Orissa High Court
Manoj Kumar Moharana vs Subhalaxmi Moharana on 11 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 60 of 2022
Manoj Kumar Moharana .... Appellant
Mr. Sangram Mishra, Advocate
-versus-
Subhalaxmi Moharana .... Respondent
Mr. P.K. Mohanty, Advocate
CORAM:
JUSTICE S. TALAPATRA
JUSTICE M. S. SAHOO
ORDER
Order No. 11.08.2022
05. 1. This matter is taken up through hybrid mode.
2. This is an appeal U/s.19(1) of the Family Courts Act,
1984 challenging a part of the judgment dated
28.02.2022 delivered in C.P. No.659 of 2018 by the
Judge, Family Court, Cuttack.
3. There is no dispute that C.P. No.10 of 2017
[renumbered as C.P. No. 177 of 2017] was filed by the
appellant in the court of the Judge, Family Court,
Jajpur U/s. 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights. The respondent in this
appeal had instituted another proceeding being C.P.
No.659 of 2018 U/s. 13(1) of the Hindu Marriage Act,
seeking divorce on the ground of cruelty. There is no
dispute that the parties had struck a settlement and
filed a compromise petition on 11.01.2022. It was
agreed by the parties that all the litigations will be
withdrawn in terms of the compromise petition dated
11.01.2022 [Annexure-3 to the memorandum of
appeal]. Following the said terms of settlement the
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Judge, Family Court, Cuttack passed the said
judgment dated 28.02.2022 incorporating following
paragraph being para-6 in the said judgment :
"In view of the above statement of the
petitioner, it is held that she was subjected
to cruelty by the respondent and hence, she
is entitled to get a decree of divorce in her
favour. Hence, it is ordered."
ORDER
"The civil proceeding is allowed on contest
without any cost. The marriage solemnized
between the petitioner and respondent on
06.05.2015 stands dissolved. No order
passed regarding permanent alimony as the
petitioner has not claimed the same in view
of the compromise effected between both
the parties."
5. Mr. Sangram Mishra, learned counsel for the
appellant has submitted that the observation as made
in the above quoted part of the judgment that the
respondent was subjected to cruelty is totally uncalled
for, in view of the settlement, struck between the
parties. It was the duty of the Court to pass the order
according to the terms of the settlement, not beyond
that.
6. Mr. P.K. Mohanty, learned counsel appearing for the
respondent has acceded by stating that such
observation is totally uncalled for, in the
circumstances.
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7. Accordingly, this appeal stands allowed by
deleting the part viz. "it is held that she was
subjected to cruelty by the respondent and hence, in
her favour. Hence, it is ordered." from para-6 of the
impugned judgment. The first part of para-6 shall
now read as "In view of the above statement of the
petitioner, she is entitled to get a decree of divorce.
Hence it is ordered."
8. Further it is clarified that the decree of divorce as
issued, is in the nature of decree by mutual consent.
Therefore, any adverse observation is liable to be
avoided.
Draw the decree accordingly.
(S. Talapatra)
Judge
(M.S. Sahoo)
Judge
dutta
