Bharati Sahu vs Santosh Kumar Sahu
2024 Latest Caselaw 527 Ori

Citation : 2024 Latest Caselaw 527 Ori
Judgement Date : 10 January, 2024

Orissa High Court

Bharati Sahu vs Santosh Kumar Sahu on 10 January, 2024

Author: Arindam Sinha

Bench: Arindam Sinha, M.S. Sahoo

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                               MATA No.50 of 2017

     Bharati Sahu                                   ....                           Appellant

                                            -versus-

     Santosh Kumar Sahu                             ....                        Respondent


     Learned advocates appeared in the case:

     For appellant                  : Bibhu Prasad Mohanty, Advocate

     For respondent                 : None

      CORAM:
                       JUSTICE ARINDAM SINHA
                       JUSTICE M.S. SAHOO

                                     JUDGMENT

---------------------------------------------------------------------------------------- Dates of hearing : 7th December, 2023 and 10th January, 2024 Date of Judgment : 10th January, 2024

----------------------------------------------------------------------------------------- ARINDAM SINHA, J.

1. The matrimonial appeal has been preferred by appellant-wife against

judgment dated 2nd February, 2017 made by the family Court in the civil

proceeding by petition of respondent-husband, dissolving the marriage and

directing deposit of ₹50,000/- in favour of the child in any nationalized

bank through her mother, within two months.

// 2 //

2. The appeal was presented on reported delay of 24 days. There was

attempt of service in respect of the application for condonation of delay and

the appeal, on respondent-husband. Coordinate Bench had directed

substituted service, which was duly complied with. Ultimately, by order

dated 11th October, 2023 the delay was condoned and the appeal admitted.

Respondent-husband continues to go unrepresented.

3. Mr. Mohanty, learned advocate appears on behalf of appellant-wife

and submits, the family Court erred in finding his client had deserted

respondent-husband, to dissolve the marriage on ground (i-b) in section

13(1) of Hindu Marriage Act, 1955. He points out from paragraph 6 in

impugned judgment that the family Court had said, on perusal of the case

record it appears that defendant-wife was ousted on 3rd May, 2011. The

finding militates against direction for dissolution of the marriage on ground

of desertion. On query from Court he refers to his client's written statement

and submits, his client with the child was thrown out of the house. She

spent the night outdoors and next morning travelled to her parental home in

Bhilai. Subsequently, with intention to join society of respondent-husband,

his client had filed for restitution of conjugal rights.

4. Perused impugned judgment. It appears the marriage was dissolved

on ground of desertion and cruelty, in that order. Reason given by

appellant-wife for having left the matrimonial home on allegation of affair

// 3 //

of respondent-husband with his 'bhauja' was not found to be proved as a

reasonable cause. The learned Judge found indication from materials on

record that appellant-wife had no intention to resume good cohabitation

unless and until respondent-husband acceded to her demand to live in her

parents' house. That admittedly there had been no cohabitation between

the parties since 3rd May, 2011.

5. Allegation was made in the written statement, as has been submitted

by Mr. Mohanty, of appellant-wife thrown out of the house and she

travelling to her parental home in Bhilai on the next day. A further

allegation made was she had approached concerned police station but there

was no proper response by the people-police. On query from Court we have

ascertained that this was the local police station, within whose local limits

the matrimonial home is situate, which allegedly had not responded.

Subsequently, appellant-wife made police complaint in concerned police

station in Bhilai, whereafter there were arrests made and recovery of

streedhan from the matrimonial home. Respondent-husband and others

were arrested and later obtained bail.

6. Appellant-wife cross-examined respondent-husband but no

suggestion even was given regarding her being thrown out of the house.

She had filed evidence-in-chief in shape of affidavit dated 4th April, 2016.

We have been shown somewhat similar but more vague allegation made in

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the affidavit. However, she in cross-examination deposed on 9th May, 2016

that respondent-husband had come to stay with her in her parental home in

Bhilai. We reproduce below a passage from paragraph 14 from said

deposition in cross-examination.

"14. The OP stayed at Bhilai for two months with my parents and was working in the factory. "wool work". It is not a fact that since the OP had no income so he had come down to my father's house. At that time he was maintaining good rapport with me. It is a fact that on my FIR police from Bhilai, arrested the OP, his brother and parents and now they are on bail. It is not a fact that by the order in the maintenance case which I had filed at Bhilai the OP has been giving me Rs.2500/- per month and also giving financial support for the daughter. The witness volunteers that for last two years the OP has not given me a single pie. It is not a fact that police has seized all my stridhana properties including valuables from the house of OP. The witness volunteers that my gold and silvers are still with the OP. It is not a fact that always I wanted the OP to have cohabitation with me frequently within short interval which he could not satisfy and I propagated falsely alleging against him to have extramarital relationship with his sister in law. ..... ..... ..... "

(emphasis supplied)

7. It also appears from another affidavit dated 4th April, 2016 sworn by

appellant-wife, she had alleged she is staying at present with her parents

// 5 //

after wilful desertion by respondent-husband at old Bhilai-3, Chhattisgarh.

We reproduce below relevant passage from paragraph 2 of her said

affidavit.

"2. That I have filed an independent petition U/s. 24 of the Hindu Marriage Act, 1955 for seeking reliefs of pendent lite and legal expenses as per law as the respondent-plaintiff filed suit for seeking a decree of divorce with all false and fabricated grounds to put me into all sorts of harassment and awkward situation as I am staying at present with my parents after wilful desertion by him at old Bhilai-3, Chhattisgarh ... ... ..."

(emphasis supplied)

We have evidence before us to substantiate finding of the Court below that

there was desertion and the proceeding for dissolution of marriage initiated

after the prescribed period.

8. In this context we have further perused, inter alia, impugned

judgment and we are convinced that the desertion was with intention to

abandon respondent-husband, the marriage and resile from appellant's

obligations in the marriage. In the circumstances, we confirm impugned

judgment. Mr. Mohanty's submission is recorded that his client will

proceed for obtaining maintenance subsequent to the decree in applying to

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the family Court under section 25. In this context we notice the family