Kalpataru Swain vs Shantilata Swain

Pradipta Ray, J.—Respondent-wife, Shantilata Swain instituted Civil Proceeding No. 38 of 1997 before the Family Court, Rourkela for restitution of conjugal rights and custody of children. Appellant-husband, Kalpataru Swain initiated Civil Proceeding No. 92 of 1997 in the said Family Court for a decree of divorce on the ground contained in Section 13(1), (la) of the Hindu Marriage Act (hereinafter referred to as ''The Act'').

Family Court by its judgment dated October 5, 1999 allowed the application for restitution of conjugal rights and granted an alimony of Rs. 700/- per month in favour of the wife. By a separate judgment dated October 5, 1999 Family Court dismissed husband''s application for divorce.

Appellant-husband has filed Civil Appeal No. 54 of 1999 against the judgment and decree for restitution of conjugal rights and Civil Appeal No. 55 of 1999 against those refusing to grant a decree for divorce in this Court. Both the appeals have been heard together and are being disposed of by this common judgment.

In these proceedings under the Act, both husband and wife have made mutual allegations and counter allegations against each other. Both the parties have alleged cruelty, both mental and physical, torture and adulterous life against each other. Family Court in its judgment in the proceeding for restitution of conjugal rights has recorded a finding that the wife gave birth to a son out of an incestuous relationship with somebody, but held the husband responsible for forcing such a situation on the wife because of his cruel and harsh behaviour. Nature of the allegations exposes bitter relationship although admittedly four children have been born out of the wed-lock.

During pendency of the present appeals both wife and husband have filed affidavits acknowledging hard fact that it is no longer possible for them to live together. Both of them have affirmed separate affidavits admitting impossibility of re-union. In her affidavit wife has sought for appropriate maintenance, reasonable access to the children and arrangement for proper maintenance, up-bringing and marriage for the daughters. The husband in his affidavit has agreed to pay a gross sum of Rs. 1,00,000/- or monthly amount of Rs. 700/- towards permanent alimony.

Before granting a divorce on mutual consent, we like to point out that Family Court''s finding on the allegation of adultery against the wife, is a product of non-application of mind and without sufficient basis and the same is liable to be set aside. Family Court has mechanically accepted the husband''s allegation that he had no access to the wife since February 1, 1997 and has not discussed all evidence adduced in this regard. Allegation of adultery is a serious allegation and the Family Court should have been more cautious and careful before recording such findings. In any event, when the parties have agreed for mutual divorce upon admission that marital relationship has broken down irretrievably,all findings of the Family Court against both the wife and husband are set aside.

In the facts and circumstances stated above, judgments and decrees impugned in these two appeals are set aside. A decree for divorce is granted on the ground of irretrievable break-down of marriage subject to the condition that the husband-appellant will pay a gross sum of Rs. 1 Lakh for alimony of the wife within two months from the date of this judgment. Decree for divorce will be effective from the date when aforesaid one-time alimony is paid. The appellant-husband will allow the Respondent to meet the children twice in a month. Appellant-husband will allow the Respondent-wife to meet the children in his house or at a suitable agreed place twice a month, preferably once in a fortnight on holidays. In case of any difficulty, the parties are at liberty to approach the Family Court, Rourkela for making appropriate arrangement to give effect to the direction regarding wife''s access to the children. If approached, Family Court will be competent to pass appropriate order regarding arrangement for access to the children. Husband will take all possible steps within his means for proper maintenance, education of the children and marriage for the daughters.

Both the appeals are thus allowed in the manner indicated above.

M. Papanna, J.

I agree.