Orissa High Court
Nirmal Chandra Dash vs Smt. Janaki Dash @ Panda on 12 October, 2012
Equivalent citations: AIR 2013 ORISSA 75, (2014) 2 MARRILJ 752, (2014) 1 CURCC 93, (2013) 125 ALLINDCAS 560 (ORI), 2013 (125) ALLINDCAS 560
Author: L. Mohapatra
Bench: L. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
MATA Nos. 32 and 33 of 2008.
MATA No. 32 of 2008
From the judgment dated 21.8.2008 passed by
learned Judge, Family Court, Cuttack in Civil
Proceeding No.62 of 2002 and Civil Proceeding
No.215 of 2000.
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Nirmal Chandra Dash ......... Appellant
-Versus-
Smt. Janaki Dash @ Panda
and others .......... Respondents.
For Appellant :M/s.Dayanidhi Lenka, B.N.Lenka
D.S.Ray, S.Patra & M.R.Lenka
For Respondents : M/s.G.P.Samal, S.K.Biswal,
Mr.P.Panda(For Respondent.No.1)
Mr.S.K.Mohanty,P.K.Rout,
S.Barik,M.Acharya.
(For Respondent.No.2)
MATA No. 33 of 2008
Nirmal Chandra Dash ............ Appellant
-Versus-
Smt. Janaki Dash @ Panda ............ Respondents
and others
2
For Appellant : M/s.Dayanidhi. Lenka, B.N.Lenka,
D.S.Ray, S.Patra &
M.R.Lenka
For Respondents: M/s.G.P.Samal, S.K.Biswal,
Mr. P.K.Panda, D.Bhakta,
D.Mishra & S.Mohanty,
P R E S E N T:
THE HON'BLE MR. JUSTICE L. MOHAPATRA
AND
THE HON'BLE MR. JUSTICE B.K.MISRA
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Date of Judgment: 12.10.2012
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B.K.MISRA, J Both these appeals are being disposed of by
this common judgment as both the appeals arose out of
the common judgment delivered by the learned Judge,
Family Court, Cuttack in Civil Proceeding No.215 of
2000 and Civil Proceeding No.62 of 2002.
2. The appellant in MATA No.33 of 2008 was
the plaintiff in Civil Proceeding No.62 of 2002 which
was filed for dissolving his marriage with the
respondent wife by passing a decree of divorce in the
3
court of learned Judge, Family Court, Cuttack. The
said proceeding was dismissed. Therefore, being
aggrieved, the appellant has preferred the appeal before
this Court.
3. In C.P. No. 215 of 2000, the plaintiff wife had
prayed for maintenance of Rs.2000/- per month from
the opposite party who is her husband and the said
proceeding was allowed of by the learned Judge, Family
Court, Cuttack by the impugned judgment wherein the
opposite party husband was directed to pay Rs.800/-
per month to the plaintiff wife from the date of
institution of the Civil Proceeding i.e. 21.01.2000. The
opposite party husband being aggrieved by the said
judgment has filed MAT Appeal No. 32 of 2008.
4. Bereft of unnecessary details, the case of the
plaintiff in Civil Proceeding No. 215 of 2000 was that
she married the opposite party (appellant) according to
the Hindu Caste Customs in the month of July, 1983
and thereafter, they led a happy conjugal life and were
blessed with one son and two daughters. According to
the petitioner-wife at the time of marriage the opposite
4
party and his relatives demanded cash of Rs.10,000/-
and a black and white T.V. set. Since the father of the
petitioner was very poor, he could only give Rs.5,000/-
out of the demanded money of Rs.10,000/-besides
other house-hold articles, but could not give the black
and white T.V. It is alleged by the petitioner that since
the demands were not fulfilled by her father as
demanded by the opposite party she was subjected to
inhuman torture by the opposite party and her mother.
But the petitioner was tolerating the torture meted out
to her as a Hindu orthodox Brahmin lady. It is further
alleged that the opposite party was a wreckless person
and leading an amorous life to which when the
petitioner protested she was severely assaulted and
ultimately the opposite party drove her out of the house
in the month of August, 1999 for which the petitioner
came to the village of her father and lived there. It was
her further case that when her relatives tried to sort
out the problem they were misbehaved and the
opposite party openly declared that he will not keep her
(wife-petitioner) for a moment and the opposite party
5
did not allow his children to see their maternal uncle
and other relatives. It is the case of the petitioner that
the opposite party works as a Peon in Ashutosh
College, Calcutta in the State of West Bengal and was
drawing Rs.5,000/- per month and from the landed
property the opposite party earns Rs.30,000/- per
year. It is also the case of the petitioner that her father
is a poor man having no landed property and she fully
depends on her father and it becomes difficult for her
father to maintain her and accordingly she prayed for
grant of maintenance of Rs.2,000/- per month from the
opposite party.
5. The opposite party contested the Civil
Proceeding and has filed the written statement wherein
while denying the plaint averments in a general and
evasive manner, averred that the petitioner on the
night of 1.9.1999 around 11.00 P.M. left his house with
cash of Rs.5,500/- with a brief case containing her
dress materials and ornaments and on coming to know
of the said fact in Calcutta he returned back to the
village and lodged an F.I.R. before the Officer-in-
6
Charge, Binjharpur Police Station about the missing of
his wife. His further plea is that in course of search it
came to light that the petitioner had illicit relationship
with one Santosh Kumar Das and was living in
adultery with that man, despite the protest of his
mother and children. It is the further case of the
opposite party that the petitioner frankly denied to live
with him and expressed her desire to stay with the said
Santosh Kumar Das.
6. In Civil Proceeding No. 62 of 2002 the case of
the plaintiff-husband while admitting his marriage with
the respondent wife in July, 1983, contended that they
are blessed with a son and two daughters. The case of
the plaintiff-husband further reveals that he was
working at Calcutta in the State of West Bengal but his
family members like his mother, wife and three
children were residing in his native village Kantipur in
the district of Jajpur. He has admitted that he was
working as a low paid class-IV employee in Calcutta.
His wife defendant No.1 was an arrogant lady having
no respect for her mother-in-law and she was a
7
promiscuous lady which was not to the liking of his
mother. It is the further case of the plaintiff that the
defendant No.1 used to entertain male persons in the
house, talks to them till late hours in the night despite
the protest of her mother-in-law as well as the children.
His further case is that on receipt of telephonic
message about his mother's illness when he reached
his village learnt from his mother and children that
defendant No.1 has left the house on 1.9.1999 with
cash of Rs.5,500/- ornaments and other dress
materials. The plaintiff searched for his missing wife
but when could not get any trace of her lodged an F.I.R.
in Binjharpur Police Station seeking police help to trace
his wife. Plaintiff alleges that his wife had illicit
relationship with Santosh Kumar Das and on the night
of 1.9.1999, his wife had left the house for an unknown
destination and thereafter there was no trace of
Santosh Kumar Das also. But on getting information
that the defendant-wife was staying in her father's
house at Kapila some gentlemen proceeded to Kapila
for an amicable settlement between him and the
8
defendant, but the defendant openly gave out that she
would desire to stay with Santosh Kumar Das and not
to live with him. Accordingly, it is the case of the
plaintiff (appellant) that when there has been no
cohabitation between him and the defendant No.1-wife
since 1999 and that the defendant No.1 is living in
adultery, it would not be possible on his part to live
with his wife and accordingly prayed for dissolution of
marriage by a decree of divorce.
7. The defendant No.1-wife contested the Civil
Proceeding No. 62 of 2002 by filing her written
statement wherein she denied the plaint averments
about the allegation that she was an arrogant and
promiscuous lady and was misbehaving her mother-in-
law and children. On the other hand, she has denied
the allegation of her illicit relationship with Santosh
Kumar Das and she denied to have left the house in the
Comany of Santosh Kumar Das for an unknown
destination as alleged. On the other hand, it is her
specific case that she was subjected to torture
inhumanly for non-fulfillment of the dowry by the
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petitioner and her mother and when she also protested
against the affairs of the petitioner with another lady
she was forcibly driven out of the matrimonial house
for which she had to take shelter in her father's house
where she is leading a life of destitute having no means
to maintain her and accordingly she prayed that the
petitioner's suit be dismissed with cost.
8. Santosh Kumar Dash the alleged adulterer
filed his separate written statement wherein he denied
the allegation of having any illicit relationship with
defendant No.1, who is the wife of the petitioner and it
is his specific case that the plaintiff because of political
differences had strained relationship with him and with
an intention to take revenge and to defame him has
foisted the case against him. It is also his case that he
is married having three children and the allegation
leveled against him by the plaintiff are bundle of
falsehood and therefore the suit of the plaintiff should
be dismissed.
9. Civil Proceeding No. 62 of 2002 and Civil
Proceeding No. 215 of 2000 were tried analogously and
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disposed of by a common judgment which is impugned
in both the appeals. From the side of the petitioner
husband four witnesses were examined and besides
that Ext.1 i.e. copy of the F.I.R. lodged before the
Officer-in-Charge, Binjharpur Police Station by the
petitioner husband on 2.9.1999 has been admitted into
evidence. The respondent wife got herself examined in
support of her case as O.P.W.1. The learned Judge,
Family Court, Cuttack after examining the cases of the
parties and analyzing the evidence on record dismissed
the Civil Proceeding No. 62 of 2002 filed by the
husband as the plaintiff husband could not
substantiate that his wife was living in adultery but
however the learned Judge, Family Court, Cuttack
allowed the prayer of the wife for maintenance in Civil
Proceeding No.215 of 2000. Both the findings of the
court below are under challenge in this appeal before
us.
10. We have heard learned counsel for the
respective parties in detail. Perused the impugned
judgment and made a thread bare analysis of the
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evidence tendered by the respective parties in support
of their case. In the instant case, it is admitted that the
marriage between the appellant and respondent took
place in July, 1983 and after marriage they led a happy
conjugal life and blessed with a son and two daughters.
It is the further admitted case of the parties that the
appellant Nirmala Chandra Dash was working as a
Class-IV employee in Calcutta, West Bengal. It is also
an admitted fact that the respondent wife is living in
his house with her parents in village Kapila under
Binjharpur Police Station. When the appellant in Civil
Proceeding No. 62 of 2002 had sought for dissolution of
his marriage with the defendant No.1 on the ground
that his wife was living in adultery with one Santosh
Kuamr Dash and the defendant No.1 was having affairs
with several persons despite the protest of her mother-
in-law and her children, the onus is very heavy on him
to establish that his wife was living in- adultery which
is a ground for divorce. We are very conscious of the
position of law that an act of adultery is a secret act. It
is extremely difficult to get direct evidence and if courts
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insist on direct evidence in proof of adultery, it may
well amount to denial of legitimate protection of marital
rights. Proof of actual adultery is not necessary and
circumstantial evidence which lends to an inference of
adultery is sufficient. The degree of proof need not
reach certainty but it must carry a high degree of
probability.
11. Section 13 (1) (i) of the Hindu Marriage Act,
1955 was amended in the year 1976. After the
amendment in 1976, it is sufficient to prove that the
wife had voluntary sexual intercourse with any person
other than the spouse and a single act is sufficient to
prove the ground of divorce. (AIR 1991 ORISSA 39,
Sanjukta Padhan V. Laxminarayan Padhan and
another).
12. Coming to the evidence as led by the
petitioner- husband admittedly the most competent
person, who would have been the best person to speak
about the adulterous life of the defendant no.1 is the
mother of the petitioner-husband who was present
when the defendant no.1 allegedly left the house in the
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company of Santosh Kumar Das on 1.9.1999 around
11 P.M. For reasons best known to the petitioner
though the specific case of the petitioner husband is
that when his wife was entertaining persons in the
house till late hours in the night without listening to
the protest of his mother, such an vital witness has
been with-held from dock without any explanation
whatsoever in that regard. In our opinion, this casts a
serious reflection on the case of the appellant-husband.
Admittedly, the husband (appellant) was not present on
1.9.1999 in his village and was at Calcutta as it is
evident from the case of the appellant and his evidence
that on receipt of information about the illness of his
mother when he reached his house on 2.9.1999 found
his wife absent and on his query his mother and
children informed him that the respondent had left the
house accompanied by Santosh on 1.9.1999 night.
P.W.1 had lodged one report at Binjharpur police
station and the copy of the said report has been proved
as Ext.1 by P.W.1 during his evidence. P.W.1 deposed
that he could come to know that his wife residing in
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her father's house and intimated the said fact to police.
It is also his evidence in examination in chief that the
gentlemen namely, Ranjan Kumar Das, Bhabagrahi
Das and Promod Kumar Das tried to settle the
differences in between them but his wife told them not
to return to the matrimonial house but to stay with
Santosh Kumar Das. P.W.1 also deposed that he does
not want to keep his wife as she was living in adultery.
Ext.1 which was lodged on 2.9.1999 by P.W.1 nowhere
discloses that the defendant No.1 (wife) had left the
house on the night of 1.9.1999 with Santosh Kumar
Das. The evidence of P.W.2 who is the son of the
petitioner as well as defendant in para-7 deposed that
he had not seen her mother going with Santosh Kumar
Das on 1.9.1999 night. Therefore, the evidence of P.W.2
in examination in chief that his mother Janaki Das left
the house with Santosh Kumar Das of their village
cannot be believed. P.W.3 is the daughter of the
petitioner as well as the defendant and she has also
deposed that her mother left the house on 1.9.1999
during night hours around 11.00 P.M. but very
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surprisingly in her evidence she has not breathed a
word if her mother left their house in the company of
Santosh Kumar Das on the night of 1.9.1999 i.e.
around 11.00 P.M. P.W.2 the son of the plaintiff in his
evidence deposed that Santosh Kumar Das is his
agnatic uncle and his house is adjacent to their house
and both of their family observe birth and death
ceremonies of each other. P.W.2 simply deposed that
her mother had attachment towards Santosh and he
had seen Santosh sleeping on the same bed along with
his mother and gossiping, which he had informed to his
father and grand mother. In his cross-examination this
P.W.2 deposed that his mother was never going out
along with Santosh and her mother was going to her
maternal uncle's house prior to the incidents and four
to five days after the incident her mother was traced in
the house of her father'. P.W.3, the daughter of the
parties deposed that she had seen her mother
gossiping with Santosh Kumar Das who is the agnatic
brother of her father and she suspected that her
mother and Santosh had bad relationship which she
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informed to her grand mother and father. P.W.4 is the
brother-in-law of P.W.1 who deposed that he came to
know that the wife of Nirmal Das had left the house
and gone away for which F.I.R. was lodged about the
missing of Janaki. P.W.4 deposed that they got
information that the wife of Nirmala was in her father's
house and subsequently when he along with five other
persons wanted to settle the dispute Janaki did not
concede and he was informed by Nirmal that Janaki
had left with Santosh. Thus, P.W.4 being a vital witness
for the petitioner has not supported the evidence of
P.W.1 that when they tried to settle the differences, the
defendant refused to return to the house of P.W.1 and
wanted to stay with Santosh Kumar Das. O.P.W.1 the
wife, in her evidence stoutly denied of having any
relationship with Santosh Kuamr Das and it is her
evidence that at the time of her marriage with the
petitioner (P.W.1) there was demand of cash of
Rs.10,000/- and a T.V. set, but only Rs.5,000/- was
paid. Thus for non payment of balance amount of
Rs.5,000/- she was being assaulted by her husband
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and she was driven out of the house in August, 1999
with a direction to return with a T.V. set and balance
cash of Rs.5,000/-. O.P.W.1 deposed that her husband
was serving in Ashutosh College, Calcutta West Bengal
and drawing salary of Rs.7,000/- besides he has
income of Rs.30,000/- per annum from his landed
property. It is her further evidence that she does not
have any income and depends on her father and
therefore she require Rs.2,000/- per month to maintain
herself. Since in this case the appellant seeks
dissolution of his marriage with the respondent on the
ground of adultery, the same requires high standard of
proof than mere preponderance of probabilities.
13. In the instant case from the evidence as laid
by the petitioner-husband (appellant) there is
absolutely no evidence to show that the defendant no.1
wife was found in a comprising position with Santosh
Kumar Das in her bed room or people of the locality or
the village had seen them moving together on the night
of 1.9.1999 and they were found living together in a
house. The evidence of P.Ws.2 and 3 cannot be believed
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to draw presumption that the defendant no.1 was living
in adultery. The Court cannot act on surmises or
conjectures. Further though the petitioner tried to
establish that his wife was found in the house of one
Pada Dash in village Singhpur but the evidence on
record shows that neither P.W.1 nor P.Ws. 2 to 4 had
ever gone to Singhpur to verify if Janaki was staying in
the house of Pada Dash. Thus the aforesaid fact also
cannot be believed.
14. As we find the learned Judge, Family Court,
Cuttack has elaborately discussed the evidence on
record and has assigned good reasons for not accepting
the case of the petitioner-husband, who had sought for
dissolution of his marriage with the respondent by a
decree of divorce. We concur with the findings of the
learned Judge, Family Court, Cuttack that the
petitioner has failed to establish his case for dissolution
of marriage on the ground of adultery. The evidence
which has been led are not acceptable and therefore
cannot be believed.
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15. Now coming to the question of payment of
maintenance to the wife, it is found that admittedly the
respondent-wife is living in the house of her father
since 1999. Admittedly, the appellant-husband has
brought a serious charge against his wife that she was
an uncheste woman and living in adultery which
charge he has failed to establish. This Court in the case
of Smt. Pramila Dei @ Kuni -v- Sanatana Jena
reported in Vol.67 (1989) CLT 393 has held that when
an allegation of unchastity is made against the wife and
payment of maintenance is sought to be avoided on the
ground of her living in adultery but the plea fails, such
plea by itself is sufficient to entitle her to live apart
from her husband. Such allegation by the husband
against the wife causes mental anguish of the deepest
character which makes living together incompatible.
P.W.1 has specifically deposed in his evidence that he
does not want to keep his wife as she is living in
adultery. There is no evidence from the side of the
present appellant to show if he had ever gone to the
house of his father-in-law to bring back his wife or he
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had paid anything towards the maintenance of his wife
who was unable to maintain her being dependent on
her father. O.P.W. 1, namely the respondent-wife's case
is that because of non-fulfillment of the demand made
by her husband at the time of her marriage she was
assaulted and tortured by P.W.1 and ultimately she
was driven out of the house in August, 1999. As I have
already mentioned above the written statement filed by
the present appellant as opposite party in Civil
Proceeding No.215 of 2000 regarding the alleged
torture meted out to the petitioner-wife on demand of
dowry, there is no specific denial and the written
statement is evasive in nature. It is admitted by the
appellant in his evidence that he was working as a
Peon in Ashutosh College, Calcutta in the State of West
Bengal and was getting more than Rs.4,000/- per
month as salary and he has Ac.0.10 gunths of land.
Learned Judge, Family Court, Cuttack by considering
each and every aspect of the evidence and cases of the
parties while disposing of Civil Proceeding No.215 of
2000 directed the opposite party, namely, the present
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appellant to pay Rs.800/- per month to his wife from
the date of institution of the Civil Proceeding i.e.
21.01.2000 subject to adjustment of interim
maintenance paid, if any, in Civil Proceeding No.62 of
2002. The amount awarded as maintenance does not
appear to be high and excessive keeping in view the
present market index. Thus, grant of Rs.800/- per
month to the wife by the appellant does not call for any
interference and accordingly, the same is maintained.
16. Therefore, for the aforestated reasons we see
no reason to interfere with the impugned judgment of
the Judge, Family Court, Cuttack rendered in Civil
Proceeding No.215 of 2000 and Civil Proceeding No.62
of 2002. Accordingly, both the appeals having no merit
stand dismissed.
.........................
B.K.Misra, J.
L. Mohapatra, J.I agree.
......................... L. Mohapatra, J.
22Orissa High Court, Cuttack The 12th October, 2012/RNS