Orissa High Court
Kalpana Tripathy vs Arun Kumar Panda on 2 May, 2025
Author: B.P.Routray
Bench: B.P. Routray, Chittaranjan Dash
Corrected
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa
Date: 16-May-2025 15:57:04
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 433 of 2023
(From the judgment dated 3rd October 2023 of learned Judge, Family
Court, Dhenkanal passed in C.P. No.11 of 2023)
Kalpana Tripathy .... Appellant
-versus-
Arun Kumar Panda .... Respondent
Advocate(s) appeared in this case:-
For Appellant : Mr. Pulakesh Mohanty, Advocate
For Respondent : None
CORAM: JUSTICE B.P. ROUTRAY
JUSTICE CHITTARANJAN DASH
JUDGMENT
2nd May, 2025
B.P.Routray,J.
1. Heard Mr. P.Mohanty, learned counsel for the Appellant - Wife.
2. None appears on call for the Respondent-Husband and as seen
from the order sheet the Respondent remains absent for last two
consecutive dates.
Location: High Court of Orissa
3. Present appeal is directed against impugned judgment dated 3rd
October 2023 of learned Judge, Family Court, Dhenkanal passed in
C.P. No.11 of 2023, wherein the prayer of the husband was allowed
granting decree of divorce with further direction to pay the
permanent alimony of Rs.8,00,000/- in favour of the wife.
4. The parties married on 18th April 2014 and blessed with two
daughters out of their wed-lock. As per the facts revealed, the wife is
residing separately along with two minor daughters at
Kamakhyanagar. The husband is serving in clerical cadre in Indian
Army and as per the materials produced on record he was drawing
monthly salary of Rs.64,355/- in the year 2023. The learned Family
Judge granted the decree of divorce by dissolution of marriage on
the ground of mental cruelty and desertion.
5. It is true that allegations and counter allegations have been
labeled on the part of both parties against each other and the criminal
case was also registered at the instance of the wife against the
husband. Both parties have examined their respective witnesses,
including themselves, to substantiate their case. The husband has
Location: High Court of Orissa
examined himself as P.W.1 and the wife examined herself as R.W.1.
The wife has also examined her mother as R.W.2.
It is the admitted case that since 25th February 2019 both parties
are staying separately from each other and the civil proceeding for
divorce was filed by the husband on 17th January 2023. Section 13
(1) (i-b) prescribes the ground for divorce for a period of continuous
desertion of two years or more immediately preceding the date of
institution of the proceeding. As seen from the evidence of the wife
(R.W.1) and husband (P.W.1), and read conjunctively, we are
satisfied with the finding of the learned Family Judge that the
desertion on the part of the wife is not substantiated with any valid
reason. It is true that the cause of desertion is a matter of inference to
be drawn from the facts and circumstances of each case and the
conduct of the parties. The conduct parties, pre and post separation,
is important to be looked into because the same would reveal their
intention. In Bipin Chander Jaisinghbhai Shah vs. Prabhawati,
AIR 1957 SC 176, the Supreme Court has explained the concept of
desertion as the same is a course of conduct existing independently.
It is held as follows:-
Location: High Court of Orissa
"The offence of desertion is a course of conduct which
exists independently of its duration, but as a ground
for divorce it must exist for a period of at least three
years immediately preceding the presentation of the
petition or, where the offence appears as a cross-
charge, of the answer. Desertion as a ground of
divorce differs from the statutory grounds of adultery
and cruelty in that the offence founding the cause of
action of desertion is not complete, but is inchoate,
until the suit is constituted. Desertion is a continuing
offence. Thus the quality of permanence is one of the
essential elements which differentiates desertion from
willful separation. If a spouse abandons the other
spouse in a state of temporary passion, for example,
anger or disgust, without intending permanently to
cease cohabitation, it will not amount to desertion.
For the offence of desertion, so far as the deserting
spouse is concerned, two essential conditions must be
there., namely, (1) the factum of separation, and (2)
the intention to bring cohabitation permanently to an
end (animus deserendi). Similarly two elements are
essential so far as the deserted spouse is concerned :
(1) the absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid."
Further, in the case of Sanat Kumar Agarwal vs. Nandini Agarwal
(1990) 1 SCC 475, it is held that:-
"It is well settled that the question of desertion is a matter of
inference to be drawn from the facts and circumstances of each
case and those facts have to be viewed as to the purpose which
is revealed by those facts or by conduct and expression of
intention, both anterior and subsequent to the actual act of
separation."
6. Taking note of the conduct of the parties as evinced from their
respective statements made in course of their examination and cross-
Location: High Court of Orissa
examination, we are satisfied that the fact of desertion accountable
on the part of the wife is established to grant the decree of divorce in
favour of the husband. The learned Family Judge has made detailed
discussion of such facts in the impugned judgement, which we don't
want to repeat here. As such, we are not inclined to interfere with the
impugned order whereby the marriage of both parties has been
dissolved.
7. Next coming to the part of alimony, it is not in dispute that the
wife-Appellant has no source of income, who is living along with
two minor daughters. Learned Family Judge has granted permanent
alimony to the tune of Rs.8,00,000/- in favour of the wife without
any direction for maintenance for the minor daughters. While
dealing with the present appeal we are thus constrained to proceed in
terms of Section 26 of the Hindu Marriage Act, since it is alleged
against the Husband-Respondent that he is living with another
woman in the meantime. At the same time, looking into the income
of the husband-Respondent as brought on record in course of trial
and taking note of the circumstances that the wife is staying
separately in her parents' house along with her minor daughters, we
are inclined to enhance the quantum of permanent alimony. Taking
Location: High Court of Orissa
all such factors and circumstances of the case, the permanent
alimony amount is enhance to Rs.12,00,000/- to be paid in favour of
the wife. Further, the husband is directed to pay the monthly
maintenance of Rs.10,000/- each for two daughters with immediate
effect.
8. Accordingly, the appeal is disposed of by confirming the decree
of divorce with further direction to the Husband-Respondent to pay
permanent alimony Rs.12,00,000/-(Twelve Lakhs) in favour of the
Wife-Appellant and also to pay monthly maintenance of Rs.10,000/-
(Ten Thousand) each for two daughters with immediate effect. It is
made clear that failing to pay the permanent alimony amount or
maintenance amount, the wife-Appellant is at liberty for execution
for the same, in accordance with law.
(B.P. Routray)
Judge
(Chittaranjan Dash)
Judge
S.Das, Sr.Steno
