Orissa High Court
Puria Rout vs Bebby @ Bobina Rout on 23 August, 2023
ORISSA HIGH COURT : C U T T A C K
MATA NO. 61 OF 2018
An appeal under Section 19 of the Family Court Act, 1984.
Puria Rout : Appellant
-Versus-
Bebby @ Bobina Rout : Respondent
For Appellant : Mr. A. Tripathy, Adv.
For Respondent : Mr. S. Dwibedi, Adv.
Mr. R.K. Mahanta, Adv.
Mr. N. Hota, Adv.
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
JUSTICE M.S.SAHOO
Date of Hearing & Judgment : 23.08.2023
Per: Biswanath Rath, J. The Matrimonial Appeal involves a challenge to
the judgment passed by the Judge, Family Court, Nayagarh
involving an application under Section 13(I) of the Hindu Marriage
Act at the instance of the Husband registered as C.P. No. 32 of
2016.
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2. Taking this Court to the grounds taken in the memorandum
of Appeal and reading together with the observation of the Judge,
Family Court, Nayagarh in the fifth line of internal page-3 of the
impugned judgment, Mr. Tripathy, learned counsel for the
Appellant-Husband claims, for there is already admission by the
Judge, Family Court, Nayagarh, the proceeding should have been
allowed. Mr. Tripathy, learned counsel also has a second ground to
challenge the impugned judgment for being an ex parte in nature.
3. Mr. Hota, learned counsel for the Respondent-Wife herein
while admitting that the proceeding remains ex parte on account of
the Respondent-Wife and nothing to do with the Appellant-
Husband, however, taking as to the observations and the findings
of the Judge, Family Court, Nayagarh claims that the impugned
judgment is justified, requiring no interference in the same and thus
requests for dismissal of the MATA.
4. Considering the rival contentions of the parties, coming to
the second ground of challenge, this Court finds, undisputedly the
Respondent-Wife therein also the Respondent herein was ex parte.
For there is dismissal of proceeding under Section 13(I) of the
Hindu Marriage Act, the ex parte dismissal of the suit on account
of default of the Wife cannot be a ground in favour of the
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Appellant-Husband herein, the Petitioner in the original proceeding
for revival of the proceeding. It is clarified that if the Appellant-
Husband is to succeed, he is to succeed on the merit aspect only.
This Court thus rejects the above contentions of the Appellant-
Husband.
5. Coming to consider the ground of challenge on merit
involving the impugned judgment herein, this Court finds, the
Judge, Family Court, Nayagarh taking to the totality of the
pleading, evidence and the submissions made therein has come to
observe as follows:-
<4. It appears from the evidence of P.W. 1 that
in the year, 2002 the petitioner Puria Rout married the
O.P Bobina, A girl child namely Rubi took birth from
their wedlock. In the year, 2009 the O.P developed
some extra marital relationship with one Bhikshyakari
Bhola. On 13.10.2009 the O.P and Bhikshyakari Bhola
went away with some gold ornaments and cash from
the house of O.P without the knowledge of in laws. So
the petitioner lodged the FIR at Nayagarh P.S. On
21.11.2009 the IIC Nayagarh P.S. arrested
Bhikshyakari Bhola and released him with a direction
to settle up the dispute in an amicable manner. So on
25.11.2009 a meeting had been convened but could not
be successful. Thereafter, the O.P took shelter in the
State Woman commission only with an intention to
harass the petitioner. On the basis of said cause of
action the petitioner files this case with a prayer for
dissolution of marriage. On perusal of the case record,
it appears that the petitioner files this case on the
allegation of adultery committed by the O.P. It further
appears from the case record that the O.P developed
some extra marital relationship with another person
namely Bhikshyakari Bhola and eloped with him from
her matrimonial house for which the petitioner reported
the matter in writing to the police at Nayagarh P.S and
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other high official of the police department of Nayagarh
district. However, the petitioner has not produced any
documentary evidence to show that in actual he has
reported in writing to the police regarding the extra
marital relationship and matrimonial offence committed
by the O.P. No doubt a single act of adultery cannot
amounts to live in adultery. Adultery must be
continuous and not isolated act of immorality. There is
no satisfactory evidence on the part of the petitioner to
prove that the O.P has committed matrimonial offence.
Besides this, it is the settled principle of law that the
Court must be satisfied beyond the reasonable doubt as
to the commission of matrimonial offence. So the
evidence must be clear satisfactory beyond mere
balance of probability. In this present case the
petitioner Puria Rout only has taken attempt to establish
the matrimonial offence such as adultery by the O.P
only on the basis of oral evidence. No doubt only the
oral evidence in absence of corroboration and
documentary evidence, is not sufficient to hold that the
O.P has committed the matrimonial offence like
adultery. Considering the said facts and circumstances
of the case, it is concluded that the petitioner Puria
Rout could not establish the allegation of adultery
against the O.P. So he is not entitled to get the relief of
dissolution of marriage. Hence ordered.=
Reading the observation and the findings of the Judge,
Family Court, Nayagarh, this Court finds, there has been
threadbare consideration of the pleadings, evidence, the
submissions all made by the Appellant-Husband and finally finding
no support to the case of the Appellant-Husband herein was
pleased to dismiss the proceeding. On the claim of the Appellant-
Husband on admission of the Judge, Family Court, Nayagarh, this
Court observes, there is no question of a Court admitting to any
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contentions of the parties except observation made therein to such
effect has to be taken as an observation of the Court.
6. Learned Counsel for the Appellant leading his case on the
recording of the Judge, Family Court, Nayagarh to the effect no
doubt a single act of adultery cannot amounts to live in adultery,
appears to be a proposition dependant on the pronouncement of
judgment not an opinion involving the case favouring the
Appellant-Husband, it may be at best construed to be an opinion of
the Court and does not support the Appellant-Husband otherwise.
7. As a whole this Court finds no merit in the MATA requiring
interference with the impugned judgment. The MATA stands
dismissed. There is, however, no order as to cost.
(M.S.Sahoo) (Biswanath Rath)
Judge Judge
Orissa High Court, Cuttack.
The 23rd August, 2023//
Utkalika Nayak, Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 25-Aug-2023 14:37:47
