Nibedita Dash Vs Biswa @ Biswaraj Dash

dissolution of the marriage on ground of cruelty. His client had pleaded the facts. Respondent-husband chose not to appear before the Family Court. Appellant-wife took the box and proved the facts pleaded. In absence of cross-examination, the case made out by his client ought to have been accepted by the Family Court. There was error made by said Court in not doing so. On the top of that, failure to appreciate the facts.

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2. There was attempt to serve and on presumption of respondent-husband avoiding service, direction made for substituted service. After everything had been done, by order dated 19^th February, 2024 there was record of sufficiency of service against respondent-husband. The husband goes un-represented before us as well.

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3. He relies on judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh , reported in (2007) 4 SCC 511, clause (iv) in

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paragraph 74 (Manupatra print). The clause is reproduced below.

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“(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.”

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His client’s deep anguish was expressed both by pleadings and from the box.

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4 . He next relies on judgment dated 21^st December, 2023 in

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MATA no.353 of 2023 (Anubhav Mohanty v. Varsha Priyadarshini) , delivered by a Division Bench, to which one of us was party (Arindam Sinha, J.). He draws attention to paragraph 12, reproduced below.

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“ 12. In view of our finding in preceding paragraphs 10 and 11 and omission of respondent-wife to bring on record physical incapacity, as she had refused or said it was not required for her to visit any doctor or valid reason for withdrawing herself, leads us to conclude that it was unilateral decision on her part to deny her husband. Mrs. Jena submits, there was no pleading in terms of illustration-(xii) in Samar Ghosh (supra) and as such the declaration of law by the illustration cannot come to aid of petitioner. We have already stated the facts pleaded and evidence laid. Law need not be pleaded.”

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He submits, there was unilateral decision on part of respondenthusband to not only stay away from his client but also to stay away

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from the legal proceedings, both before the Family Court and this Court.

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5 . Lastly, he relies on view taken by a learned single Judge of Punjab and Hariyana High Court by judgment dated 29^th April,

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1994 in Lalita v. Om Parkash available at . He relies on

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paragraph-9 in the downloaded print. The paragraph is reproduced below.

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“9. The Trial Court again fell into an error, in my view, in saying that the period of 4/5 days was too short to come to the conclusion that the respondent was suilty of cruelty. Reference was made to certain observations occurring in an earlier decision of this Court in Santosh Kumar v. Parveen Kumar. A.I.R. 1987 Punjab and Haryana, 33 : [1987(2) All India Hindu Law Reporter 491 (Pb. & Hry.)]. I am unable to read the observations as meant to apply as principle of law. It must be read in the facts and circumstance of that particular case. It will depend on the enormity of the conduct and the offence caused to the opposite party rather than the period during which the offence is given. One can easily visualise a situation where the cruelty is so clear and pronounced as to leave no manner of doubt in the mind of opposite party about its nature. No hard and fast rule can be laid down that the opposite party must suffer for a certain minimum period before he or she can be held to have justifiably decided to walk out of the marriage because of the alleged cruelty.”

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Parties stayed together for barely a month, after which there was separation. It has been 9 long years. On query from Court Mr. Tripathy submits, his client does not know whereabouts of respondent-husband.

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6. Perused impugned judgment, the petition and oral evidence adduced by appellant and her brother-in-law (sister’s husband). The Family Court has said by its judgment that ordinarily when a party pleads and proves the pleading by way of evidence, on omission to dispute and cross-examine, the case made out is to be accepted. Said Court went on to say further that the acceptance may not be if the case is found to be improbable.

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7. It appears from the petition, appellant pleaded no conjugal relationship between the parties. She remained awake at night and suffered cruelty because her husband was not with her. There is nothing on record to show complaint was filed by her regarding violence meted out to her. We have also ascertained from Mr. Tripathy. Appellant said she accompanied her husband to his place of work and stayed with him at Raipur but even there no physical relationship could be maintained. She, however, did not allege in her petition that the husband is impotent or otherwise suffering a

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medical condition, preventing intimacy. There are allegations of demand for dowry but as aforesaid, apart from approaching the Family Court with petition for dissolution of the marriage, appellant did not take any other step regarding such demand(s). There is further allegation of irretrievable break down of the marriage and attempt at reconciliation with no result. Appellant also stated in paragraph-9 of her petition that respondent-husband derived no happiness with her. At the end she said she spent more than a year without matrimonial companionship of respondent.

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8. The pleadings appear to have been reiterated in her evidence-in-chief and corroborated by evidence-in-chief of her brother-in-law. There was no cross-examination.

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9. Clause (iv) under paragraph 74 (Manupatra print) in Samar Ghosh (supra) was an instance of human behavour given by the Supreme Court, for dealing with cases of mental cruelty. The instance enumerated relied upon is of a spouse feeling deep anguish, disappointment and frustration caused by conduct of the other. In this case appellant’s contention is, there was separation after barely a month of marriage. On query from Court Mr. Tripathy submits, it was an arranged marriage. Respondent-husband never approached or

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alleged desertion. The allegation of desertion is also not there by appellant-wife. The allegation is cruelty. Cruelty by demand for dowry and violence. As aforesaid, we don’t have any evidence to show protest by appellant-wife on the allegations of cruelty made by her. As such, it is understandable the Family Court found the allegation to be improbable, to not act upon it though the evidence went unchallenged.

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10. In Anubhav Mohanty (supra) in the paragraph relied upon on behalf of appellant, view taken was based on evidence in that case. The wife had clearly said she resisted intimacy. The case is distinguishable on facts. Moving on to Lalita (supra), the view does not come in aid of appellant because the question before us is not whether cruelty could have been perpetrated within a short period of one month, during which parties were together.

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11. We appreciate from impugned judgment that the Family Court felt case of cruelty was not made out but the marriage may have broken down. Latter is not a ground available in Hindu Marriage Act, 1955 for dissolution of the marriage. As such we do not find any error committed by the Family Court. The Supreme

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Court in Dollar Company v. Collector, Madras , reported in AIR

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1975 SC 1670 said by a passage in paragraph-4, reproduced below.

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“… Moreover, there is a prudent condition to which the appellate power, generally speaking, is subject. A court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong. ...”

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Respondent-husband went and goes unrepresented before us. The Family Court in having found cruelty on the evidence adduced, on no cross-examination, may be said to have thereafter not been right in dismissing the petition. We are all the more required to see that appellant has shown us that the judgment is wrong. There has been no such demonstration to persuade us to hold that respondenthusband actually took or demanded dowry or meted out physical or mental cruelty to appellant.

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12. The appeal is dismissed. The dismissal will not prevent appellant to approach respondent for obtaining divorce by mutual consent.

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(Arindam Sinha) Judge

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(M.S. Sahoo) Signature Not Verified Judge

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Digitally Signed Signed by: JYOSTNARANI MAJHEE Radha/Jyostna/Prasant Reason: Authentication Location: OHC Date: 03-May-2024 12:38:16

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MATA no.68 of 2021

Nibedita Dash v. Biswa @ Biswaraj Dash

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Nibedita Dash v. Biswa @ Biswaraj Dash

Case brief

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