Annapurna Nayak @ Dash Vs Dillip Kumar Dash T

Arindam Sinha, J.

Appellant is the wife. She is aggrieved because by impugned judgment dated 4th July, 2022 made by the family Court, the marriage was dissolved on direction for payment of permanent alimony at ₹10,00,000/-. Mr. Acharya, learned advocate appears on her behalf. Mr. Tripathy, learned advocate appears on behalf of respondent-husband.

It appears, respondent-husband had filed the civil proceeding taking two grounds as in clauses (i) and (i-a) under section 13(1), Hindu Marriage Act, 1955. He examined himself and got examined as his witnesses, inter alia, a taxi driver and a person, who used to work or works in ‘Auto Point’ at Jagatsinghpur. The evidence laid by and on behalf of respondent-husband narrows down the friction between husband and wife to have occurred during their three years stay in a Government quarter at Jagatsinghpur. There was nobody else staying with them except their children, the two sons.

The family Court rejected allegation under ground in clause (i) but found in favour of respondent-husband on ground in clause (i-a). On query from Court Mr. Tripathy submits, his client wants closure in the relationship and on having obtained divorce, be it on one of the two grounds, he deposited the amount for permanent alimony. Admittedly appellant-wife spent part of it and under orders in the appeal, has tendered Demand Draft dated 24th November, 2023 for ₹8,00,000/- drawn in favour of his client, held by the Court. Validity of the instrument nearing its end, the appeal was listed under heading ‘For Orders’ and on consent of parties taken up for hearing.

Mr. Acharya submits, on the date of filing of the petition his client was living with respondent-husband. Assuming though not admitting she had behaved badly with him, fact of togetherness is proof of forgiveness. He relies on judgment of the Supreme Court in R. Balasubramanian v. Vijayalakshmi Balasubramanian, reported in AIR 1999 SC 3070, paragraph 4. The paragraph is reproduced below.

“Mr. A.B. Rohatgi, learned counsel appearing for the husband submitted that as far as the allegation of adultery against respondent-wife is concerned he is not going to press. That may be good of him but the fact remains that the allegation that the wife had sexual intercourse with a person other than the husband is a serious allegation against the wife and shows the cruel conduct of the husband entitling the wife to seek relief against him under the Act or otherwise. It was submitted that on July 6, 1979 parties celebrated their tenth wedding anniversary. That would show that both were living together and it is apparent that the husband has condoned the cruelty, if any, alleged by him against the wife. Husband has not gone to see his third child Kamakshi since her birth. High Court has rejected his plea that he ever made attempt to bring his wife and the daughter, who was born to her at her parents house. High Court has considered pleadings and the evidence on record threadbare and came to the conclusion that the case of cruelty and desertion set up by the husband has not been proved. We agree with the High Court and rather we find that it is husband, who is in wrong.”

(emphasis supplied)

As aforesaid, we have perused, in particular, evidence adduced by respondent-husband and on his behalf. We have also perused evidence adduced by appellant-wife and on her behalf. She had alleged respondent-husband was having illicit affair with one Binita Swain. Matron of the hostel was produced by her as a witness. In the evidence-in-chief in shape of affidavit it was said that respondent-husband had brought the young lady to the hostel claiming he was her local guardian. This was a cover up. One day there was big commotion, when police arrived at the hostel and wanted to take respondent-husband in custody but let him go because appellant-wife requested them to. Only one question was asked to the Matron (OPW.2) in cross examination. We reproduce the answer as per paragraph 9 from her deposition in cross-examination dated 1st November, 2021.

“9. Whatever counsel for the opposite party has instructed, my affidavit was prepared with regard to his instruction. I do not know the content of my affidavit. I also do not know who is the petitioner of this case. No such girl in the name of Binita Swain has ever stayed in our hostel.”

(emphasis supplied)

Considering respondent-husband has not preferred cross-objection nor separate appeal on rejection of his ground under clause (i), we looked at the evidence, in context of allegation on ground of cruelty. Respondent-husband produced witnesses, who were local persons and had deposed having witnessed bad behavior on part of appellant-wife toward respondent-husband. The family Court relied on this evidence to find in favour of respondent-husband on ground of cruelty.

Facts in R. Balasubramanian (supra) were that when the wife in that case had informed her husband she was pregnant with their third child, the husband was surprised alleging he had ceased marital/physical relationship with her long prior thereto. The wife went away to her parents’ home, carried full term and gave birth to a daughter. The Supreme Court found further facts to be, inter alia, the wife’s readiness and preparedness to undergo any sort of medical examination to prove father of the daughter was the husband. As the hearing unfolded before the Supreme Court, learned counsel appearing for the husband submitted, the allegation of adultery was not pressed. In such circumstances the Supreme Court noted that on their tenth wedding anniversary, after everything alleged to have happened, the husband and wife were together. Also in the circumstances, the Supreme Court went on to say that the allegation of adultery levelled by the husband against the wife amounted to cruelty. Facts in this case are not similar. The wife alleged illicit affair she could not prove. We have not been shown anything for us to find there was forgiveness by the husband. We made query of Mr. Tripathy on whether at this time his client would take back appellant-wife. He submits, his clear instruction is in the negative.

On merits we have not come across anything warranting interference with impugned judgment in appeal. A slight modification thereto is necessary inasmuch as, the permanent alimony already stood transferred to appellant-wife, of which she spent ₹2,00,000/-. She has refunded ₹8,00,000/- by Demand Draft no.509430 dated 24th November, 2023 issued by Indian Bank in favour of respondent-husband for ₹8,00,000/- to avoid acquiescence as she wanted to prosecute her appeal. The instrument is detached from the file and made over to Mr. Tripathy, who puts his signature to account for receipt thereof. Respondent-husband is to forthwith encash the Demand Draft and deposit proceeds thereof to comply with the direction on permanent alimony. On query from Court Mr. Acharya submits, his client has not initiated execution proceeding. As such, deposit of the permanent alimony in the family Court, upon encashment of the Demand Draft, is to be made within two weeks from date, failing which appellant-wife will be at liberty to proceed for execution.

The appeal is disposed of as above.

…………………………