Sabita Padhi vs Babrubahan Padhi

This matter is taken up by hybrid mode.

Heard Mr. S. Mishra, learned counsel for the appellant and Mr. M.K. Dash, learned counsel for the respondent.

The appellant-wife has filed this appeal seeking to set aside the judgment and decree dated 10.02.2022 passed by the learned Judge, Family Court, Bhubaneswar in C.P. No. 384 of 2016, i.e. a proceeding initiated by the respondent-husband under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage by a decree of divorce.

Mr. S. Mishra, learned counsel appearing for the appellant-wife contended that though in the application filed by the respondent-husband, allegation of cruelty, long desertion and adultery by the wife has been made, but the appellant-husband had not made person involved with adultery as a party to the proceeding. That apart no maintenance has been awarded in favour of the appellant-wife, whereas an amount of Rs.3000.00 per month was directed to be paid to his minor son Jiban Jyoti Padhi till he attains his majority towards his sustenance and educational expenses. It is further contended that the learned Judge, Family Court without taking into consideration any evidence and without directing the respondent-appellant to implead the person with whom adultery has been alleged as a party to the proceeding, proceeded with the matter and allowed decree of divorce, which cannot be sustained in the eye of law.

Mr. M.K. Dash, learned counsel appearing for the respondent-husband contended that so far as grant of maintenance in favour of the appellant-wife is concerned, since the appellant is in service and getting some remuneration, therefore, the learned Judge, Family Court, Bhubaneswar proceeded with the matter to award maintenance to the child. Thus, there is no illegality or irregularity committed by the learned Judge Family Court by passing the decree of divorce.

Having heard learned counsel for the parties and after going through the record, it appears that if the learned Judge, Family Court has taken cognizance of cruelty leading to adultery, the person responsible for adultery has not been made a party in the proceeding. In that case, the order so passed cannot be sustained in the eye of law. Similarly, the award of maintenance only to the child and not the appellant-wife on the ground that the appellant-wife has income, cannot be sustained since neither any evidence is adduced or examined to that extent.

In view of the above, this Court sets aside the judgment and decree dated 10.02.2022 passed by the learned Judge, Family Court Bhubaneswar in C.P. No. 384 of 2016 and remit the matter back to the very same Court to adjudicate C.P. No. 384 of 2016 by giving opportunity of hearing to the parties.

With the aforesaid observation and direction MATA stands disposed of.

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