Orissa High Court
Mr. Soumya Ranjan Mohanty vs Smt. Itishree Das on 30 January, 2025
Author: B.P. Routray
Bench: B.P. Routray, Murahari Sri Raman
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 03-Feb-2025 13:45:15
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.282 of 2022
(From the judgment dated 22.10.2022 passed by learned Judge,
Family Court, Keonjhar in C.P. No.82/803 of 2021-20)
Mr. Soumya Ranjan Mohanty .... Appellant
-versus-
Smt. Itishree Das .... Respondent
Advocate(s) appeared in this case:-
For Appellant : Mr. S.K. Sarangi, Senior Advocate
For Respondent : Mr. N.C. Rout, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
30th January 2025 B.P. Routray, J.
1. Heard Mr. S.K. Sarangi, learned Senior Advocate for the Appellant and Mr. N.C. Rout, learned Advocate for the Respondent.
2. The Husband-Appellant has challenged the impugned judgment dated 22.10.2022 of learned Judge, Family Court, Keonjhar passed in C.P. No.82/803 of 2021-20 refusing his prayer for dissolution of marriage under Section 13 (i-a) of the Hindu Marriage Act prayed on the ground of cruelty and non-consummation of marriage.
MATA No.282 of 2022 Page 1 of 8 Signature Not Verified Digitally SignedSigned by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15
3. Appellant's case is that, the marriage took place on 01.05.2019 and both the husband and wife though stated together till 23.07.2019, i.e. around 83 days, but the marriage could not be consummated due to withdrawal of the Wife-Respondent. It is the specific allegation of Husband against the Wife that, even after several attempts made by him, the Wife withdrew from having physical relationship without any reason.
4. Learned Judge, Family Court, Keonjhar in the impugned judgment without giving any specific answer to the same has otherwise held that, the Husband subjected the Wife to cruelty by not inviting her to the matrimonial house after 23.07.2019 and he has illicit relationship with other girls.
5. Upon hearing both the parties and coming to the specific point regarding non-consummation of marriage, the Hon'ble Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511 held on illustration that, unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
6. In Anubhav Mohanty vs. Varsha Priyadarshini, 2024 (I) ILR- CUT-453, this Court has observed as follows:-
"12. In view of our finding in preceding paragraphs 10 and 11 and omission of respondent-wife to bring on record physical incapacity, as she had refused or said it was not required for her to visit any doctor or valid reason for withdrawing herself, leads us to conclude that it was unilateral decision on her part to deny MATA No.282 of 2022 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15 her husband. Mrs. Jena submits, there was no pleading in terms of illustration-(xii) in Samar Ghosh (supra) and as such the declaration of law by the illustration cannot come to aid of petitioner. We have already stated the facts pleaded and evidence laid. Law need not be pleaded.
13. In view of the aforesaid we are unable to accept the finding of the Court below on consummation of the marriage or physical intimacy. The Court has interpreted appellant's statement of the relation being not satisfying or unsatisfactory to mean that there must have been some contact, which was not to the satisfaction of appellant. This interpretation was used to deal with or rather overlook respondent's clear admissions regarding her awareness of Gynecologist consulted by her husband, particularly regarding non-consummation of the marriage and no physical contact. The finding cannot also otherwise be sustained simply because if respondent-wife is to be believed on her pleading, of continued physical relations without her consent as in there having been no situation of 'allowing' it, dissatisfaction would have to be taken as her grievance, for which she had refused to consult the doctors."
7. As stated above, in the instant case since the Husband has taken the ground of non-consummation of marriage as cruelty to dissolve the marriage, it is important on the part of the Court to examine the pleading and evidences brought on record on that score.
Coming to the pleadings, it is stated, inter alia, at paragraph 12 & 13 that, in spite of several attempts by the Husband, the Wife did not cooperate for consummation of the marriage. In such aspect, the Wife MATA No.282 of 2022 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15 in her written statement has not stated anything specific except simple denial.
8. Now coming to the evidence part, it is stated by the Husband as P.W.1 as follows:-
"6. That, the dispute relating to the marriage started from the very beginning i.e. the fourth night itself when the opp. party expressed her unwillingness to consummate the marriage with me. She prevented me expressly denying to keep any physical relationships with me thereby refused to perform the very basic requirement of marital obligation.
7. That, due to non-cooperation on her part to maintain conjugal relationship with me i.e. refusal to cohabit, the marriage has not been consummated rather on every occasion whenever I made any attempt for cohabitation, on various pretexts the opp. party avoided the same even going to the extent of physically assaulting me to keep me away from her. So it is crystal clear that for reasons best known to her the opp. party did not allow the petitioner to consummate the marriage by cohabitation.
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Cross-examination
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28. It is not a fact I have not cooperated in the observation of Chaturthi at Nanpur as I had love affairs with another girl. We came to Bhubaneswar on 08.05.2019. My sister was staying near to that place at Bhubaneswar. She was occasionally visiting to our residence.MATA No.282 of 2022 Page 4 of 8 Signature Not Verified Digitally Signed
Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15
29. I had not been medically examined though my wife had physically assaulted me. I do not remember the mobile number of my wife. It is not a fact my wife was not chatting with a person behind my back and on my asking she had not deleted chatting message and contact number. It is not a fact I had told my wife that I was in love with another lady to whom I cannot leave her relationship. It is not a fact due to such extra marital relationship I had not consummated my marriage with my wife.
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32. I am serving as Asst. Engineer of D.S. Infrastructure, Bhubaneswar and getting salary of Rs.30,000/- per month. We have ancestral property in our native village Nanpur, but I do not know how much landed property we have. My father has a flat at Bhubaneswar. We stay at village as well as at Bhubaneswar. It is not a fact we had purchased a flat at Bhubaneswar on my income. That flat has been purchased by my father. It is not a fact my elder sister Lopamudra always interfering in our home affairs as she is staying 2 k.ms. away from our house."
9. O.P.W.1 is the wife. It is stated in her evidence as follows:-
"5. That, after completion of marriage we both went to village Nanpur i.e. paternal house of my husband and resided there. My husband did not want to keep any sexual relation with me which was started from the fourth night of the marriage. My husband stated that fourth night is not the proper time to start the sexual obligation.
6. That, non-cooperation on my part to maintain conjugal relationship, avoided the same and physically assault to my husband is completely false and fabricated story.MATA No.282 of 2022 Page 5 of 8 Signature Not Verified Digitally Signed
Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15 xxx xxx xxx
8. That, after some days we shifted from Nanpur to Bhubaneswar and resided there. During stay of Bhubaneswar on my compulsion my husband occasionally keep physical relation with me but he is no more interested with me.
9. That, in very rare occasion we both went outside the house. It is false that I have not any interest of having a marital life with my husband. It is also false that I always maintained a safe distance with my husband inside and outside the house and I never offered any food to him.
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Cross-examination
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19. I had not disclosed our non consummation of conjugal relationship to my parents on 08.05.2019 when they arrived for the reception ceremony at Nanpur. I have only visited to the Mall with my husband once, except this I have not visited any other public place with my husband till 22.07.2019. Again says, I have rightly mentioned in para-9 of my show cause that I had attended many parties, functions, receptions of relatives of petitioner, parks, malls, hotels with my husband within that period. I had visited the reception ceremony of the son of my uncle-in-law, birth day party of my elder sister-in-law, once to a park at Jagamara and to the hotels of Bhubaneswar 2 to 3 times with my husband. My statement mentioned in my show cause in para-9 is correct. I have only disclosed our non-consummation of conjugal relationship to my elder sister-in-law Lopamudra Mohanty.MATA No.282 of 2022 Page 6 of 8 Signature Not Verified Digitally Signed
Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15
20. It is a fact I have correctly mentioned in my show cause that I was assaulted and driven out from the house of petitioner on the evening of 22.07.2019. Again says, I was not driven out from the house of petitioner on 22.07.2019. It is a fact I have been staying in the house of my parents since 23.07.2019, but I have never visited the house of my husband or filed any case for restitution of conjugal rights. It is a fact I have not mentioned in my show cause that I am interested to stay with my husband and to restitute our conjugal life peacefully. It is not a fact I have not mentioned in my show cause that my husband has demanded Rs.1,72,000/- and my father has provided Rs.1,00,000/- prior to marriage.
21. It is not a fact I have not mentioned in my sow cause that on my compulsion my husband occasionally making physical relationship with me. It is not a fact my husband has not demanded any money from my parents and he has not made physical relationship with me till to-day as I prohibited him. It is a fact I have mentioned in my show cause that my husband did not keep any sexual relationship with me as he has illicit relationship with other girls and he is making allegation on me that I am not interested to keep sexual relationship with him."
10. Upon analysis of afore-stated pleadings and evidences, particularly from the statement made upon suggestion of the Wife at paragraph 29 of P.W.1, it becomes clear that the marriage was not consummated between the Appellant and Respondent during their stay as Husband and Wife. It need not be discussed in detail the statements of both Appellant and Respondent with regard to the same as the fact of non-consummation of marriage is very well implied from the statements made in cross-examination of both the witnesses as P.W.1 MATA No.282 of 2022 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Feb-2025 13:45:15 and O.P.W.1. Thus, we are of the opinion that, the marriage between the Appellant and Respondent has not been consummated and they had no physical relationship after their marriage. As such, on this ground, the prayer for divorce of the Appellant is allowed, and the marriage between the Appellant and Respondent is dissolved.
11. Since the learned Judge, Family Court, Keonjhar has not stated anything about permanent alimony, we are compelled to determine the same on the basis of materials available on record as divorce is granted between the parties. Taking note of admission of the Husband regarding his income as per paragraph 32 of evidence of P.W.1 and paragraph 16 of the evidence of O.P.W.1 and taking note of the age of the Wife as well as the other surrounding circumstances and the fact that they are without any issue, we determine the amount of permanent alimony at Rs.12,00,000/- (rupees twelve lakhs) which shall be paid by the Husband within a period of two months from today. We make it clear that, the decree of divorce shall be effected only after the payment/deposit of the permanent alimony before the learned Judge, Family Court, Keonjhar.
12. Accordingly, the appeal is disposed of.
(B.P. Routray) Judge (M.S. Raman) Judge B.K. Barik/Secretary MATA No.282 of 2022 Page 8 of 8