Orissa High Court

Subhransu Kumar Behera vs Mamina Behera on 11 December, 2023

Author: Arindam Sinha

Bench: Arindam Sinha

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 MATA No. 112 of 2022


      Subhransu Kumar Behera                            ....                 Appellant

                                          -versus-

      Mamina Behera                                     ....               Respondent




      Advocates appears in the case:

           For appellant:         Mr. B.C. Parija, Advocate

           For respondent: Mr. Hrudananda Mohapatra, Advocate




                   CORAM:

                                 JUSTICE ARINDAM SINHA
                                 JUSTICE SIBO SANKAR MISHRA


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                Date of Hearing and Judgment: 11th December, 2023
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ARINDAM SINHA, J.

1. The appeal has been preferred against judgment dated 16th May,

2022 of the family Court refusing to dissolve the marriage as petitioned

by appellant-husband. Facts of the case are, the marriage was solemnized

on 3rd February, 2014. On 12th February, 2015 a son was born to the

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couple. On 7th February, 2016 respondent-wife left the matrimonial

home. Mr. Parija, learned advocate appears on behalf of appellant-

husband and submits, he is urging the ground of desertion. The family

Court erred in not appreciating there was desertion and therefore ground

under section 13(1)(i-b) in Hindu Marriage Act, 1955 stood

demonstrated for the marriage to be dissolved. Since February, 2016

there has been no husband-wife relationship for the parties to remain

married. As such the marriage has irretrievably broken down and not

granting divorce has perpetuated the cruelty. He relies on judgment

dated 26th April, 2023 of the Supreme Court in Civil Appeal no.2012

of 2013 (Shri Rakesh Raman v. Smt. Kavita), paragraph-18,

reproduced below.

"18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a

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long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a 'marriage' would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock."

(emphasis supplied)

2. He also relies on view taken by a Division Bench of the High

Court of Madras by judgment dated 20th January, 2021 in C.M.A.

no.3829 of 2019 (Bhuvaneswari v. S.K. Jayakumar). He relies on

paragraph-12 wherein the Bench relied on judgment of the Supreme

Court in Pankaj Mahajan v. Dimple alias Kajal reported in (2011) 12

SCC 1, paragraphs 36 and 37. We must point out here itself that Pankaj

Mahajan (supra) is not applicable because the Supreme Court confirmed

fact found in that case that there was mental disorder of respondent-wife.

3. Mr. Mohapatra, learned advocate appears on behalf of respondent-

wife and submits, none of the grounds taken in the petition, neither

cruelty nor desertion was proved. The Court below correctly appreciated

the facts and made impugned judgment. It be confirmed and the appeal

dismissed.

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4. The only ground urged is desertion. We perused paragraph-16 in

the petition for fact of desertion pleaded. The paragraph is reproduced

below.

"16. That on dt.07-02-2016 while the petitioner was present in matrimonial home the respondent demanded an amount of Rs.30,000/- (Thirty Thousand) to the petitioner and on enquiry made by the petitioner the respondent came straight forward and told that her parents were in need of money and the aforesaid amount should be given to her parents for which the petitioner disclosed his inability to give the said amount to the parents of the respondent for which the respondent became violent and assaulted the petitioner and to the ailing old parents and even threaten to kill the parents of the petitioner. And the respondent on dt.07-02-2016 left the matrimonial home along with the child with some relatives of the respondent and remained at her parents house in Village Khankar, Sdn./Dist.- Dhenkanal till now."

(emphasis supplied)

There were three witnesses from side of appellant-husband. Respondent-

wife was also examined.

5. We found the pleading to be that respondent-wife left on 7th

February, 2016 along with the child with some of her relatives. She

remained at her parents' house thereafter. P.W.3 was said to be an

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independent witness, who was president of Gopal Samaj, to which at

least the husband and his family belongs. P.W.3 in paragraph-6 of his

evidence-on-affidavit said, in his presence respondent-wife left her in-

laws house in year, 2016 with her relatives. Several times appellant-

husband tried to bring her back. He, accompanied by other village gentry

also went to bring her back but to no avail. In cross-examination

however, the witness could not remember the dates. In paragraph-3 of

his deposition dated 2nd December, 2021 in cross-examination he said, in

his presence respondent-wife had forced appellant-husband to take her to

his service place. He could not say whether there was a child in the

marriage.

6. Respondent-wife was cross-examined. Relevant suggestion given

to her was that appellant-husband was forced to leave her in her parents'

house because of her attitude and behaviour. She said, 'It is not a fact

that Subhransu has forced to leave me in my parent's house because of

my attitude and behaviour'.

7. The Court below disbelieved the evidence on side of appellant-

husband. Particularly disbelieved was P.W.3.

8. Careful reading of paragraph-16 in the petition reveals that the

allegation was, on 7th February, 2016 respondent-wife left the

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matrimonial home along with the child with some of her relatives. There

is no statement that it was against wish of the husband or she left without

his consent. Statement of P.W.3 in cross-examination by his deposition

dated 2nd December, 2021 was, in his presence respondent-wife had

forced Subhransu to take her to his service place. Suggestion given to

respondent-wife in cross-examination, as appearing from her deposition

dated 15th March, 2022 was, as aforesaid, the wife had forced the

husband to leave her in her parent's house, because of her attitude and

behaviour. Respondent-wife had denied the suggestion.

9. In Malathi Ravi v. B.V. Ravi, reported in (2014) 7 SCC 640,

paragraph 19 the Supreme Court reiterated declaration of the law on

desertion. We reproduce below paragraph 19.

"19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey has ruled thus:(SCC pp. 80- 81, para 8)-

"8 'Desertion', for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by

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taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion."

(emphasis supplied)

10. The trial Court relied on an earlier declaration by the Supreme

Court in Bipinchandra Jaisingbhai Shah Vs. Prabhavati, reported in

AIR 1957 SC 176. On fact, the trial Court also found appellant-husband

was staying at Jharsuguda since year 2015-2016 but he said in cross-

examination that he never took his wife to Jharsuguda. The Court

interpreted the statement, in absence of any reason given in the evidence

of appellant-husband and obviously concluded that appellant-husband did

not try to take respondent-wife to stay with him in Jharsuguda. In the

circumstances, we have nothing in the material before us to suggest

respondent-wife left appellant-husband without his consent with clear

intention to put an end to marital relationship and thereby abandon the