Bishnu Charan Hota vs Smt. Mukta Manjari Hota

When there is no report about any step for conciliation, we heard further argument. Hearing is concluded and the Judgment is as follows.

This appeal has been filed by the husband-Appellant challenging to the Judgment and decree passed in Civil Proceeding No. 255 of 1998 by the Judge, Family Court, Cuttack in refusing to grant decree of divorce to the Appellant u/s 13 of the Hindu Marriage Act, 1955 (in short ''the Act'').

It appears from the application u/s 13 of the Act that the Appellant married to the Respondent on 19.05.1996. He alleged that because of the swelling feet of the Respondent he ascertained from the Respondent and her brother that she was under treatment for filaria and thereafter the Respondent deserted him about twenty-two days after the marriage and did not join with him again in spite of steps taken by the Appellant for a re-union. He alleged that during her 22 days'' stay with him Respondent ill-treated him by misbehaviour and caused him to suffer from mental cruelty and apart from that the Respondent also initiated false criminal case to the agony of the Appellant.

In her written statement, while admitting the relationship, the Respondent alleged that not only she was ill-treated on account of non- fulfilment of demand of dowry but also she was removed from the house and that is how she has taken shelter in her parents'' house and when all the efforts for joining in the matrimonial house failed, then she took legal action by lodging F.I.R. for demand of dowry, ill-treatment and cruelty and also for maintenance, vide Criminal Proceeding No. 619 of 1997 and the Civil Proceeding was instituted by the Appellant as an after-thought to counter blast to her claim.

In the Court below both the proceedings were considered by recording evidence separately in each of the proceedings. In the proceeding u/s 13 of the Act Appellant examined himself as P.W.3, his maternal uncle as P.W.2 and a family friend as P.W.1, whereas the Respondent examined herself as R.W. No. 1. No documents were exhibited from either of the parties.

Learned Judge, Family Court, on perusal and appreciation of evidence, recorded the finding that the Appellant used the swelling feet of the Respondent as the trump card to pursue the plea of suffering from filaria, but in that respect Appellant made contradictory statement in the pleading and the evidence and, therefore, the ground advanced in that respect remains not proved. Accordingly he found that the application u/s 13 of the Act is devoid of merit.

Learned Counsel for the Appellant argues that when the Respondent in course of her examination as P.W.1 in the proceeding u/s 125, Cr.P.C. has admitted about the swelling feet, that evidence should have been duly considered to record a finding that Respondent suffers from filaria and accordingly a decree of divorce should have been granted in favour of the Appellant.

After perusal of the pleadings of the parties and the evidence on record, we are not at all impressed by the aforesaid submission in as much as Appellant took the plea of ill-treatment, cruelty and desertion by the Respondent in furtherance of a decree of divorce and in that respect he has tendered no adequate evidence and particularly the evidence of the doctor that the Respondent is suffering from filaria or that mental cruelty was caused to him in any particular manner. Institution of criminal proceeding by the Respondent, under the given facts and circumstances, cannot be regarded as an act of cruelty by the Respondent on the Appellant, in as much as she wanted legal remedy for the ill-treatment and cruelty as alleged by her against her husband.

On the other hand, on perusal of the findings recorded by the Learned Judge. Family Court, we find no reason to differ from the conclusion arrived at by him and accordingly the MATA is dismissed with cost. Hearing fee is assessed at contested scale.