Dr. Niranjan Dwivedy vs Smt. Tillotama Sahoo And Others

S.K. Mishra, J

In this MATA, the appellant assails the judgment and order dated 11.08.2011 passed by the learned Judge, Family Court, Cuttack in Civil

Proceeding No.457 of 2010, whereby learned Judge, Family Court, Cuttack allowed the aforesaid civil proceeding in part on contest against the

appellant and ex parte against the respondent nos.2 to 4, so also directed the appellant to resume the conjugal life with the respondent no.1. Learned

Judge, Family Court, Cuttack further directed the respondent no.2 to live separately from the appellant, so also she was directed not to enter into any

cohabitation with the appellant. Further, the Paradip Port Trust Hospital was directed not to use the name of the appellant as the husband of

respondent no.2.

Respondent no.1 had filed an application under Section 7 of the Family Courts, Act, 1984 (hereinafter referred to as “the Act†for brevity) to

declare the opposite party no.2 i.e. the respondent no.2 as the concubine of the appellant; direct the appellant to resume conjugal life with her; direct

the respondent no.2 to stay separately without entering into any cohabitation with the appellant, enforce the restitution of her conjugal life; declare her

as the legally married wife of the appellant; declare the respondent nos.2 to 4 as the illegal children as their mother being a concubine and direct the

authority of the respondent no.2 to exclude the name of the appellant from all official records and not to use the name of the appellant as husband of

respondent no.2 in any manner.

The case of the respondent no.1 was that she married the appellant, namely, Dr. Niranjan Dwivedy in the temple of Lord Jagannath at Puri on

25.07.1979. She as mother guardian filed Criminal Misc. Case No.258 of 1987 under Section 125 of the Cr.P.C. in the court of the learned S.D.J.M.

(S), Cuttack for maintenance. On 05.09.1990, learned S.D.J.M.(S), Cuttack allowed the maintenance and directed payment of Rs.400/- per month

from the date of application to be paid to the respondent no.1 as the mother of the child by the 7th day of every succeeding month. Aggrieved by the

said order, Criminal Revision No.189 of 1990 was preferred by the appellant before the learned District Judge, Cuttack, whereby the learned District

Judge, Cuttack dismissed the same on 03.04.1992. Further plea of the respondent no.1 is that she and the appellant were working under the

Government of Odisha. Respondent no.2 was working as a staff nurse in Paradip Port Trust Hospital. In that Hospital, the appellant was working as a

Doctor. Illicit relationship developed between the appellant and the respondent no.2. The respondent no.1 was working in the Department of Fisheries

and staying at Cuttack. Taking advantage of the situation, the aforesaid relationship developed. The respondent no.2 identified herself as the wife of

the appellant and used the name of the appellant as her husband in Paradip Port Trust Hospital. She had also drawn Rs.3,32,678/- towards the

reimbursement of cost of treatment of the appellant. With oblique motive the respondent no.2 used the name of her husband as her husband in

different official records knowing well that the appellant was a married person having a spouse. The appellant was working under the Health and

Family Welfare Department, Government of Orissa in the district of Kandhamal. In the meantime, he has retired. On the verge of his retirement, he

would have drawn all his service and retirement benefits. Therefore, with the aforesaid prayer, the aforesaid civil proceeding was filed for restitution

of conjugal life. Respondent nos.2 to 4 were set ex parte.

The appellant, opposite party no.1 before the Judge, Family Court, Cuttack filed written statement, inter alia, stating therein that he has previously

married respondent no.2 and out of their wedlock, respondent nos.3 and 4 were born. His specific case is that the respondent no.1 kept relationship

with him cunningly and blackmailing him. He is a simple person and taking advantage of his simplicity, the respondent no.1 had filed the case against

him. The respondent no.1 has fabricated documents to create evidence. In other words, he has denied the marital relationship between himself and the

respondent no.1.

In order to prove her case, the respondent no.1 examined

herself as P.W.1 and one Nirupama Sahoo as P.W.2 and on her behalf three documents were exhibited i.e. Ext.1, the certified copy of the order

passed in Crl. Rev. No.189 of 1990, Ext.2, the certified copy of the petition and Ext.3- letter dated 31.12.2009 issued by the Chief Medical Officer &

PIO, Paradip Port Trust. No witness has been examined on behalf of the appellant nor any document has been led into evidence.

So, taking into consideration the totality of the materials available on records and the facts that the appellant avoided to

examine himself as an witness in the case, therefore, drawing an adverse inference, the civil proceeding was decreed in favour of the respondent

no.1. At present also, learned counsel for the appellant fails to satisfy this Court that any illegality has been committed by the learned Judge, Family

Court, Cuttack in decreeing the suit in favour of the respondent no.1. Learned counsel for the appellant also submits that this matter may be remanded

to the learned Judge, Family Court, Cuttack, so that the respondent no.1 can adduce evidence on the ground that she had never been given opportunity

to adduce evidence. It is apparent from the order-sheets maintained by the learned Judge, Family Court, Cuttack that after examination of the

witnesses for the respondent no.1, further adjournment was given to the appellant to adduce evidence and he failed to adduce any evidence and each

of the dates he filed application for adjournment.

Having examined the order-sheets maintained by the learned Judge, Family Court, Cuttack, we are of the considered opinion that enough

opportunity has been given to the appellant to adduce evidence as adjournment has been granted favourably on each of the dates on listing of the

application filed by the appellant. Then defence arguments were closed, judgment is pronounced.

In that view of the matter, we are not inclined to entertain this MATA. Hence, this MATA is dismissed being devoid of any merit. There shall be

no order as to costs.

L.C.R. be returned back forthwith.

Urgent certified copy of this order be granted on proper application.

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