Appeal against Family Court judgment dismissing restitution prayer pending divorce. High Court set aside impugned order, restored restitution case, and directed consolidated hearing for common judgment.
Impugned judgment set aside. Restitution case restored on file. Direction to Family Court for consolidated hearing of restitution and divorce cases.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.215 of 2024
Sushree Smita Rout
…. Appellant
Represented By Adv. – Mr. S. Chakravarty, Advocate
-versus-
Prabhanjan Swain …. Respondent
Represented By Adv. – Mr. P.R. Barik, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
14.11.2024
Order No.
03.
1. Mr. Chakravarty, learned advocate appears on behalf of
appellant-wife and submits, his client had filed for restitution. By judgment dated 26th April, 2024 the Family Court dismissed the petition. Drawing attention to paragraph-16 in impugned judgment he submits, in effect his client’s restitution case was dismissed for its fate
to be determined on outcome of the divorce case filed by respondenthusband, thereafter proceeded with.
2. Earlier, upon liberty granted by us on order dated 2nd July,
2024, he had communicated to the Family Court and that is how
respondent came to be represented in the appeal. He submits, his client
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is seriously prejudiced by impugned judgment. It be set aside and the restitution case restored to the Family Court. On query he submits, evidence was adduced in the restitution case.
3. Mr. Barik, learned advocate appears on behalf of respondenthusband. He submits, his client had filed for restitution. Pursuant thereto criminal cases were filed by appellant against his client. As such he was compelled to withdraw the restitution case and file for divorce. Hearing is complete and judgment was due to be delivered on 12th November, 2024. Information of his client is, it was not delivered.
4. Reproduced below is a passage from paragraph-16 of impugned judgment.
“… … It is also imperative to mention that the divorce proceeding filed by the respondent-husband against the petitioner is sub-judice in this Court which will properly determine the fates of the parties. Therefore, in such facts and circumstances, I deem it just and proper not to allow restitution in favour of the petitioner. Hence it is ordered:”
5. We are inclined to allow prayer of Mr. Chakravarty made on behalf of appellant-wife. This is simply because in event the Family Court is of opinion that divorce is not to be granted, the restitution case standing dismissed, it will not be possible to decree it.
6. Impugned judgment is set aside. The restitution case is restored. We
make it clear that pleadings and evidence is complete in the restitution case
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as is also complete in the divorce case. Parties have liberty to forthwith communicate website copy of this order to the Family Court. Said Court will fix a date for consolidated argument to be made by the parties in both cases and then proceed to deliver common judgment.
7. The appeal is disposed of.
(Arindam Sinha) Judge
(M.S. Sahoo) Judge
Gs/Radha
Signature Not Verified
Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: OHC Date: 14-Nov-2024 16:40:00
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2 issues framed by the court
Whether the dismissal of the restitution of conjugal rights petition be set aside when divorce proceedings are pendency in the same court.
Whether the restitution case should be restored to the Family Court for consolidated hearing with the divorce case.
1 provisions across 1 enactments
Sushree Smita Rout
Prabhanjan Swain
Arindam Sinha
M.S. Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
