Padmalaya Dash vs Dola Gobinda Dash

Arindam Sinha, J

The wife has preferred appeal against judgment dated 30th March, 2022 of the Family Court, dissolving the marriage and directing ₹5,00,000/-towards permanent alimony/maintenance. Mr. Mishra, learned advocate appears on behalf of appellant-wife while Mr. Rath, learned advocate for respondent-husband.

Mr. Mishra submits, ground for dissolving the marriage was erroneously said to be cruelty. There was no cruelty on part of his client. In the circumstances, we call upon Mr. Rath to demonstrate pleading and evidence on cruelty, as would appear from materials before the Family Court, its record being available.

Mr. Rath submits, appellant-wife was cruel to his client. She had confessed that she was under pressure to get married to him. She caused humiliation to him because he is a disabled person having suffered polio. Inspite of best efforts of his client she did not mend her ways. In January, 2013 she left for her parental home. His client is a junior practicing advocate. His senior went to bring her back, with no result. In March, 2013, there was second attempt to bring her back. This time his client along with family members went to parental house of respondent-wife. Not only she did not come back, she took away from his custody, the son born to them.

He submits, pleading of cruelty was there in the petition. It was reiterated by evidence on affidavit. His client along with his parents and uncle gave evidence. There were wild allegations made against his client’s father, completely demolished by cross-examination of respondent-wife. Accordingly, the Family Court found the facts to support his client’s case of cruelty. The judgment is a good one directing dissolution of the marriage on payment of permanent alimony/maintenance. The money stands deposited in the Family Court.

Mr. Mishra in reply reiterates his submission that there was no cruelty, neither pleaded nor proved. We had requested learned advocates for the parties to either cause them to resolve their differences or find honorable separation. Mr. Rath, on instruction submits, his client is prepared to pay in addition, ₹10,00,000/-, taking aggregate permanent alimony to ₹15,00,000/-. Mr. Mishra on instruction submits, his client does not want money. His instruction is to press with the appeal.

We have perused the petition and written statement. We find, the marriage was solemnized on 10th February, 2008. On query from Court we ascertain from Mr. Rath, his client took appellant-wife to Darjeeling in a group in May, 2008. The petition says a son was born to the couple on 26th August, 2010. We also find from the petition, respondent-husband said he had forgiven appellant-wife for her previous acts prior to the marriage, which was suppressed but intimated through a benami letter.

Appellant-wife filed written statement denying the allegations made. She also filed evidence on affidavit. She, followed by her father and uncle were examined as witnesses from her side. We looked for cross-examination of appellant-wife on allegations she had made in her written statement, particularly regarding her father-in-law having behaved inappropriately with her on 17th January, 2013. There was cross-examination to fuel Mr. Rath’s submission that the allegations stood demolished. However we find otherwise. Firstly, allegation made by appellant-wife, of inappropriate approach, was in her written statement and she in her cross-examination had said she had not disclosed before them, to anyone except her husband. This could not be disproved. On the contrary, questions in cross-examination were put to her as to why she had not disclosed it before. As such, her allegation made in the written statement could not be a ground of cruelty, as not made before filing of the petition, to give cause of action. Furthermore, appellant-wife had not alleged cruelty for dissolution of the marriage. It was the husband who did.

On perusal of materials on record, our inference is that the couple were happy with each other. Appellant-wife married respondent inspite of his stated disability. The petition carries allegations of cruelty meted out by her right from the marriage onward. On the contrary they went to a hill station and later a son was born to them.

We are clear in our mind that the Family Court failed to appreciate the facts. There was no cruelty perpetrated by appellant-wife on respondent-husband as appearing from materials on record. Impugned judgment is reversed.

The appeal is allowed and disposed of.

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