Dismissed

Sripada Suar v. Debadutta Tripathy

Orissa HC8 Feb 2024MATA/194/2022

Case brief

AI extract

What is this about?

The High Court dismissed the wife's appeal against an ex-parte decree for restitution of conjugal rights, holding that her failure to seek an interim stay and approach the Family Court earlier to set aside the decree was not a good ground for interference, especially given her subsequent husband's divorce petition.

What did the court decide?

The appeal was dismissed as without merit; the ex-parte decree for restitution of conjugal rights stood.

Sripada Suar Vs Debadutta Tripathy — Matrimonial and Divorce | Orissa HC (2024)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

MATA No. 194 of 2022

¶3

Sripada Suar

¶4

…. Appellant

¶5

Mr. Gopinath Mishra, Advocate

¶6

-versus-

¶7

Debadutta Tripathy

¶8

…. Respondent

¶9

Mr. L.K. Maharana, Advocate

¶10

CORAM:

¶11

JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO

¶12

ORDER 08.02.2024

¶13

Order No.

¶14

5. 1. Mr. Mishra, learned advocate appears on behalf of appellant-

¶15

wife and submits, his client has preferred appeal against ex-parte judgment dated 18^th May, 2022 of the family Court, whereby order

¶16

was made for restitution of conjugal rights with direction for his client

¶17

to join company of petitioner within two months from date of the decree. His client was not aware of the proceeding since, summons

¶18

was served on her father, while she was away at work. She came to

¶19

know about the proceeding from advocate’s notice issued by respondent-husband communicating impugned judgment, requiring

¶20

Page 1 of 4

¶21

// 2 //

¶22

compliance. On advice received, his client then preferred appeal, on delay. The delay has since been condoned and the appeal admitted.

¶23

2. He submits further, there is a little boy from the marriage. His client does not want the marriage to be dissolved, at least for sake of the boy. Respondent-husband on having obtained impugned ex-parte judgment has thereafter filed another proceeding for divorce on noncompliance with the decree for restitution. In the circumstances, his

¶24

client seeks relief of said ex-parte judgment being reversed in appeal.

¶25

3. Mr. Maharana, learned advocate appears on behalf of respondent-husband and submits, apart from anything else, appellantwife was informed of the decree for restitution and fact is, she did not comply. Cause accrued to his client for filing the subsequent petition for dissolution of the marriage under clause (ii) in section 13 (1-A), Hindu Marriage Act, 1955.

¶26

4. Though submission on behalf of appellant-wife before us is she

¶27

wants to join society of respondent-husband for sake of the child, she did not do so when she was communicated the decree for restitution.

¶28

She also did not go to the family Court to ask for setting aside of said decree by raising contention that it ought not to have been passed, in the facts and circumstances she would want to bring to notice of that

¶29

Page 2 of 4

¶30

// 3 //

¶31

Court. Instead, she preferred belated appeal and during its pendency as such and thereafter on condonation of delay on the appeal admitted, she did not or omitted to obtain interim stay of the decree. In such circumstances ground or cause under section 13(1-A)(ii) became available to respondent-husband and he being thus enabled, has filed for divorce.

¶32

5. Mr. Mishra relies on rule 9-A under order V in Code of Civil Procedure, 1908 to submit there ought to have been issuance of summons for his client’s appearance considering there is mention in impugned ex-parte judgment that she was working as Asst. Teacher at Bhagabanpur UGME School Panaspada, Puri. We find from impugned ex-parte judgment, appellant’s address was also given as Panaspada. We reproduce below present address as stated in impugned ex-parte judgment.

¶33

“At present residing with her father Laxmidhar Suar, Resident of Gobinda Bhawan, Panaspada, PO_Panaspada, Dist.:-Puri.”

¶34

6. Appellant will find remedy, if available, by contesting the subsequent civil proceeding for divorce. This is because, where she filed appeal on delay and applied for condonation, we see no reason why she avoided the family Court to seek remedy of setting the aside

¶35

Page 3 of 4

¶36

// 4 //

¶37

ex-parte decree or also praying for condonation of delay, if occurred in the meantime. If she had done that, the family Court would be on notice that appellant-wife had presented herself before it and it may have then, on condonation of any delay taken up the application. However, the conduct of appellant-wife in filing belated appeal and subsequent omission to obtain interim stay of the restitution, while contending before us she wants to go back to her husband in face of

¶38

her non-compliance, does not amount to a good ground for us to interfere with the judgment in appeal.

¶39

The appeal is found to be without merit and it is dismissed.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge

¶40

Sks

¶41

Signature Not Verified

¶42

Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 09-Feb-2024 10:35:46

¶43

Page 4 of 4

Sripada Suar v. Debadutta Tripathy

Case brief

What is this about?

What did the court decide?

Sripada Suar v. Debadutta Tripathy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mehboobun Nahar Milky Vs Amarjeet Nayak

Geetabai Jain Vs Kamal Kishore Agrawal

Kamal Kishore Jain @ Agrawal Vs Geetabai Jain

Debi Prasad Bindhani Vs Manasi Parida@Bindhani

Monalisa Mohapatra Vs Jitendra Sahoo

Bijay Kumar Swain Vs State of Odisha