Orissa High Court
Dinesh Kumar Patra vs Rinkojini Swain on 14 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA Nos. 99 of 2023 and 101 of 2023
Dinesh Kumar Patra .... Appellant
-versus-
Rinkojini Swain .... Respondent
Advocates appear in the case:
For appellant: Mr. G. Mishra, Advocate
For respondent: Sidharth Mishra, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
JUDGMENT
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Date of Hearing and Judgment: 14th December, 2023
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ARINDAM SINHA, J.
1. Mr. G. Mishra, learned advocate appears on behalf of appellant-
husband in these two appeals. It appears both the appeals have been
preferred against judgment dated 14th February, 2023 passed by the family
Court. Mr. Mishra clarifies, by order dated 27th October, 2022 his client's
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civil proceeding for dissolution of marriage was dismissed for no steps
taken by his client and the counter claim made by respondent-wife had not
been served as would appear from said order. That is sufficient for setting
aside the order in appeal (MATA no.99 of 2023).
2. Mr. S. Mishra, learned advocate appears on behalf of respondent-wife
and submits, both the parties had filed for divorce. His client did so by
lodging counter claim after having filed written statement in the civil
proceeding. There was no error by the family Court in directing permanent
alimony as section 25 in Hindu Marriage Act, 1955 empowers the Court to
make the direction incidentally on adjudication and thereby dissolution of
marriage. There should not be interference in appeal.
3. Mr. G. Mishra in reply reiterates, the counter claim was never served
on his client. There having been omission on his client's part to appear does
not take away the requirement, regarding service of the counter claim.
Furthermore, there was no prayer in the counter claim for permanent
alimony. However, there were statements made in it for permanent alimony.
4. Though, appellant husband is aggrieved firstly, by dismissal of the
civil proceeding on order dated 27th October, 2022 but the appeal (MATA
no.99 of 2023) has been preferred against the common judgment. The other
appeal (MATA no.101 of 2023) has been preferred from the common
judgment regarding direction on permanent alimony at ₹18,00,000/-.
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5. We have perused the order-sheet. By order dated 27th October, 2022
not only petitioner's civil proceeding was dismissed but also was said, 'copy
of counter claim has not yet served'. On several dates thereafter, appellant-
husband did not appear but on 4th and 6th January, 2023 he was represented
by learned advocate. Subsequent thereto, on 14 th February, 2023, the
judgment was passed, in a situation where none of the parties had taken
steps. On careful scrutiny of orders made commencing 27th October, 2022
till order dated 14th February, 2023 on passing of the judgment, we have not
found that the Court below obtained satisfaction on service regarding the
counter claim.
6. The counter claim was, however, adjudicated by the Court below.
Respondent-wife filed evidence on affidavit, which was treated as her
examination-in-chief. We reproduce her oral evidence in support of the
affidavit, to tender the documents in evidence. It was by paragraph 23,
reproduced below.
"23. This is photocopy of Bank Statement of my brother
marked as Ext.1(2 sheets). This is photocopy of my Bank
Statement marked as Ext.2(3 sheets). These are certified copies
of ROR Khata No.255 & 322/59 mauza Kuranjipur marked as
Ext.3 & 4 respectively. This is free copy of order dated
11.10.2022 in DV No.85/2021 marked as "X". This is free copy
of FIR No.0103 and GR No.337/2021 marked as Ext.5. This is
my Admit Card marked as Ext.6. This is photocopy of IIFL Gold
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Loan marked as Ext.7(1 sheet only). This is photocopy of
medical papers of my husband marked as Ext.8(9 sheets)."
7. In context of evidence adduced by respondent-wife, against which
there was no cross-examination by appellant-husband on his omission, we
reproduce below paragraph 7 (ii) in impugned judgment and order made
thereby.
"07(ii).In the case at hand, it reveals from the evidence of the
wife-respondent that her husband is a lawyer and earns
Rs.70,000/- from his profession. He is getting Rs.3,00,000/- per
annum from his landed properties situated at his native village
Kurunjipur has furnished certified copies of RORs bearing
Khata no.255 and 322/59 of Mouza Kurunjipur standing in the
name of her husband. But she has not filed any document to
establish the exact income of her husband. However,
considering the age of marriage, which is eight months only,
age of both the parties, approximate income of the husband-
petitioner, cost of living and capacity of earning of respondent-
wife who is preparing OJS, this court is of opinion that the
respondent-wife is entitled to a reasonable permanent alimony.
Hence, it is ordered:
ORDER
The counter claim in this civil proceeding is allowed ex-
parte against the petitioner, but without cost. The marriage
solemnized between the petitioner and the respondent dtd.
10.03.2020 stands dissolved.
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The petitioner-husband is directed to pay Rs.18,00,000/-
(rupees eighteen lakh only) to the wife-respondent towards her
permanent alimony within two months of decree, failing which
the respondent-wife is at liberty to realize the same through
process of law.
This judgment is pronounced in the open court today this
the 14th day of February, 2023."
8. It will appear from perusal of above extract, appellant-husband's
income was taken to be ₹70,000/- based on oral evidence of respondent-
wife. The Court below though had property documents exhibited, did not
base its direction for permanent alimony on them. Reasons given for the
direction are consideration of age of marriage, age of both parties,
approximate income of husband, cost of living and capacity of respondent-
wife to earn, who at that time was preparing for Orissa Judicial Service
(OJS). In our view, the direction for ₹18,00,000/- to be paid as permanent
alimony on such consideration appears to be based on conjecture and
surmise. The family Court noted that appellant-husband was a lawyer aged
about 38 years on date of institution of the civil proceeding in year, 2021.
The judgement came in year, 2022. On query from Court Mr. G. Mishra
submits, his client does not have a flourishing practice in the District Court
at Cuttack his principal place of practice. The family Court being also in
Cuttack, there is no indication from impugned judgment that the learned
judge was aware of appellant-husband as a legal practitioner.
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9. Considering absence of record on satisfaction of service regarding
the counter claim coupled with appellant-husband having been represented
in the Court below immediately prior to passing of the judgment, our above
finding on basis given in impugned judgment for directing the permanent
alimony, we are of view that the appeal (MATA no.101 of 2023) must result
in order for remand. We accept submission made on behalf of respondent-
wife that the dissolution of marriage is something, on which no question can
be raised in the appeals. The dissolution of marriage in impugned judgment
is confirmed.
10. Appeal being MATA no.99 of 2023 is dismissed. Appeal being
MATA no.101 of 2023 results in partial setting aside of impugned judgment
with direction for remand under rule 23A in order XLI, Code of Civil
Procedure, 1908. We observe that subsequent events have taken place and
the family Court while adjudicating on the issue of permanent alimony on
remand, will take into consideration the subsequent events as empowered by
sub-section (2) in section 25.
11. Mr. G. Mishra relies on view taken by us on judgment dated 16th
November, 2023 in MATA no.166 of 2019 (Smrutimala Dash v.
Chinmaya Panda), paragraphs 4, 5 and 6. The view has no application
to this case regarding direction for remand on permanent alimony
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because though the counter claim did not specifically carry claim for
permanent alimony, relevant pleadings were there.
12. MATA no.101 of 2023 is accordingly disposed of.
(Arindam Sinha)
Judge
(S.S. Mishra)
Judge
Sks
Designation: PERSONAL ASSISTANT
