Orissa High Court
Iti Satpathy @ Kar vs Sarada Prasad Kar on 10 January, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA Nos.32 and 43 of 2018
MATA no.32 of 2018
Iti Satpathy @ Kar .... Appellant
-versus-
Sarada Prasad Kar .... Respondent
Learned advocates appeared in the case:
For appellant : Mrs. Saswata Patnaik, Advocate
For respondent : Mr. A. Sahoo, Advocate
MATA no.43 of 2018
Sarada Prasad Kar .... Appellant
-versus-
Iti Satpathy @ Kar
.... Respondent
Learned advocates appeared in the case:
For appellant : Mr. A. Sahoo, Advocate
For respondent : Mrs. Saswata Patnaik, Advocate
Page 1 of 11
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CORAM:
JUSTICE ARINDAM SINHA
JUSTICE M.S. SAHOO
JUDGMENT
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Dates of hearing : 19th December, 2023 and 10th January, 2024
Date of Judgment : 10th January, 2024
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ARINDAM SINHA, J.
1. Mrs. Patnaik, learned advocate appears on behalf of appellant-wife
and submits, her client has preferred appeal from judgment dated 28th
November, 2017 made by the family Court dissolving the marriage and
directing permanent alimony at ₹7,50,000/-. Respondent-husband has also
preferred appeal (MATA no.43 of 2018) against quantum of permanent
alimony directed by the judgment. Mr. Sahoo, learned advocate appears on
behalf of the husband.
2. Mrs. Patnaik submits, there was lack of cogent evidence to prove
either cruelty or unsoundness of mind of incurable nature. None of the two
grounds were proved before the family Court. The learned Judge failed to
appreciate and thereby erred in dissolving the marriage.
// 3 //
3. She draws attention to deposition dated 26th August, 2015 of
respondent-husband in cross-examination. We reproduced below a passage
from paragraph 2 therein.
"I returned to my house from Kolkata to my native village 15
days after I had gone there after taking leave from my service
place. After marriage till I went to Kolkata I along with the
O.P were living peacefully by cooperating to each other.
During the period of my stay at Kolkata, I was informed by my
parents that the O.P used to wake up late at about 9 'O' Clock
and was unwilling to follow the family custom and tradition and
was unwilling to do household works and prepare food etc."
(emphasis supplied)
She submits, the parties stayed with each other as husband and wife for
total of a very brief period, of approximately 5 and ½ months. At the time
of marriage, respondent-husband was working in Kharagpur in West
Bengal. It would appear from above quoted deposition that there was no
problem for period of the two weeks her client was with him. It is only
when she was left with her parents-in-law that some trivial complaints were
made against her. Those do not amount to cruelty. She points out further
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from the deposition that respondent-husband had said he had not treated or
consulted with any doctor relating to the abnormality of her client during
the three days when he visited his house from Kolkata.
4. She relies on clause (iii) under sub-section (1) of section 13 in Hindu
Marriage Act, 1955 to submit, there is no finding in impugned judgment as
based on evidence that her client is incurably of unsound mind or has been
suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that respondent-husband cannot be expected to
live with her. She reiterates, time spent together was approximately 5 and
½ months. She relies on judgment of the Supreme Court in Samar Ghosh
v. Jaya Ghosh, reported in (2007) 4 SCC 511, paragraph 101 and
illustrations thereunder to submit, there is no evidence on record to bring
the case as within any of the illustrations.
5. Mr. Sahoo submits, no interference is warranted with impugned
judgment. There have been findings based on the evidence and on adverse
presumption against appellant-wife for not presenting herself to be
examined. On his client's application, his father-in-law was appointed as
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guardian of appellant-husband to contest the case for protecting her
interest.
6. We have perused impugned judgment. The findings have been given
on several points. Point no.1 is on cruelty. Apart from allegations made
against appellant-wife as submitted by Mrs. Patnaik we notice, inter alia, a
further allegation made by respondent-husband in his evidence-in-chief, of
her threatening that if anybody tried to persuade her to do the household
work she would administer poison in the food. The family Court noted
these allegations and that nothing could be elicited in cross-examination
from respondent-husband to discredit him. It also appears appellant-wife
did not offer herself to be examined in the proceeding.
7. We also notice, the petition for dissolution of marriage was filed by
the husband against respondent-wife describing her to be a person of
unsound mind. The description included that she is to be represented by her
father. Appellant-wife had filed application under order VII rule 11(d),
Code of Civil Procedure, 1908 praying for rejection of the petition on
ground it is barred by law. Respondent-husband had also, as aforesaid,
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applied for appointment of the father as her guardian. It appears from
order-sheet, by order dated 7th January, 2014, on behalf of appellant-wife it
was urged that non-joinder of the father as a party was fatal to the petition,
hence barred by law. By said order both the petitions were disposed of in
allowing appellant-wife to be represented by her father.
8. Appellant-wife had challenged said order dated 7th January, 2014 in
revision. On 31st July, 2014 there was order made in the revision directing
enquiry. The family Court, in compliance, endeavoured to make inquiry
but appellant-wife did not present herself or participate therein. Hence, the
inquiry was confined to respondent-husband, who had in the meantime
obtained documentary evidence by applying under Right to Information
Act, 2005, regarding appellant-wife having been treated by psychiatrist in
year 2013, after separation. We reproduce below a passage from said order
dated 15th December, 2014 on remand, pursuant to direction for inquiry
made by the High Court.
"During course of enquiry, the statement of the
petitioner Sarada Prasad Kar was recorded, who has given
out that the respondent (Iti Satpathy @ Kar) was insane prior
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to her marriage with him and the said fact was suppressed
and that about 1 & ½ months after the marriage, they noticed
the abnormal behavior of the respondent while she was in
their house and that on being asked, she told him that while
she was studding in 1st year B.A in Salipur College she was
suffering from insanity and therefore, she had under gone
treatment under Dr. Kailash Chandra Nayak, of Cuttack who
is a psychiatrist at Saikalinga Seba Sadan, Cuttack. He has
further stated that he has obtained the information relating to
the treatment of Iti Satpathy through Public Information
Officer-Cum-A.D.M.O., and the Proprietor of Saikalinga Seba
Sadan, Cuttack, had given information relating to treatment of
Iti Satpathy vide Sl. No 14/1859 dated 11.02.2013 along with
Xerox copy of discharge certificate and copy of the patient
admission register. According to the petitioner, since the
respondent Iti Satpathy @ Kar is insane her father should be
appointed as her guardian in this case.
Since the statement of the petitioner goes unchallenged
and the documents as stated earlier reveal regarding the
treatment of Iti Satpathy by Dr. Kailash Chandra Nayak, it
can be safely held that she is insane. Therefore, it would be
expedient to appoint her father as he guardian and to
represent on her behalf in this C.P. Accordingly, the petition
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U/O.XXXII, rules 3 and 15 of C.P.C filed by the petitioner is
allowed. The father of the respondent Rama Chandra Satpathy
is appointed as a guardian for the respondent. The petitioner to
take steps by 20.01.2015 for issuance of notice against the
guardian of the respondent, Ram Chandra Satpathy."
(emphasis supplied)
9. Rule 15 in order XXII makes applicable rules 1 to 14, except
rule 2-A, to apply to persons of unsound mind. Respondent-husband had
made the application and it was allowed. Father of appellant-wife was
named her guardian, to represent her interest in the proceeding. It being
one regarding marital discord, oral evidence adduced by appellant's father
needs to be accordingly viewed since, he would not have had firsthand
knowledge about what happened in the matrimonial home during the time
appellant-wife resided with her husband and her parents-in-law. The
family Court noted there was no allegation or step taken for redress in
accordance with law regarding appellant-wife or her father having had
lodged FIR or informed to the village gentries regarding she being
tortured. There was no suggestion also given that appellant-wife was
subjected to physical torture or was not allowed to visit her father's house.
// 9 //
The Court went on to find, on reading of the depositions that entire
assertion of respondent-husband regarding mental cruelty inflicted on him
have gone unchallenged. From the hospital/nursing home, upon delivery of
the child, appellant-wife went with her father and brother to her parental
home. Yet they could not produce any medical evidence regarding the
prenatal, delivery and postpartum stage of appellant-wife. Uncontroverted
assertion by respondent-husband was that the father, brother and sister
came to the nursing home on 15th May, 2011 and took appellant-wife and
the baby with them saying they will keep with them for rest of their life.
No evidence was adduced on side of appellant-wife to attribute sufficient
reason as to why she went to her father's house from the nursing home
instead of going with respondent-husband. So much so, respondent-
husband was not invited for the 21st day ceremony of the daughter. Hence,
the family Court concluded there was also denial of physical intimacy, on
appellant-wife having removed herself from society of respondent-
husband. All this amounted to mental cruelty.
// 10 //
10. The family Court also found the point regarding allegation of
appellant-wife being of unsound mind as held to be proved. Adverse
presumption was made against appellant-wife. There was discovery of
suppression of facts regarding appellant-wife having been treated prior to
marriage, not disclosed. Subsequent to delivery she again underwent
treatment, which, as aforesaid, was discovered by respondent-husband by
making application for information. Respondent-husband had filed the
petition describing appellant-wife to be of unsound mind. In spite of
direction made by the writ Court, appellant-wife did not participate to
enable the family Court to cause enquiry regarding her mental condition.
In the circumstances, the finding under clause (iii) on adverse presumption
cannot be interfered with in appeal because, where there is evidence of
appellant-wife having undergone some treatment, nothing was produced to
show that it was an ailment of curable nature, for the ground to be held as
not made out by respondent-husband.
11. Coming to the appeal of respondent-husband on quantum of
permanent alimony directed at ₹7,50,000/-, we do not find any material as
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would appear from impugned order or the evidence to cause a downward
revision thereof. Mrs. Patnaik submits without prejudice that quantum of
permanent alimony is wholly insufficient. On query from Court Mr. Sahoo
submits, at the material time his client was working as sales executive.
Mrs. Patnaik submits, respondent-husband possesses Master in Business
Administration (MBA) degree.
12. In view of observations made in impugned judgment that
respondent-husband had not claimed even visitation right to see his
daughter, we in exercise discretion under section 25 modify the direction
in impugned judgment for permanent alimony, to be ₹10,00,000/-. The
modification is only confined to the amount. This is to be paid as directed
by impugned judgment. The appeals are accordingly disposed of.
( Arindam Sinha )
Judge
( M. S. Sahoo )
Signed by: PRASANT KUMAR SAHOO
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 11-Jan-2024 17:46:41
Prasant
