In The Matter Of An Appeal Under ... vs Byomakesh Biswal
2022 Latest Caselaw 5051 Ori

     THE HIGH COURT OF ORISSA AT CUTTACK

                         MATA No.31 of 2022
  In the matter of an appeal under Section 19 (1) of the Family Courts Act,
                                    1984.
                              -----------
Satabdi Pradhan
W/o. Byomakesh Biswal,
D/o. Akshaya Kumar Pradhan,
At- Anantapur, P.O./P.S.- Kamakhya Nagar,
District- Dhenkanal.
                                      ........                        Appellant

                            -Versus-
Byomakesh Biswal,
S/o. Akura Biswal,
Resident of Anantapur,
P.O./P.S.- Kamakhya Nagar,
District- Dhenkanal.
                                ........                Respondent
___________________________________________________________
          For Appellant   : Ms. Ruchi Rajgarhia, Advocate

          For Respondent  : Mr. P.R. Barik, Advocate.
___________________________________________________________

      CORAM:

      THE HONOURABLE SHRI JUSTICE S. TALAPATRA
      THE HONOURABLE SHRI JUSTICE M.S. SAHOO

                            JUDGMENT

rd 23 September, 2022

S. Talapatra, J. Being aggrieved by the common Judgment dated

11.11.2021 delivered in C.P. Case No.67 of 2020 titled as Satabdi

Pradhan vs. Byomakesh Biswal and C.P. Case No.29 of 2021 titled as

Byomakesh Biswal vs. Satabdi Pradhan, the appellant has preferred this

appeal in as much as by the said Judgment the matrimonial suit filed by

the appellant in MATA No.31 of 2022, being C.P. No.67 of 2020 has

been dismissed observing that the suit is collusive one, as on

appreciation of evidence, it has surfaced that the respondent herein was

reluctant to bring out the truth by way of cross-examination and

observed by the Judge, Family Court that on a threadbare scrutiny of

the order and documentary evidence on record, collusion of the parties

is apparent.

2. According to the Judge, Family Court, Dhenkanal, the

approach made by both the parties is theatrical and farcical in the

matrimonial proceedings.

3. In view of the finding regarding collusive nature of the suit,

the other evidence, as adduced, has been discarded. Consequently, C.P.

No.67 of 2020 stood dismissed on contest.

4. It may be noted that the other matrimonial suit being C.P.

No.29 of 2021 was instituted by the respondent herein, in MATA No.31

of 2022 under Section 9 of the Hindu Marriage Act, 1955 seeking

restitution of the conjugal rights.

5. It has been noted that the respondent in the pleading had

made serious allegation against the appellant herein. The suit for

restitution of conjugal rights filed by the respondent is ex facie based on

allegations of severe form of cruelty and leading unadulterious life by

the appellant.

6. It has been correctly observed by the Judge, Family Court,

Dhenkanal, even though such serious allegation of adultery has been

made by revealing the name of the person with whom the appellant was

having such relation, but in observance of Rule-5 of the Hindu Marriage

and Divorce (Orissa High Court) Rules, 1955, the said person has not

been added as the co-respondent. The said Rule categorically provides

that for the person, who is bringing the allegations of adultery, it is

imperative for him that the other person, who is involved in the adultery

with the principal respondent be added as the co-respondent. At the

same time, it has been observed that the rule is not very clear whether

the said requirement has to be observed in a suit for restitution of

conjugal rights or not. The Judge, Family Court has also observed that

such rule is required to be observed in the proceeding under Section-9

of the Hindu Marriage Act, mutatis mutandis. Even no leave has been

taken from the Court seeking to dispense with the joinder. Thus, the said

pleading has been discarded by the impugned judgment. Consequently,

the suit instituted by the respondent, being, C.P. No.29 of 2021 was also

dismissed, but the respondent did not prefer any appeal against the said

common judgment so far it concerned with C.P. No.29 of 2021. But the

appellant has challenged the finding in order to obtain the decree of

divorce.

7. It may be further noted that by the said common judgment,

the Judge, Family Court has also decided the issue of the custody of the

minor son of the parties, namely Shaunak. It has been observed that the

respondent has taken care of their son well and has been providing the

education in a reputed School of the State to ensure his bright future.

Having appreciated the respective positions of the parties, the custody

of their child has been denied to the appellant. It is directed that their

son will continue to be in the custody of the respondent.

8. In the appeal, the appellant has also challenged that finding

relating to custody. For interim custody of the minor, the appellant has

filed an application before this Court, being, I.A. No.40 of 2020 arising

from MATA No.31 of 2022. But no interim order has been passed.

9. In the pendency, the parties with intervention of their well-

wishers, filed a joint application under Order-23, Rule-3 of the CPC and

Section-21 of the Hindu Marriage Act, 1955 read with Section-10 of the

Family Courts Act, 1984 for passing a decree of divorce on

compromise. We had occasion to interact with the parties and in our

presence, the said agreement was arrived at. In para-5 of the said

application, being, I.A. No.191 of 2022, the terms of the settlement have

been recorded. Those terms of conditions are as follows:

i. It is mutually decided that the appellant will have no claim

whatsoever nature, in future, against the respondent. Similarly

the respondent shall have no claim whatsoever nature against

the appellant in future.

ii. Both the parties undertake that in view of this compromise they

will not take any legal action against either party or their

family members, relating to their marital life, after passing of

the decree of divorce.

iii. Both the parties undertake to withdraw the litigations pending

against either party, in view of the settlement/ compromise.

10. We have verified the terms and conditions in the

touchstone of Section-23 of the Indian Contract Act, but we do not find

any term of the settlement unlawful. Hence, we do accept the terms of

the settlement for giving a quietus to the long pending matrimonial

discord and accordingly, this appeal is allowed on compromise so far

the dissolution of marriage is concerned. The parties have urged this

Court to decide the custody of the child.

11. We had interaction with the parties being parents of the

child and also with the child, Shaunak to understand the elements of

comfort, assurance of proper care and bringing him up in a manner so

that he can meet the challenges of life.

12. It may be noted that the respondent has stated that he will

go by the decision as would be taken by the Court. We appreciate the

said approach of the respondent.

13. We have also heard the counsel in respect of the custody.

What we significantly observe that the alimony has come down and the

parties have realized their responsibility regarding upbringing of their

child in a healthy manner. For that purpose, love, affection and support

of both the parents are invaluable. We are inclined to interfere with the

order of the Judge, Family Court, as recorded in the common judgment

dated 11.11.2021 as regards the custody. We would restore the custody

of the son of the parties, namely Shaunak to the appellant, subject to the

following conditions:

[a] Shaunak, the child under reference has been studying in

SAI International School at Bhubaneswar and he will continue to study

in that School. The expenses shall be borne by the parties. For that

purpose, we will make a separate order. If there emerges requirement of

changing School, both the parties shall mutually agree on the new

School.

[b] None of the parties shall impose their own choice on the

other party. If the appellant finds any difficulty in maintaining the

custody of the child, she may surrender the custody voluntarily to the

respondent at any moment with notice. The respondent may accept such

custody without reference to us. But, if any conduct of the appellant

appears detrimental to the interest of the child, he is permitted to

approach the Judge, Family Court, Dhenkanal to re-determine the issue

of the custody, if he so requires.

[c] The appellant shall create necessary space so that the

respondent can visit, interact, stay with his son without any obstruction

or annoyance from the appellant. The respondent shall have the right to

visit his son twice in a fortnight on holidays. The place of visit their son

will be determined by the respondent. The appellant shall bring the child

to that place or venue, but the said visitation will not be for more than 2

hours in a day. But the right of visitation shall be always subject to

comfort of the child. If required, in the best interest of the child, the

respondent may abandon the visit and that will not affect his right in any

manner. After the visit is over, the child shall be allowed to go back with

the appellant.

[d] In addition to what has been observed above, we have been

given to understand that in the School, where the child is at present

studying, there are, at least, three long vacations, viz. Summer Vacation,

Winter Vacation and Puja Vacation. During the Summer Vacation, the

first part of the vacation, i.e. fifteen (15) days, the respondent may take

his son to his residence to live with his family. It is understood that

during that time, proper care about his health and education will be taken

by the respondent. During the Puja Vacation, which is considerably a

short vacation, the last part, viz. five (5) days, the child shall be sent for

living with the respondent. Similarly, during the Winter vacation, the

respondent may take his child for staying with him in the first part of the

vacation for three days with the similar terms and conditions of care. It

may be mentioned that the respondent shall be obliged to return the child

to the custody of the appellant before the School re-opens after vacation.

[e] The appellant shall cooperate fully for compliance of the

above terms and conditions. That apart, the parties may on mutual

understanding decide on the stay of the child, else all those conditions/

terms are binding on them.

[f] Both the parties shall co-operate each other for

safeguarding the interest of the child. They should always remember

that whatever has happened in their life, will have a great impact, but

their solemn duty shall be to reduce its impact to a minimal level so that

the child never feels deprived of a natural childhood, which the other

children of his age are having.

14. The custody of the child shall be given to the appellant

within a week from the date of this order. The child shall be taken to the

place of residence of the appellant by the respondent. That apart, the

respondent shall pay a sum of Rs.8,000/- (Rupees eight thousand) per

month for defraying the part of the educational expenses of the child.

The said amount has to be remitted to the appellant. The appellant shall

at no point of time resist the respondent from giving gifts to his son or

showing affection. What is most important is that, the child shall be

allowed to spend time with the respondent on his birthdays. Even the

respondent shall be allowed to take his son to his residence during the

day time for 3 to 4 hours on the birthday. The child shall be returned to

the custody of the appellant the evening falls. But on mutual

arrangement, the parties can meet at any common place for celebrating

the birthday of their son. But this clause is absolutely optional.

15. We are constrained to observe that, if either of the parties

deviates from observing the above clauses relating to the custody, the

other party may move to the Judge, Family Court, Dhenkanal for

determining the custody of the child afresh.

16. We do hereby authorize the Judge, Family Court,

Dhenkanal to take up the matter afresh in such event, as above noted for

determination of the custody, after taking all the relevant materials into

consideration.

17. In the result, the Judgment dated 11.11.2021 as delivered in

C.P. No.67 of 2020 stands set-aside in terms of the compromise for

dissolution of the marriage. We decree the suit. The marriage that was

solemnized on 11.02.2008 between the parties stands dissolved. In view

of the said compromise, no order for alimony is to be passed. So far the

custody of the child is concerned, it is ordered in terms of the above.

18. Pending application, if any, stands disposed of.

19. The decree shall be drawn in terms of the above.

20. Send down the physical records, if any, thereafter.

(S. Talapatra) Judge

(M.S. Sahoo) Judge

Orissa High Court, Cuttack.

The 23rd September, 2022/Subhasis Mohanty, P.A.