00,000 demanded, Rs.2,00,000 'arranged'); voluntary job separation from husband and daughter; police complaint 17.05.2011 compromised; post-petition complaint, police-assisted recovery leaving daughter; no condonation; no maintenance need; P.W.2 deposition not an admission; CRLMC 731/2021, G.R. Case 391/2014 quashing compromise not additional evidence.

What did the court decide?

Appeal allowed and disposed of; impugned Family Court judgment reversed and marriage dissolved by decree of divorce on ground of cruelty. ¶judgment ¶11

Swadesh Kumar Biswal Vs Seema Smaraki Ray — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed and disposed of; impugned Family Court judgment reversed and marriage dissolved by decree of divorce on ground of cruelty.

¶judgment ¶11

Issue for consideration

Whether the appellant-husband was subjected to cruelty by the respondent-wife entitling him to dissolution of the marriage on that ground (his divorce petition having been dismissed by the Family Court). +4 more

¶judgment ¶1

Court's answer

The Court found there was cruelty suffered by the appellant-husband: respondent-wife of her own volition took up a job causing geographical separation from appellant and the daughter; an acted-upon police complaint was lodged only substantially long after separation and after institution of the civil proceeding; and taking police to the in-laws' house for recovery of her things while leaving the daughter behind convinced the Court of cruelty in the marriage.

¶judgment ¶8

Ratio / Principle

Respondent-wife's defence that the cause of dispute was demand for balance dowry remained mere allegation — her father never testified that he paid or gave, and the word 'arranged' implying cash payment of Rs.2,00,000 was unsupported; the dowry-demand story appeared improbable because the couple had decided upon and already contracted the 'secret' marriage.

¶judgment ¶5

Key takeaways

Materials before the Court did not indicate that appellant had in any manner condoned the cruelty, nor that respondent-wife was in need of maintenance or support.ratio¶judgment ¶9
No requirement to take cognizance of, or treat as additional evidence, the compromise/quashing-order material: the criminal proceeding was independently fought, initiated on police complaint after institution of the civil proceeding; quashing occurred when evidence in the civil proceeding was over, hence the documents were not exhibits before the Family Court; and the parties answered in the negative that the compromise was holding, the Court being quite clear the settlement's purpose was otherwise than in salvaging the marriage.ratio¶judgment ¶6

Detailed headnote1 paragraphs

MATA No.11 of 2022, High Court of Orissa at Cuttack (Arindam Sinha & M.S. Sahoo, JJ.; judgment 02.05.2024): Husband-appellant's appeal against transferee Family Court (Jeypore) judgment dated 15.12.2021 dismissing on contest his cruelty-ground petition for dissolution of marriage. Parties 'secretly' married 21.04.2008, social marriage/reception 08.12.2008; daughter born 17.03.2010, mostly with husband. Wife's 17.05.2011 police complaint ended in compromise without action; she took employment away from the matrimonial home causing long geographical separation; after institution of the civil proceeding she lodged a fresh complaint and with police removed her belongings, leaving the daughter behind. Her defence of demand for balance dowry (Rs.5,00,000 demanded; Rs.2,00,000 said 'arranged') was found miserably unproved and improbable; P.W.2's relied-upon answers held replies to incorrect suggestions; the quashed-criminal-proceeding compromise (CRLMC no.731 of 2021 / G.R. Case no.391 of 2014) held unnecessary to take cognizance of as additional evidence, its purpose being otherwise than salvaging the marriage. Finding cruelty with no condonation and no indication of maintenance need, the Court reversed the impugned judgment and dissolved the marriage by decree of divorce.

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IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.11 of 2022

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Swadesh Kumar Biswal

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…. Appellant

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-versus-

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Seema Smaraki Ray

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…. Respondent

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Learned advocates appeared in the case:

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For appellant : Mr. Bikram Keshari Raj, Advocate For respondent : Mr. Naresh Ch. Jena, Advocate

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CORAM:

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THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO

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J U D G M E N T

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Date of hearing and Judgment: 2^nd May, 2024

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ARINDAM SINHA, J.

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1. The husband has preferred appeal against judgment dated 15^th

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December, 2021 of transferee Family Court, dismissing on contest his petition for dissolution of the marriage. Ground of it urged before the Family Court was cruelty. Mr. Raj, learned advocate appears on behalf of appellant-husband and Mr. Jena, learned advocate, for respondent-wife.

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2. We have perused materials available in the lower Court record. The facts are, parties entered into a ‘secret’ marriage on 21^st April, 2008,

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Page 1 of 8

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upon having met at their place of training. Subsequently it was made known to, inter alia, appellant’s parents. There was a social marriage/reception on 8^th December, 2008. Soon after the marriage, respondent-wife found work. The parties managed their relationship in spite of geographical separation by reason of their work and after a while, respondent-wife became pregnant. She took leave and then left her job to come and stay in her matrimonial home, to continue with the pregnancy. On 17^th March, 2010, she gave birth to their daughter. It is within a very short time thereafter, next month in April, 2010, she availed opportunity to join National Rural Health Mission, Bhubaneswar as Project Associate. Sometime later the couple shifted to appellant’s place of work in Angul. There was a visit made by the mother-in-law (husband’s mother) to the rented accommodation. Ultimately, respondent-wife, after having lodged police complaint on 17^th May, 2011 that was compromised without any action taken, took up a job in Koraput. She attended to her work by living in her father’s house. For most of the time the daughter was with the husband. On query made we ascertained that the daughter is still with the husband. Further fact is, after the civil proceeding had been instituted by appellant, respondent-wife again lodged police complaint. This time, accompanied by the police, she went to her matrimonial home in Bhubaneswar and took away her belongings.

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MATA no.11 of 2022

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3. Appellant and his father were witnesses from his side. There were

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also two witnesses on side of respondent-wife, herself and her father’s friend.

¶23

4. We have come across several allegations, which we have not recorded above as facts. Of them are demand for dowry of ₹5,00,000/(rupees five lakhs) and that only ₹2,00,000/- (rupees two lakhs) could be arranged, implying same was given. There are further allegations. It is not necessary to scrutinize and find on every one of them, their veracity. We have before us fact of respondent-wife having had lodged a complaint on 17^th May, 2011, which she herself said from the box in crossexamination, as had not led to any further action. The facts are also that she removed herself to reside and do job away from her husband and her matrimonial home. So it is that the civil proceeding was instituted by the husband in the Family Court at Bhubaneswar and on respondent-wife petitioning to this Court for transfer, the proceeding was transferred and dealt with by Family Court, Jeypore. Physical separation being one of the facts leading to institution of the proceeding, further fact is that acted upon complaint was lodged by respondent-wife with the police, after institution of the proceeding and pursuant to substantially long separation. As aforesaid, the police acted and there was recovery of material

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Page 3 of 8

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MATA no.11 of 2022

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possessions but the daughter was left behind. Criminal proceeding commenced.

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5. Respondent wife made several further and other statements in her

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cross-examination. From them, we have not been able to see that allegations made by petitioner-husband were demonstrated to be false. There was corroboration with minor inconsistencies. What is important is, allegation made by respondent-wife that cause of dispute between the parties was demand for payment of balance dowry, remained an allegation as her father did not take the box to come and say that he paid or gave. Instead, his friend took the box to say ₹2,00,000/- (rupees two lakhs) was arranged. Across pleading of respondent-wife, her evidencein-chief, cross-examination and examination of her father’s friend, word ‘arranged’ was used to imply payment of ₹2,00,000/- (rupees two lakhs) in cash as dowry. The story of demand for dowry also appears improbable because the couple had decided to and had also already got ‘secretly’ married. Other material articles were recovered by the wife with help of police.

¶29

6. Mr. Jena submits, appellant-husband had filed for quashing of the police case before this Court. In the petition he had admitted that there was compromise and parties were staying together. On that basis the learned single Judge, by order dated 10^th August, 2021, quashed criminal

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Page 4 of 8

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MATA no.11 of 2022

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proceeding in connection with G.R. Case no.391 of 2014. CRLMC no.731 of 2021 (Swadesh Kumar Biswal and others v. State of Odisha and another) was thus disposed of. We reproduce below paragraph-4 from

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said order.

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“4. In view of the fact that the Informant (Opposite Party No. 2) and petitioners have already settled their dispute amicably in presence of the village gentries. The Informant is residing with the Petitioner No. 1 (husband) and she does not want to proceed with the prosecution further against the petitioner in connection with GR Case No. 391 of 2014, pending before the learned SDJM, Koraput, there is hardly any chance of conviction of the petitioner and in such event, it will amount to abuse of the process of the court in case the criminal proceeding is allowed to continue further.”

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(emphasis supplied)

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Mr. Jena submits, this was taken cognizance of by the Family Court to dismiss the civil proceeding. We have ascertained that the criminal proceeding was independently fought between the parties, initiated on police complaint made after institution of the civil proceeding. The quashing happened at a time, when evidence in the civil proceeding was over. Hence, the petition and aforesaid order does not find place as exhibits. The documents were not there before the Family Court, for

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Page 5 of 8

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MATA no.11 of 2022

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consideration in passing judgment. They are before us. To ascertain whether it is necessary for us to treat them as additional evidence in appeal, for purpose of delivery of judgment, we asked the parties whether the compromise is holding. Answer was in the negative. Petitioner resides in Bhubaneswar. It was admitted by respondent-wife in her crossexamination that the daughter is studying in a reputed school at Bhubaneswar. Respondent continues with her work in Koraput, staying at her father’s house. We are quite clear in our minds that purpose of the settlement was otherwise than in salvaging the marriage. As such, there is no requirement to take cognizance, to treat this material as additional evidence, for purpose of adjudication of the appeal.

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7. Mr. Jena also draws our attention to deposition dated 22^nd November, 2017 of P.W.2 (father of appellant). Relied upon statements are reproduced below.

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“10. ... ... ... It is not a fact that my daughter in law

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Seema mentally and physically tortured my son

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Swadesh at Angul different times . It is not a fact that Seema assaulted Swadesh on his hand and fractured his hand. It is not a fact that I have stated that there is any

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fracture injury to the hand of Swadesh on the assault of

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Page 6 of 8

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MATA no.11 of 2022

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Seema, but there was injury on the hand of my son

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Swadesh. ... ... ...”

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(emphasis supplied)

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Relied upon statement in cross-examination of P.W.2 has been asserted to be admission by appellant’s father that his daughter-in-law did not mentally or physically torture appellant at Angul on different times. The answer was obviously to suggestion given. We cannot rely upon the evidence simply because at Angul, the couple stayed in rented house without the parents, who were at Bhubaneswar. The statement was an answer to an incorrect suggestion given.

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8. As aforesaid it is not necessary, in the facts and circumstances

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found by us, to delve into each and every allegation of cruelty. We are convinced situation in the marriage was such, as has been brought forth from the pleadings and evidence. There was cruelty suffered by appellanthusband. Defence of respondent-wife that cause of dispute between the parties being demand for balance dowry is something she miserably failed to even attempt to prove. Instead, in face of her allegations against her in-laws, she admitted that for major part of her pregnancy and till delivery she was taken care of by them. All this after supposed demand for balance dowry, allegedly also made by appellant-husband. Then we have a police complaint lodged against appellant and his family, which

¶53

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MATA no.11 of 2022

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the police felt could be resolved on counseling. Subsequent thereto no complaint till after filing the proceeding. One of the reasons for the civil proceeding was respondent-wife had of her own volition taken up a job causing geographical separation, not only from appellant but also from the daughter. Taking police to house of her in-laws for recovery of her material things and leaving the daughter behind also convinces us that there was cruelty in the marriage.

¶56

9. Materials before us do not indicate that appellant has in any manner condoned the cruelty. There is also no indication that respondentwife is in need of maintenance or support.

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10. Impugned judgment is reversed. The marriage taken place in the temple on 21^st April, 2008 and thereafter said to be solemnized on 8^th December, 2008 is dissolved by decree of divorce on ground of cruelty. The decree be drawn up expeditiously.

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11. The appeal is allowed and disposed of.

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( Arindam Sinha ) Judge

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Signature Not Verified

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( M.S. Sahoo ) Judge

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Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Prasant Date: 08-May-2024 16:35:03

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MATA no.11 of 2022

Issues for consideration

5 issues framed by the court

AI extract

1.
Whether the appellant-husband was subjected to cruelty by the respondent-wife entitling him to dissolution of the marriage on that ground (his divorce petition having been dismissed by the Family Court).¶judgment ¶1
The court held
The Court found there was cruelty suffered by the appellant-husband: respondent-wife of her own volition took up a job causing geographical separation from appellant and the daughter; an acted-upon police complaint was lodged only substantially long after separation and after institution of the civil proceeding; and taking police to the in-laws' house for recovery of her things while leaving the daughter behind convinced the Court of cruelty in the marriage.ratio¶judgment ¶8
2.
Whether respondent-wife's assertion that the cause of dispute between the parties was demand for payment of balance dowry (Rs.2,00,000 said to be 'arranged'/paid in cash) was true or proved.¶judgment ¶5
The court held
Respondent-wife's defence that the cause of dispute was demand for balance dowry remained mere allegation — her father never testified that he paid or gave, and the word 'arranged' implying cash payment of Rs.2,00,000 was unsupported; the dowry-demand story appeared improbable because the couple had decided upon and already contracted the 'secret' marriage.ratio¶judgment ¶5
3.
Whether the petition and quashing-order material concerning the criminal proceeding (compromise between the parties) required to be taken cognizance of and treated as additional evidence in the appeal.¶judgment ¶6
The court held
No requirement to take cognizance of, or treat as additional evidence, the compromise/quashing-order material: the criminal proceeding was independently fought, initiated on police complaint after institution of the civil proceeding; quashing occurred when evidence in the civil proceeding was over, hence the documents were not exhibits before the Family Court; and the parties answered in the negative that the compromise was holding, the Court being quite clear the settlement's purpose was otherwise than in salvaging the marriage.ratio¶judgment ¶6
4.
Whether the deposition of P.W.2 (father of appellant) constituted an admission that respondent-wife did not mentally or physically torture the appellant at Angul on different occasions.¶judgment ¶7
The court held
The Court cannot rely on P.W.2's relied-upon cross-examination answers as an admission of absence of mental or physical torture; mere stay of the couple at Angul in rented premises without the parents (who were at Bhubaneswar) does not validate such reliance — the statement was an answer to an incorrect suggestion given.ratio¶judgment ¶7
5.
Whether the appellant had condoned the cruelty, and whether the respondent-wife was in need of maintenance or support.¶judgment ¶9
The court held
Materials before the Court did not indicate that appellant had in any manner condoned the cruelty, nor that respondent-wife was in need of maintenance or support.ratio¶judgment ¶9

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment dated 15th December 2021 of the transferee Family Court (Jeypore) dismissing on contest the appellant-husband's petition for dissolution of the marriage on the ground of cruelty.¶judgment ¶1
transferee Family Court (dealt with by Family Court, Jeypore) · 15th December, 2021
Prior proceeding
Parties entered into a 'secret' marriage on 21st April 2008, having met at their place of training.¶judgment ¶2
Prior proceeding
Marriage became known to, inter alia, appellant's parents; a social marriage/reception was held on 8th December 2008.¶judgment ¶2
Prior proceeding
Daughter born to the parties on 17th March 2010; respondent-wife soon rejoined work (National Rural Health Mission, Bhubaneswar as Project Associate).¶judgment ¶2
Prior proceeding
Respondent-wife lodged a police complaint on 17th May 2011 which was compromised without any action taken; she then took up a job in Koraput, living in her father's house.¶judgment ¶2
Prior proceeding
Civil proceeding instituted by the appellant-husband in the Family Court at Bhubaneswar.¶judgment ¶4
Prior proceeding
On respondent-wife petitioning this Court for transfer, the proceeding was transferred to and dealt with by Family Court, Jeypore.¶judgment ¶4
Prior proceeding
After institution of the civil proceeding, respondent-wife again lodged a police complaint; accompanied by the police she went to the matrimonial home in Bhubaneswar and took away her belongings.¶judgment ¶2
Prior proceeding
Police acted; material possessions recovered but the daughter was left behind; criminal proceeding commenced.¶judgment ¶4
Prior proceeding
By order dated 10th August 2021 the learned single Judge quashed the criminal proceeding, disposing of CRLMC no.731 of 2021 (Swadesh Kumar Biswal and others v. State of Odisha and another); the quashing occurred after evidence in the civil proceeding was over, so the documents were not exhibits before the Family Court.¶judgment ¶6
Prior proceeding
Informant and petitioners had settled their dispute amicably in presence of the village gentries; informant residing with Petitioner No.1 (husband) and unwilling to prosecute further (reproduced paragraph-4 of the quashing order).¶judgment ¶6
Prior proceeding
Underlying criminal case: G.R. Case no.391 of 2014 pending before the learned SDJM, Koraput.¶judgment ¶6
Prior proceeding
Court ascertained on query that the daughter is still with the appellant-husband.¶judgment ¶2
Prior proceeding
Respondent-wife continues her work in Koraput, staying at her father's house; she admitted in cross-examination that the daughter studies in a reputed school at Bhubaneswar.¶judgment ¶6

Swadesh Kumar Biswal v. Seema Smaraki Ray

Case brief

What is this about?

What did the court decide?

Swadesh Kumar Biswal v. Seema Smaraki Ray

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Procedural history

Parties & counsel

Coram

Case details

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