HIGH COURT OF ORISSA: CUTTACK.
MATA Nos.36 of 2014 and 109 of 2013
From an order and judgment dated 12.11.2013 passed by the learned
Judge, Family Court, Rourkela in Civil Proceeding No.250 of 2012.
MATA No.36 of 2014
Prasant Kumar Pradhan
Smt. Bharati Behera
MATA No.109 of 2013
Smt. Bharati Behera
Prasant Kumar Pradhan
Counsel for Appellant :M/s. Umakanta Sahoo, Dr. G.G.
Mohanty (MATA No.36 of 2014)
M/s. Prafulla Kumar Rath, A. N.
Samantaray, R.N.Parija, A.K.Rout,
S. K. Patnaik(MATA No.109 of 2013)
Counsel for Respondent : Mr. Prafulla Kumar Rath, A. N.
Samantaray, R.N.Parija, A.K.Rout,
S. K. Pattnaik, S. K. Behura (In
MATA No.36 of 2013)
M/s. Umakanta Sahoo,
Dr. G.G. Mohanty (In MATA No. 109
THE HONOURABLE SRI JUSTICE S. K. MISHRA.
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
Date of hearing: 06.08.2019 :: Date of Judgment : 26.08.2019
Dr. A. K. Mishra, J. Both the appeals are taken up for disposal for being
preferred against a common Judgment dtd. 12.11.2013 by the learned
Judge, Family Court, Rourkela in C.P. No.250 of 2012 and C.P. No.210 of
2. Regardless of party position in the appeal memorandums,
the Judgment to follow hereinafter shall refer the wife and the Husband
3. Marriage between Smt. Bharati Behera, the wife and Mr.
Prasant Kumar Pradhan, the husband was solemnized on 19.01.2004 at
Kansabahal as per Hindu rites and customs. On 16.12.2004, they were
blessed with a son, namely, Dibyansu Pradhan (one of the respondents
to seek maintenance in C.P. No.210 of 2011 in the lower Court).
Dissension started between the couples.
On 15.01.2005, the wife left the house of her husband and
went to her paternal house with baby son. Thereafter, till October, 2005
mediation through local gentries was taken up to resolve the dispute but
could not yield any result. On 05.11.2005 husband issued a notice
through his lawyer to wife asking her to return to his company, the
wife refused to join. On 20.07.2006 the husband filed C.P. No.149 of
2006 for restitution of conjugal rights. On 15.09.2006, the wife lodged
FIR at Sector-7 Police Station, Rourkela under Sectionsection 498(A) IPC and 4
DP Act vide G.R. Case No.1805 of 2006. The husband and his father
were arrested and remained in custody for some time. On 25.09.2006 the
husband was released on bail. Both husband and his father were
suspended from their services. On 26.04.2007 the husband withdrew the
case for restitution of conjugal rights, i.e., C.P. No.149 of 2006. On
11.10.2008 the husband filed C.P. No.199 of 2008 in the Court of Judge,
Family Court, Rourkela for divorce on the ground of cruelty and
desertion under section 13(I-A)(i) of the SectionHindu Marriage Act, 1955. In
that divorce case both parties adduced oral evidence examining
themselves. On behalf of husband, advocate notice reply, certified copy
of the FIR and suspension orders were marked Exhibits-1 to 5. Learned
Family Judge considering the evidence on record came to the conclusion
that factum of desertion as pleaded by the husband was not proved and
he was debarred to take advantage of his own wrong as per Sectionsection 23 of
the Hindu Marriage Act. Similarly, the husband had failed to establish
the allegation of cruelty as pleaded. Then learned Family Judge felt that
it was just and proper to grant judicial separation instead of divorce only
on the failure of the wife to prove the allegations of extra marital
relationship of her husband with another woman leaving a room for
reconciliation between the spouses. And then a decree of judicial
separation was granted vide Judgment dated 25.08.2011.
4. This judicial separation decree dtd.25.08.2011 becomes a
frontier for both the spouses thereafter.
C.P. No.250 of 2012 was filed by the husband praying
divorce on the ground that more than one year had been elapsed since
the passing of the decree of Judicial Separation on 25.08.2011 in C.P.
No.199 of 2008 and there was no resumption of co-habitation between
the parties. Further there was no possibility of reunion between them.
The wife filed written statement admitting marriage and the decree of
Judicial Separation. But urged about non-payment of interim
maintenance granted by the Court. She had also pleaded that during her
stay in the house of husband, she was cruelly treated and her effort to
resume co-habitation by sending letter on 14.08.2012 had not been
responded. She prayed to dismiss the prayer for dissolution of marriage.
5. Wife and her minor son filed C.P. No.210 of 2011 under
section 18 and 20 of Hindu Adoption and SectionMaintenance Act against
husband/father stating that since 29.03.2005 she being driven out, had
been staying in her father’s house. She had no independent source of
income. Her son was pursuing study in an English Medium School, at
Kansabahal. Husband was working as a Junior Executive in Rourkela
Steel plant having monthly income of Rs.32,000/-. She claimed
Rs.12,000/- for herself and 6,000/- per month for her son towards
The husband/father filed counter admitting relationship. He
disputed the grounds for separate living. He stated that he was drawing
Rs.26,500/- salary per month out of which he was repaying loan
installment and insurance. He asserted that he was paying interim
maintenance Rs.3000/- per month as per order passed under Sectionsection 24
of Hindu Marriage Act in C.P. No.199 of 2008. He had expressed his
readiness to pay Rs.3000/- per month as he was unable to give the
claimed amount Rs.18000/- to both wife and son.
6. Learned Judge, Family Court, analogously heard both the cases
and framed following three issues:-
i) Whether there has been no resumption of cohabitation as between
the petitioner and the respondent for a period of one year or upwards
after passing of the decree for judicial separation in C.P. No.199 of 2008?
ii) Whether the respondents(wife and son are entitled to get
maintenance from the petitioner and if so to what extent?
iii) To what other relief, the parties are entitled to?
Both the parties adduced oral evidence examining themselves in
support of their respective cases. Learned Judge, Family Court, held
“Though, decree for judicial separation has
been passed on 25.08.2011, the petitioner filed the
present proceeding on 3.9.2012 which is after one year of
the passing of the decree for judicial separation. So, the
petitioner is entitled to the relief as claimed in the
Further on the issue of maintenance, it was found that husband’s
monthly income was Rs.40,000/- and considering the need of wife qua
status granted monthly maintenance to wife at the rate of Rs.5000/- and
to son Rs.3000/-
Accordingly, the following order is passed:-
“The petition filed by the petitioner-husband in Civil
Proceeding No.250 of 2012 is allowed on contest. The
marriage solemnized between the petitioner and the
respondent No.1 on 19.1.2004 is hereby dissolved by a decree
of divorce to be effective from the date of the decree.
The petition filed by the respondents within the scope of
section 18 and 20 of Hindu Adoption and SectionMaintenance Act is
also allowed on contest. The petitioner (husband/Father) is
directed to pay Rs.5000/-(rupees five thousands) per month to
the respondent no.1 and Rs.3000/- (rupees three thousands)
per month to respondent no.2 towards their maintenance with
effect from the date of its application, i.e., 24.08.2011. The
petitioner is further directed to pay the maintenance of
respondent no.2 through respondent no.1. The
respondent is further directed to pay the arrear maintenance
of the respondents through respondent no.1 within a period of
six months, hence, in six installments direct to the address of
respondent no.1 failing which, the respondent no.1 is at liberty
to realies the same through due process of law. The
respondent is further directed to pay the arrear dues of the
respondent after making adjustment of the amount already
paid to them. In the circumstances of the case, there is no
order as to cost”.
7. The above order is now assailed, in these two appeals filed by the
wife and husband separately. The minor son being not before us, the
order of maintenance passed in his favour in C.P. No.210 of 2011 has
attained its finality.
Wife has assailed the impugned order in MATA No.109 of 2013
with prayer to set aside the order dated 12.11.2013 passed by the
learned Judge, Family court, Rourkela in Civil Proceeding No.250 of
The husband in MATA No.36 of 2014, prayed to nullify the part of
the learned Family Court’s (Rourkela) Judgment dtd.12.11.2013 passed
in Civil Proceeding No.250 of 2012 about payments of monthly
maintenance of Rs.5000/- to the Respondent (Respondent No.1 in Court
below) vis-à-vis directing to this Appellant for payment of Rs.2,00,000/-
(Rupees two lakhs) as permanent alimony within four months after the
date of final disposal of this appeal so also confirming the legality on
the decree of divorce as passed therein
8. Learned counsel for the wife submits that:-
i) The decree for judicial separation in favour of husband was passed
despite his failure to prove cruelty and desertion in a proceeding for
divorce and that decree being not challenged, is found to have attained
finality. In such backdrop, when the husband has not taken any step to
resume cohabitation, he cannot be allowed to seek divorce only on the
ground of expiry of one year from the date of judicial separation. Because
the husband had not acquired any vested right on expiry of one year. He
further submits that plea of cruelty and desertion in absence of appeal
against the decree of judicial separation, cannot be questioned in this
appeal and the husband should not be allowed to take advantage of his
own wrong. He relied upon a decision reported in 2001 AIR SC 1285;
SectionHirachand Srinivas Managorkar v. Sunanda. Nextly he submits that
the decree of divorce cannot be stated to have been passed on the ground
of irretrievable break down of marriage as the same was not available
under law. For that he relied upon the decisions reported in (1) AIR 2009
SC 2254; SectionVishnu Datta Sharma v. Manju Sharma and (2) 2010 AIR
SC 201 Nilam Kumari V. Dayarani.
9. Learned counsel for the husband submits that the happenings
between the spouses establish that the wife has not only subjected the
husband with cruelty but also deserted him. She has taken resort to
legal proceedings to harass the husband and his family members both
mentally and financially. Drawing support from above submission, he
proceeded to make a point that when wife has not come forward to stay
with the husband, the resumption of cohabitation after judicial
separation was a distant dream. The decree of divorce on that ground
was not only permissible but also legally sustainable. Further he submits
that granting of maintenance on monthly basis is unjust and
unreasonable for which his offer to convert the same to a gross sum of
Rs.2,00,000/- (rupees two lakhs) as permanent alimony should be
accepted. He relied upon the decision reported in AIR 2002 SC 2582
Raveen Mehta v. Inderjit Mehta, (2011) 12 SCC 1 SectionPankaj Mahajan V.
Dimple Alias Kajal.
10. Perused the record patiently. Heard the submissions
anxiously. The marital lives between the parties have already suffered a
roughweather, spending more time in litigations than with the minor son
under one roof. Relationship is admitted. The litigating relationship has
placed their minor son at the victim’s end.
10(a). On the basis of allegation and counter allegation, both
husband and wife reached the stage of Judicial Separation vide order
dtd.25.08.2011 in C.P. No.199 of 2008. The Said case was filed by the
husband for divorce on the ground of desertion and cruelty.
Learned Court found that the husband had failed to establish both the
grounds and in order to give a chance for reconciliation, while denying
the decree for divorce, Judicial Separation was granted.
10(b) The version and counter version throughout are
chameleonic. In course of litigation, parties have allowed the situation to
move in such a way that it is difficult to draw a baseline to test their
conduct vis-à-vis the ground for divorce. As the impugned divorce order
is passed on the ground of non-resumption of cohabitation despite elapse
of one year from the date of Judicial Separation decree dtd. 25.8.2011,
we feel it proper to test the said ground urged uninfluenced by any other
grounds which could have been taken by the parties. The authority of
appeal also commands the same. Irretrievable breakdown of the marriage
is no more a ground to decree a divorce. It is settled in the decision
reported in AIR 2009 SC 2254, SectionVishnu Datta Sharma v. Manju
Sharma and 2010(S) Supreme Court 201 SectionNeelam Kumar V. Dayarani.
11. In the case at hand, husband has admitted in his cross
examination evidence as P.W.1 that “after decree of Judicial Separation, I
have taken no steps for reunion”. On the other hand, wife as R.W.1 has
stated that she on 14.08.2012, she sent a letter by registered post to the
husband which was returned un-served and (she) tried her best to
contact over phone but hearing her voice, the husband disconnected the
same. Having carefully gone through the testimonies of both parties,
we are satisfied to record that after passing of decree of Judicial
Separation, the husband had not taken any initiative to resume co-
habitation with the wife till filing of divorce. Wife may not be free from
blame to make allegation but divorce has been granted under section
13(I-A)(i) of the SectionHindu Marriage Act. The said provisions reads thus:-
“i) that there has been no resumption of cohabitation
as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were
Husband filed divorce petition on the ground of cruelty and
desertion. It was dismissed but decree for Judicial Separation was
granted. Husband was the decree holder. He filed divorce petition on the
ground that one year has been elapsed from the date of decree of Judicial
Separation. He is found to have not made any effort to resume
cohabitation with wife. The wife, had tried to resume cohabitation but
her effort was frustrated by the husband. Is husband taking advantage of
his own wrong?
12. Law on this point has been well analyzed by the Hon’ble
Apex Court in the decision reported in 2001 AIR SC 1285- 2001(2)
Supreme Court SectionHirachand Srinivas Managorkar v. Sunanda. The
relevant portion having direct bearing to the question at hand reads
” 12. xxx xxx. The object of sub-section (1-A) was
merely to enlarge the right to apply for divorce and not
to make it compulsive that a petition for divorce
presented under sub-section (1-A) must be allowed on a
mere proof that there was no cohabitation or restitution
for the requisite period. The very language of Section 23
shows that it governs every proceeding under the Act
and a duty is cast on the Court to decree the relief
sought only if the conditions mentioned in the sub-
section are satisfied, and not otherwise. Therefore, the
contention raised by the learned counsel for the
appellant that the provisions of Section 23(1) are not
relevant in deciding a petition filed under sub-section
(1-A) of Section 13 of the Act, cannot be accepted.
15. xxx xxx. If the provisions in Section 13(1A)
and Section 23(1)(a) are read together the position that
emerges is that the petitioner does not have a vested
right for getting the relief of a decree o divorce against
the other party merely on showing that the ground in
support of the relief sought are stated in the petition
exists. It has to be kept in mind the relationship
between the spouses is a matter concerning human life.
Human life does not run on dotted lines or charted
course laid down by statute. It has also to be kept in
mind that before granting the prayer of the petitioner to
permanently snap the relationship between the parties
to the marriage every attempt should be make to
maintain the sanctity of the relationship which is of
importance not only for the individuals or their
children but also for the society whether the relief of
dissolution of the marriage by a decree of divorce is to
be granted or not depends on the facts and
circumstances of the case. In such a matter it will be too
hazardous to lay down a general principle of universal
17.xxx xxx. As the provision clearly provides
the decree for judicial separation is not final in the
sense that it is irreversible; power is vested in the Court
to rescind the decree if it considers it just and
reasonable to do so on an application by either party.
The effect of the decree is that certain mutual rights
and obligations arising from the marriage are as it were
suspended and the rights and duties prescribed in the
decree are substituted therefor. The decree for judicial
separation does not sever or dissolve the marriage tie
which continues to subsist. It affords an opportunity to
the spouse for reconciliation and re-adjustment. The
decree may fall by a conciliation of the parties in which
case the rights of respective parties which float from the
marriage and were suspended are restored. Therefore,
the impression that Section 10(2) vests a right in the
petitioner to get the decree of divorce notwithstanding
the fact that he has not made any attempt for
cohabitation with the respondent and has even acted in
a manner to thwart any move for cohabitation does not
flow from a reasonable interpretation of the statutory
provisions. At the cost of repetition it may be stated
here that the object and purpose of the Act is to
maintain the marital relationship between the
spouses and not to encourage snapping of such
In the light of above law, on consideration of facts presented
we are satisfied that to grant a relief of divorce to husband would be to
permit him to take advantage of his own wrong. The decree of divorce
granted vide order dated 12.11.2013 in C.P. No.250 of 2012 is liable to
be set aside.
As the decree of divorce is set aside, the offer of husband to
pay rupees two lakhs as permanent alimony merits no consideration. The
granting of maintenance to wife at the rate of Rs.5000/- per month in the
impugned order is based on factors required to be considered under
Sectionsection 18 of the Hindu Adoptions and SectionMaintenance Act, 1956. The
amount is just and reasonable having regards to the salary of the
At the cost of repetition, but to keep the record straight, we
reiterate that the lower courts order granting maintenance to minor son
has attained finality and this order shall in no way make any inroad to
that case, save and except what law permits.
In the wake of above analysis, the MATA No.109 of 2013 is
allowed and the decree of divorce granted in the impugned judgment
dated 12.11.2013 in C.P. No.250 of 2012 stands set aside.
The MATA No.36 of 2014 stands dismissed.
There shall be no order as to cost.
Dr. A. K. Mishra, J.
S. K. Mishra, J. : I agree.
S. K. Mishra, J.
Orissa High Court, Cuttack,
Dated the 26th Aug, 2019/pks