Orissa High Court
Dayanidhi Rayguru vs Tanima Tripathy @ Rayguru on 2 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA NO.57 OF 2019
Dayanidhi Rayguru .... Appellant
Mr. Hemant Ku. Mund, Advocate
-versus-
Tanima Tripathy @ Rayguru .... Respondent
Mr. S. Chakravarty, Advocate
CORAM:
JUSTICE S. TALAPATRA
JUSTICE M.S.SAHOO
ORDER
Order No. 02.08.2022
9. 1. This matter is taken up through hybrid mode.
2. This appeal has been filed challenging the judgment dated
12.01.2015 passed by the Judge, Family Court, Cuttack in Civil
Proceeding No.914 of 2011 (RFA No.3 of 2009).
3. By the said judgment, the Judge, Family Court has observed
that the ground of cruelty as pleaded by the appellant (as the
petitioner) in the matrimonial suit could not be established and
as consequence, the judgment and decree dated 23.05.2009
passed by the learned Civil Judge (Senior Division), Malkangiri
in MAT Case No.35 of 2008 has been affirmed. It may be noted
at this juncture that under a special circumstance by the order
of this Court, the Judge, Family Court, Cuttack acted as the
appellate Court. We should note that such order passed by this
Court was in an exceptional case and on applying the doctrine of
necessity. Hence, that will not create any precedence for future
purpose.
The appellant had married the respondent herein on
24.05.2022 as per the Hindu Rites and Customs. Thereafter,
they consummated the marriage and in the wedlock, their only
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son is born, who at present is studying in the National Defence
Academy (NDA).
4. The appellant filed MAT Case No.49 of 2014 in the Court of
Civil Judge (Senior Division), Nuapada, subsequently, on
transfer, by the judgment and decree dated 23.05.2009, the Civil
Judge (Senior Division), Malkangiri dismissed his
application/petition seeking divorce. By the order dated
19.11.2010, which has been referred before, this Court in TRP(C)
No.58 of 2009 transferred the appeal to the Court of the
Additional District Judge, Malkangiri, but since the Additional
District Judge, Mlakangiri recused, on reference, the said appeal
was transferred to the Judge, Family Court, Cuttack for deciding
the appeal, which was preferred against the said judgment and
decree dated 23.05.2009.
5. We have already recorded the outcome of the appeal.
Against the said judgment of affirmance, the present appeal
has been filed.
6. On 02.08.2022, the respondent (wife) has filed an
affidavit stating that she has been living separately from
her husband (the appellant) since 2007 and there was
series of litigations. In paragraph-3 of the said affidavit, she
has further stated on affirmation to the Court that "I have
no objection if the marriage solemnized between me and the
appellant on 24.05.2002 will be dissolved by passing a
Decree of Divorce."
She has revealed to the Court at paragraph-4 of the said
affidavit as follows :
"That in case of dissolution of marriage, I will not claim
any maintenance of alimony for myself from the appellant,
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but since I am all alone maintaining the our only son
Omkar Asutosh, since 2007 by giving him proper
education as a result of which he has not only
successfully passed out his 10th & 12th class from
Rastriya Indian Military College (RIMC), Dehradun and
thereafter appeared in the entrance exam for National
Defence Academy (NDA) and stood All India Topper in the
(NDA) examination for its 147th Course and is presently
undergoing training in Naval Academy, Bengaluru under
NDA, the appellant being a responsible father who is
working as an Asst. Engineer under the R & B Division,
under Khurda District be directed to substantiate at least
the educational expenses of the son Omkar which has
been borne by me alone for last 14 to 15 years. I am
submitting the details of the educational expenses of our
son along with some of the copies of the receipts available
with me for kind perusal of this Hon'ble Court for
reference."
Pursuant to the paragraph-4 of the said affidavit, she has given
the expenses, she had incurred or she would incur in bringing up her
son, namely, Omkar Asutosh. This is definitely a new development in
the appeal and we have taken the advantage of presence of the
appellant in person in the proceeding today.
7. Having appreciated the calculation made by the wife and giving a
credence to such calculation and further on interaction with the
appellant, we have decided that the decree of divorce be passed on
admission, subject to condition that a lump sum alimony to the
extent of Rs.10,00,000/- (Rupees ten lakhs) shall be paid by the
appellant in the form of term-deposit in favour of his son, namely,
Omkar Asutosh. The certificate of the said term deposit be furnished
to the Registrar (Judicial) of this Court within a period of three
months from today.
Since the respondent has admitted the relief as sought in the
said MAT Case No.35 of 2008, we find a decree of admission can be
passed by this Court without any legal embargo. Accordingly, the
appeal stands allowed and consequently, we set aside the judgment
and decree dated 23.05.2009 passed by the Civil Judge (Senior
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Division), Malkangiri in MAT Case No.35 of 2008 and the judgment
and decree dated 12.01.2015 passed by the Judge, Family Court,
Cuttack in Civil Proceeding No.914 of 2011 (RFA No.03 of 2009).
8. The matrimonial suit being MAT Case No.35 of 2008 is decreed
subject to payment of Rs.10,00,000/- in the form of a term deposit in
favour of the son of the parties, namely, Omkar Asutosh within a
period of three months from today before the Registrar (Judicial) of
this Court.
9. The decree be prepared after the fixed deposit certificate is
submitted.
On consideration that the son as named above has been
prosecuting his studies in the National Defence Academy, his
presence for receiving the term deposit certificate may be difficult the
respondent, Smt. Tanima Tripathy is/be allowed to receive the said
fixed deposit certificate on behalf of Omkar Asutosh, the son of the
parties.
The affidavit filed by the respondent is taken on record.
LCRs be sent down after drawing up the decree.
(S. Talapatra)
Judge
(M.S. Sahoo)
Judge
Gs/Radha
