Disposed¶32

Debi Prasad Bindhani v. Manasi Parida@Bindhani

Orissa HC8 Feb 2024MATA/45/2020

Case brief

AI extract

What is this about?

Orissa High Court, MATA No.45 of 2020, order dated 08.02.2024, Arindam Sinha and M.S. Sahoo JJ. Keywords: desertion; Section 13(1)(i-b) Hindu Marriage Act, 1955; continuous period of not less than two years immediately preceding presentation; premature filing of divorce petition by three days; no limitation for desertion petition; C.P. no.83 of 2011 withdrawn on reunion; C.P. no.302 of 2013 pleadings reusable in fresh petition; dissolution of marriage refused; family Court judgment dated 7th February, 2020.

What did the court decide?

No relief granted to the appellant-husband; the appeal was disposed of on the Court's findings and observations, including that the statutory two-year desertion requirement could not be overcome and that the pleadings in C.P. no.302 of 2013 may be used in any fresh petition. ¶32

Debi Prasad Bindhani Vs Manasi Parida@Bindhani — Matrimonial and Divorce | Orissa HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the appellant-husband's petition for dissolution of marriage on the ground of desertion, presented on 21st October, 2013, was premature under clause (i-b) of sub-section (1) of Section 13, Hindu Marriage Act, 1955, the continuous desertion having commenced on 23rd October, 2011. +1 more

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Court's answer

As on 21st October, 2013 the appellant-husband could not have presented his petition for dissolution of the marriage on the ground of desertion, since clause (i-b) of sub-section (1) of Section 13, Hindu Marriage Act, 1955 requires desertion for a continuous period of not less than two years immediately preceding presentation, and desertion commenced only on 23rd October, 2011. Consequently the Court found it unnecessary to see the reasons given in the impugned judgment by which the family Court decided against dissolution.

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Ratio / Principle

The Court cannot overcome the statutory provision relied upon; although no limitation is prescribed for filing a petition on the cause of desertion, the steps taken on behalf of the appellant-husband disentitle him to relief despite the lapse of time since 2013.

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Key takeaways

Observation for future conduct: the pleadings of the parties in C.P. no.302 of 2013 filed before the family Court are a matter of record and may be relied upon in the event the appellant-husband files a fresh petition for dissolution of the marriage on the ground of desertion.obiter¶31

Detailed headnote1 paragraphs

MATA No.45 of 2020 (High Court of Orissa at Cuttack; Arindam Sinha and M.S. Sahoo JJ.; order dated 08.02.2024): Appeal by the husband against the family Court judgment dated 7th February, 2020 dismissing his petition for dissolution of marriage on, inter alia, the ground of desertion under clause (i-b) of sub-section (1) of Section 13, Hindu Marriage Act, 1955. Desertion by the wife commenced on 23rd October, 2011, but the petition was presented on 21st October, 2013 - three days before completion of the continuous two-year period immediately preceding presentation. Holding that as on 21st October, 2013 the husband could not have presented such a petition, and that the Court cannot overcome the statutory provision even though no limitation is prescribed for filing a desertion petition, the Bench disposed of the appeal without granting relief, observing that the pleadings in C.P. no.302 of 2013 remain a matter of record and may be relied upon in any fresh petition on the ground of desertion.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MATA No.45 of 2020

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Debi Prasad Bindhani …. Appellant

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Mrs. Sujata Jena, Advocate

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-versus-

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Manasi Parida @ Bindhani

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…. Respondent

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Mr. S. Das, Advocate
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
ORDER
08.02.2024

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CORAM:

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Order No. 17. 1 . Mrs. Jena, learned advocate appears on behalf of appellant-

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husband and submits, impugned judgment dated 7^th February, 2020 was made by the family Court dismissing the petition of her client for dissolution of the marriage on, inter alia, ground of desertion. She draws attention to paragraphs 19, 22, 23, 27, 28, 29 and 37 in the petition to submit, her client had initially filed for divorce on 2^nd April, 2011. The case was registered and numbered as C.P. no.83 of 2011 in the family Court. On notice of the case respondent-wife returned to her client and commenced staying with him at his house

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Page 1 of 4

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// 2 //

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since 8^th May, 2011. In the circumstances, her client unconditionally withdrew the divorce case on 22^nd May, 2011.

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2 . The parties were blessed with a son. On 23^rd October, 2011 respondent-wife deserted petitioner without reasonable excuse. It gave cause of action for the subsequent proceeding as stated in paragraph-37. On query from Court she submits, the petition was presented on 21^st October, 2013.

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3 . We have perused the written statement available in the lower Court record. By paragraphs 13, 14 and 15, aforesaid allegations of appellant-husband were referred to but not dealt with specifically. By paragraphs 25 and 27 in it, respondent-wife alleged incident occurred on 28^th August, 2014 and complaint lodged on 29^th August, 2014 before I.I.C., Town P.S. Balasore.

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4 . Mr. Das, learned advocate appears on behalf of respondent-

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wife and submits, the petition was presented before expiry of two years from alleged desertion. On query from Court Mr. Das submits, there is no averment in the written statement that after 23^rd October,

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2011 his client had been in society of appellant-husband. However, he reiterates, the time fixed as on 23^rd October, 2011 required the

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Page 2 of 4

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// 3 //

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petition to be filed earliest on 24^th October, 2013 and not 21^st October, 2013, as it was filed.

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5 . Clause (i-b) under sub-section 1 in section 13 of Hindu Marriage Act, 1955 is reproduced below.

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“(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petitioner;”

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As on 21^st October, 2013 appellant-husband could not have

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presented his petition for dissolution of the marriage on ground of desertion. It is not necessary for us to therefore see the reasons given in impugned judgment on the family Court deciding against dissolution of the marriage.

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6. Mrs. Jena submits, the premature filing of the petition by three days should not be fatal to the cause of her client. Those three days were in October 2013 and today we are in year 2024. Parties have not been together ever since.

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7. We cannot overcome relied upon provision in the statute. However, we observe that there is no limitation prescribed for filing petition on cause of desertion. It is unfortunate that steps were taken on behalf of appellant-husband, which disentitles him to relief in the

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Page 3 of 4

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// 4 //

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appeal Court because of the mistake committed long ago. We observe further that the pleadings of the parties in C.P. no.302 of 2013 filed before the family Court are a matter of record and may be relied upon in event appellant-husband files fresh petition for dissolution of the marriage on ground of desertion.

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8. The appeal is disposed of as above.

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(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Radha/Jyostna

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Signature Not Verified

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Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: ohc Date: 09-Feb-2024 16:36:43

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Page 4 of 4

Debi Prasad Bindhani v. Manasi Parida@Bindhani

Case brief

What is this about?

What did the court decide?

Debi Prasad Bindhani v. Manasi Parida@Bindhani

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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