Orissa High Court

Pramod Kumar Swain vs Baijayanti Swain on 17 November, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                        MATA No.5 of 2022


  Pramod Kumar Swain                           ....             Appellant

                                 -Versus-

  Baijayanti Swain                             ....          Respondent


     Advocates appeared in this case :

     For Appellant       : Abhishek Mohanty, Advocate

     For Respondent : None


        CORAM:

        JUSTICE ARINDAM SINHA
        JUSTICE SIBO SANKAR MISHRA

                                  JUDGMENT

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Date of hearing and Judgment: 17th November, 2023

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ARINDAM SINHA, J.

1. Mr. Mohanty, learned advocate appears on behalf of

appellant-husband. He demonstrates from orders dated 19th

September, 2022 and 13th January, 2023, made by coordinate

Bench that complete service was found on notice of appeal

served by dasti and thereafter substituted service further

directed was complied with by duly causing publication of

notice in 'Samaj' dated 24th January, 2023, the newspaper is at

flag-Q. Respondent goes unrepresented.

2. By impugned judgment dated 30th September, 2021 the

family Court had dismissed his client's civil proceeding for

dissolution of marriage. He submits, finding on issue nos.4 and

5 were erroneous. The Court below did not appreciate facts and

circumstances of the case. Erroneous finding on those issues

was reason for not deciding other issues. Impugned judgment

be set aside and the marriage dissolved.

3. He draws attention to his client's examination-in-chief

in shape of affidavit dated 24th February, 2021. He relies on

paragraphs 9, 10 and 14. His client clearly deposed on facts

that there was cruelty suffered by him in hands of respondent-

wife. He also draws attention to deposition dated 5th August,

2021 in cross-examination of respondent. Relied upon

deposition is reproduced below.

"xxx xxx xxx It is a fact that on 28.6.2010 during pendency of this divorce proceeding, once with the help of Mahila police I called you to Mahila police station and that after some discussion I demanded divorce from you and permanent alimony of Rs.40,00,000/- and a plot from you and that after some hot discussion I also told to kill you and to kill myself later on and that police left you in your house with escort. It is not a fact that I am deposing all false only to frustrate your case."

(emphasis supplied)

He submits, there was clear admission by respondent having

assaulted his client. He reiterates that impugned judgment be

set aside and the marriage dissolved.

4. We reproduce below relied upon paragraphs 9, 10 and

14 from evidence on affidavit of appellant-husband.

"9. That not only the respondent wife inflicted mental or physical cruelties, but I was humiliated in society when the respondent wife instigated our daughter Padmini Swain to give false information against Pratap Chandra Swain (my brother) for

attempt to commit rape on her (Padmini Swain) on 21.10.2016.

10. That by the instigation of respondent wife Padmini Swain our daughter lodged false information in P.S on 05.01.2017 that I attempted to rape her. At last to save family prestige, I had to sign a document.

xxx xxx xxx

14. That on 12.4.2017 Amarnath Swain our son being instigated by the respondent who was also present at the spot assaulted me near Koel Nager Club at 9 pm. Said Amarnath Swain was with his employer Sanu who is owner of Tent House "Light & Sound DJ" at Sector - 6 Cheap Type Market who also assaulted me. They were in attempt to kill me there, but somehow I rescued myself. The respondent wife instigated the children in attempt to kill me and to grab all my service benefit. Thus I am living in fear of my life and unable to move freely in the town. That is the reason I am living away from the respondent wife and children in spite of the fact that I have got a company quarter where the respondent wife and children are living. Though I had

informed the police but the police ignored it saying that it is a family dispute."

(emphasis supplied)

His deposition dated 25th March, 2021 in cross-examination is

also reproduced below.

"You tortured me a lot and also man- handled me in many occasions for which I filed Divorce case. I do not want to lead any conjugal life with you any more. I am unable to pay you Rs.20 lakhs and a piece of land located at Vedvyas. I can give you a piece of land located at Jabaghat measuring an area Ac.0.03 dcmls along with registration fee and cash of Rupees two Lakhs only. I have no land at Koelnagar, Rourkela. I have no money to purchase land at Koelnagar for you. Once you assaulted me and I lodged FIR against you on 6.9.2016, but the police advised me to decide the family matter in the Civil Court.

It is not a fact that I am deposing all false only to extract divorce order from the court."

(emphasis supplied)

5. It appears, appellant-husband had alleged respondent-

wife inflicted mental or physical cruelties and he was also

humiliated in society. The latter on instigation of his daughter

by respondent-wife. His further allegation is that his son, also

instigated by respondent, had also assaulted him. Respondent

along with the children had attempted to kill him. In his cross-

examination, he initially said respondent tortured him a lot and

man-handled him in many occasions but thereafter said once

she had assaulted him and he lodged FIR on 6th September,

2016.

6. Respondent-wife in her cross-examination had denied

the incident of 6th September, 2016. She only admitted as a

fact, on 28th June, 2010 during pendency of the divorce

proceeding, she had called appellant to Mahila police station

and demanded divorce and permanent alimony. There was hot

discussion and she said she would kill him and herself later on.

The police on that occasion left appellant-husband in his house

with escort.

7. Analysis of above evidence does not inspire confidence

of Court on conduct of appellant-husband. It transpires that not

only respondent-wife but also the children, who on query from

Court were informed that the daughter is already married and

the son around 28 years of age. In the circumstances, the

children had capacity to think for themselves and decide

whether they would be instigated by their mother to act against

their father. It is unfortunate they had to choose between the

mother and father. There is no clear proof from the oral

evidence of an instance of cruelty suffered by appellant-

husband as meted by respondent-wife. Fact admitted by

respondent-wife is of an incident that took place in the Mahila

police station during pendency of the proceeding and not

before. It is significant that appellant-husband was called to the

police station. The meeting led to confrontation resulting in hot

words by respondent-wife but thereafter the police escorted the

husband to his house.

8. Our findings are in line with those of the Court below.

We reproduce below paragraph 8 from impugned judgment.

"Perused the evidence adduced by the respondent. It is found that she has countered the allegation made by the petitioner. She has categorically deposed that the petitioner has suppressed the actual fact and fabricated a concocted story against her. The defendant has admitted the fact of marriage as per Hindu rites, rituals prevailing as per their society tradition. At the time of marriage, her parents had given dowry of cash and other house hold articles as per the demand of the petitioner, but they were not satisfied. At times, the petitioner was coming to the house in drunken condition and used filthy language. The petitioner also not taking any care towards his family, for which the respondent and her children were living in disastrous condition due to acute financial condition. In her cross- examination, the petitioner has not able to extract the fact which he has pleaded/deposed from the mouth of the respondent, to prove the cruelty upon him. In absence of any such evidence it cannot be held that the respondent has caused any cruelty on the petitioner. As a whim, the petitioner wants a decree of divorce against his wife and I find no ground to pass such a decree to satisfy the petitioner. Hence, I opine

that the petitioner is not entitled for such a decree. Issue No.(IV) and (V) are answered accordingly against the petitioner."