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.

– Versus-
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.
Panigrahi.
PRESENT:

THE HONOURABLE SRI JUSTICE S. K. MISHRA.

THE HONOURABLE DR. JUSTICE A. K. MISHRA.

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Date of hearing: 24.09.2019 :: Date of Judgment : 18.10.2019

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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 –

respondent.

2. The facts not in controversy are that the husband, a service

holder under BSNL, married respondent – wife as per Hindu rites and
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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
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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
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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.,

Phulabani.

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
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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
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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
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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

parties.

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
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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

divorce petition.

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
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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
that –

(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

absolutely intolerable.

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
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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

cruelty.

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

divorce petition.

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.
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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