Hiranmay Dash Vs Jayalakshmi Dash

------------------------------------------------------------------------------------------------------- Date of hearing and judgment : 19^th November, 2024

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ARINDAM SINHA, J.

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1. Husband in the marriage is appellant, who is aggrieved by

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judgment dated 12^th January, 2016 made by the Family Court, dismissing his petition for dissolution of the marriage. Respondent-

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wife had made counter claim for decreeing restitution, allowed.

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MATA no.17 of 2016

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Page 1 of 8

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2. The marriage was solemnized on 5^th February, 2010 in Visakhapatnam, where is situate respondent’s parental home. There is a son in the marriage, who was born on 7^th January, 2012. The son is with respondent, the parties having separated finally on 22^nd September, 2012. Mr. Mishra, learned advocate appears on behalf of appellant-husband and Mr. Pattnaik, learned advocate, for respondent-wife.

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3. Ground taken for seeking dissolution of the marriage was cruelty. Mr. Mishra submits, since the separation on 22^nd September, 2012 and till date parties did not reunite. Long separation is an instance of cruelty, declared by the Supreme Court in Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511. Instance (xiv) under paragraph-101 in the judgment is given instance of long separation amounting to mental cruelty.

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4. Mr. Pattnaik opposes the appeal. He submits, paragraph-6 from deposition in cross-examination of appellant will reveal that his client wanted reunion but was prevented. The paragraph is reproduced below.

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“6. It is not a fact that by taking my mother and sister into confidence blindly I used to subject the respondent to

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Page 2 of 8

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MATA no.17 of 2016

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cruelty and in that while she had been to our house on the occasion of NAMAKARANA of son I did not take of her care and my family member did not attend the child. On 16.8.2014 when the respondent and her father reached our house, my father did not allow them to enter inside as he was alone. It is not a fact that I myself along with my father deliberately did not allow the respondent to enter into the house as preplanned to desert her.”

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(emphasis supplied)

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5. With reference to our earlier attempt at disposal of the appeal without adjudication, on parties agreeing in respect of permanent alimony at ₹15,00,000/-. Mr. Pattnaik submits, his client is interested in the marriage. No ground of cruelty has been made out nor proved. The appeal be dismissed.

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6. It appears from the petition, after the marriage parties stayed in parental house of appellant. Soon thereafter they went to Mumbai, appellant’s place of work. Appellant’s mother accompanied them. Respondent conceived there. She then went to her parental home. The delivery was in Visakhapatnam.

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7. Appellant said, respondent and the new born child were invited to his parental home, to celebrate the occasion of

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MATA no.17 of 2016

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Page 3 of 8

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‘NAMAKARANA’. Respondent and the child did go to Berhampur but after five days, appellant, respondent and appellant’s mother again left for Mumbai. Appellant alleged, four days later, in which time respondent had threatened to kill plaintiff in presence of, inter alia, his mother, respondent left for Visakhapatnam in spite of protest. Further allegation was she had come back to Berhampur on 18^th September, 2012 for ‘ANNAPRASAN’ ceremony but again left on 22^nd September, 2012. During her short period of stay in Berhampur she misbehaved, mentally tortured, emotionally blackmailed and abused parents of appellant. She never returned in spite of several attempts by appellant to bring her back. Appellant was forced to issue notice through advocate. It was lastly sent by registered post and on receipt, respondent gave reply.

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8. From above pleadings we have to see whether ground of cruelty is made out and, proof of it at trial. Our perusal of the petition reveals abrupt pleading of hostility and misbehavior, alleged against respondent. We say so because initially she was with her husband at Berhampur. Soon they had moved away to Mumbai. They had a son. Appellant himself said it was customary

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MATA no.17 of 2016

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Page 4 of 8

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for the wife to go to her parental home during her pregnancy. Delivery was there.

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9. According to appellant, since birth of the son parties were together for total thirteen days. On occasion of ‘NAMAKARANA’, five days at Berhampur and then four days at Mumbai and on occasion of ‘ANNAPRASAN’, from 18^th to 22^nd September, 2012 (thirteen days). In this period respondent is alleged to have exhibited behaviour amounting to mental cruelty. The Family Court found, the only attempt to bring back respondent to the matrimonial home (either at Berhampur or Mumbai) was by issuance of advocate’s notice. Here we reproduce below extract from the advocate’s notice dated 7^th February, 2013 marked exhibit-3 in the proceeding.

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“... ... ... Be that as it may ignoring all of your nefarious activities again my client and his parents requested you to come to their house at Berhampur to celebrate the birthday of the son on 24.01.2013 but you avoided to come on different pretext so they are disgusted with all of your nefarious activities and now my client is deprived of the love and affection of his son and leading a very frustrated life. That in this context my client had issued another notice prior to this notice in the postal

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Page 5 of 8

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MATA no.17 of 2016

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address of your parents but it was returned undelivered hence this is the reminder to you to treat it very urgent.

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Therefore being instructed by my client through this regd. notice, I am calling upon you to let him know your final decision through me within fifteen (15) days from the date of receipt of this regd. notice failing which he will be constrained to proceed against you in proper court of law for redressal of his grievances and you will be liable for all the consequences ensuing thereof and take note of it that in such situation the cost of the litigation as well as this notice will also be realized from you.”

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Perusal of the advocate’s notice gives impression of a threat rather than expressing appellant’s intention to have his wife and son join him. Evidence in the record does not reveal there was attempt by appellant himself to bring respondent back to the matrimonial home.

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10 . Appellant pleaded in his petition that he had taken an apartment on rent in Mumbai expecting that respondent, with the child, would join him there. On query made Mr. Mishra submits, his client was in a very meager accommodation but in anticipation of being joined by respondent and his son, he rented the apartment

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MATA no.17 of 2016

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for their comfort. He waited for one year but respondent did not join him. There is nothing by way of documentary evidence to show particulars of the apartment or of rent paid. As such we are unable to find out when appellant took the comfortable apartment on rent in anticipation of respondent joining him in Mumbai or the taking of it was at all intimated to her, in asking her to join him there.

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11 . We have already seen from paragraph-6 in appellant’s deposition of cross-examination that he explained his father barring entry of respondent into the Berhampur home as he was alone at that time. In usual course of things, respondent would be accompanied by her father when she returned to the matrimonial home. She had come by herself inasmuch as appellant did not go to bring her back. Appellant is seen to have attempted to justify refusal of entry by his father. We cannot conclude anything more than a refusal of entry to respondent into the matrimonial home. The Family Court in dealing with the case clearly found, no attempt had been taken on behalf of appellant for reconciliation except that advocate’s notice. It is true there has been long separation. We are not convinced it was because respondent was cruel to appellant. In the circumstances to apply instance (xiv) under paragraph-101 in

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MATA no.17 of 2016

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Samar Ghosh (supra) would be allowing appellant to take advantage of his own wrong, prohibited by section 23 in Hindu Marriage Act, 1955.

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12 . For reasons aforesaid, we confirm impugned judgment. The appeal is dismissed.

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(Arindam Sinha) Judge

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(M.S. Sahoo ) Judge