Orissa High Court
Sabitri Senapati vs Judge, Family Court And Anr. on 9 December, 2003
Equivalent citations: AIR2004ORI75, 97(2004)CLT251, 2004(I)OLR194, AIR 2004 ORISSA 75, (2004) 17 ALLINDCAS 675 (ORI), 2004 (17) ALLINDCAS 675, (2004) 1 CLR 185 (ORI), (2004) 2 MARRILJ 133, (2004) 1 ORISSA LR 194, (2004) 3 CIVLJ 92, (2004) 1 CURCC 477, (2004) 97 CUT LT 251, (2004) MATLR 321
Author: A. K. Patnaik
Bench: A.K. Patnaik, P.K. Misra
JUDGMENT A. K. Patnaik, J.
1. This is an appeal under Section 19(3) of the Family Courts Act, 1984 against judgment dated 12.7.1999 of the Judge, Family Court, Cuttack in Civil Proceeding No. 313 of 1997 dissolving the marriage between the appellant and the respondent No. 2 by a decree of divorce subject to payment of Rs. 40,000/- by the respondent No. 2 to the appellant towards permanent alimony.
2. The brief facts are that the respondent No. 2 filed the aforesaid Civil Proceeding No. 313 of 1997 in the Court of the Judge, Family Court, Cuttack for dissolution of the marriage of the appellant with the respondent No. 2. The case of the respondent No. 2 in the petition of divorce was that the marriage between the appellant and the respondent No. 2 was solemnized on 29.5.1996 at Athgarh, but soon after the marriage, the respondent No. 2 received an anonymous letter from someone alleging that the appellant had relationship with him. On enquiry it was revealed that the father of the appellant had lodged an FIR bearing No. 55/95 on 7.4.1995 at Gundichapara Sadar Police Station of Dhenkanal alleging that one Sana alias Pramod Senapati was attempting to kidnap the appellant. On the basis of the said FIR G. R. Case No. 185 of 1995 was instituted in the Court of the S.D.J.M., Dhenkanal. The respondent No. 2 then contacted the accused in the said case, namely, Pramod Senapati, and came to know that he was having a love affair for a long time with the appellant. The further case of the respondent No. 2 in the petition for divorce is that Pramod Senapati was a servant in the house of the appellant and for this reason, the marriage was solemnized not at Indipur where the house of the appellant was located but at Athgarh. On account of this love affair between the appellant and Pramod Senapati, the marriage between the appellant and the respondent No. 2 could not be consummated and the appellant left the house of the respondent No. 2 immediately within a week of the marriage. The further case of respondent No. 2 in the petition for divorce is that after separation from the respondent No. 2, the appellant has again kept relationship with Pramod Senapati and is living in adultery with him.
3. The appellant in her show cause filed before the Judge, Family Court, denied the allegations made in the petition for divorce that she had a relationship with Pramod Senapati, but she admitted that her father had lodged an FIR on 7.4.1995 at Sadar Police Station, Gundichapara against Pramod Senapati as he tried to kidnap the appellant. In the said show cause, the appellant further stated that Pramod Senapati was working on daily wage basis in the rice huller of her father and was driven out from the work on the Dushera Day in the year 1994 as he had taken away a Spark Moped of her father without permission. The appellant also stated in the show cause that it is not correct that the marriage was solemnized at Athgarh instead of Indipur on account of the alleged relationship between the appellant and Pramod Senapati and that the marriage was solemnized at Indipur. The appellant also denied the statement in the petition for divorce made by respondent No. 2 that the marriage between the appellant and the respondent No. 2 had not been consummated and instead stated that after the marriage, the appellant and the respondent No. 2 were living as husband and wife and had conjugal relationship for about five months from the date of the marriage. The appellant alleged in her show cause that although at the time of the marriage one gold chain, two gold rings, one H.M.T. watch and other gold ornaments were given to the respondent No. 2 as per his demand, due to financial difficulty his demand for a scooter could not be met and an assurance was given by the father of the appellant that after three months he will fulfil the said demand. Subsequently on 17.6.1996 the father of the appellant went to the house of the respondent No. 2 along with others and handed over Rs. 22,565/- towards the demand of a scooter. In the said show cause the appellant further stated that after Kumar Purnima the father of the appellant went to Parsurampur and brought the appellant to Indipur on 28.10.1996 to observe laxmipuja ceremony and while coming to Indipur the appellant was told by the respondent No. 2 as well as his family members that he must pay Rs. 50,000/- one colour TV, one refrigerator, but her father was not able to meet the said demands on account of acute financial difficulties. After the Laxmipuja was over, the father of the respondent No. 2 sent a message to the father of the appellant that they will not take back the appellant and since then the appellant has been staying in the house of her father.
4. On the basis of the aforesaid pleadings, the Judge, Family Court, Cuttack framed four issues including the issue as to whether the appellant was living in adultery with Pramod Senapati accepting the said Pramod Senapati as her husband. Thereafter the respondent No. 2 examined six witnesses and exhibited three documents while the appellant examined eight witnesses and exhibited two documents. After considering the aforesaid evidence, the Judge, Family Court, Cuttack in his judgment dated 12.7.1999 held that the respondent No. 2 has discharged his onus and has satisfied the ingredients of Section 13(1)(i) of the Hindu Marriage Act justifying a decree for dissolution of marriage between the parties and passed a decree of divorce dissolving the marriage subject to payment of Rs. 40,000/-by the respondent No. 2 to the appellant towards permanent alimony.
5. Mr. Mahitosh Sinha, learned counsel for the appellant, submitted that a marriage can be dissolved on the grounds mentioned in Section 13(1)(i) of the Hindu Marriage Act only if one of the spouses has " after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse". He submitted that the case of the respondent No. 2 is that the appellant had an affair with Pramod Kumar Senapati prior to the marriage, and the respondent No. 2 has not made but a case that there was any relationship between the appellant and Pramod Kumar Senapati after the solemnization of the marriage. He further submitted that in any case there is no evidence whatsoever that the appellant had any sexual intercourse with Pramod Kumar Senapati either before or after the marriage and that evidence of some relationship between the appellant and Pramod Kumar Senapati before marriage does not satisfy the ingredients of Section 13(1)(i) of the Hindu Marriage Act. Mr. Sinha submitted that the finding of the Family Court that the respondent No. 2 has discharged his onus and has satisfied the ingredients of Section 13(1)(i) of the Hindu Marriage Act justifying dissolution of marriage between the parties is thus perverse and should be set aside. He further submitted that the appellant had led sufficient evidence to show that the respondent No. 2 and his family members had instructed the appellant to bring cash of Rs. 50,000/-, colour TV and refrigerator from her father's house and as her father could not fulfil the said demand, respondent No. 2 did not take her back and the appellant as a consequence continued to reside in her father's house. According to Mr. Sinha, the Family Court should have recorded a finding that it is on account of the said demand of cash, colour TV and refrigerator that the dispute between the appellant and the respondent No. 2 had arisen. Mr. Sinha finally submitted that respondent No. 2 is a school teacher and gets a handsome salary and grant of permanent alimony of Rs. 40,000/- against respondent No. 2 in favour of the appellant is inadequate as the amount cannot sustain the appellant. He however stated that the appellant has not yet withdrawn the sum of Rs. 40,000/-deposited by respondent No. 2 in the Family Court.
6. Mr. Srinivas Mohanty, learned counsel appearing for the respondent No. 2, on the other hand, submitted that soon after the impugned judgment dated 12.7.1999 of the Judge, Family Court dissolving the marriage between the appellant and the respondent No. 2 by a decree of divorce, the respondent No. 2 deposited the said sum of Rs. 40,000/- towards permanent alimony in the shape of a bank draft in the name of the appellant within the period stipulated in the judgment for payment, and after waiting for the appeal period, the respondent No. 2 married another lady Shantilata Sahu on 14.9.1999 and through the said marriage the respondent No. 2 has been blessed with a male child. Mr. Mohanty referred to Section 15 of the Hindu Marriage Act which provides that if a marriage is dissolved by a decree of divorce and the time for appealing has expired without any appeal being presented, It shall be lawful for either party to marry again. He pointed out that in this case, the impugned judgment dissolving the marriage by a decree of divorce was passed on 12.7.1999 and the appeal was not filed within the period of 30 days prescribed by Section 19(3) of the Family Courts Act and in the circumstances, the respondent No. 2 remarried another lady Shantilata Sahu on 14.9.1999. He argued that setting aside the impugned decree of divorce at this stage would affect the second marriage of the respondent No. 2 with Shantilata Sahu and also the male child born out of the second marriage. Mr. Mohanty next submitted that on a reading of the prayer in the memorandum of appeal filed by the appellant, it will be clear that the appellant has only prayed for enhancement of the amount granted to her towards permanent alimony substantially so as to enable her to lead an independent life and she has not made any prayer for setting aside the impugned decree of divorce. Mr. Mohanty submitted that after the second marriage the respondent No. 2 has undertaken additional liabilities to maintain his second wife and the child born out of the second marriage and any enhancement of the permanent alimony granted by this Court in this appeal will affect the respondent No. 2, his second wife and his child.
7. The first point for determination in this appeal is whether the appellant can. be allowed to urge that the impugned judgment dissolving the marriage between the appellant and the respondent No. 2 by a decree of divorce on the ground that the ingredients of Section 13(1)(i) of the Hindu Marriage Act was perverse. Order 41, Rule 2 of the Civil Procedure Code provides that the appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. We find that although in ground No. (i) of the memorandum of appeal the appellant has urged that the petition filed for divorce by the respondent No. 2 on the ground of adultery ought to have been rejected outright, in the prayer portion of the memorandum of appeal the appellant has not prayed for setting aside the impugned judgment for dissolution of the marriage of the appellant and the respondent No. 2 by a decree of divorce. The prayer portion of the memorandum of appeal under Section 19(3) of the Family Court Act is extracted herein below :
"PRAYER
(a) In the above circumstances, the petitioner most humbly prays that this Hon'ble Court may be graciously pleased to allow this appeal upon hearing the parties;
(b)And this Hon'ble Court be further please to enhance the amount granted towards the permanent alimony substantially so as to enable the petitioner to lead an independent life.
(c)And this Hon'ble Court be further pleased to pass such other order/orders and direction/directions as deemed fit and proper under the facts and circumstances of the case.
And for which act of kindness the petitioner shall, as in duty bound, ever pray.
Cuttack By the Appellant-
Dated 22,9.99 petitioner through
Sd/- Kamal Behari Panda
Advocate."
Thus, the appellant appears to have filed the appeal for enhancement of the amount granted towards permanent alimony and not for setting aside the decree of divorce and at this stage to allow the appellant to urge that the dissolution of marriage by a decree of divorce should be set aside by this Court would cause substantial prejudice not only to the respondent No. 2 but also Shantilata Sahu whom the respondent No. 2 has married on 14.9.1999 after the expiry of the period of limitation for filing an appeal against the decree of divorce as permitted by Section 15 of the Hindu Marriage Act as amended in 1976. We are, therefore, not inclined to consider the submission made by Mr. Sinha, learned counsel for the appellant that the dissolution of the marriage by the impugned decree of divorce was not in accord with the provisions of Section 13(1)(i) of the Hindu Marriage Act.
8. The next point of determination in this appeal is whether the permanent alimony of Rs. 40,000/- granted by the Judge, Family Court in favour of the appellant should be enhanced by this Court. The respondent No. 2 is a school teacher and earns a reasonable salary. After the dissolution of marriage, respondent No. 2 has married again and has been blessed with a child and he is required to support the second wife and his child out of his salary income. But-at the same time, the appellant is without any source of independent income and she is dependant upon her father who is growing old. Considering all these aspects, we are of the view that besides the sum of Rs. 40,000/- granted by the Judge, Family Court, Cuttack towards permanent alimony and deposited in the Family Court, the appellant is entitled to a further amount of Rs. 1,00,000/- (Rupees One Lakh) as permanent alimony from the respondent No. 2. The said amount of Rs. 1,00,00,000/- (Rupees One Lakh) will be deposited by the respondent No. 2 in the Family Court, Cuttack within a period of three months from today failing which it will carry interest at the rate of 12 per cent per annum from today. The appellant will be entitled to withdraw the amount of Rs. 40,000/- with interest if any that may have accrued thereon and the further amount of Rs. 1,00,000/- with interest thereon if any deposited by the respondent No. 2 from the Family Court, Cuttack.
9. The civil appeal is allowed to the aforesaid extent, but in the circumstances, there shall be no order as to costs.
CH. P. K. MISRA, J.
10. I agree.