Orissa High Court
Pradeep Kumar Pradhan vs Dalimba Sahu on 6 January, 2003
Equivalent citations: AIR2003ORI79, 2003(I)OLR241, AIR 2003 (NOC) 79 (ORI), (2003) 5 ALLINDCAS 51 (ORI), (2003) 1 ORISSA LR 77, (2003) 1 CURCC 465, (2003) 1 ORISSA LR 241, (2003) 25 OCR 353, (2003) 2 CIVLJ 506, (2003) 95 CUT LT 600
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. The respondent-wife Dalimba Sahu filed a petition before the Family Court, Rourkela for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act'). The same was registered as Civil Procedure No. 165 of 1999. By judgment and decree dated July 24, 2000 the Family Court, Rourkela granted a decree for restitution of conjugal rights and a maintenance of Rs. 700/- per month with effect from April 23, 1996 when the wife had to leave her matrimonial house. Against the aforesaid judgment and decree the husband Pradeep Kumar Pradhan has filed the present appeal.
2. Case of the wife, inter alia, is:--
She was married with the present appellant in 1994. Within 10 days of the marriage the members of the husband's family demanded a colour T. V., Hero Honda Motor Cycle and Refrigerator as dowries. Wife's father expressed his helplessness and Inability to satisfy such demand of the husband's family. As the father of the wife could not accede to their demand, the members of the husband's family started treating her as an undesirable and unwelcome person in the family. It has been alleged that she was not provided with food and was treated like a maid servant. The husband also actively supported such misbehaviour. He even assaulted the wife at the Instance of his parents. When the situation became unbearable, the father of the wife managed to procure about Rs. 40,000/- and gave It to the husband for purchase of a Hero Honda Motor Cycle. As the said amount of Rs. 40.000/- was much below the amount demanded by the husband and his parents, they continued to ill-treat her and did not want to accommodate her in their house as a member of the family. The wife had to lodge complaint before the head-man of their caste. Meetings were held, but the members of the husband's family did not change their attitude and behaviour. Once the husband even attempted to kill the wife by pressing her neck, but the aunt of the husband rescued the wife. In view of the decision in the meeting of the caste-people her husband took her home, but again he separated the wife and kept in a room. A partition wall was erected preventing her entry into their house. A heater was supplied for cooking. Whenever she was about to cook, the husband and his parents used to switch off the electricity in order to harass her. On the basis of her complaint another meeting of the caste-people was held. The husband did not attend the said meeting and in absence of the husband his father did not want to take responsibility of the wife. In such circumstances, the caste-men advised the wife to stay in the parents house temporarily till the husband returned and took her home. Unfortunately, the husband never came to take her and all her attempts to go back to her matrimonial house failed. On February 28, 1997 wife complained before the Women's Commission. Husband did not appear before the Women's Commission.
3. The appellant-husband has denied all the allegations made by the wife. In the written statement he has depicted the wife as a quarrelsome, stubborn, cantankerous and selfish lady. According to the husband, the wife was not ready to live in the village in kuchha house. She always wanted the husband to separate from his parents and to go to nearby town to live in pucca building. According to the husband, the wife was often going away to her parents' house without obtaining any permission from her-in-laws or the husband. She even scaled the wall twice to flee to her parents' house. The wife left the matrimonial house on her own and never intended to return. The husband has also denied all allegations regarding demand for dowries and the alleged torture and misbehaviour.
4. Wife has examined five witnesses including herself, President of the Bargagua Krushak Samaj, two gentlemen who were present in the meetings of the Krushak Samaj for considering the allegations of the wife and her father. The husband examined three witnesses including himself and two local persons.
5. It is the case of the wife that on April 23, 1996 her father took her to his house in view of the decision taken in the meeting of the caste people. The husband has also stated in his evidence that on April 23, 1996 wife left matrimonial house and his association in his absence from the village. There is no dispute that a meeting of caste people was held on April 23, 1996. In fact, Sankarsan Padhan, witness No. 2 for the husband admitted that a meeting was held on the said date. He, however, stated that no decision was taken in the meeting. It is also admitted that the husband was absent and did not attend the meeting. The Family Court has accepted the wife's case that her father took her home as her father-in-law was not willing to take responsibility in absence of her husband. The evidence on record clearly support the said case of the wife. Even the husband's witness did not corroborate the allegations of the husband that the wife went to her father's house despite protest of the villagers.
6. The husband has alleged that the wife willingly left the matrimonial home, A married woman normally does not want to leave her matrimonial home and husband in absence of "any compelling' reason. In the present case, there is no allegation that the wife has got any other relationship with anybody or that she had any special reason to leave the matrimonial home and stay in her father's house. Moreover, it appears that the wife and her father made various efforts so that she was treated properly and could come back to her matrimonial home. There is nothing on record that the husband made any such effort. The materials on record clearly indicate that the wife did not intentionally leave the matrimonial house and she was compelled to live in her father's house because of unwillingness on the part of the husband and his relation to take her back.
7. It has been alleged by the husband that the wife was scaling the wall to flee to her father's house. The said allegation itself suggests that the wife's movement was restricted and was not being allowed to go outside. No young woman would scale the wall to go out if she had free ingress and egress. On behalf of the wife the proceedings recorded in the meeting of the caste men has been exhibited. Her complaint before the Women's Commission has also been exhibited. There is no documentary evidence to show that husband made any attempt to bring back the wife. It appears from the order-sheet of this appeal that the husband has expressed his unwillingness to accept the wife even if she intends to go back.
8. The Family Court has considered all the materials on record and has reached its finding. This Court has also examined evidence of both sides, oral and documentary and does not find any reason to differ from the findings arrived at by the Family Court.
9. The Family Court has granted an alimony of Rs. 700/- per month from April 23, 1996 when the wife was compelled to leave matrimonial house. It has been submitted on behalf of the husband that the Family Court committed error in awarding alimony from the aforesaid date. Learned Advocate for the husband has referred to a decision of this Court in Smt. Susmita Mohanty v. Shri Rabindra Nath Sahu reported in 1996 (1) Ori LR 361, in support of his submission that the alimony, if any, should have been allowed from the date of filing the petition and not from any earlier date. The decision in the aforesaid case does not say that alimony cannot be granted from a date before the date of filing of the matrimonial proceeding. It is, however, true that normally alimony is granted from the date of filing of the application. Accordingly, this Court feels that the maintenance should be granted from the date of the application under Section 9 of the Act i.e. from November, 1999 and not from April 23, 1996.
10. The Court has awarded interim maintenance of Rs. 700/- per month. It appears from the pay certificate disclosed by the appellant-husband through an affidavit that he was getting a total salary of Rs. 2494/-in February, 2002. If the same is accepted as his monthly income, the Family Court has not committed error in granting Rs. 700/-as monthly maintenance,
11. For the foregoing reasons, we affirm the decree for restitution of conjugal rights. We, however, modify the order for grant of alimony to the effect that the alimony as granted by the Family Court would be payable from the month of November, 1999 in stead of April 23, 1996.
12. The appeal is thus allowed in-part to the extent indicated above.
M. Papanna, J.
13. I agree.