Orissa High Court
Hena Manjari Mangaraj vs Bijaya Kumar Samal And Another on 23 August, 2016
Author: Biswanath Rath
Bench: Vinod Prasad, Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
M.A.T.A. No.40 of 2008
In the matter of an application under Section 19 of the Family Courts Act read with
Section 28 of the Hindu Marriage Act.
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Hena Manjari Mangaraj ... ... Appellant
-Versus-
Bijaya Kumar Samal & another ... ... Respondents
For Appellant :M/s. Prasanta Kumar Sahoo,
H.S.Mohanty, U.C.Dora,
H.P.Ojha, P.K.Behera,S.Pal,
S.P.Moharana and
D.K.Sahoo, Advocates.
For Respondent No.1 :M/s. Asim Amitab Das, M.B.Ray,
S. Mohanty, B. Sahoo,
P.K. Mahali, A.Deo, G.N.Rout
and M.P.J.Rao, Advocates
PRESENT:
THE HONOURABLE MR.JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing: 26.7.2016 Date of judgment: 23 .08.2016
Biswanath Rath, J.This Matrimonial Appeal is at the instance of the wife challenging the order dated 30.9.2008 passed by the Judge, Family Court, Cuttack in C.P.No.128 of 1999 passing a decree of divorce subject to payment of permanent alimony of Rs.2,00,000/- (Rupees Two Lakhs) within two months from the date of order to the wife (respondent No.1 in C.P.No.128 of 1999) .
2. Short back ground involved in the case is that the Respondent No.1- husband (petitioner in the court below) initiated a proceeding under Section 12 of the Hindu 2 Marriage Act read with Section 7(a) of Family Court's Act, 1984 against the appellant/wife (respondent No.1 and respondent No.2 in the court below) praying therein to declare his marriage dated 17.5.1998 with the present appellant as null and void on the ground of practising fraud in the marriage. The present respondent No. 1 in filing the application under Section 12 of the Hindu Marriage Act read with Section 7(a) of Family Court's Act, 1984 specifically pleaded that he was an Army Service holder being a permanent resident of Karilopatna in the district of Kendrapara married with the present appellant being solemnized on 17.5.1998 making impersonation. The respondent no. 1 also alleged that no consummation of marriage was possible due to attack of epilepsy on the fourth night itself. The fact of appellant's suffering from epilepsy from her childhood could be ascertained from her uncle. It is averred by the husband in the application before the lower court that he left for his place of posting on 24.6.1998 and in the mean time, the appellant went to her father's house on her own volition. It is further averred that pending finalization of C.P.No.128 of 1999, the wife lodged an F.I.R against the respondent no. 1 and his elder brother, sister-in-law and younger brother under Section 498(A) / 34, I.P.C read with Section 4 of D.P. Act resulting a G.R. Case No.294 of 2000 was registered.
The appellant on the other hand appearing in C.P.No.128 of 1999 in the lower court though admitted the factum of marriage but alleged that even though a good amount of money along with a gold chain, 8 to 9 gold rings, a big size T.V, a wrist watch, utensils, Steel Almirah and wooden furniture etc. were given to the respondent no. 1 at the time of marriage but after about four months of marriage, the respondent no.1 started demanding further cash dowry of Rs.50, 000/- (Rupees Fifty thousand) for the purpose of completion of his building. Since her father could not be able to meet the demand raised by the respondent no.1, the respondent no. 1 and his relations started ill-treating the appellant. The matter went to such an extent that the respondent no. 1 coming to his village on 23.3.2000 being furious on 24.3.2000 abused and pressed her throat severely compelling her to fled away to her uncle's house in order to save her life, resulting which the appellant also submitted the F.I.R in the said regard at Patkura police station, registered as P.S. Case No.67 dated 13.4.2000.The wife further 3 alleged that the respondent no. 1 and his relations hatching a conspiracy filed C.P.No.128 of 1999 in the court below in order to keep away her finally from marital life.
Considering the evidence and argument of both the sides, the Judge, Family Court, Cuttack by judgment dated 30.9.2008 allowed the case of the respondent no.1 by passing a decree of divorce subject to payment of permanent alimony of Rs.2,00,000/-(Rupees Two Lakhs) to be paid to the appellant within two months from the date of order to the wife.
3. In entertaining this Appeal, this Court directed for issuance of notice for appearance of the respondents. During pendency of the appeal, an attempt was made for having conciliation between the parties by appointing Miss. Deepali Mohapatra, learned Advocate of this Court as mediator. The mediation failed with a recording that for long lapse of time, the wife is not interested to join the husband and she is only interested for enhancement of permanent alimony and there was scope for the mediation than to close the mediation with a failure report.
4. Finding no scope for conciliation, the parties restricted their argument on permanent alimony only. During course of argument for fixation of permanent alimony, on 05.4.2016 and 06.4.2016 both parties agreed to settle the dispute on payment of Rs.6, 50,000/- (Rupees Six Lakhs fifty thousand) as full and final settlement of all the disputes in between the spouses. The matter was next posted to 03.5.2016, on which date following the agreement between the parties the respondent no.1 tendered a Demand Draft of an amount of Rs.3, 00,000/-(Rupees Three Lakhs) bearing Draft No.860941 dated 22.4.2016 standing in the name of appellant - Smt.Hena Manjari Mangaraj and the draft was handed over to her in the Court on the said date in token of receipt of which she also made necessary endorsement. The matter was then adjourned to 04.7.2016 with a direction to the husband to come ready with the residue amount on the date fixed. The matter was next taken up on 05.7.2016, on which date the husband appearing in the Court tendered a Demand Draft bearing No.861978 dated 01.7.2016 of an amount of Rs.3, 50,000/- (Rupees Three Lakh fifty thousand) in the name Hena Manjari Mangaraj-the appellant and on the direction of this Court, the said amount was released in favour of the appellant-wife and in token of her receipt of the amount she made necessary endorsement in the file.
45. From the aforesaid, it appears that there has been full and final settlement of all the disputes between the spouses subject to payment of Rs.6,50,000/-(Rupees Six Lakh fifty thousand) as agreed upon by both parties. Condition precedent i.e. payment of Rs.6,50,000/-/-(Rupees Six Lakh fifty thousand) by the husband to the wife, having been completed in the mean time, nothing survives in the matter to be adjudicated upon. In view of full and final settlement of all the disputes between the parties, this Court while disposing of this Matrimonial Appeal recording mutual consent of both the parties and payment of whole amount in the meanwhile quashes all pending criminal proceedings in between the spouses. Decree of divorce passed by the Family Court is affirmed with modification, as above, on the quantum of permanent alimony to be paid to the wife.
Matrimonial Appeal is disposed of in terms of the order as hereinabove. Parties are to bear their respective cost.
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Biswanath Rath, J.
Vinod Prasad, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack.
rd The 23 day of August,2016/BKB.