Orissa High Court
Swadesh Kumar Biswal vs Seema Smaraki Ray on 2 May, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.11 of 2022
Swadesh Kumar Biswal .... Appellant
-versus-
Seema Smaraki Ray .... Respondent
Learned advocates appeared in the case:
For appellant : Mr. Bikram Keshari Raj, Advocate
For respondent : Mr. Naresh Ch. Jena, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and Judgment: 2nd May, 2024
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ARINDAM SINHA, J.
1. The husband has preferred appeal against judgment dated 15th
December, 2021 of transferee Family Court, dismissing on contest his
petition for dissolution of the marriage. Ground of it urged before the
Family Court was cruelty. Mr. Raj, learned advocate appears on behalf of
appellant-husband and Mr. Jena, learned advocate, for respondent-wife.
2. We have perused materials available in the lower Court record.
The facts are, parties entered into a 'secret' marriage on 21st April, 2008,
upon having met at their place of training. Subsequently it was made
known to, inter alia, appellant's parents. There was a social
marriage/reception on 8th December, 2008. Soon after the marriage,
respondent-wife found work. The parties managed their relationship in
spite of geographical separation by reason of their work and after a while,
respondent-wife became pregnant. She took leave and then left her job to
come and stay in her matrimonial home, to continue with the pregnancy.
On 17th March, 2010, she gave birth to their daughter. It is within a very
short time thereafter, next month in April, 2010, she availed opportunity
to join National Rural Health Mission, Bhubaneswar as Project Associate.
Sometime later the couple shifted to appellant's place of work in Angul.
There was a visit made by the mother-in-law (husband's mother) to the
rented accommodation. Ultimately, respondent-wife, after having lodged
police complaint on 17th May, 2011 that was compromised without any
action taken, took up a job in Koraput. She attended to her work by living
in her father's house. For most of the time the daughter was with the
husband. On query made we ascertained that the daughter is still with the
husband. Further fact is, after the civil proceeding had been instituted by
appellant, respondent-wife again lodged police complaint. This time,
accompanied by the police, she went to her matrimonial home in
Bhubaneswar and took away her belongings.
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3. Appellant and his father were witnesses from his side. There were
also two witnesses on side of respondent-wife, herself and her father's
friend.
4. We have come across several allegations, which we have not
recorded above as facts. Of them are demand for dowry of ₹5,00,000/-
(rupees five lakhs) and that only ₹2,00,000/- (rupees two lakhs) could be
arranged, implying same was given. There are further allegations. It is not
necessary to scrutinize and find on every one of them, their veracity. We
have before us fact of respondent-wife having had lodged a complaint on
17th May, 2011, which she herself said from the box in cross-
examination, as had not led to any further action. The facts are also that
she removed herself to reside and do job away from her husband and her
matrimonial home. So it is that the civil proceeding was instituted by the
husband in the Family Court at Bhubaneswar and on respondent-wife
petitioning to this Court for transfer, the proceeding was transferred and
dealt with by Family Court, Jeypore. Physical separation being one of the
facts leading to institution of the proceeding, further fact is that acted
upon complaint was lodged by respondent-wife with the police, after
institution of the proceeding and pursuant to substantially long separation.
As aforesaid, the police acted and there was recovery of material
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possessions but the daughter was left behind. Criminal proceeding
commenced.
5. Respondent wife made several further and other statements in her
cross-examination. From them, we have not been able to see that
allegations made by petitioner-husband were demonstrated to be false.
There was corroboration with minor inconsistencies. What is important is,
allegation made by respondent-wife that cause of dispute between the
parties was demand for payment of balance dowry, remained an
allegation as her father did not take the box to come and say that he paid
or gave. Instead, his friend took the box to say ₹2,00,000/- (rupees two
lakhs) was arranged. Across pleading of respondent-wife, her evidence-
in-chief, cross-examination and examination of her father's friend, word
'arranged' was used to imply payment of ₹2,00,000/- (rupees two lakhs)
in cash as dowry. The story of demand for dowry also appears improbable
because the couple had decided to and had also already got 'secretly'
married. Other material articles were recovered by the wife with help of
police.
6. Mr. Jena submits, appellant-husband had filed for quashing of the
police case before this Court. In the petition he had admitted that there
was compromise and parties were staying together. On that basis the
learned single Judge, by order dated 10th August, 2021, quashed criminal
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proceeding in connection with G.R. Case no.391 of 2014. CRLMC
no.731 of 2021 (Swadesh Kumar Biswal and others v. State of Odisha
and another) was thus disposed of. We reproduce below paragraph-4 from
said order.
"4. In view of the fact that the Informant (Opposite Party
No. 2) and petitioners have already settled their dispute
amicably in presence of the village gentries. The Informant
is residing with the Petitioner No. 1 (husband) and she
does not want to proceed with the prosecution further
against the petitioner in connection with GR Case No. 391
of 2014, pending before the learned SDJM, Koraput, there
is hardly any chance of conviction of the petitioner and in
such event, it will amount to abuse of the process of the
court in case the criminal proceeding is allowed to continue
further."
(emphasis supplied)
Mr. Jena submits, this was taken cognizance of by the Family Court to
dismiss the civil proceeding. We have ascertained that the criminal
proceeding was independently fought between the parties, initiated on
police complaint made after institution of the civil proceeding. The
quashing happened at a time, when evidence in the civil proceeding was
over. Hence, the petition and aforesaid order does not find place as
exhibits. The documents were not there before the Family Court, for
MATA no.11 of 2022
consideration in passing judgment. They are before us. To ascertain
whether it is necessary for us to treat them as additional evidence in
appeal, for purpose of delivery of judgment, we asked the parties whether
the compromise is holding. Answer was in the negative. Petitioner resides
in Bhubaneswar. It was admitted by respondent-wife in her cross-
examination that the daughter is studying in a reputed school at
Bhubaneswar. Respondent continues with her work in Koraput, staying at
her father's house. We are quite clear in our minds that purpose of the
settlement was otherwise than in salvaging the marriage. As such, there is
no requirement to take cognizance, to treat this material as additional
evidence, for purpose of adjudication of the appeal.
7. Mr. Jena also draws our attention to deposition dated 22nd
November, 2017 of P.W.2 (father of appellant). Relied upon statements
are reproduced below.
"10. ... ... ... It is not a fact that my daughter in law
Seema mentally and physically tortured my son
Swadesh at Angul different times. It is not a fact that
Seema assaulted Swadesh on his hand and fractured his
hand. It is not a fact that I have stated that there is any
fracture injury to the hand of Swadesh on the assault of
MATA no.11 of 2022
Seema, but there was injury on the hand of my son
Swadesh. ... ... ..."
(emphasis supplied)
Relied upon statement in cross-examination of P.W.2 has been asserted to
be admission by appellant's father that his daughter-in-law did not
mentally or physically torture appellant at Angul on different times. The
answer was obviously to suggestion given. We cannot rely upon the
evidence simply because at Angul, the couple stayed in rented house
without the parents, who were at Bhubaneswar. The statement was an
answer to an incorrect suggestion given.
8. As aforesaid it is not necessary, in the facts and circumstances
found by us, to delve into each and every allegation of cruelty. We are
convinced situation in the marriage was such, as has been brought forth
from the pleadings and evidence. There was cruelty suffered by appellant-
husband. Defence of respondent-wife that cause of dispute between the
parties being demand for balance dowry is something she miserably
failed to even attempt to prove. Instead, in face of her allegations against
her in-laws, she admitted that for major part of her pregnancy and till
delivery she was taken care of by them. All this after supposed demand
for balance dowry, allegedly also made by appellant-husband. Then we
have a police complaint lodged against appellant and his family, which
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the police felt could be resolved on counseling. Subsequent thereto no
complaint till after filing the proceeding. One of the reasons for the civil
proceeding was respondent-wife had of her own volition taken up a job
causing geographical separation, not only from appellant but also from
the daughter. Taking police to house of her in-laws for recovery of her
material things and leaving the daughter behind also convinces us that
there was cruelty in the marriage.
9. Materials before us do not indicate that appellant has in any
manner condoned the cruelty. There is also no indication that respondent-
wife is in need of maintenance or support.
10. Impugned judgment is reversed. The marriage taken place in the
temple on 21st April, 2008 and thereafter said to be solemnized on 8th
December, 2008 is dissolved by decree of divorce on ground of cruelty.
The decree be drawn up expeditiously.
11. The appeal is allowed and disposed of.
( Arindam Sinha )
Judge
( M.S. Sahoo )
Signed by: PRASANT KUMAR SAHOO
Prasant
Location: Orissa High Court
Date: 08-May-2024 16:35:03
MATA no.11 of 2022
