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Judgment
L. Mohapatra, J.—This appeal is directed against the judgment and order dated 22.1.2004 passed by the learned Judge, Family Court,
Cuttack, in Civil Proceeding No. 358 of 1995 dismissing the said petition.
The appellant had filed an application u/s 13 of the Hindu Marriage Act, 1955 against the respondent seeking dissolution of marriage.
The case of the appellant before the learned-Judge, Family Court, Cuttack is that the respondent has come from a poor family and was brought
up and educated by the elder brother of the appellant and after completion of her studies, she was appointed as an Asst. Teacher in Ranigola M.E.
School. The appellant was also working as a teacher at the relevant time. As per the proposal given by the elder brother of the appellant, the
marriage of the appellant was solemnized with the respondent in the year 1971 according to Hindu rites and customs. Four daughters and one son
(mentally retarded) were born to them in between 1971 to 1985. It is alleged by the appellant that after 1985, the respondent started interfering
with the joint family affairs and developed hatredness towards his brothers and on one occasion she slapped his elder brother. It is also alleged by
the appellant that the respondent persuaded him to sale his share of property and to reside in her village. Due to the differences for the aforesaid
reasons, the respondent left her matrimonial home in the year 1987 and never came back in spite of all efforts made by the appellant. It is also
alleged in the petition filed before the learned Judge, Family Court that the appellant once had gone to the village of the respondent and stayed with
her from 9.3.1994 to 19.3.1994 in order to persuade her to come with children but it did not yield any result and during the said period, the
respondent also denied to perform the marital rights of the appellant. The intervention of the gentlemen also did not yield any result and the
respondent never came back to the matrimonial house with the children. The children thereafter filed an application u/s 125 Cr.P.C. for
maintenance and the order passed by the learned Magistrate was being complied with by the appellant. Having failed in his efforts to bring back
the respondent and the children, the appellant had no other option except seeking for a decree of dissolution of marriage by filing the aforesaid
Civil Proceeding.
The respondent contested the case by filing a written statement. She in her written statement not only admitted her marriage but also admitted birth
of five children and the maintenance proceeding initiated by the children. It was the case of the respondent that the appellant was working in Sital
High School and she was working in Sundargaon High School and that the appellant not only misbehaved with her but also misbehaved with the
children. It was also the case of the respondent that the appellant has been staying with one Meenarani and therefore it was not possible on her
part to go back to the matrimonial house.
In course of the proceeding before the learned Judge, Family Court, four witnesses were examined on behalf of the appellant and four witnesses
were also examined on behalf of the respondent. On analysis of the evidence adduced before the Court, the learned Judge, Family Court came to
hold that the respondent and her children are not willing to stay with the appellant due to presence of Meenarani in the company of the appellant
and therefore, it is the appellant who is responsible for such separation and accordingly declined to grant a decree for divorce.
The learned Counsel for the appellant assailed the impugned judgment on the ground that the Civil Proceeding was initiated by the appellant on
two grounds, i.e., desertion and cruelty. The learned Judge, Family Court instead of deciding the aforesaid two issues got swayed away by the
evidence that the appellant was staying with one Meenarani and refused to grant the relief. The learned Counsel for the respondent also drew
attention of the Court to the evidence adduced before the learned Judge, Family Court and submitted that it is the appellant who created a situation
where it became impossible on the part of the respondent and the children to stay with the appellant and therefore the learned Judge, Family Court
was justified in denying the relief claimed.
Admittedly the marriage between the appellant and the respondent took place in the year 1971 and by the year 1985 they had been blessed
with five children out of whom four are daughters and one is a son stated to be mentally retarded. Admittedly the Civil Proceeding was initiated at
the instance of the appellant on the ground of desertion and cruelty. The appellant examined four witnesses and the respondent also examined four
witnesses before the Court below. P.W.1 is the elder brother of the appellant. He in his deposition has stated that he has been living separately
from the appellant since last four years and prior to that the respondent was behaving properly. Just before separation the respondent complained
before him that the appellant is getting his support in neglecting her and the children. When the father of the appellant died, the respondent did not
attend the funeral ceremony and the relationship became strained. He tried his best to bring back normalcy in the relationship between the appellant
and the respondent but neither of them cooperated and remained adamant. In cross-examination, he has stated that neither the respondent nor her
children are willing to stay with the appellant due to presence of Meenarani in the company of the appellant. P.W.2 has stated that about ten years
back prior to his examination he had once been to Dhanmandal with the appellant to purchase calf. In his presence both the appellant and the
respondent quarrelled and the respondent was proposing the appellant to sell away all his immovable assets in his village and purchase some
property at Dhanmandal. But the appellant turned down the said proposal. P.W.3 is another witness examined on behalf of the appellant who was
known to the family of the parties for a long time. He in his deposition has stated that the respondent deserted the appellant and was cruel in her
attitude and stayed all along in the house of her father. The appellant tried his best to bring her back but all his efforts were of no use. He has
further stated that the appellant was all along willing to maintain the respondent by bringing her back but the respondent did not oblige. P.W.4 is
the appellant himself who has supported his own case. In cross-examination he denied to have any relationship with Meenarani Dash. O.P.W. 1
examined on behalf of the respondent has stated that the parties are staying separately since last 7 to 8 years on account of the fact that they are
not pulling on well with each other and he has denied the suggestion that the respondent was misbehaving with the appellant. O.P.W. 2 is a resident
of the village of the appellant and she is also the niece of the appellant. She has stated that there was a woman in the house of the appellant who
did not allow the respondent and her children to enter inside the house and her name is Meenarani Dash. She has further stated that on many
occasions she has seen Meenarani Dash not allowing the respondent into the house of the appellant. She has further stated that Meenarani is
staying with the husband of the respondent for last two to three years. This witness was examined on 2001. O.P.W. 3 is the daughter of the parties
and she has stated in her deposition that the appellant is staying at Tola Gopinathpur with another lady, namely, Meenarani Dash and she has been
staying there before her marriage in the year 1989. O.P.W. 4 is the respondent herself who has also stated about the presence of Meenarani Dash
in the house of the appellant and she has also stated that she does not have any marital relationship with the appellant since 1985.
On analysis of the evidence of the witnesses, it appears that the allegation of the respondent that the appellant is staying with another lady in the
name of Meenarani Dash is not only stated by the witnesses examined on behalf of the respondent but also is admitted by P.W.1, who is the elder
brother of the appellant. It appears from the evidence that since 1987 the parties are staying separately. According to O.P.W. 3, the said
Meenarani Dash has been staying with the appellant prior to 1989 whereas the O.P.W. 2 has stated that Meenarani Dash is staying in the house of
the appellant for two to three years prior to her examination on 4.12.2001. O.P.W. 3 in examination-in-chief stated that Meenarani Dash was
staying with the appellant prior to her marriage in the year 1989. She was not sure as to from which year the appellant is staying with the aforesaid
Meenarani Dash as in cross-examination she stated that her father, the appellant has kept Meenarani as a mistress before 1994. Even accepting
the evidence of O.P.W. 3 that Meenarani Dash has been staying with the appellant since 1994, the admitted position is that both the appellant and
respondent are staying separately since 1987. There was scope for the respondent to come back to the matrimonial house in between 1987 and
1994. If the evidence of O.P.W. 3 is accepted to the extent that the appellant has been staying with Meenarani Dash since 1994, that may be a
cause for the respondent to decide not to come back to the matrimonial house. But from 1987 to 1994 there was no reason for the respondent to
stay in her father''s house and decline to come back to matrimonial house in spite of efforts made by the appellant as stated by the witnesses.
Therefore, we are of the view that the respondent is guilty of desertion at least from 1987 to 1994 and the respondent has herself admitted in
cross-examination that she had no marital relationship with the appellant since 1985.
In view of the discussions above, the plea of the appellant that the respondent deserted him in the year 1987 and that he was dealt with cruelty
finds support from the evidence adduced before the learned Judge, Family Court. There is absolutely no material on record to show that the
appellant was staying with Meenarani Dash in between 1987 to 1994 and admittedly the respondent denied the appellant the marital relationship
during the said period. We, therefore, hold that the respondent is not only guilty of desertion but also mental cruelty by denying marital relationship
to the appellant between 1987 to 1994. Considering such conduct of the respondent, we are of the view that the application filed by the appellant
for dissolution of marriage should have been allowed by the learned Judge. Family Court, Cuttack.
We, accordingly allow the appeal, set aside the impugned judgment and pass a decree for dissolution of marriage. However, we direct that the
appellant shall pay a sum of Rs. 1,50,000/- (one lakh and fifty thousand) for maintenance of the mentally retarded child and such amount shall be
kept in fixed deposit and the interest therefrom shall be spent for treatment and maintenance of the said son.
I. Mahanty, J.
I agree.