Orissa High Court
T. Sanjeeva Rao vs Smt. T. Manikyam & Another on 16 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.362 of 2010
T. Sanjeeva Rao .... Appellant
Mr.N.C. Pati
-versus-
Smt. T. Manikyam & Another .... Respondents
Mr.P.V.Balakrishna
Advocate for R.2
CORAM:
MR. JUSTICE D.DASH
ORDER
16.11.2021
Order No.
04. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. This Appeal Section 100 of the Civil Procedure Code
(for short, 'the Code') arises out of the judgment and decree
dated 07.08.2010 and 23.08.2010 respectively passed by the
learned Additional District Judge, Paralakhemundi in the
District of Gajapati in Mat. Appeal No.1 of 2009.
By the said judgment and decree in the First Appeal
filed by the Respondent No.1 (Wife), the judgment and decree
dated 26.11.2008 and 08.12.2008 respectively passed by the
learned Civil Judge (Senior Division), Paralakhemunid in Mat.
Case No.1 of 2005 dissolving the marriage between the parties
has been set aside.
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The Plaintiff had filed an application under section 13
(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution
of his marriage with the Respondent No.1. The Trial Court
having found from the evidence that after solemnization of
marriage, the Respondent No.1 (Wife) treated the Appellant
(Husband) with cruelty having deserted him for a continuous
period of not less than two years, is entitled to a decree of
divorce. This being challenged by the Respondent No.1 (Wife),
the First Appellate Court, upon appraisal of the evidence, has
differed with the finding of the Trial Court on the factual aspect
on the score of cruelty being meted out at the present Appellant
(Husband) at the instance of the Respondent No.1 (Wife) and as
to desertion.
In view of the above, the present Appellant (Husband)
has filed this Appeal.
3. Heard Mr.B. Das, learned counsel for the Appellant and
Mr. P.V. Balakrishna, learned counsel for the Respondent No.1
(Wife).
4. The only question for examination in the case at hand
arises is as to whether the finding of the lower Appellate Court
on the available evidence that no case has been made out for
divorce as prayed for by the Appellant (Husband) on the ground
of cruelty and desertion is the outcome of perverse appreciation
of evidence.
5. Learned counsel for the Appellant (Husband) submitted
that when the Trial Court, on careful examination of the
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evidence and upon their proper analysis, had arrived at a finding
that the Respondent No.1 (Wife) is guilty of exerting cruelty
upon the Appellant (Husband) and has deserted him for long;
the same has been erroneously set aside by the First Appellate
Court without assigning any such good reason. According to
him, although the First Appellate Court has all the power of
reappraisal of the evidence at its level in arriving at its
conclusion, yet, in order to differ with the finding of the Trial
Court, strong and good reasons are required to be assigned
which in the present case, according to him, is lacking.
Therefore, he submits that the First Appellate Court's finding is
the outcome perverse appreciation of evidence and that need be
formulated as the substantial question of law in admitting the
Appeal.
Learned counsel for the Respondent No.1 (Wife)
submits that the First Appeal is a continuation of the original
proceeding and the First Appellate Court possesses all the
power as that of the original Court. He further submits that here
the First Appellate Court has taken into consideration the
evidence of each of the witnesses examined on behalf of the
respective parties and assigning very good reasons, it has rightly
refused to accept the evidence let in by the Appellant (Husband)
on that score of cruelty which is the main ground of the
Appellant (Husband) in seeking the dissolution of his marriage
with the Respondent No.1 (Wife). It is submitted that the
burden of proof that cruelty has been meted out at the Appellant
(Husband) at the instance of the Respondent No.1( Wife)
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leaving lies upon the Appellant (Husband) and as per the settled
law, it is not that some stray act or conduct which can be taken
as an act/conduct as to cruelty and in order to pass an order of
dissolution of marriage, the cruelty must be proved to be of
such nature that continuation of the marital tie between the two
in leading happy conjugal life and is not at all possible and
likely to invite serious consequences for the parties and only in
that event, the Court would lean in favour of granting the decree
of divorce. It is submitted that when the Trial Court had not
kept the above settled position of law in mind while passing the
final order as to dissolution of marriage; the First Appellate
Court having rightly appreciated the evidence in the touch stone
of the settled position of law did commit no mistake in
annulling the finding and consequently, setting aside the order
of dissolution marriage.
Placing reliance on the judgment of the First Appellate
Court, he draws the attention of the Court as to how
meticulously the evidence let in by the parties have been
appreciated in ultimately saying that the finding of the Trial
Court on the score of cruelty and desertion in granting decree of
divorce in favour of the Appellant (Husband) is unsustainable.
Keeping in view the above submission made, I have
carefully gone through the judgments passed by the Courts
below.
6. Cruelty and desertion is the grounds projected by the
Appellant (Husband) in seeking a decree for dissolution of his
marriage with the Respondent No.1 (Wife). Here, the Appellant
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(Husband) is an Live Stock Inspector and at the time of the suit
was working at Korasanda, Madhusudhanpur Grama Panchayat
under Paralakhemundi P.S. in the District of Gajapati and
residing at Korasanda whereas the Respondent No.1 (wife)
being an Anganwadi Worker was then serving at Uppalada
under Paralakhemundi P.S. and she was then residing at
Yasodha Nagar in the District of Srikakulam in Andhar
Pradesh. So, under the circumstances, the separate stay of the
parties is of no significance. The Appellant (Husband) having
examined eight witnesses from his side, the Respondent No.1
(Wife) has only examined herself. The First Appellate Court, as
having gone for vivid discussion of the evidence on record and
upon their indepth examination, has recorded its disagreement
with the important findings rendered by the Trial Court as to
establishment of cruelty to have been meted out at the Appellant
(Husband) by the Respondent (Wife) as also the desertion as not
voluntary. On a bare reading of the judgment passed by the First
Appellate Court, from the discussion of the evidence and
reasons assigned therein, it appears that the error committed by
the Trial Court in recording the finding of cruelty and desertion
favouring the grant of divorce has been rightly rectified by
setting the same at naught.
In view of what have been stated above, this Court is
not in a position to accept the submission of the learned counsel
for the Appellant (Husband) that there involves any substantial
question of law meriting admission of this Appeal.
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7. Accordingly, the Appeal stands dismissed. No order as
to costs.
(D.Dash)
Judge
Basu
