Anasuya Swain vs Sujit Kumar Lenka T

Arindam Sinha, J

Mrs. Das, learned advocate appears on behalf of appellant-wife, who is aggrieved by judgment dated 15th February, 2023 made by the family Court dismissing the civil proceeding filed by her client for dissolution of the marriage. She draws attention to last paragraph in impugned judgment, reproduced below.

“In this instant case, though the petitioner has stated that the respondent lived an adulterous life with his aunt (khudi) namely Snehalata Lenka, but she has not clarified that under what circumstances she has not made the said Snehalata Lenka party to this proceeding inspite of knowing her name and address. It is also not explained by the petitioner that she has made effort for discovery of address of the said adultery. Hence, she has failed to comply section 5 of Hindu Marriage and Divorce (Orissa High Court) Rules, 1956. Therefore, this court feels that though cruelty and desertion is established against the respondent, but a decree of divorce cannot be granted in absence of a proper party to this proceeding. Accordingly, this proceeding should be dismissed for non-joinder of proper party. Hence, it is ordered:

ORDER

The civil proceeding is dismissed on contest against the respondent, but without cost. ”

(emphasis supplied)

She submits, in the memorandum of appeal her client made specific averment regarding respondent-husband having relation with another woman and also a child with her. On query from Court she submits, according to the birth certificate, the child was born on 31st August, 2015. It is after that respondent-husband came and established physical relation once again with her client. Her client conceived but on discovery of said other relation, she suffered distress resulting in miscarriage. Report dated 7th June, 2016 regarding the miscarriage was duly made ext.6 in the family Court. She submits, said Court failed to appreciate the facts and circumstances and erred in dismissing civil proceeding. The judgment be reversed in appeal on dissolving the marriage and granting permanent alimony.

Mr. Bose, learned advocate appears on behalf of respondent-husband and on query from Court does not dispute the birth certificate. On further query from Court Mrs. Das points out from paragraph 14 of the counter filed by respondent-husband in this Court, there is clear admission he is in live-in relation with one Subbhasini Swain and they have a female child.

Respondent-husband has not filed cross-objection in the appeal nor separate appeal from impugned judgment. In the circumstances, the grounds of cruelty and desertion stand proved without invitation of this Court to adjudicate on them in appeal. However, it appears from impugned judgment that claim for dissolution of the marriage was disallowed on technicality of appellant-wife not having made the person, with whom she alleged respondent-husband was committing adultery. That person is different from the person, who admittedly respondent-husband is living-in and has a child with. Though Mr. Bose disputes the submission, we presume that conception happened after birth of the child begotten by respondent-husband with his live-in partner. We have not been shown anything from materials on record to substantiate the dispute raised regarding physical union alleged by appellant-wife resulting in conception and ultimately miscarriage. As such, the omission to make necessary party under rule 5 in Hindu Marriage and Divorce (Orissa High Court) Rules, 1956 cannot be confirmed to be fatal to appellant’s case for dissolution of the marriage made out in appeal.

Impugned judgment is reversed in appeal. The marriage solemnized on 21st May, 2010 is dissolved by decree of divorce on the grounds of cruelty and desertion. So far as issue of permanent alimony is concerned, since the family Court did not examine it on not granting the divorce, parties are left to find their remedy under section 25 before said Court. This direction is made in exercise of our appellate power inasmuch as the question of permanent alimony being answered here will require adducing evidence as can be conveniently done in that Court. Mrs. Das submits, her client has already adduced evidence in that Court. We make it clear parties may adduce further evidence, including filing their respective affidavits following judgment of the Supreme Court in Rajnesh v. Neha, reported in (2021) 2 SCC 324.

The appeal is disposed of.

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