HIGH COURT OF ORISSA: CUTTACK.
MATA No.79 of 2012.
An application under Section 19(1) of the Family Courts Act, 1984.
Taruna Kumar Gadabad ………. Appellant.
Subhalaxmi Lenka ………. Respondent.
Counsel for Appellant :M/s. Sankarsan Rath, Sangita Mohanty,
D. Vardwaj. M/s. Ramakanta Mohanty, Sr.
Advocate, A. Mohanty, S. Rath, D. Mohanty
and S. Mohanty.
Counsel for Respondent :M/s.Sukumar Ghosh, Mr. Yeeshan
Mohanty, Sr. Advocate and Asit R.
THE HONOURABLE SRI JUSTICE S. K. MISHRA.
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
Date of hearing: 24.09.2019 :: Date of Judgment : 18.10.2019
Dr. A. K. Mishra, J. The unsuccessful husband has preferred this appeal
U/s.19 of the SectionFamily Courts Act, 1984 challenging the judgment
dtd.17.7.2012 passed in C.P. No.140 of 2010 by the learned Judge,
Family Court, Khurda in dismissing the petition U/s13(1)(i-a) and (i-b)
of the Hindu marriage Act, 1955 seeking divorce against the wife –
2. The facts not in controversy are that the husband, a service
holder under BSNL, married respondent – wife as per Hindu rites and
custom on 12.5.2008. Both of them were blessed with a son born on
16.2.2009. The wife stayed for a fortnight in the house of her father-in-
law and then was taken by the husband to his service place at
Srikakulam. Since 4.7.2008 the petitioner has been staying at his
father’s house at Bhubaneswar. The divorce petition by husband was
filed on 20.4.2010 on the ground of desertion and cruelty.
3. Now descending to the controversial facts, the case of
husband – petitioner is that wife did not like to reside with the plaintiff
in his paternal house for which she was brought to the service place at
Srikakulam where he was working as Jr. Accounts Officer of BSNL. The
respondent was very adamant. She did not behave properly to his
parents. She did not do the household work, did not prepare food in
time, did not take care of husband. Instead, over silly matter, she
misbehaved not only the husband but also his parents addressing them
as stupid, miser, ugly fellow, etc. She insisted for separate residence at
Bhubaneswar. The husband did not agree. She left the petitioner at her
own sweet will on 4.7.2008. The husband – petitioner took several
attempts to get her back but all was in vain. A child was born on
16.2.2009 while she was in her father’s house. Such information was
not given either to the husband or to his family members. The parents of
the husband went to the house of her father where she was staying for
SORNAKHETRA day but they were all misbehaved. The local gentries
were engaged to find an amicable settlement of the dissention. It yielded
no fruit. On 10.01.2010 the plaintiff – husband lastly requested the
respondent to join with him. She refused. As a last resort this
proceeding for divorce was filed.
4. The respondent – wife denied the allegation of cruelty and
desertion. Her case is that she was taken to the service place on
28.5.2008. She led her marital life there peacefully. On 30.6.2008,
during medical checkup, both spouses came to know that she was
pregnant. The husband insisted her to terminate pregnancy and also to
bring Rs.3 lakhs and 10 tolas of gold ornaments towards dowry. She
was threatened. On 4.7.2008 the husband brought her from Srikakulam
to Bhubaneswar by train and left her in her parents’ house. During her
stay in her father’s house, a child was born on 16.2.2009 in the
hospital. Intimation was given to the husband and his parents. They did
not turn up. The husband did not take any step to restore the conjugal
life with her. She alleged that her husband and his parents had treated
her with cruelty. She prayed to dismiss the divorce petition.
5. Learned Judge, Family court framed seven issues including
issue No.IV and V on the point of cruelty and desertion. Six witnesses
were examined on behalf of husband – petitioner including himself as
P.W.1. His father is P.W.2. The mediator is P.W.4. Other witnesses are
either friend and neighbours of the husband – petitioner. Seven
documents are exhibited on behalf of husband which include certified
copy of complaint case in 1.C.C No.374 of 2011 in the Court of S.D.J.M.,
Bhubaneswar filed by the husband against the wife and her father
and brother. It was filed on 2.2.2011 for the incident dated 26.12.2010.
Ext.2 is the certified copy of complaint case in 1.C.C. No.27 of 2011 filed
on 31.3.2011 by the husband – petitioner against the father-in-law
Nityananda for the incident dtd.09.03.2011 in the court of S.D.J.M.,
On behalf of wife – respondent 3 witnesses were examined
including herself as R.W.1, while R.W.2 is her father and R.W.3 is her
maternal uncle. Three documents are exhibited including pregnancy test
report dtd.30.6.2008 by the doctor at Srikakulam.
6. Lower court record reveals that wife – respondent had filed
interim maintenance petition vide CMA No.180 of 2010 on 25.8.2010. In
that proceeding the husband – petitioner had filed a petition U/s.151
SectionCr.P.C. on 09.02.2011 praying for DNA test of the parties along with the
child. The ground for such prayer as mentioned at paragraph 2 of the
petition is extracted below:-
“2. That, the O.P. / Husband asserts that the O.P. /
Husband has / had no successful sexual relationship with the
petitioner, due to her non-cooperation, during the period in
which the petitioner lived with the O.P. / Husband, i.e. from
12.5.2008 to 4.7.2008. Whereas the petitioner gave birth to a
male child and that gives rise to a reasonable doubt that the
petitioner had become pregnant through other source and the
O.P. is not the father of the child. Therefore, the O.P. is willing to
undergo D.N.A. test of t he parties concerned.”
The wife had filed objection and finally the court rejected
such petition vide order dtd.16.5.2011. The husband – appellant, as
P.W.1, has admitted such fact in his cross-examination.
7. Learned Judge, Family court has recorded finding as to the
admitted fact that a son was born to both parties on 16.2.2009. With
regard to desertion, it is found that statutory period, i.e. “not less than 2
years” had not elapsed as the wife had left the house of husband on
4.7.2008 and the divorce petition was filed on 20.4.2010.
On the point of cruelty, learned Judge, Family Court has
held that if the wife had not behaved properly, the husband would not
have taken her to Srikakulam and the allegation of cruelty was omnibus
in nature. It is also held that while petitioner – husband had pleaded
that a male child was born from their wedlock, he had filed a petition for
DNA test to humiliate and torture the wife – respondent and both the
complaint cases (Ext.1 and Ext.2) were filed after the divorce proceeding
without resorting to any report before police. According to the learned
Judge, Family Court, those complaint cases were filed to create evidence
for this divorce proceeding. The refusal of husband to accept the wife as
stated in the evidence is indicative of his cruel conduct and his
allegation of cruelty against the wife was spurious. Disbelieving the plea
of cruelty and failure of desertion for want of 2 years separation, learned
Judge, Family Court dismissed the petition for divorce.
8. Learned Sr. Counsel Mr. Ramakanta Mohanty for the
appellant fairly submitted at the outset that plea of desertion, not
accepted by learned Judge, Family Court is not contestable. His
submission is that considering the complaint cases (Ext.1 and Ext.2)
and Station Diary Entry (Ext.6) and refusal of wife to stay with the
husband despite best efforts, learned Lower Court had committed error
in not appreciating the evidence on its proper perspective and there are
sufficient materials available on record to establish that wife –
respondent had treated the husband in cruel manner by not preparing
food. He relied upon a decision reported in (2007) 4 SCC 511, Samar
Ghosh and Jaya Ghosh to contend that husband had proved mental
cruelty and both parties having remained separate for more than a
decade, their marital tie should be snapped as it is a case of irretrievable
breakdown of marriage.
9. Learned counsel for respondent Mr. Sukumar Ghosh
repelled the above contention stating that husband cannot take
advantage of his own wrong after subjecting the wife to mental cruelty
by suspecting the parentage of the child. When the statutory grounds of
cruelty and desertion are not proved, irretrievable breakdown of
marriage cannot be the basis to allow the divorce. Learned counsel
specifically submitted that dissolution of marriage on the ground of
irretrievable breakdown of marriage can only be done by invoking
the power under SectionArticle 142 of the Constitution of India by Hon’ble Apex
Court which is not available to the High Court.
10. We carefully perused the lower court record and evidence
along with the materials available therein and patiently heard both the
Admitted facts are already catalogued supra. The plea of
desertion, in view of candid concession made by learned counsel for the
appellant, is not required to be examined in this appeal. The time
essential to maintain such ground fall short admittedly.
The residue but sole ground of cruelty would decide the fate
of this appeal. For that, the broader aspect of the evidence peculiar to
the case needs to be appreciated.
Marriage between the parties was held on 12.5.2008. The
husband (P.W.1) has testified that after marriage both of them stayed in
their house at Begunia and led happy conjugal life for a period of 12
days. When he wanted to go back Srikakulam, his service place, the wife
accompanied him. She stayed in the quarter with him for 40 days. But
she did not treat him properly, underestimated him, did not give food in
time. On one occasion, she did not prepare food for his friend. He has
further deposed that the wife deserted him on 4.7.2008 and while she
was in her father’s house, a child was born to her. He has admitted that
the complaint cases (Ext.1 and Ext.2) were filed after filing of this
In cross-examination he had admitted that he had not seen
his son till the date of his deposition and he had filed a petition for DNA
test to ascertain the parentage of the child. He has also stated that he
would not accept his wife even if she is willing to stay with him.
Per contra, the wife (R.W.1) has stated that at Srikakulam
she stayed for 36 days and she was not treated properly and husband
was insisting to terminate her pregnancy and on 4.7.2008 the husband
brought her in Prasanti Express train and without going to her father’s
house, left her at railway station.
11. Given the gamut of evidence, it is established that after
marriage both spouses stayed at Begunia for 15 days and thereafter at
Srikakulam for 36 days. Medical checkup was done on 30.6.2008, i.e., 5
days before the wife left Srikakulam. The initial hiccup in marital life
was blown out of proportion when complaint cases were filed after the
divorce petition and prayer for DNA test was made by husband
suspecting the character of the wife and parentage of the child. The act
of mental cruelty has been alleged by both of them against each other.
Such period was confined only for two months after marriage. The
husband after birth of the child on 16.2.2009 had not taken any step to
see the child till the date of his deposition in the court. Such a conduct
along with the prayer to make DNA test amounts to humiliate the
wife and child in public eye in the society. A wronged party cannot take
advantage of his own wrong as provided U/s.23(1)(a) of the SectionHindu
Marriage Act, 1955 which reads thus:-
“23. Decree in proceedings. – (1) In any proceeding
under this Act, whether defended or not, if the Court is satisfied
(a) any of the grounds for granting relief exists and the
petitioner [except in cases where the relief is sought by him on
the ground specified in sub-clause (a), sub-clause (b) or sub-
clause (c) of clause (ii) of section 5] is not in any way taking
advantage of his or her own wrong or disability for the purpose
of such relief, and”
The evidence of the petitioner – husband is not clinching
that for a sustainable period, the wife used frequent rude language and
neglected in such a degree that the marital life between them was
Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty. But if such
conduct is confined only for two months and that too, when wife was
under the family way, it could not be accepted as a deviant behavior
intolerable for the husband. Whatever is alleged by the husband, is
nothing but trivial irritation and normal wear and tear of the married life
and is not adequate for grant of divorce on the ground of mental
Learned Judge, Family Court has correctly appreciated the
evidence on record and no fault can be found if the same is weighed on
the scale of physical and mental condition of the parties as well as their
social status. The impact of prayer for DNA test has outweighed the
trivial irritation and quarrelsome conduct of the wife alleged by the
husband. Such an unprovoked grave conduct questioning marital
fidelity could not have been condoned by granting divorce to the maker.
The husband – petitioner was reckless and restless in filing complaint
cases against the wife and her family members even after filing of the
We affirm the finding of learned Judge, Family Court. The
decision of Hon’ble Apex Court in Samar Ghosh case (supra) does not
help the appellant in any manner in the facts and circumstance of the
case as a differentia to the case at hand.
12. Irretrievable breakdown is no more a ground to dissolve a
marriage by a decree of divorce U/s.13 of the SectionHindu Marriage Act, 1955.
On that score, the judgment impugned cannot be reversed. The power
under SectionArticle 142 of the Constitution of India is not available to this
court. Hon’ble Apex Court in the case of R. Srinivash Kumar Vrs. R.
Shametha, reported in (2019) SCC online Supreme Court 1320 has
clarified the position of law in this regard in the following manner:-
“7. This Court, in a series of judgments, has exercised its
inherent powers under SectionArticle 142 of the Constitution of India
for dissolution of a marriage where the Court finds that the
marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts of
the case do not provide a ground in law on which t he divorce
could be granted. In the present case, admittedly, the appellant-
husband and the respondent-wife have been living separately
for more than 22 years and it will not be possible for the parties
to live together. Therefore, we are of the opinion that while
protecting the interest of the respondent-wife to compensate her
by way of lump sum permanent alimony, this is a fit case to
exercise the powers under SectionArticle 142 of the Constitution of
India and to dissolve the marriage between the parties.”
13. In the wake of above analysis and settled position of law, we
do not find any ground to interfere with in the impugned judgment.
Accordingly the MATA stands dismissed. However, there is
no order as to cost.
Send back the L.C.Rs.
Dr. A. K. Mishra, J.
S. K. Mishra, J I agree.
S. K. Mishra, J.
Orissa High Court, Cuttack,
Dated the 18th October, 2019/MKP