Orissa High Court
Pintu Jena vs Kajal Patro on 15 January, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S.Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.462 of 2023
Pintu Jena ..... Appellant
versus-
Kajal Patro ..... Respondent
Advocates appeared in this case:
For appellant : Mr. S.K. Mahanty, Advocate
For respondent : None
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: 3rd January, 2025 and 15th January, 2025
Date of judgment: 15th January, 2025
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ARINDAM SINHA, J.
1. Mr. Mahanty, learned advocate appears on behalf of
appellant-husband and submits, impugned is judgment dated 16 th
October, 2023 made by the Family Court dismissing his client's
petition under section 27(1)(d) of Special Marriage Act, 1954, ex
MATA no.462 of 2023
parte against respondent-wife. He points out from impugned
judgment, in paragraph-3 stands recorded that respondent-wife did
not appear in the case although service against her was held to be
sufficient. Accordingly she was set ex parte on 20th March, 2023.
2. We gave direction for issuance of notice of appeal. Learned
advocate entered appearance on behalf of respondent. However, she
went unrepresented. We reproduce below paragraphs-1 and 2 from
our order dated 27th June, 2024.
"1. Mr. Das, learned advocate appears on behalf of
appellant-husband and presses for hearing. None
appears on behalf of respondent-wife though she had
entered appearance through learned advocates.
2. We adjourn hearing of the appeal on making it
clear, if on adjourned date or thereafter respondent-wife
goes unrepresented, the appeal is likely to be taken up
for hearing and disposal, ex-parte against her."
Subsequently on 27th November, 2024 we requested Mr. Mahanty
to communicate website copy of order made that day. Reproduced
below is paragraph-3 from said order dated 27th November, 2024.
"3. Mr. Mahanty is requested to communicate
website copy of this order to learned advocate(s) for
respondent and file the acknowledgement on adjourned
date. We make it clear, we will proceed with hearing of
MATA no.462 of 2023
the appeal on adjourned date or soon thereafter
irrespective of respondent being represented."
Mr. Mahanty duly filed memo bearing print of WhatsApp message
sent to respondent herself. She still goes unrepresented.
3. Referring to the petition, Mr. Mahanty relies on paragraph-6
onwards to submit, interference by his client's mother-in-law was
cause for disruption in the marital relationship. The mother-in-law
was carrying on money lending business and induced respondent to
engage herself as recovery agent, going from door to door to
collect. It hurt his client's family prestige but respondent did not
listen. There was disruption in the joint family. Parents of his client
moved away. His client was also denied physical intimacy. In fact,
respondent refused to discharge her obligations in the marriage.
There was cruelty as pleaded.
4. His client filed evidence on affidavit to prove statements
made in the petition. Respondent chose to go unrepresented. His
client's evidence thus was to be treated as good evidence. There is
nothing in the evidence adduced, to deny his client finding of
cruelty.
5. We see from impugned judgment that respondent was
sufficiently served but did not appear to contest. Choosing to go
MATA no.462 of 2023
unrepresented does give rise to presumption that respondent did not
have any defence. She goes unrepresented here as well. The
Supreme Court in Juwarsingh v. State of M.P., reported in AIR
1981 SC 373 declared the law regarding reliance on unchallenged
testimony. Under the declaration, something must appear from the
evidence to give rise to disbelief. In impugned judgment we do
find reference to the pleading and evidence adduced by appellant, to
be basis of doubt, causing the Court to have disbelieved appellant
on his contention of cruelty.
6. Basis for the Family Court to disbelieve appellant was, inter
alia, bare statement of the husband without corroboration. No one
else on side of appellant took the box to corroborate his allegations
of cruelty. No worker came and said that respondent in furthering
her suspicion had made enquiries regarding appellant. Neither
parents nor brother of appellant took the box to say they were
denied entry or unwelcome in the matrimonial home. The Family
Court went on to say, regarding involvement of appellant in money
lending business, it does not seem to be such an act which could be
considered derogatory to the owner and prestige of a person. This
was supported by reliance of the Family Court on declaration of law
MATA no.462 of 2023
made by the Supreme Court regarding mental cruelty in G.V.N.
Kameswara Rao v. G. Jabilli, reported in (2002) 2 SCC 296.
7. Mr. Mohanty relies on view taken on order dated 20th
November, 2023 by a Division Bench in the Allahabad High Court
in First Appeal no.1210 of 2023 (Smt. Jyoti Verma v. Prashant
Kumar Verma) to submit, in a matrimonial case the Family Court
had dissolved the marriage ex-parte against the wife. The appeal to
the Division Bench was dismissed. Special Leave Petition filed in
the Supreme Court was also dismissed.
8. It appears from Smt. Jyoti Verma (supra), the wife had
made an application for setting aside the ex-parte decree. On being
unsuccessful, appeal was preferred to the High Court on delay. The
application for condonation of delay was rejected by the order
made. The Supreme Court refused to interfere. In those facts the
view taken is inapplicable to this case.
9. Allegations made by appellant in his petition referred to other
persons. It is but natural that the Family Court would have required
corroboration, particularly when respondent went unrepresented. In
the circumstances, absence of corroborative evidence gave rise to
MATA no.462 of 2023
disbelief. In view of aforesaid, there is no reason for us to
interfere with impugned judgment. It is confirmed in appeal.
10. The appeal is dismissed.
( Arindam Sinha )
Judge
( M.S. Sahoo )
Judge
asant
Designation: Personal Assistant
Sks Authentication
Location: ORISSA HIGH COURT
Date: 15-Jan-2025 16:44:47
MATA no.462 of 2023
