Orissa High Court
Subhasrita Nayak & Ors vs Subash Chandra Nayak And Anr on 7 October, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.157 of 2019
with
MATA Nos.150 and 151 of 2019
From the Judgments and Orders dated 02.11.2019 passed in Civil
Proceeding No.336 of 2011 (arising out of C.P. 86 of 2004 of the court of
the learned Judge, Family Court, Cuttack) and in Civil Proceeding No.476
of 2011 (arising out of C.P.518 of 2000 of the court of learned Judge,
Family Court, Cuttack) by Dr. P.M. Samal, learned Judge, Family Court,
Jajpur.
In MATA No.157 of 2019
Subhasrita Nayak & Ors. .... Appellants
-versus-
Subash Chandra Nayak and Anr. .... Respondents
Advocates appeared in the case through hybrid mode:
For Appellants : M/s. Supriya Patra, Adv.
-versus-
For Respondents : Mr. Tathagat Sahoo, Adv.
In MATA No.150 of 2019
Subas Chandra Nayak .... Appellant
-versus-
Meena Kumari Sahoo & Ors. .... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr. Tathagata Sahoo, Adv.
-versus-
For Respondents : M/s. Supriya Patra, Adv.
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019 Page 1 of 14
In MATA No.151 of 2019
Subas Chandra Nayak .... Appellant
-versus-
Subhasrita Nayak & Ors. .... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr. Tathagata Sahoo, Adv.
-versus-
For Respondents : M/s. Supriya Patra, Adv.
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
DATE OF HEARING:- 29.07.2021 & 07.10.2021
DATE OF JUDGMENT:- 07.10.2021
S.K. Mishra, J.
01. Since the issues involved in all the Appeals are inter-related,
the Appeals are taken up for disposal by a common judgement.
02. MATA No. 150 of 2019 has been filed at the instance of the
husband (Subash Chandra Nayak) to set aside the judgment dated
02.11.2019 passed in Civil Proceeding No. 476 of 2011 by the
learned Judge Family Court, Jajpur wherein the learned Judge,
Family court disallowed the dissolution of marriage and his prayer
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
to declare the 3rd girl child and 4th male child as illegitimate children
of the Respondent No.1 (Meena Kumari Sahoo).
03. MATA No.151 of 2019 has also been filed by the father
(Subash Chandra Nayak) to set aside the judgment and order dated
02.11.2019 by the learned Judge Family Court, Jajpur in Civil
Proceeding No.336 of 2011 wherein it is directed to pay monthly
maintenance at the rate of Rs.3,000/- to each of the Respondents
from the date of the order i.e 02.11.2019 and to make fixed deposit
to the tune of Rs.3,00,000/- in the name of the Respondent Nos.1 to
3 towards their marriage expenses in any nationalized Bank within
three months.
04. MATA No.157 of 2019 has been filed at the instance of the
daughters (Subhasrita Nayak, Subharchita Nayak and Subharpita
Nayak) to enhance the monthly maintenance as directed vide
Judgment and Order dated 02.11.2019 passed in Civil Proceeding
No.336 of 2011 by the learned Judge, Family Court, Jajpur from
Rs.3000/- to Rs.7000/- and also to enhance the amount awarded
towards marriage expenses to R.7,00,000/- instead of Rs.3,00,000/-
and to pay Rs.50,000/- towards litigation expenses.
05. Facts of the case in nutshell is as follows:-
The marriage between the Appellant/husband and the
Respondent No.2/wife in MATA No.150 of 2019 was solemnized
on 06.06.1991 as per Hindu Caste and Customs and out of their
wedlock two female children were born on 05.06.1992 and
04.05.1995. Prior to their marriage the wife was serving as a non-
formal teacher at Ekdalia Girls Prathamika Chatsala under Chhatia
Hamlet and latter on her service was regularized as a teacher of
UGME School, Nelia. The Appellant/husband was working as a
MATA No.157 of 2019
Government Teacher at Rasma Primary School in the district of
Nabrarangpur. Since 1995 the Respondent No.1/wife has been
staying with her parents. The husband filed a petition i.e Civil
Proceeding No.476 of 2011 seeking divorce on the ground of
adultery and to declare the 3rd and 4th child as illegitimate child.
06. The case of the Appellant/husband is that after the second
child was born on 04.05.1995, the Respondent/wife kept illicit
relationship with Respondent No.2 (Bharat Ch. Sahoo) who is the
husband of the elder sister of the Respondent No.1/wife. It is
submitted that the Respondent No.2 in MATA No.157 of 2019 is
also a teacher in the district of Nabrangpur and taking advantage of
Appellant's absence the said Respondent No.2 developed illicit
relationship with Respondent No.1. On his objection, the
Respondent No.1/wife quarreled with him and left the house and did
not return even after his several requests to return and normalize the
marital life. Further, he alleged that her third child born on
15.09.1997 which the Appellant believes that out of the illicit
relationship of Respondent No.1 with Respondent No.2 the 3rd child
was born, because after the Respondent No.1/wife left the house he
had no physical relationship with Respondent No.1. He also alleged
that the Respondent No.1/wife developed illicit relationship with
Respondent No.3 and out of such relationship, a male child was born
on 19.09.2000 which he came to know from the co-villagers. Since
the Respondent No.1 deserted him for more than five years and
despite several requests she denied to come and normalize her
relationship, the Appellant filed an application under Section 13 of
Hindu Marriage Act, 1955 vide Civil Proceeding No.518 of 2000
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
before the learned Judge, Family Court, Cuttack which is transferred
to the court of the learned Judge, Family Court, Jajpur and re-
numbered as Civil Proceeding No.476 of 2011. To prove his case,
the Appellant/husband examined a mediator to the marriage as P.W
1, a co-villager as P.W.2 and himself as P.W 3.
07. The Respondent No.1/wife denied all the allegations leveled
against her. She submitted that the husband never raised such
allegation of illicit relationship with Respondent No.2 and
Respondent No.3 prior to 2000 in the letter communications between
herself and the Appellant. Rather, the Appellant and his family
members tortured her in many occasions. It is also alleged that after
few months of her marriage, the Appellant demanded share from the
landed property of her father. The Appellant was in visiting terms to
her house till march 2000 and leading conjugal life. So the
allegations made by the Appellant that the 3rd female child and 4th
male child were illegitimate children are false and alleged that the
Appellant has kept a concubine at his workplace. Furthermore, the
Appellant was putting pressure on her and on her parents to execute
sale deed in his favour in respect of a property belonging to her
parents. To prove her case, the Respondent No.1 examined herself
as R.W.1 and relied upon documents marked as Exts.A to E.
08. After consideration of pleadings of both the parties, learned
Judge, Family Court, Jajpur framed the following issues:-
(i) Whether the case of the Petitioner/Appellant is
maintainable in the eye of law?
(ii) Whether there is any cause of action to file the case by
the Petitioner/Appellant.
MATA No.157 of 2019
(iii) Whether the Respondent No.1 after marriage had treated
the Petitioner/Appellant with cruelty?.
(iv) Whether the Respondent No.1 has deserted the
Petitioner/ Appellant for a period of not less than two years
immediately preceding the presentation of the petition.
(v) Whether the Respondent No.1 after solemnization of the
marriage had voluntary sexual intercourse with Respondent
Nos.2 and 3?
(vi) Whether the Petitioner/Appellant is entitled for a decree
of divorce against the Respondent No.1?
09. After hearing the parties, the learned Judge Family Court,
Jajpur held that the plea of adultery could not be proved by the
Petitioner/Appellant, based his decision on the letters written by the
Respondent No.1 to the Appellant marked as Exts. A to E and in his
cross examination also the Petitioner/Appellant did not reveal if the
Respondent No.1 had any extra marital affairs either with
Respondent No.2 or Respondent No.3. While dealing with the
question whether the Petitioner/ Appellant had relationship with
Respondent No.1 since 1995 after the birth of the second girl child,
the trial held that Exts.A to E clearly show his uninterrupted
relationship with the Respondent No.1 till 2000. Learned Judge
Family Court, Jajpur also relied on the statement of P.W 1 who
admitted in his cross-examination that he had no direct knowledge
about the illicit relationship between Respondent No.1 and
Respondent No.2. Basing on all the evidence of both parties, the
learned Judge Family Court, Jajpur dismissed the petition and
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
declared the Respondent Nos.2 and 3 as ex-parte on vide the
Judgment and Order dated 02.11.2019.
During the pendency of Civil Proceeding No.476 of 2011,
Civil Proceeding No.336 of 2011 was filed at the instance of 4
children through their mother guardian, as all of them were minor at
the time of institution of the case. Civil Proceeding No.336 of 2011
was filed at the behest of the daughters and son under Section 20 of
the Hindu Adoptions and Maintenance Act, 1956 through their
mother guardian demanding their educational and marriage expenses
from the Respondent/father claiming that the income of their mother
is not sufficient to maintain them. So, they demanded Rs.5,500/- in
toto towards their monthly maintenance and Rs.3,00,000/- each to
the Petitioner Nos.1 to 3 therein towards their marriage.
The Respondent/father filed a written statement denying all
the allegations leveled against him by the Appellants/ children in
Civil Proceeding No.336 of 2011. He admitted that Petitioner Nos.1
and 2 as his daughter, but asserted that Petitioner No.3 and 4 were
born out of the illicit relationship of their mother with two other
peoples and prayed for dismissal of the Petition.
10. Considering the submissions of both the Parties, learned Judge,
Family Court, Jajpur framed the following issues:-
(i) Whether the Petitioners/ Appellants' case is
maintainable in law ?
(ii) Whether the Petitioners/ Appellants have any cause of
action to bring the case against the Respondent?
(iii) Whether the Petitioners/ Appellants are entitled to get
monthly maintenance allowances along with other ancillary
expenses like educational and marriage expenses?
MATA No.157 of 2019
(iv) What are the relief/reliefs the Petitioners/ Appellants
are entitled to?
11. In support of their case, Petitioner No.1 in that case examined
herself as P.W.1, her mother examined as P.W. 2 and Petitioner No.3
in that case examined as P.W 3 and relied upon the documents
marked as Exts.1 to 17. The Respondent/father examined himself as
R.W 1 and one co-villager examined as R.W.2 and also relied upon
document marked as Ext A.
12. While dealing with all the issues, learned Judge, Family
Court, Jajpur relied on the evidences produced before him and held
that the Petitioners were minor at the time of institution of the case
and their mother had taken care of them with her income and
incurred loan from her G.P.F. Exts. 6 to 17 disclose educational
qualification of all the children. It is also clear that Petitioner Nos.1
to 3 have not got married yet and they need marriage expenses from
the Respondent/father. During cross examination of P.Ws.1 to 3, it
is evident that they have no source of income and Respondent/ father
has not provided aid to them towards their marriage and other
ancillary expenses. While answering the issue about the paternity of
the 3rd and 4the children, learned Judge, Family Court, Jajpur held
that the Respondent/ father never stated during his cross examination
as R.W.1 in his affidavit disclosing the name of the person with
whom their mother had kept extramarital relationship. Mere
disclosure of name of the person with whom the alleged adulterous
act of P.W 2 is not enough to believe the Respondent's version. R.W.
2 also nowhere stated as to illicit relationship between the mother of
the Petitioners/chindren and that Bharat Sahoo or with any other
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
person. So the trial court discarded the evidence of R.W 2. So, the
learned Judge, Family Court, Jajpur held that the case laid down by
the Petitioners/ children is maintainable. Consequently. all the
Petitioners/ children were entitled to get maintenance. The
Respondent/ father was directed to pay monthly maintenance at the
rate of Rs.3,000/- to each of the Petitioners from the date of the order
i.e from 02.11.2019 and to make fixed deposit to the tune of
Rs.3,00,000/- each in the names of the Petitioner Nos.1 to 3 towards
their marriage expenses.
13. MATA No.151 of 2019 was filed by the father (Subash
Chandra Nayak) to set aside the Judgment and Order dated
02.11.2019 passed in Civil Proceeding No.336 of 2011. Case of the
Petitioner/father in detail is that the learned Judge, Family Court,
Jajpur has committed grave error while passing the decree of
maintenance in respect of Respondent Nos. 3 and 4 whose paternity
had been denied by him and he had adduced sufficient evidence to
justify the same. Further, learned Judge, Family Court, Jajpur has
committed grave illegality by observing that the Appellant/father
during his examination as R.W.1 has not disclosed the name of the
person with whom the mother of the Respondents/ children had illicit
relationship, though the Appellant/father in his evidence affidavit as
R.W.1 stated the name the person. Further the Appellant/ father
alleged that the learned Judge, Family Court, Jajpur ignoring the fact
that the mother of the Respondents/ children is also a Government
servant. So, the Judgment and Order dated 02.11.2019 passed by the
learned Judge, Family Court, Jajpur in Civil Proceeding No.336 of
2011 should be set aside.
MATA No.157 of 2019
14. MATA No. 157 of 2019 has also been filed by the
Appellants/ daughters challenging the same Judgment and Order
dated 02.11.2019 passed in Civil Proceeding No.336 of 2011 by the
learned Judge, Family Court, Jajpur for enhancement of the amount
of maintenance awarded. The case of the Appellants/ daughters is
that the marriage between their mother-Meena Kumari Sahoo and
the Respondent No.1/father was solemnized on 06.06.1991 as per
Hindu Rites and Ceremony. Out of their wedlock the present
Appellants/daughters were born. In the year 1999-2000 dispute arose
between their parents as the Respondent No.1/father was demanding
the landed property from the maternal grandfather of the Appellants/
daughters. The Respondent No.1/ father left the Appellants/
daughters and filed a false case as Civil Proceeding No.518 of 2000
which later on transferred to the court of the learned Judge, Family
Court, Jajpur and renumbered as Civil Proceeding No. 476 of 2011
for divorce against their mother on the ground of adultery and was
not providing a single penny towards their maintenance except
Rs,3,00/- as per order dated 16.09.2002 in Civil Proceeding No. 518
of 2000. The Appellants/ daughters further alleged that the
Respondent No.1/ father was not giving any amount for their
education. The Appellant No.1 has completed M.Sc in chemistry and
is preparing for higher studies and taking coaching in Delhi. The
Appellant No.3 has completed B.Sc and the Appellant No.2 and
proforma Respondent No.2 have completed +2 Science and H.S.C.
examination respectively and due to financial crisis, they are unable
to further study as their Respondent No.1/father is not providing a
single penny to the Appellants/ daughters and the proforma
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
Respondent No.2. The Respondent No.1/father is working as a
Senior Teacher and getting very handsome salary, but has not given
any aid to the Appellants/ daughters.The Appellants/ daughters also
submitted that even though their mother is a teacher, but she is much
junior to the Respondent No.1/ father and unable to meet their needs.
So, the Appellants/ daughters pleaded that the Respondent
No.1/father is liable to maintain them.
15. On being noticed, the Respondent No.1/ father filed his
written statement denying the averments made by the Appellants/
daughters. He submitted that the Appellants/ daughters are major and
the mother of the Appellants/ daughters is working as a teacher in a
Government School and getting salary of Rs.53,875/- and to prove
his statement he filed the salary certificate of the mother of the
Appellants/ daughters as Annexure-A/1. The Respondent No.1/
father is a retired teacher and suffering from chronic Kidney disease
for which he is going to hospital twice in a weekend for his treatment
and he needs Rs.32,000/- per month. The entire medical documents
are filed as Annexure B/1(Series). Further, it is pleaded that he has
sold his entire property except his house and living miserably
without getting any care and affection from the Appellants/
daughters. The Respondent No.1/ father is in not in a condition to
pay maintenance and it is not possible in his part to make fixed
deposit of Rs.3,00,000/- in the names of the Appellants/ daughters
and prayed for dismissal of the said Appeal.
16. We would like to refer to Section 112 of the Indian Evidence
Act, 1872 which is extracted here under for ready reference:
"112. Birth during marriage, conclusive proof of
legitimacy.-The fact that any person was born
during the continuance of a valid marriage between
MATA No.157 of 2019
his mother and any man, or within two hundred and
eighty days after its dissolution, the other remaining
unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown
that the parties to the marriage had no access to each
other at any time when he could have been
begotten."
17. In the case of Chilukuri Venkateswarlu vs Chilukuri
Venkatanarayana, reported in 1954 AIR 176, wherein the Hon'ble
Supreme Court held that:
".......non-access can be established not merely
by positive or direct evidence.It can be proved
undoubtedly by any other physical fact by evidence
either direct or circumstantial which is relevant to
the issue though as the presumption of legitimacy is
highly favoured by law.It is necessary that proof of
non-access must be clear and satisfactory."
18. On careful perusal of the entire evidence on record, we have
no hesitation in holding that the Appellant/husband failed to
establish the accusation of adultery made by him against the
Respondent/wife. Taking into consideration all the letters written by
the Appellant/husband to the Respondent/wife, we are of thee
opinion that the Appellant/ husband has never stated a single word
about the adulterous act of the Respondent/wife in all the letters
written by him to the Respondent/ wife marked as Exts. A to E till
2000. It is the specific plea of the Appellant/husband that he had not
relationship with the Respondent/wife since 1955 after the birth of
the second child, and the third girl female child and fourth male child
were born out of such illicit relationship. But it is clear from the
evidence of the Appellant/ husband and the letters marked as Exts.A
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
to E that there was relationship with the Respondent/wife till the year
2000 and the Appellant/ husband was in visiting terms to her house
till march 2000. Since on the basis of that proof there was evidence
on record that the since 1995 to 2000 there was uninterrupted
relationship between the Appellant/husband and Respondent/wife,
there was no impossibility of cohabitation between the parties and
no acceptable evidence of non-access to each other.Therefore, the
Appellant/ husband failed to substantiate the ground taken by him,
for seeking a decree for dissolution of marriage.
19. In view of the above, we hold that the learned Judge, Family
Court, Jajpur has committed no error by refusing to grant the prayer
for divorce and denied all the reliefs sought for. Therefore, we find
no merit in the appeal i.e. in MATA No.150 of2019 requiring
interference with the impugned Judgment and Order dated
02.11.2019 passed in Civil Proceeding No.476 of 2011. Hence
MATA No.150 of 2019 stands dismissed.
20. Taking into consideration the facts and circumstances of the
case and evidences on record and the fact that the Appellant/husband
is a retired teacher suffering from chronic Kidney Disease, it will be
just and proper to pay monthly maintenance at the rate of Rs, 5,000/-
each of the Appellants/ daughters in MATA No.157 of 2019 from
the date of filing of the application and to make fixed deposit to the
tune of Rs.5,00,000/- each in the names of each of them towards their
marriage expenses in any nationalized Bank within three months
hence. As far as proforma Respondent No.2/son in MATA No.157
of 2019 is concerned, he is entitled to receive maintenance till he
attains majority. Hence, the Respondent No.1/ father in MATA
No.157 of 2019 is directed to pay monthly maintenance at the rate
MATA No.157 of 2019
of Rs.5,000/- to the proforma Respondent No.2/son from the date of
filing of the application till he attains majority. Accordingly, MATA
No 157 of 2019 stands allowed and MATA No.151 of 2019 stands
dismissed.
21. T.C.Rs. be returned back forthwith.
22. Urgent certified copy of this order be granted on proper
application.
( S.K. Mishra )
Judge
Savitri Ratho, J. I agree.
( Savitri Ratho )
Judge
Orissa High Court, Cuttack,
Dated the 7th October, 2021/B. Jhankar
MATA No.157 of 2019
with MATA Nos.150 & 151 of 2019
