Orissa High Court
Paresh Kumar Parichha vs Unknown on 8 April, 2021
HIGH COURT OF ORISSA, CUTTACK
R.S.A. NO. 134 OF 2011
From the judgment and decree dated 28.02.2011 & 10.03.2011
respectively passed by the learned Addl. District Judge, Parlakhemundi in
MAT Appeal Case No.01 of 2010 reversing the judgment and decree
passed by the learned Civil Judge (Senior Division), Paralakhemundi in
MAT Case No. 13 of 2007.
.........
Paresh Kumar Parichha :::: Appellant.
-:: VERSUS ::-
Smt. Anita Kumari Parichha & Another :::: Respondents.
For Appellant :::: M/s. N.C. Pati, B. Pati,
B. Das, B. Pati, Advocates.
For Respondents :::: M/s. S.D. Das, Sr. Advocate,
M.M. Swain, S. Biswal,
H.K. Behera, Haripad Mohanty,
Advocates.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of Hearing & Judgment:: 08.04.2021
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The Appellant by filing this Appeal under Section-100 of the
Code of Civil Procedure (hereinafter called as 'the Code') has assailed
the judgment and decree dated 28.02.2011 & 10.03.2011 respectively
passed by the learned Addl. District Judge, Parlakhemundi in MAT
Appeal Case No.01 of 2010 reversing the judgment and decree passed
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by the learned Civil Judge (Senior Division), Paralakhemundi in MAT
Case No. 13 of 2007.
2. For the sake of convenience, in order to avoid confusion and
bring in clarity, the parties hereinafter have been referred to as they
have been arraigned in the Trial Court, i.e. 'the Appellant' as 'the
Petitioner' and the Respondent as in the same name as before the Trial
Court.
3. The Appellant (husband) had filed a suit for grant of a
decree of dissolution of his marriage with the Respondent. The Trial
Court had decreed the suit in dissolving the marriage. The Respondent
(wife) being aggrieved by the same had carried the Appeal. The
Appellate Court having found that the grounds upon which the decree
for divorce are based are not so available in the facts and
circumstances of the case as obtained in evidence as well as in the eye
of law has reversed the judgment and decree passed by the Trial Court.
The Appellant has thus been non-suited.
4. Heard Mr. B. Das, learned counsel for the Appellant
(Petitioner) and Mr. S.D. Das, learned Sr. Advocate appearing on
behalf of the Respondent (Respondent) at length. I have carefully gone
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through the judgments passed by the Trial Court as well as the
Appellate Court.
5. The Trial Court found that the parties have been stayed
separately for a long time and having deserted each other for more than
two years, there is no likelihood of reunion between them and the
relationship between them has irretrievably broken down. Having said
so, the decree for dissolution of the marriage as prayed for by the
Petitioner has been passed. The lower Appellate Court on detail
discussion of the evidence on record has found that the Petitioner has
failed to establish the factum of desertion during the entire period of
separate stay and then also the most important facet that it was at the
instance of the Respondent without any just and probable cause so as
to form the basis for passing the decree for divorce. A careful reading
of the judgment of the Appellate Court goes to show that the settled
legal principles which had been over looked by the Trial Court, the
Appellate Court as within its power and competence has rectified the
same with which in my considered view no fault can be found with.
In the facts and circumstances of the case and obtained
evidence, in my opinion, the lower Appellate Court has rightly refused
to accept the prayer for grant of decree for divorce at the instance of
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the Petitioner (husband) as against the Respondent (wife), who is
living with a mentally and physically challenged daughter now of 18
years of age without any sort of support from the Petitioner during all
these long period. Taking a cue from that to conclude that their
relationship has irretrievably broken down, the Trial Court having
committed grave error both on fact and law in decreeing the suit, the
Appellate Court has rightly put it in order by setting the said finding at
naught in finally dismissing the suit.
The findings of the Courts below on factual setting of the
case were no doubt in conflict with the settled position of law holding
the field. But the findings so recorded by the Appellate Court are
found to be based on just and proper appreciation of the totality of the
facts and circumstances obtained in evidence being so appreciated in
the back drop of the settled legal position. This Court finds no such
illegality or infirmity therein.
6. All these aforesaid discussion and reasons persuade this
Court to record that no such question of law surfaces in this case
meriting admission of this Appeal.
Accordingly, the Appeal stands dismissed. No order as to
cost.
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As the restrictions due to the COVID-19 situation are
continuing, learned counsel for the parties may utilize a soft copy of
this order available in the High Court's website or print out thereof at
par with certified copy in the manner prescribed, vide Court's Notice
No.4587, dated 25th March, 2020.
..........................
D. Dash, J.
Orissa High Court, Cuttack
Date 8th April, 2021/ Narayan.
