Orissa High Court
Chitaranjan Prusty vs Priyattama Prusty @ Patra on 6 November, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.41 of 2023
Chitaranjan Prusty .... Appellant
-versus-
Priyattama Prusty @ Patra .... Respondent
Learned advocates appeared in the case:
For Appellant : Mr. L.K. Maharana, Advocate
For Respondent : Mr. J. Bhuyan, Advocate
Ms. J. Sahoo, 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: 6th November, 2024
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ARINDAM SINHA, J.
1. The appeal has been preferred by the husband in the marriage. He
had petitioned for divorce, admitted by the Family Court pursuant to order
no.1 dated 19th November, 2019. In the petition he took ground of cruelty
and desertion. Reproduced below is said order.
"1. The petitioner files a petition U/s-13(i)(b) of the Hindu
Marriage Act, 1955 Register. Advocate S. Senapati &
Associates files power on behalf of the petitioner without
application of the petitioner seeking permission of the Court to
engage him. Put up on 2.1.2020 with office note."
2. Mr. Maharana, learned advocate appears on behalf of appellant and
submits, by impugned judgment dated 2nd January, 2023 the Family Court
dismissed his client's petition. The judgment is erroneous inasmuch as his
client specifically pleaded desertion and, respondent had chosen not to
contest the suit. His client filed evidence on affidavit. There was no cross-
examination. The Family Court failed to appreciate, on requisite pleading
and proof furnished by his client, he was entitled to the declaration. The
judgment be reversed in appeal.
3. Mr. Bhuyan and Ms. Sahoo, learned advocates appear on behalf of
respondent-wife. Mr. Bhuyan submits, the Family Court correctly
appreciated the facts. Said Court noticed that particulars regarding
allegation of desertion were not provided. In absence of the particulars,
requirement by clause (i-b) in section 13(1) of Hindu Marriage Act, 1955,
for presenting petition on the ground after expiry of two years of the
alleged desertion, could not be pronounced upon as satisfied. Hence, the
Family Court dismissed the petition as not maintainable. Without prejudice
he adds, appellant failed to make out a case of attempting to bring back his
client. There be no interference in appeal.
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4. By aforesaid order no.1 the Family Court appreciated that the
petition was for dissolution of marriage on ground of desertion. We find
from order dated 10th February, 2020 of the Family Court, respondent had
refused to accept the summons. However, she thereafter entered
appearance. Paragraph-3 from impugned judgment is reproduced below.
"3. Though the respondent appeared in this case, but did not
file her objection. On the day of hearing as she failed to appear
before this court, her evidence was closed. She did not cross-
examine the petitioner."
5. The petition carries flowery language. We reproduce part of a
sentence from paragraph-4.
"4. ... ... ...ferociously excommunicated the petitioner on
dt.1.2.2016 in a volatile and fluid state downgrading the very
cardinal purpose of marriage as an apple of discord. ... ... ..."
In paragraph 6, part of the cause of action pleaded by petitioner was
asserted to have arisen lastly on 1st February, 2016, when respondent left
her in-laws house. As aforesaid, the Family Court admitted the petition by
order no.1 dated 19th November, 2019. There is no averment in the petition
that in between respondent had come back. In context of the petition,
therefore, it was presented more than two years after date of desertion
asserted in it.
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6. Petitioner had filed evidence on affidavit dated 19th August, 2022. In
it he stated, inter alia, the summons was refused. Respondent lived with
him for a short period for only three months and even during said period
she frequently went away to her parents' house at Puri and that too without
consent of either himself or his widowed mother. Suddenly, without any
reasonable cause and incident, on 1st February, 2016 she left company of
her husband with her mother without giving proper intimation to him or his
mother. That respondent had filed for maintenance under section 125 in
Code of Criminal Procedure, 1973 was also stated in the evidence on
affidavit.
7. The Family Court, Puri dealt with the matrimonial case.
Respondent's parental home is in Puri. She filed for maintenance in the
competent Court at Puri. In spite thereof she refused service of summons
but thereafter appeared in the matrimonial case but did not file written
statement nor cross-examined petitioner. We can only interpret her conduct
to presume that she did not have a defence.
8. Clause (i-b) in section 13(1) is reproduced below.
"(i-b) has deserted the petitioner for a continuous period of not
less than two years immediately preceding the presentation of
the petition; or ... ..."
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MATA no.41 of 2023
There is no requirement in the provision regarding a spouse alleging
desertion to prove attempt to bring back the other to the matrimonial home.
Be that as it may, there are several statements in the evidence on affidavit
regarding petitioner having tried to do so, including taking steps for her
treatment when he came to know she was unwell. In the circumstances,
lack of pleading of attempt to bring back respondent to the matrimonial
home cannot be found to be fatal to his case for dissolution on ground of
desertion. As such, the uncontroverted evidence also cannot be
disregarded.
9. Impugned judgment is reversed in appeal. The marriage solemnized
on 5th June, 2015 is dissolved by our decree of divorce on the ground of
desertion.
10. On query made Mr. Bhuyan submits, his client had obtained
judgment dated 3rd November, 2023 from the same Family Court for
maintenance under section 125 in the Code, at ₹3,000/- per month.
Appellant had filed for revision and got the judgment set aside with
direction for remand. The proceeding is pending and is likely to be
rendered infructuous because of our judgment in appeal. We are told she
has crossed 34 years of age. Considering petitioner got set aside the
judgment directing maintenance at ₹3,000/- per month and parties were
together for a short time, we proceed to exercise discretion to determine
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MATA no.41 of 2023
direction for permanent alimony by starting with figure of ₹2,500/- per
month. We direct the gross sum as permanent alimony at ₹3,00,000/- being
aggregate maintenance calculated at ₹2,500/- per month for ten years.
11. The appeal is allowed and disposed of.
12. List under heading 'To Be Mentioned' on 20th November, 2024 for
compliance, to tender the permanent alimony by demand draft.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Radha/Gs
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