Orissa High Court
Smt. Sujata Mohanty vs Rudra Charan Mohanty on 12 January, 2018
Author: Biswajit Mohanty
Bench: I. Mahanty, Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
MATA No.64 of 2010
In the matter of an application under Section 19 of the Family Court
Act, 1984.
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Smt. Sujata Mohanty ...... Appellant
-versus-
Rudra Charan Mohanty ...... Respondent
For Appellant: M/s. Ramakanta Mohanty, D.K.Mohanty,
S.Mohanty, D.Varadwaj,
Ch.N.C.Dash,S.Mohanty, S.K.Mohanty,
P.Jena and S.N.Biswal.
For Respondent: Mr. Sidhartha Misra
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Date of Judgment: 12.01.2018
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Biswajit Mohanty, J. The respondent's application under Section 13 of
the Hindu Marriage Act, 1955 praying for decree of divorce having been
allowed by the learned Judge, Family Court, Cuttack in Civil Proceeding
No.792 of 2004, the appellant has filed the present appeal.
2. The case of the respondent, who was the petitioner before the
learned Judge, Family Court, Cuttack in the above noted Civill
Proceeding is that he married the appellant on 30.01.2001 at the
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appellant's residence at Banei. Prior to marriage, the appellant was
serving as an Assistant Teacher at Town U.P. School in Banei. After
solemnisation of marriage, both the parties lived as husband and wife
and later, the appellant left for her service place at Banei. After some
months of marriage, the appellant instigated the respondent to come and
live at Banei permanently to which the respondent refused as he
belonged to a joint family consisting of the elder brothers, their wives,
children and his widow mother. During School Vacation and Holidays,
the appellant-wife never came to Athagarh and on the eve of each such
Vacation, the appellant-wife used to phone to respondent-husband to
come to Banei. In such background, with much reluctance, the
respondent used to go to Banei and when there he tried to bring her
(appellant) to Athagarh, she (appellant) used to pick up quarrel and
become furious. In one or two occasions when the appellant-wife came to
reside Athagarh she never did any household work and never took care
of her old widow mother-in-law. When the respondent suggested the
appellant to do household work, the appellant quarrelled with family
members of the respondent. Though the appellant was provided
treatment for ovary infection, but she avoided taking any medicine as
she was not willing to become a mother. The appellant visited Athagarh
last in 2003 in Dasahara vacation when her mother-in-law was to
undergo the eye operation at Cuttack. When the respondent-husband
proposed the appellant-wife to attend her mother-in-law at Cuttack, she
turned down the said proposal. Thus, since Dasahara festival 2003, the
respondent had no sexual relationship with the appellant. Despite
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invitation by the sister and brother-in-law of the appellant at Banei to
attend their daughter's marriage, she did not attend the marriage
function held in July, 2004. She refused the invitation by saying that
she would not go to Athagarh in her life time. On 12.12.2004, the old
widow mother of the respondent went to Banei to bring her to Athagarh
for X-mas vacation but the appellant misbehaved with her saying that
she would not return to Athagarh as she was not dependant on them.
On account of all these, the respondent along with his family members
suffered enormous mental pain and agony. According to the appellant,
all these constituted the mental cruelty inflicted on him by the appellant
and as such, it was not possible to live with her and lead a conjugal life.
3. The appellant contested the case by filing the written statement.
The case of the appellant is that marriage was solemnised on 30.1.2001
at Banei. Before marriage, it was duly informed to the respondent and
his family members that she was serving as a teacher at Banei. It was
initially decided that the respondent would make efforts to transfer the
appellant to any school in Athagarh so that she could live at Athagarh
permanently. As per the demand of appellant, his uncle and brother and
her father was forced to give items indicated in Schedule-A of the written
statement. Though after marriage after staying for sometime at
Athagarh, she returned to Banei, however, she was regularly going to
Athagarh in each short/long vacation and sometime also by taking leave.
She never compelled the respondent to stay with her at Banei. She never
quarrelled with the respondent. She was frequently coming to Athagarh
and taking all care of her mother-in-law and doing household work. She
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also used to serve foods to all the family members of the respondent
whenever it was required and she was never adament at any time. She
was taking proper medicine as per the advice of the doctor and never
neglected it. The case of the abortion was an unfortunate incident and
beyond the control of the appellant. She never avoided any treatment
and it is not correct to say that she did not want to be a mother. It is
incorrect to say that the appellant last visited Athagarh in Dasahara in
2003. In fact she attended the eye operation of her mother-in-law and
she never neglected her. She also denied the allegation that since
Dasahara 2003, there has not been any sexual relationship between her
and her husband. With regard to the marriage function of the niece of
the respondent in July, 2004, her stand was during entire Summer
Vacation of 2004, she stayed at Athagarh but after reopening of the
school she could not get leave from the school for which she was not
able to attend the above noted marriage function. The respondent's
sister and brother-in-law had never come to Banei personally to invite
her for the above noted marriage. She never instigated him nor
humiliated him nor any of his family members. Her mother-in-law had
never gone to Banei on 19.12.2004 to bring her to Athagarh. She has
never threatned the respondent or his family members to prosecute
them if the respondent failed to join her at Banei. She never misbehaved
with respondent a caused mental agony to him.
4. In order to prove his case, the respondent examined three
witnesses. He examined himself as P.W.1, his elder brother as P.W.2 and
his neighbour, Manorama Pattnaik as P.W.3. The appellant examined
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two witnesses. She examined herself as O.P.W.1 and her brother as
O.P.W.2. Though the respondent prayed for a decree for divorce being
passed in his favour on the ground of cruelty and desertion, however,
the learned court below clearly came to a finding that since the desertion
by appellant as alleged by the respondent as per his evidence as P.W.1
starts from 2003 and since the civil proceeding was filed by the
respondent on 22.12.2004, the intervening period fell short of two years
as required under Section 13 (i-b) of the Hindu Marriage Act, 1955.
Further on analysis of evidence, the learned Judge, Family Court,
Cuttack came to hold that the evidence adduced on behalf of the
respondent clearly proves that he was subjected to cruelty by the
appellant. On the basis of these findings, the civil proceeding was
allowed and the marriage solemnised between the parties on 30.1.2001
was directed to be dissolved by a decree of divorce. The respondent was
further directed to pay Rs.1.00 lakh as permanent alimony to the
appellant within a period of three months from the date of the
judgment/order.
5. Learned counsel for the appellant assailed the judgment by
submitting that such judgment has been pronounced by making a
wrong approach in analysing the evidence on record. Instead of
analysing the evidence of the respondent for finding out as to whether he
has discharged the burden of proving mental cruelty as alleged by him,
the learned court below has mainly analysed the evidence of the
appellant as if burden was on the appellant to prove the case of the
respondent. According to him, the learned court below ought to have
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scrutinised the pleadings and evidence of respondent to find out whether
he has been able to make out a case of mental cruelty against the
appellant or not. The learned court below did not do this in the present
case. Secondly, he submitted that the findings of the learned court below
that the respondent was deprived of sexual relationship is based on no
material. Thirdly, he submitted that the plea of cruelty has not at all
been established from the evidence on record. Thus, the learned court
below has gone wrong in allowing the civil proceeding in favour of the
respondent and granting him a decree of divorce. According to him, there
is no evidence on record to show that the appellant had by her own
conduct inflicted mental cruelty on the respondent. Lastly, he submitted
that the evidence of appellant has not been considered by the learned
court below in proper prospective. For all these, he contended that the
impugned judgment, order and decree resulting in dissolution of
marriage be set aside and resultantly Civil Proceeding No.792 of 2004
filed by the respondent for divorce be dismissed.
6. Mr. Sidhartha Misra, learned counsel on behalf of the respondent
stoutly defended the impugned judgment and submitted that the learned
Judge, Family Court, Cuttack has committed no illegality in passing the
impugned judgment which has resulted in dissolution of marriage
between the respondent and the husband as the respondent has
succeeded in proving mental cruelty inflicted by the appellant on her
husband. He further submitted that pursuant to order passed by this
Court on 10.9.2014, the appllenat was handed over Bank Draft
No.059403 dated 21.10.2014 for an amount of Rs.1.00 lakh and this
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Court permitted the appellant to get the same encashed. He also
submitted that pursuant to order dated 6.5.2016, the respondent had
tendered a Bank Draft No.866231 dated 8.7.2016 drawn on State Bank
of India, Athagarh Branch for an amount of Rs.2.00 lakh in the Court
and the said draft has been kept in sealed cover in the custody of the
Registrar (Judicial) of this Court as per the order dated 11.7.2016.
7. Before proceeding further, we have to understand the concept of
mental cruelty. In the case of V.Bhagat v. D.Bhagat (AIR 1994 SC 710),
the Supreme Court has held that mental cruelty can broadly be defined
as that conduct which inflicts upon the other party such mental pain
and suffering as would make it impossible for that party to live with the
other. To put it differently, the mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the other
party. It was further held that while arriving at such conclusion, that
regard must be had to the social status, educational level of the parties,
the society they move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and all other relevant
facts and circumstances. What is cruelty in one case may not amount to
cruelty in another case and it has to be determined in each case keeping
in view the facts and circumstances of that case. That apart, the
acusations and allegations have to be scrutinised in the context in which
they are made.
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In Praveen Mehta v. Inderjit Mehta (AIR 2002 SC 2582), it has
been observed that mental cruelty is a state of mind and feeling with one
of the spouses due to behaviour or behavioural pattern by the other.
Mental cruelty cannot be established by direct evidence and it is
necessarily a matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish, disappointment, and
frustration in one spouse caused by the conduct of the other can only be
appreciated on assessing the attending facts and circumstances in
which the two partners of matrimonial life have been living. The
interference has to be drawn from the attending facts and circumstances
taken cumulatively.
In Samar Ghose v. Jaya Ghosh (2007) 4 SCC 511, the Supreme
Court has made it clear that the concept of cruelty differs from person to
person depending upon his upbringing, level of sensitivity, educational,
family and cultural background, financial position, social status,
customs, traditions, religious belief, human values, and their value
system. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of modern
culture through print and electronic media and value system, etc.etc.
What may be mental cruelty now may not remain mental cruelty after a
passage of time or vice versa. There can never be any straitjacket
formula or fixed parameters for determining mental cruelty in
matrimonial matters. The prudent and appropriate way to adjudicate the
case would be to evaluate it on its peculiar facts and circumstances.
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8. In such background, let us scrutinise the evidence on record. The
respondent as P.W.1 has reiterated most of his contentions in
examination-in-chief and at Para 21 of his cross-examination. However,
in Para-21, he has admitted that after the marriage and till filing of civil
proceeding while the appellant had come to Athagarh for 3-4 times, he
has visited her for 20-25 times. As indicated earlier, the respondent filed
C.P. No.792 of 2004 before the learned Judge, Family Court, Cuttack on
22.12.2014. So, this shows that till filing of the case, he was in visiting
terms with her. In such background, his evidence to the effect that since
December, 2003, he had no sexual relationship with the appellant is not
believable. Further, neither in the pleadings of respondent nor in his
evidence, there is anyting to show that the appellant had refused to have
sexual relationship despite the request of the respondent. The testimony
of respondent is only to the effect that he has no sexual relationship with
the appellant since 2003 Dasahara vacation and not that the appellant
has refused his request for sexual union since 2003. If it had come out
in the evidence that the appellant had refused the sexual advance of
respondent certainly it would have constituted a grave instance of
mental cruelty but the same is not the case here. Further in their
evidence, the respondent, P.W.2 and P.W.3 have stated that the
appellant never used to come in vacations to Athagarh and he had to go
to Banei and when he tried to bring her to Athagarh, she picked up
quarrel. However, P.W.2 who happens to be the elder brother of the
respondent in his cross-examination at para-16 has candidly admitted
that the appellant was coming to her in-laws house on holidays and with
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regard to the appellant picking up quarrel at Banei, none from Banei has
been examined by the respondent to corroborate his version. Though
both the brothers, namely, respondent, P.W.2 and P.W.3 have stated
that the appellant has visited their house at Athagarh only 2-3
occasions, however, such a thing cannot be believed as P.W.2 in his
cross-examination has admitted that the appellant was coming to their
house in holidays. Furthermore, P.W.1 in his cross-examination has
stated that he had come to Cuttack with the appellant six times for her
treatment. In such background, the earlier testimony of the respondent
as well as the elder brother (P.W.2) that the appellant visited Athagarh
only 2-3 times after her marriage cannot be believed. It cannot be
believed that the appellant had accompanied the respondent to Cuttack
for her treatment six times without visting their matrimonial home at
Athagarh. Though the respondent has stated in his examination-in-chief
that the appellant never thinks of his old mother-in-law nor does any
household work on the occasions she visited Athagarh; P.W.2, the elder
brother of the respondent except making general statement that the
appellant never discharged his duty of a house wife has not corroborated
the above testimony of the respondent in material particulars. With
regard to pleading of the respondent that the appellant never served
foods to the family members and threw away cooking apparatus at
Atahagarh, the same cannot be believed as the same has not been
testified by the appellant nor corroborated by P.W.2. The only statement
that has been made by P.W.2 as indicated earlier is a general statement
that the appellant has never discharged the duty of a house wife at
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Athagarh. Similarly, the testimony of the respondent that the appellant
knowingly avoided to take medicine as she did not want to become
mother cannnot be accepted as the same has not been corroborated
either by P.W.2 or P.W.3, who claims to be a close family members of the
appellant and respondent. With regard to testimony of the respondent
that the appellant did not come to attend the eye operation of mother-in-
law at Cuttack such testimony on the respondent is vague as neither the
date of such operation has been proved nor the doctor conducting
operation has been examined. Further, the testimony of the respondent
in this regard that she has attended the eye operation of the mother-in-
law at Cuttack has remained undemolished. Though the respondent in
his examination-in-chief has stated that his sister and brother had been
to Athagarh to invite the appellant to attend the marriage of the niece of
respondent which was scheduled to be held during July, 2004 and that
the appellant had refused to attend the same saying that she would
never go to Athagarh in her life time, however, in the cross-examination
the respondent has candidly admitted that his sister and brother-in-law
are not going to prove these aspect of the matter. Thus, this throws a
cloud on the version of the respondent. Further, while in examination-
in-chief at para-14, the respondent as P.W.1 testified that while on
19.12.2004 his old mother had gone to Banei to bring appellant to
Athagarh on the eve of ensured X-mas vacation and she was ill-treated
by appellant, however, in cross-examination the respondenet has stated
that on 19.12.2004 he along with his mother had gone to Banei to bring
the appellant. Strangely, mother of the respondent has not been
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examined in this case to throw light on this aspect of evidence.
Moreover, testimony in this regard of appellant relating to non-visit of
her mother-in-law on 19.12.2004 remains undemolished. Though P.W.1
in his testimony has stated that during the stay the appellant at
Athagarh when he suggested to do the household work she became
violent and picked up quarrel with the family members, however, P.W.3
who claims to be the close to the family of the respondent in her cross-
examiantion has admitted that she has never seen the parties quarreling
with each other. It may be noted here that P.W.3 is a neighbour of the
respondent at Athagarh.
9. All these analysis would show that most of the allegations made by
the respondent as discussed above have not been corroborated and
proved. Rather, his allegations relating to appellant never coming on
vacation and picking up quarrel at Athagarh having been directly
contradicted by P.Ws.2 and 3 respectively in their cross-examination.
Only the evidence led by the respondent that the appellant instigated
him to come to Banei has been corroborated by P.Ws.2 and 3. But denial
of such instigation by the appellant in her evidence has not been
demolished in her cross-examination. Similarly, the evidence of O.P.W.2
that the appellant never compelled the respondent to stay at Banei has
remained un-demolished in the cross-examination. Though in her
written statement the appellant has stated that she was staying at
Athagarh, however, in her testimony she has explained that after
marriage, they lived happly together as husband and wife at Athagrh
and after one month she had to return to Banei. Obviously she was to
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return to Banei to join her services. Further, the evidence of appellant
that she was taking the care of mother-in-law while visiting Athagarh
and used to serve foods of the family members and was taking proper
medicine as advised by the doctor have remained un-demolished in the
cross-examination. In her testimony, she has clearly stated that the case
of her abortion was an unfortunate incident beyond her control and it
was not correct that she did not want to be a mother. For all these
reasons, particularly since the respondent has not been able to prove
majority of the allegations made by him with cogent evidence, we are
inclined to hold that the allegations of mental cruelty have not been
proved. There is nothing to show that the conduct of the appellant was
of such intensity and gravity so as to bring it within the parameters on
mental cruelty.
10. Further, in our view the learned court below while analysing the
evidence has made a wrong approach by mainly the analysing the
evidence of appellant as if the burden of proving mental cruelty was on
the appellant. The learned Judge, Family Court, Cuttack ought to have
analysed the evidence of respondent in detatils as it was he who has
moved the court with a prayer for decree of divorce. So the burden was
clearly on the respondent to prove his case. A perual of the judgment
under challenge reveals that the allegations made by the respondent
have been accepted at para-6 of the impugned judgment without
critically dissecting the evidence led by him. On account of these, the
learned court below has lost sight of the impact of testimony of P.W.2
where he has clearly admitted that the appellant was coming to her in-
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laws house on holidays and the testimony of P.W.3, a neighbour of
respondent who has stated that she has never seen the parties
quarrelling with each other. The learned court below has also lost sight
of many contradictions as discussed earlier in the evidence of P.Ws.1,2
and 3. Thus, on a cumulative analysis of the entire evidence it is clear
that the mental cruelty that is required to be proved by the respondent
was never proved by him.
11. Keeping in mind such discussions, we are of the considered
opinion that the learned court below has gone wrong in allowing the
prayer of the respondent for dissolution of marriage. Accordingly, we
allow the present appeal and set aside the impugned judgment and
order dated 6.8.2010 passed by the learned Judge, Family Court,
Cuttack in C.P. No.792 of 2004 and dismiss the said Civil Proceeding.
12. Since we are allowing the appeal, we direct the Registrar (Judicial)
of this Court to return the Bank Draft No.866231 dated 8.7.2016 drawn
on State Bank of India, Athagarh Branch for an amount of Rs.2.00 lakhs
to the respondent.
.................................
Biswajit Mohanty, J.
I. Mahanty, J.I agree ................................. I. Mahanty, J.
Orissa High Court, Cuttack The 12th January, 2018/bns