Orissa High Court

Soubhagini Devi vs Prakash Kumar Samantray on 14 December, 2023

Author: Arindam Sinha

Bench: Arindam Sinha

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                     MATA No.243 of 2022


Soubhagini Devi                                 ....                Appellant

                                  -Versus-
Prakash Kumar Samantray                         ....              Respondent

Advocates appeared in the case:

For Appellant            : Miss P. Naidu, Advocate

For Respondent           : Mr. R.K. Samantasinghar, Advocate


         CORAM: JUSTICE ARINDAM SINHA
                        JUSTICE SIBO SANKAR MISHRA

                                 JUDGMENT

_______________________________________________________________________________ Dates of hearing : 1st December, 2023 and 14th December, 2023 Date of Judgment: 14th December, 2023

ARINDAM SINHA, J.

1. Miss Naidu, learned advocate appears on behalf of

appellant-wife. She submits, her client is aggrieved by

judgment dated 1st November, 2022 made by the family Court

in dismissing her client's civil proceeding with prayer for

dissolving the marriage. She submits, though it was a love

marriage facilitated by acquaintance of the parties on the

families being neighbors, things became bad when her client

got job with Central Industrial Security Force (CISF).

Respondent-husband doubted her faithfulness and loyalty. She

was humiliated in front of public in the small village where

both families reside. It was cruelty meted out to her client, for

which she filed the civil proceeding to obtain divorce on

ground in clause (i-a) in section 13(1) of Hindu Marriage Act,

1955.

2. On query from Court she draws attention to her client's

petition. Paragraph-13 is reproduced below.

"That the defendant called for a village meeting 14.12.2020 on showed the rough behavior to the plaintiff and abused her in the public that she has kept all nasty relationship of others in her work place as such the plaintiff was very much shocked, annoyed and lost her image in the public."

3. On further query from Court she submits, the case was

proved by respondent-husband in his cross examination. She

refers to deposition dated 13th September, 2022 in cross-

examination of respondent-husband, paragraphs 17 and 19. The

paragraphs are reproduced below.

"17. I use smart phone and know about face book and whats-App. As because the chatting between two parties is encrypted end to end so it is not possible to ascertain about their chatting so also with whom they are chatting. Likewise, a third person cannot ascertain about sending of photographs or messages between the two parties. It is a fact that it cannot be ascertained by me with whom my wife was talking whether with her senior or junior officials staying at her work place in Andhra Pradesh. My wife was talking over phone and was also chatting with Naba Kishore Behera of Nayagarh, Khageswar Behera of Balasore, Isant Meher and some others I cannot say their name. They are the colleagues of my wife.

19. I was not hurt mentally although my wife did not call me over phone on Sabitri Amabasya. I do not have any objection if the case filed by my wife is allowed. It is not a fact that my wife was not talking with any person creating any doubt as to her conduct and character and that as because I was regularly harassing my wife imputing her character in presence of the villagers and that I was even physically assaulting her for securing her salary illegally and snatched her jeweleries, for which

she has filed this case to dissolve our marriage. It is not a fact that as I was putting pressure through my villagers not to proceed with this case as a result the father of my wife had lodged a report at Ranpur Police station."

(emphasis supplied)

4. Mr. Samantasinghar, learned advocate appears on

behalf of respondent-husband and submits, his client never

named any person on allegation of liaison with his wife in the

written statement. Case made out in the petition was not proved

in the Court below. The marriage was on the couple finding

each other. It was well within domain of the marriage for the

husband to say things to his wife regarding her conduct in her

place away from the matrimonial home, even when required by

her in her line of duty. That cannot amount to cruelty.

Impugned judgment therefore be confirmed and the appeal be

dismissed.

5. Paragraph-13 in the petition was specifically denied in

paragraph-16 of the written statement. The paragraph is

reproduced below.

"16. That, the averments made in paragraph 11 (eleven), 12 (twelve) & 13 (thirteen) are all false. It is false to say that the respondent called the petitioner for discussion and did not allow the petitioner to his house on 06.12.2020 and also showed rough behavior in a village meeting held on 14.12.2020 with an allegation that the petitioner has kept nasty relationship with others."

6. In the circumstances, there was necessity to prove the

allegation of slander made by respondent-husband against

appellant-wife in the village meeting, where the villagers heard

it. Appellant-wife did not produce any person either as party

witness or on summons, who was present in that meeting to

corroborate her allegation. However, respondent-husband in his

cross examination went on to name three persons as were in

contact with appellant-wife at her place of work. Furthermore,

he said he has no objection if the case filed by his wife was

allowed.

7. It is true that a person seeking to prove a fact must

plead it. The allegation was denied by respondent-husband in

the pleadings. Here appellant-wife made an allegation, which

she could not prove. However, in cross-examination

respondent-husband is contended to have supplied the proof of

the allegation made by appellant-wife. In context of naming of

the persons, who obviously were/are work

acquaintances/colleagues or friends of appellant-wife at her

place of work, the statement that respondent-husband has no

objection if the marriage is dissolved is to be seen. Clear from

the husband's evidence is, he was unhappy with his wife's

conduct as he saw it. Marital relation admits of emotion and

accompanying insecurity. The husband however did not

interfere with his wife's work and she is still pursuing her

career in the Force. Furthermore, for there to be dissolution of

marriage on consent, separate provision stands made in the

statute.

8. Ms. Naidu relies on judgment of Supreme Court in

Vijay Kumar Ramachandra Bhate v. Neela Vijay Kumar

Bhate , reported in (2003) 6 SCC 334, paragraphs 7, 10, 11 and

12. She submits, the declaration on pleading would apply to

record of proceeding by deposition in cross-examination of

respondent-husband, as having named persons her client was

talking to, amounting to cruelty on application of Vijay Kumar

(supra).

9. She then relies on another judgment of Supreme Court

in K. Srinivas Rao v. D.A. Deepa, reported in (2013) 5 SCC

226, paragraphs 14 and 22, for the same proposition. She,

hands up a brief containing views taken by several High Courts

following, inter alia, Vijay Kumar (supra).

10. Facts in Vijay Kumar (supra), as appearing in

paragraph 1 of the judgment, were allegations made by the

husband, extensively with enumeration of instances and

incidents against the wife, branding her as a unchaste woman,

keeping illicit relations sexually and otherwise with one

Ramesh Sawant, the son of a neighbour. These allegations were

subsequently withdrawn by applying for amendment. We

reproduce below a passage from, inter alia, relied upon

paragraph 11 (Manupatra print) on the Supreme Court's view

regarding the allegations made in the written statement.

"11. xx xx xx A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement,

cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelated and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. xx xx xx"

(emphasis supplied)

K. Srinivas Rao (supra), was the later judgment of the

Supreme Court wherein, inter alia, Vijay Kumar (supra) was

referred.

11. We reiterate facts in this case to be, there was no

derogatory pleading, let alone allegation of keeping illicit

relations, made in the written statement nor in the examination-

in-chief by affidavit of the husband. We have already

reproduced above, inter alia, paragraph 17 from deposition

dated 13th September, 2022 of the husband in cross-

examination. Mention by the husband on questions asked in

cross-examination, was of appellant-wife talking over phone

and chatting with Naba Kishore Behera of Nayagarh,

Khageswar Behera of Balasore, Isant Meher and some others,

whose names he could not say. They are colleagues of his wife.

Appellant-wife seeks to rely on this statement for application of

Vijay Kumar (supra) and K. Srinivas Rao (supra).

12. It must be remembered that respondent-husband had

taken the box and was subjected to cross-examination. There

being nothing in the pleadings, no particulars furnished by

appellant-wife, no case in suggestion was put to appellant-wife

while she was being cross-examined. When respondent-

husband took the box, on behalf of appellant-wife questions

were asked and all that was obtained from respondent-husband

were names of three persons, he said his wife was talking with

and who were her colleagues. There was no suggestion that the

persons were not her colleagues nor that the husband had said

or alleged at any time prior something more about them and

appellant-wife. We are clear in our mind that this does not

constitute leveling of an allegation on record as made with

deliberation in a written statement to constitute cruelty, which

would be corroboration of prior cruelty meted out to appellant-

wife giving her the cause to seek dissolution under clause (i-a)

in section 13(1). Regarding question asked in cross-

examination on photographs, the husband said they could be

shared from Facebook. No photograph was downloaded or

shown to the witness.