Sri Gopal Krishna Das vs Smt. Trupti Mishra
2025 Latest Caselaw 161 Ori

Orissa High Court

Sri Gopal Krishna Das vs Smt. Trupti Mishra on 5 May, 2025

Bench: B. P. Routray, Chittaranjan Dash

Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29


                                IN THE HIGH COURT OF ORISSA AT CUTTACK
                                            MATA No.44 of 2013

                           Sri Gopal Krishna Das                     ....         Appellant
                                                      Ms. K. Banarjee, Advocate on behalf
                                                      of Mr. S.K. Dash, Advocate

                                                       -versus-

                           Smt. Trupti Mishra                         ....        Respondent


                                          CORAM:
                                          JUSTICE B. P. ROUTRAY
                                          JUSTICE CHITTARANJAN DASH

                                                     ORDER

05.05.2025 Order No.

07. 1. Heard Ms. K. Banarjee, learned counsel for the Appellant and no one entered appearance for the Respondent despite notice is made sufficient.

2. The matter was called in the first hour and it has been passed over permitting Ms. Banarjee to call her senior. Instead of the same, her senior does not appear and it is submitted by Ms. Banarjee that a copy of the TCR may be supplied to the counsel for the Appellant enabling them to argue in the matter.

3. It is true that the Appellant has no right to get a copy of the TCR (Trial Court Record) from this Appellate Court. The Appellant has to substantiate his case on the basis of materials brought in the Trial Court. Accordingly, the prayer of Ms. Banarjee to get a copy of the TCR from this Court is refused.

Location: HIGH COURT OF ORISSA, CUTTACK

4. We perused the impugned judgment including the evidences and materials produced on record.

5. It is seen that the husband has come up against the decree of learned Family Judge, Berhampur dated 5th April 2013, passed in Civil Proceeding No.606 of 2010, wherein his prayer to grant the decree of divorce has been refused.

6. The husband approached learned Family Judge in C.P. No.606 of 2010 for granting decree of divorce on the ground of cruelty and desertion. As per the allegations, the wife-Respondent subjected the husband to mental cruelty from the very beginning of their marital life by returning late in the evening. It is also alleged that in one occasion the wife refused to cook 'PINDA' in the Sradha ceremony of late father of the husband and again, on one particular occasion the wife along with the minor baby reached at the office of the husband and shouted there.

7. The wife on her part refuted all such allegations made against her and made counter allegations against the husband stating that the husband and his family members continued harassing her by scolding in filthy languages and passing comments. Even during her pregnancy she was beaten up and tortured by the family members of the husband. She did not leave the matrimonial house on her own, but due to compulsion and threat put by the husband and his family members. Compelled by such circumstances, the wife left the matrimonial home along with her minor child for safety and security.

Location: HIGH COURT OF ORISSA, CUTTACK

8. Both parties examined two witnesses each on their part to substantiate their stand. Besides adducing such oral evidences, the husband relied on three documents marked as Ext.1, Ext.2 and Ext.3. The learned Family Judge framed five issues and all such issues were answered against the husband. Among such issues, Issue no.3 speaks about the cruelty and desertion to justify the ground of divorce. P.W.1, who is the husband himself, has though stated in his evidence regarding the fault committed by the wife and about her late return in the evening, but could not able to stand confirmed to such statements during his cross-examination and cross-examination of the wife. Since the husband was the plaintiff before the learned Family Judge the burden is on him, in terms of the principles under Section 101 to 104 of the Indian Evidence Act, to satisfy that the wife has voluntarily left the matrimonial house or subjected him to such cruelty within the meaning of Section-13 (1)(i-a) of the Hindu Marriage Act.

To analyse the evidence of the parties on this score, it is seen that the husband P.W.1 has relied on Ext.3, i.e. an agreement, more so an undertaking by the wife, executed between the parties that the wife will not go to the house of one Indira Devi. The same is seen prepared on a stamp paper worth of Rs.10/-, which was purchased by the husband on 24th April 2008. P.W.2 is the attesting witness to said agreement and in her evidence she admits to have signed on the agreement before the wife has signed. Taking note of such material irregularity in execution of the agreement under Ext.3, and taking others surrounding facts with regard to execution of the same, the learned Family Judge has rightly disbelieved the same to be a voluntary one. On analysis of the facts as deposed by the witnesses with regard to execution of

Location: HIGH COURT OF ORISSA, CUTTACK

Ext.3, we do agree with the opinion of the learned Family Judge that such undertaking under Ext.3 is not a voluntary one, but obtained under compulsion, and thus the same has been rightly disbelieved.

9. So far as the other aspects of cruelty and desertion are concerned, it is seen from the evidence of wife (D.W.1) that she was working as a teacher prior to marriage and continued as such after the marriage and therefore she has to discharge her duties from 7:00 A.M. to 2.30 P.M. on every working day and she used to return during the evening hour. She refused to all such allegations of the husband regarding any sort of misbehavior to in-law members. She has rather disclosed that the husband and his family members used to harass her on different pleas and even physically assaulted her. Even on one occasion the husband slapped her in front of her mother and aunt. The narration of the statements by the wife and her answers given during cross- examination justifies her plea that she was compelled to leave the matrimonial house for her safety and also for safety of the minor child.

10. It is not the case of the husband that, he has attempted to bring the wife to him at any point of time or has approached the competent Court of law under appropriate provision for restitution of conjugal right. The burden being on the husband to prove his contentions regarding commission of cruelty by the wife and he being failed to satisfy the same through satisfactory evidence and appropriate materials, we are not inclined to accept such contention on the part of the husband that he was subjected

Location: HIGH COURT OF ORISSA, CUTTACK

to mental cruelty by the wife to entitle him to get the decree of divorce on such ground. Having not found any infirmity in the order of the learned Family Judge, we refuse to interfere with the same. Accordingly, the appeal is dismissed.

(B.P. Routray) Judge

(Chittaranjan Dash) Judge

C.R Biswal/Sarbani