Debasish Pattnaik vs Bani Bandana Das
2022 Latest Caselaw 4143 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                          MATA No. 75 of 2016

        Debasish Pattnaik              ....           Appellant
                         Mr. Bibekananda Bhuyan, Advocate
                              -versus-
        Bani Bandana Das               ....         Respondent
                                    Mr. R.N. Prusty, Advocate
                       MATA NO.76 OF 2016
        Debasish Pattnaik             ....         Appellant
                      Mr. Bibekananda Bhuyan, Advocate
                           -versus-
        Bani Bandana Das              ...          Respondent
                                    Mr. R.N. Prusty, Advocate

                       CORAM:
                       JUSTICE S. TALAPATRA
                       JUSTICE M. S. SAHOO

                                     ORDER

Order No. 24.08.2022

19. 1. This matter is taken up through hybrid mode.

2. The aforementioned appeals are combined for

disposal by a common judgment.

3. In the appeal being MATA No.75 of 2016, the

judgment dated 25.04.2016 delivered in C.P. No.08 of

2011 by the Judge, Family Court, Cuttack has been

challenged and in the appeal being MATA No.76 of

2016, the judgment dated 25.04.2016 delivered in C.P.

No.557 of 2014 has been challenged by the appellant.

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4. At the outset, it may be noted that the matrimonial

suit being C.P. No.08 of 2011 was instituted by the

appellant for dissolution of marriage on the ground of

cruelty, whereas the other C.P. No.557 of 2014 was

instituted by the Respondent (wife) U/s.9 of the Hindu

Marriage Act, 1955 for decree of restitution of conjugal

rights. In the suit filed by the appellant, the ground

that has been resorted to, is U/s.13(1) (i-a) of the

Hindu Marriage Act, 1955, owing of non-consummation

of marriage. In the other suit as instituted by the

Respondent, the fundamental ground that has been

taken is that without any reasonable cause, the

appellant has been living separately by denying the

respondent [in the appeal] her right to enjoy the

conjugal right. Both the suits were for obvious reasons

tried together. By the said judgment, the suit instituted

by the appellant was dismissed on the ground that the

suit was instituted before completion of one year of

marriage and without leave in consonance with the

provisions of Section 14(1) of the Hindu Marriage Act,

1955. As such, it has been held by the Judge, Family

Court, Cuttack that the suit cannot be maintained and

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it has to be dismissed as the suit was filed

prematurely. However on appreciation of the facts as

brought on records by the rival parties, the Judge,

Family Court allowed the suit, instituted by the

Respondent for restitution of conjugal rights directing

the appellant herein to join the company of the

respondent and resume conjugal life with her within a

period of two months. Both the judgments as noted

above have been challenged by the appellant by filing

two different appeals, as noted above.

5. Mr. B. Bhuyan, learned counsel appearing for the

appellant has submitted that the Judge, Family Court

has failed to understand the purport and intent of

Section 14 (1) of the Hindu Marriage Act, 1955.

According to him, a suit can be instituted prior to

completion of one year of marriage as the very

provision is directory in nature. That apart, Mr.

Bhuyan, learned counsel has submitted that the

appellant had, subsequently, filed one application in

terms of the proviso below Section 14(1) of the Hindu

Marriage Act, seeking leave for institution of the suit

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before expiration of one year of marriage. The Judge,

Family Court ought to have allowed the prayer for leave

for filing the matrimonial suit before expiration of one

year, post ex facto and would have cured the

irregularity on taking into consideration that Section

14(1) is in spirit directory. In support of his

contentions, Mr. Bhuyan, learned counsel has referred

two decisions. One is of the Madras High Court in the

case of Indumathi vrs. Krishnamurthy: [1999(1)

CTC210]. In that report, the Madras High Court had

occasion to observe that Section 14(1) of the said Act is

only directory and any irregularity in the procedure, in

presentation of the petition for divorce, even in

contravention of Section 14(1) of the Act is not fatal to

the proceeding, unless manifest injustice is shown to

have been caused to the respondent. Almost in the

similar line a Division Bench of the Calcutta High

Court in Rabindranath Mukherjee vrs. Itee

Mukherjee: III(1991)DMC 227(DB) gave their opinion.

6. Mr. Bhuyan, learned counsel has submitted that

non-consummation of a marriage for resistance or

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inhibition or for any other factor which disrupts the

cohabitation constitutes cruelty. It has been asserted

by him that the appellant has successfully proved the

cruelty that he had pleaded in the petition filed

U/s.13(1)(i-a) of the Hindu Marriage Act, 1955.

According to Mr. Bhuyan, learned counsel, for the

serious defect in the sexual organ of the respondent,

the appellant could not consummate the marriage and

according to the appellant, the said fact was never told

by the respondent to him before or after marriage. Mr.

Bhuyan, learned counsel, having taken us to the

opinion of the expert, has submitted that the

respondent is unfit to consummate the marriage. Mr.

Bhuyan, learned counsel, has contended that even the

respondent disobeyed the medical advice given by the

expert, Dr. S. Kanungo, who had examined the

respondent on 10.08.2015. Therefore, according to Mr.

Bhuyan, learned counsel for the appellant, not only the

physical defects that the respondent has, but there was

resistance from the respondent to cohabit. Dr.

Kanungo is holding the senior position in the

Department of Obstetrics and Gynaecology in SCB

// 6 //

Medical College and Hospitals, Cuttack. In the

judgment, as pointed out by Mr. Bhuyan, learned

counsel for the appellant, the opinion of Dr. Kanungo,

Professor and H.O.D. in the Department of Obstetrics

and Gynaecology, SCB Medical College & Hospital,

Cuttack has been discussed exhaustively. Dr. Kanungo

(P.W.6) appeared in the trial and testified in respect of

her report (Ext. A & B). From the evidence of P.W.6, it

surfaced that the respondent-wife has retroverted

uterus, Grade-I. But she has definitively opined that

retroverted uterus Grade-I cannot be an obstacle to

maintain smooth sexual relationship between the

couple and the wife, having retroverted uterus, is quite

capable of normal sexual life. It cannot be said that

that the respondent is unfit to have the sexual

intercourse. While giving her evidence, P.W.6 has

referred to the factors which may contribute to a

phenomenon called retroversion of uterus. Those parts

of the opinion are very relevant and as such, we will

not go into further details about the expert opinion in

respect of the matter.

// 7 //

7. Mr. Bhuyan, learned counsel for the appellant has

submitted that since 2011, precisely from 10.08.2011,

the spouses were living separately from each other and

they were having no conjugal life. Thus, the marriage

has become dead to such extent that, it cannot be

retrieved and hence the parties do deserve relief from

the misery of carrying on the lifeless marriage. The

decree of divorce is an essential remedy in the

circumstances. Mr. Bhuyan, learned counsel did not

forget to mention that, not living together for such a

long time makes the couple strangers. Even, the

ground of desertion has been taken by the appellant,

but the said ground could not be proved, inasmuch as

the essential feature of desertion is animus in the

relation and obligation to prove lies on the respondent,

the petitioner in the proceeding below.

8. Mr. R.N. Prusty, learned counsel for the respondent

has quite robustly submitted that when the

matrimonial suit for divorce is itself not tenable in the

eye of law, in terms of the provisions of Section 14(1) of

the Hindu Marriage Act, 1955, the suit ought not have

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been tried as the Court lacked jurisdiction in view of

the expressed statutory bar in entertaining any suit

before expiration of one year of marriage or without

leave from the Court as provided by the proviso below

Section 14(1) of the Hindu Marriage Act, 1955. The

Judge, Family Court, Cuttack could not have

entertained the suit at all. Finally, such order has been

passed, but the similar order was to be passed at the

threshold. The suit has dismissed for having filed

prematurely. Mr. Prusty, learned counsel has

extensively referred to Sections 14(1) and 14(2) of the

Hindu Marriage Act, 1955 for the purpose of reference.

Both the sub-sections of Section 14 are reproduced

hereunder:-

"14. No petition for divorce to be presented within one year of marriage- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner

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or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year."

[Emphasis added]

It is apparent from Section 14 that "No petition

for divorce to be presented within one year of marriage",

while Section 14(1) postulates further that

notwithstanding anything contained in this Act, it shall

not be competent for any Court to entertain any

petition for dissolution of marriage by a decree of

divorce, unless at the date of the presentation of the

petition one year has elapsed, since the date of

marriage.

// 10 //

9. According to Mr. Prusty, there is no ambiguity in the

provisions. The alternative that is available for

presenting the matrimonial suit for divorce before

expiration of one year has been provided under proviso

to Section 14 of the said Act. The said proviso, inter alia

postulates that application under this Section may be

made for leave to present a petition for divorce before

expiration of one year from the date of marriage, on the

ground of severe hardship and in a situation where no

probability emerges for reconciliation between the

parties. In this regard, the rules as framed by the High

Court of Orissa called "The Hindu Marriage & Divorce

(Orissa High Court) Rules, 1956 has been referred by

Mr. Prusty, learned counsel for the respondent. It has

been provided under Rule-6 of the said Rules that

"where any party to a marriage desires to present a

petition for divorce within one year of such marriage , he

or she shall obtain leave of the Court U/s. 14 of the Act

on ex parte application made to the Court in which the

petition for divorce is intended to be filed."

// 11 //

10. It is an admitted fact that at the time of

presentation, no leave was available to the appellant

as he did not apply for such leave under proviso of

Section 14(1) of the Hindu Marriage Act, 1955. Mr.

Prusty, learned counsel for the respondent has

emphatically submitted that there is no infirmity in

the finding as returned by the Judge, Family Court,

which is under challenge in this appeal. Apart that

Mr. Prusty, learned counsel has referred a decision of

this Court in Saudamini Lenka @ Mohapatra vrs.

Khageswar Lenka: 2001 (I) OLR 51. It has been

observed in the said report having referred to Section

14(1) of the Hindu Marriage Act that leave can only be

granted in the cases of "exceptional hardship" or

"exceptional depravity". In absence of leave, no suit

can be entertained or maintained.

11. Having appreciated the rival contentions, what

comes to the foreground is that the suit as instituted

by the respondent for restitution of conjugal rights,

was decreed, as sequel to dismissal of the suit for

divorce. It further appears that the decree of

// 12 //

restitution of conjugal rights has been passed, having

adopted a welfare attitude for reconstruction of the

marriage that subsists between the appellant and the

respondent. We are totally in agreement with Mr.

Prusty, learned counsel for the respondent that the

court did not have any duty to enter into the merit of

the suit as there was no leave under proviso to

Section 14(1) of the Hindu Marriage Act,1955, as the

suit was filed before efflux of one year from the date of

marriage, which was solemnized on 16.05.2010. The

suit was instituted on 03.01.2011. The other suit was

filed on 27/25.10.2014 by the respondent.

Mr. Bhuyan, learned counsel for the appellant

has strenuously argued that the provision of Section

14(1) of the Hindu Marriage Act,1955 is to be

considered directory in nature and any competent

court at his discretion can allow one of the spouses to

institute a matrimonial suit for divorce before

expiration of one year. If such analogy is accepted, the

specific provision for taking leave under Section 14(1)

of the Hindu Marriage Act,1955 will turn otiose.

Under the rules of interpretation, a statutory provision

// 13 //

cannot be made otiose by way of interpretation, as it

is the golden principle that what has been provided in

the statute, has to be understood by its words and

phrases, not otherwise. Interpretation may require

when there is ambiguity or gap leading to the legal

difficulty in implementing the statutory provision. No

interpretation can substitute the statutory provision.

The decision of two High Courts as aforenoted could

not pursuade us, as according to our considered

opinion, those decisions are per incuriam vis-à-vis the

provisions laid under Section 14(1) of the Hindu

Marriage Act, 1955. As such, we are of the view that

the suit instituted by the appellant was hit by the

provision of Section 14(1) of the Hindu Marriage

Act,1955 and the findings as returned by the learned

Judge, Family Court by the impugned judgment,

therefore, cannot be faulted with. Hence, the appeal

being MATA No.75 of 2016 stands dismissed.

12. Before parting with the records, we would like to

note that P.W.6 has categorically stated that for the

retroverted uterus, the consummation of marriage

// 14 //

cannot be affected adversely. To fortify, in this regard,

we would like to go back to the report of the expert,

where she has categorically stated that "retroverted

uterus Grade-I cannot be an obstacle to maintain

smooth sexual relationship between the couple".

Therefore, even the plea of cruelty would not sustain

and the desertion as pleaded cannot be attributed to

the respondent inasmuch as, we have noticed from

the evidence of the respondent (D.W.1) that she had

tried to re-unite with the appellant.

As far as the decision in the matrimonial suit

being C.P. No.557 of 2014 is concerned, we find the

finding returned by the Judge, Family Court is only

natural. When the substantial ground of cruelty found

no basis, it was the duty of the Judge, Family Court to

make all attempts to re-unite the estranged couple

and reconstruct their marriage. As such, we are

reluctant to interfere with the finding, and the

direction as passed in the said suit. Accordingly, the

judgment dated 25.04.2016 as passed in C.P. No.557

of 2014 which has been challenged in the appeal

being MATA No.76 of 2016 stands affirmed by us. As

// 15 //

consequence, the appeal being MATA No.76 of 2016

stands dismissed.

Decree be drawn accordingly.

Sent down the LCRs, if received, thereafter.

(S. Talapatra) Judge

(M.S. Sahoo) Judge

RRJena/GS