Orissa High Court
Rajashree Sahoo vs Raghunath Baral on 12 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 156 of 2023
Rajashree Sahoo .... Appellant
-versus-
Raghunath Baral .... Respondent
Advocates appear in the case:
For appellant: Mr. R. Behera, Advocate
For respondent: None
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
JUDGMENT
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Date of Hearing and Judgment: 12th December, 2023
---------------------------------------------------------------------------------------------- ARINDAM SINHA, J.
1. Appellant-wife, aggrieved by judgment dated 6th April, 2023 of the family Court, has preferred the appeal. She had filed for divorce but by impugned judgment, the civil proceeding was dismissed. Page 1 of 11
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2. Mr. Behera, learned advocate appears for appellant-wife. He submits, the marriage was not consummated. This was on omission of respondent- husband. As such, his client having brought the civil proceeding beyond one year from the date of marriage, the omission amounted to cruelty and was good ground made out under clause (i-a) of section 13(1) in Hindu Marriage Act, 1955, for there to be decree for dissolution of the marriage. Impugned judgment be set aside in appeal and the marriage dissolved.
3. Mr. Behera submits, the family Court failed to appreciate the law of evidence regarding case of a party to be made out as well as suggested to the other party at trial. On behalf of his client, a Division Bench judgment of the Calcutta High Court on case of a party required to be put to the other party at trial as in A.E.G. Carapiet vs A.Y. Derderian, reported in AIR 1961 Cal, 359 was cited.
4. The only ground urged before us is of cruelty on omission to consummate the marriage. There was no physical relation. On perusal of impugned judgment, it appears that the Court below looked at the facts in context of section 12 and found that appellant-wife could not prove that her husband was impotent. Impotency is not relevant here because the civil proceeding was brought by appellant-wife after the period prescribed in section 12 and, therefore, the omission to consummate the marriage urged as a ground of cruelty.
MATA no.156 of 2023 Page 2 of 11
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5. We reproduce below paragraphs 3, 5, 6, 8 and 12 from the petition.
"3. That on the 4th day of marriage the Respondent and his elder brother namely Jagannath Baral told the Petitioner to ask her father to bring another cash of Rs.5,00,000/- (Rupees five lakhs) only and only after payment of such demand the 4 th day rituals can be done.
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5. That on the day of Chaturthi night the Petitioner when entered into the room of the Respondent where he was sleeping alone the Respondent said to the Petitioner that he is in love with another girl and as such he had no intention to marry the Petitioner, but as per the compulsion of his brother and sister-in-law he married the Petitioner and saying so he drove the Petitioner from the room, but as the Petitioner showed her unwillingness to come out from the room the Respondent gave hard push for which the Petitioner fell down on the ground after which the brother-in-law and his wife drag the Petitioner from the room and the respondent and his Sabitri Baral slept in the room closing the door and as such the Petitioner sat in the courtyard in the whole night and was weeping.
6. That thereafter whenever the Petitioner was trying to mix with the Respondent, his brother-in-law and his wife did not allow to mix with the Respondent.
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8. That after said date the respondent along with his brother and Bhauja started torturing the Petitioner and even kept the petitioner without food continuously for 3 days, for MATA no.156 of 2023 Page 3 of 11 // 4 // which the Petitioner apprehending life risk called her father and accordingly her brother and brother-in-law came to the Respondent's house on 12.7.2019 and took back her to her parental house at Gengutia.
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12. That due to torture and without physical relationship between the parties is a cruelty which is sufficient for granting a relief of divorce."
(emphasis supplied) Above allegations in the petition point to there being absence of physical relation between appellant-wife and respondent-husband. This was the case made out.
6. We have on perusal of the record found that after appellant-wife was cross-examined, the written statement of respondent-husband was accepted. This weighed with the trial Court in overlooking the scant cross- examination of appellant-wife. There was no attempt at recalling her subsequent to the written statement filed. Here, we must note that allegations made in the petition were repeated by the wife in her examination-in-chief on affidavit. We reproduce her depositions in cross- examination dated 17th January, 2023 and 6th February, 2023.
"Cross-examination:-
2. It is a fact that I have mentioned in my evidence-in-chief that concerning the occurrence Dt.12.05.2019, I have filed this case.MATA no.156 of 2023 Page 4 of 11
// 5 // Further Cross-examination on 06.02.2023:-
3. After marriage, I stayed in my matrimonial house for about two months. Then I called my brother and brother-in-law (Bhinoi) and came back to my father's house. After fifteen to twenty days, I came back from my matrimonial home, my father and uncle (mamu) had gone there to pacify the matter between me and Raghunath. The family members of my husband did not talk with my father or uncle. So no solution could be reached.
4. Even during my stay in the matrimonial home, there was dissention between me and Raghunath and my father had attempted to talk to his family members. From the fourth day itself after marriage, torture started on me. I cannot specify the day or dates on which I was tortured, thereafter. After seven months of coming back from my matrimonial home, I lodged the F.I.R. It is not a fact that I have lodged false and concocted F.I.R. against Raghunath and his family members. It is not a fact that I am residing in my father's house suo moto and on my own wish. It is not a fact that I am deposing falsehood."
No suggestion was put to appellant-wife that the marriage was consummated and there was physical relation thereafter. This omission has nothing to do with absence of written statement filed because, it appears from impugned judgment, respondent-husband was represented by advocate. His advocate having conducted the cross-examination is presumed to have done it on instructions. No suggestion was also put regarding she having affair previous to the marriage, case made out in the written statement subsequently filed.
MATA no.156 of 2023 Page 5 of 11
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7. Respondent-husband filed written statement dated 19 th February, 2023. We reproduce paragraphs 7 to 10 from the written statement.
"7. That, the allegations made in para-5, 6, 7 and 8 against the respondent are not admitted by the respondent.
8. That the respondent has never committed any type of torture and cruelty towards the petitioner at any point of time.
9. That it is humbly submitted here that on the day of 4 th night the respondent asked the petitioner as to whether she had any relationship/love affair with any other person prior to the marriage, she admitted in the same night that she had love affair with a boy of Kamakhyanagar area and further she admitted that she had married the respondent as he is a Govt. servant and in future there will be no monetary problem for her to maintain a levis life.
10. That after disclosure of the love affair of the petitioner with a boy of Kamakhyanagar the respondent became suffered mental agony and failed to perform his day to day life in a proper manner."
(emphasis supplied) There is no assertion in the written statement that the marriage was consummated.
8. In context of above pleadings and examination of appellant-wife, we reproduce below paragraph-2 from deposition dated 13th March, 2023 of respondent-husband in cross-examination. MATA no.156 of 2023 Page 6 of 11
// 7 // "2. I joined my service in 2014 and I am working at Parjang Block as Jr. Clerk since last three years. It is a fact that since 12.07.2019 my wife Rajashree has been residing in her father's house. It is a fact that I have never taken care of Rajashree or never paid any money to her for her sustenance during that period. It is a fact that I have no personal or physical contact with her for that period."
(emphasis supplied) We appreciate oral evidence of respondent-husband from his deposition in cross-examination reproduced above to be that he admitted no physical contact with appellant-wife. This is because though respondent- husband mentioned period referring to it commencing from 12th July, 2019, when appellant-wife left the matrimonial home but having said she was away from that date, the admission of no physical contact could only relate to the time she was with him.
9. Our analysis of pleadings and oral evidence clearly show that there was no physical contact between appellant-wife and respondent- husband. Respondent-husband has attributed this to a counter allegation of discovery that appellant-wife had a boyfriend/lover prior to the marriage and she had only married him for security. This was asserted pursuant to examination of the wife concluded on cross-examination. It MATA no.156 of 2023 Page 7 of 11 // 8 // is appellant-wife who asserted and deposed on absence of physical contact as a ground of cruelty in claiming divorce.
10. In A.E.G. Carapiet (supra) the Division Bench took a view that still holds the field as, inter alia, in paragraph 10, reproduced below.
"10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because MATA no.156 of 2023 Page 8 of 11 // 9 // such subsequent testimony has no chance of being tested and corroborated."
(emphasis supplied)
11. A.E.G. Carapiet (supra) was and is a celebrated view regarding case to be put to the other side. It is founded on principles of essential justice, to enable a party facing an allegation, to be able to answer without being taken by surprise. Object of examination of witnesses is for truth to come out on best evidence and, to achieve the purpose, case made out on one side must be put at the box to the other by way of suggestion. This view has stood the test of time. If the husband's case was consummation but not pleaded, at least the case ought to have been put by suggestion. Subsequently made allegation in the written statement of respondent-husband was never put to appellant-wife in cross-examination. She had no chance to meet the new case made out! Omission to do so can only mean he accepted the testimony of his wife that there was no physical relation between them. The Court below accepted the view but got around it on reason given that appellant-wife had made a fantastic claim. Reliance was on her allegation in the petition that when on the fourth night she was thrown out, her sister-in-law slept with her husband. On close scrutiny of paragraph-5 in the petition it cannot be said with certainty from the allegation alone that it could be a MATA no.156 of 2023 Page 9 of 11 // 10 // fact. The allegation was, brother-in-law and his wife dragged out appellant-wife from the room and in the same sentence was also stated that the sister-in-law closed the door and slept in the room with her husband. There is nothing in the evidence to give illumination on this allegation, which weighed with the trial Court in disbelieving appellant- wife.
12. Fact emerging in the case is absence of physical relationship going as far as the marriage not having been consummated. The fact brings it within illustration by clause (xii) under paragraph-101 in judgment of the Supreme Court in Samar Ghosh vs. Jaya Ghosh, reported in (2007) 4 SCC 511. The illustration is reproduced below.
"(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty."
13. Impugned judgment is reversed. We dissolve the marriage by decree of divorce on the ground that after solemnization of it, appellant- wife was treated by respondent-husband with cruelty. Considering that the family Court in not granting divorce, did not go into the claim for permanent alimony, we direct appellant-wife to apply for permanent alimony to said Court under section 25.
MATA no.156 of 2023 Page 10 of 11
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14. The appeal is allowed and disposed of.
(Arindam Sinha) Judge (S.S. Mishra) Judge Sks Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 13-Dec-2023 17:32:17 MATA no.156 of 2023 Page 11 of 11