Orissa High Court
Mita Pramalik vs Sudip Kumar Pramalik on 2 April, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 70 of 2020
Mita Pramalik .... Appellant
-Versus-
Sudip Kumar Pramalik .... Respondent
Advocates appeared in this case :
For Appellant : Mr. P.K. Mohanty, Advocate
For Respondent : None
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and Judgment: 2nd April, 2024
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ARINDAM SINHA, J.
1. Mr. Mohanty, learned advocate appears on behalf of
appellant-wife and submits, his client is aggrieved by judgment
dated 18th March, 2020 of the Family Court dissolving the
marriage.
2. None appears on behalf of respondent-husband. Several
attempts were made to serve him. It will be sufficient for us to
reproduce paragraphs 2 and 3 from order dated 6th December,
2023, regarding sufficiency of the service.
"2. He submits further, several attempts to serve
were made. Initially, the service was accepted but
co-ordinate Bench, by order dated 7th April,
2022, had directed fresh service because the
acknowledgment due card bore initial
acknowledging the service. Subsequently, several
attempts were made to serve at both, residential
address of respondent-husband in West Bengal
and his place of employment in Jharkhand. Postal
articles were returned bearing respective
endorsement 'addressee left return to sender' and
'the person has left service for last four years'.
3. Following decisions of Supreme Court in C. C.
Alavi Haji v. Palapetty Muhammed, reported in
(2007) 6 SCC 555, paragraph 14, State of M.P. v.
Hiralal, reported in (1996) 7 SCC 523,
paragraph 1 and M/s. Madan and Co. v. Wazir
Jaivir Chand, reported in AIR 1989 SC 630,
paragraph 6, we are satisfied that there has been
good service."
3. Mr. Mohanty submits, there was neither cruelty nor
desertion by his client. Dissension between the parties was
because of interference by the in-laws. So much so that when
there was attempt at conciliation, on respondent-husband
having had earlier filed for restitution, after staying one night in
a lodge, respondent-husband left his client on allegedly getting
intimation that his father had been taken ill. She wanted to
accompany but he did not take her along. The husband's
allegation of his client being unwilling to accompany him was
admitted by him to not having been brought to notice of the
conciliation officer nor the Family Court. The admission was
by respondent-husband in his cross-examination. He has
deliberately chosen to go unrepresented, to remain unreachable
from his client.
4. On query from Court Mr. Mohanty submits, his client
had initiated criminal proceeding under section 498-A, Indian
Penal Code, 1860. Respondent-husband and his family
members were acquitted. His client being aggrieved, preferred
criminal appeal. He submits further, the criminal case will be
rendered irrelevant on impugned judgment being set aside in
appeal and his client finding herself in society of respondent-
husband, with their daughter. He adds, parents of respondent-
husband have since passed away, first the mother-in-law and
then the father-in-law.
5. We have perused impugned judgment. Two issues were
framed. We reproduce below issue no.1.
"(I) If the respondent being the legally married
wife of the petitioner subjected him to cruelty and
deserted the petitioner for which the petitioner is
entitled for a decree for dissolution of his
marriage with the respondent."
The Family Court answered the issue relying on admission by
both parties that since July, 2009 they were staying separately
from each other and there was no conjugal relationship for
more than 11 years. There is, however, no specific finding of
cruelty against appellant-wife.
6. We reproduce below paragraph 5 from evidence on
affidavit filed by respondent-husband.
"5. That I am the only son of my parents for
which I do not want to live separately from them.
When I did not agree the proposal of the opp.party,
she became furious and assaulted my parents by
abusing in filthy languages. Thereafter the
opp.party left her marital home along with huge
amount and jewelry and came to her maternal
house at Cuttack and since then she is residing with
her parents"
In paragraph 18 of his deposition in cross-examination he said
appellant-wife wanted to stay with him, obviously meaning
without the parents-in-law. Furthermore, respondent-husband
deposed that on 16th October, 2011 he took appellant to Basanti
hotel/lodge as per decision of the conciliator and both stayed
together for a night but since he got information that his father
is sick, he asked appellant-wife to accompany him but she
refused. He admitted of not informing the conciliator regarding
the refusal.
7. Appellant-wife in her evidence-in-chief by affidavit had
alleged that there was compromise brokered by local
gentlemen, on her father-in-law having confessed his guilt and
assurance given to keep her in good condition. The separation
happened on 17th July, 2009, when she accompanied by her
family members returned to the matrimonial home after
attending marriage ceremony of a relative but was prevented
entry. She stated further that she had requested him to take her
with him from Basanti lodge but respondent-husband did not do
so saying that his father would become more unwell if he sees
her. Soon after he filed for divorce.
8. Respondent-husband had tendered medical documents,
which were marked exts. 4 to 9 in the proceeding. We have
perused the exhibits. They relate to appellant-wife. We were
looking for a medical document to substantiate deteriorating
health of the father being reason for separation of the couple,
who had reunited at Basanti lodge under a conciliation in the
restitution proceeding. Neither impugned judgment nor the
evidence discloses what happened to the restitution proceeding.
After the attempt at conciliation was disrupted, respondent-
husband had filed for divorce.
9. As aforesaid we have not found any positive finding of
cruelty. Law is well-settled regarding desertion. We do not see
any fact found by impugned judgment to attract declaration of
law on desertion made by the Supreme Court in Malathi Ravi
v. B.V. Ravi, reported in (2014) 7 SCC 640, paragraph 19.
Now that the parents-in-law are no more there should be no
impediment for the parties to get back together.
10. Impugned judgment is reversed. The appeal is allowed
and disposed of.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Jyoti
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA
Date: 03-Apr-2024 12:34:59
