Sabitanjali Pattanaik vs Priyabrata Pattanaik

Pradipta Ray, J.—The respondent filed an application u/s 13 of the Hindu Marriage Act for a decree of divorce on the ground of cruelty and

desertion against the present appellant - wife. Originally the case was filed in the First Court of the Subordinate Judge, Cuttack (now Civil Judge,

Senior Division). Subsequently upon constitution of the Family Court the said case was transferred to the Family Court, Cuttack and registered as

Civil Proceeding No. 65 of 1991. On August 6, 1994 the said case was taken up by the Family Court, The present appellant filed an application

for adjoutnment on the grouud of illness. The Family Court rejected the said application and took up the hearing of the case ex parte. The evidence

of the present respondent was recorded, and application allowed.

The respondent-husband in his application has accused the wife of behavioural aberration, like indifference to the husband, children and house-

hold affairs, neglect of the husband and his relations, showing disrespect to the parents of the husband, obstinacy, anger, frequent outbursts,

wanton destructions of personal belongings of the husband, sexual coolness, suspecting, infliction of insult and humiliation to the husband. In his

lengthy application the husband has given detailed account of the wife''s alleged behaviour pattern, acts of cruelty and ultimate desertion.

The wife-appellant has filed an equally lengthy written statement denying and controverting the allegations made in the application. In her written

statement the wife has made serious counter-allegations against the behaviour and character of the husband describing him to be a drunkard,

womaniser, arrogant, oppressive and violent and accusing him of indulging in beastial activities including merciless beating of the wife.

Considering the materials on record and the mutual allegations of the parties, the Family Court held that the wife indulged in acts of mental

cruelty and deserted the husband. The Family Court has also recorded that marital ties between the husband and the wife has broken down

irretrievably and their relationship has reached a dead end. The Family Court granted an ex parte decree of divorce.

Against the aforesaid judgment and decree of the Family Court the wife has filed this appeal.

Mr. Mukherjee, learned Advocate for the appellant-wife has submitted that the Family Court committed error in rejecting the appellant''s prayer

for adjournment on the ground of her illness and in disposing of the case ex parte. He has pointed out that the wife-appellant cannot be accused of

taking repeated adjournment to delay the proceeding inasmuch as on several occasions the wife was present, but the Court could not take up the

hearing for its own reasons. He has submitted a list of dates in support of the said contention. He has further contended that prayer for

adjournment on a particular date is to be considered on the basis of sufficiency of the reasons on the said particular occasion and it should not be

mechanically rejected on the ground of previous adjournments or conduct.

Mr. Pangari, learned Advocate for the respondent-husband has submitted that the appellant not having filed any application in the Family Court

for setting aside the ex parte decree and having preferred appeal before the High Court challenging the decree on merits, she is not entitled to

question the decree on the ground that it was ex parte and that the present appeal is to be decided on merit on the basis of the materials oh record.

In support of his submission Mr. Pangari has referred to a decision of Punjab and Haryana High Court in Maya Devi and Others Vs. Mehria Gram

Dall Mill and Others, and a decision of Madhya Pradesh High Court in Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal, .

It Appears from the records of the Family Court that on May 16, 1992 the wife''s application for custody of the children was rejected and

August 4, 1992 was fixed for hearing of the main case. As August 4, 1992 was declared a holiday on account of dismiss of one of the Ex-Chief

Justice of the Orissa High Court, the case was taken up on August 5, 1992. The appellant-wife filed an application for time on the ground of her

illness. The said application was allowed on August 11, 1992 and September 21, 1.992 was fixed for hearing; On next 4 dates i. e. on September

21, 1992, November 11, 1992 and February 3, 1993 and March 19, 1993 both parties were present, but the case could not be taken up by the

court''for its own reason. On May 15, 1993 issues were settled and August 17, 1993 was fixed for hearing of the case. On August 17, 1993 the

appellant-wife prayed for time on the ground of her illness and hearing was adjourned to October 13, 1993. On October 13, 1993 the appellant-

wife suddenly filed a petition for reconoiliation. As the Presiding Officer was absent the case was not taken up and was adjourned to December

16, 1993. The Court could not take up the matter inn December. 16, 1993 and March 7, 1994- was ftxed for hearing. On Match 7, 1994 the

appellant-wife again prayed for an adjournment and On her application May 3, 1994 was fixed for hearing her petition for reconciliation. On May

3, 1994 when the wife''s petition for reconciliation was to be taken up she was absent on ground of illness. On May 3. 1994 the Court adjourned

the hearing to August 6, 1994 and made it quite clear that on the next, date both parties should be present and the whole matter would be

disposed of. In, the mean time the husband moved the High Court in O. J. C. No. 3154 of 1994 and a Division Bench of this Court directed the

Family Court to dispose of the application u/s. 13 of the Hindu Marriage Act within three months from the date of receipt of the order. On August

6, 1994 the wife again prayed for adjournment for three months on the same ground of illness. The Family Court did not grant adjournment, took

up the hearing ex parte and allowed the husband''s application u/s. 13 of the Hindu Marriage Act. The wife did not file any application before the

Family Court for setting aside the said ex parte decree and has preferred the present appeal before this Court.

Mr. Pangari has objected that the appellate court cannot consider whether ex parte hearing of the case was lawful or not and appeal is to be

decided on the basis of the merit of the judgment. Although he has relied upon two decisions -- one of the Madhya Pradesh High Court and

another of the Punjab & Haryana High Court, the overwhelming view of most of the other High Courts is to the contrary. A Full Bench decision of

the Madras High Court in Sadhu Krishna Ayyar v. Kuppan Ayyangar I LR 1907 Mad 54 was followed by the Bombay High Court in Jethalal

Girdhar v. Bhatskankar AIR 1922 Bom 267. A Division Bench of Bombay High Court in Jethalal Girdhar summarised the position of law as :

An order refusing an adjournment may form a ground of appeal at whatever srage of the hearing it may have been made and if the Appellate

Court comes to the conclusion that an application for an adjournment had been wrongfully refused, it clearly has the power to set aside the decree

and order a retrial......

The Allahabad High Court in Smt, Gulab Bai Bhopal v. Dr. Moti Lal AIR 1983 All 191 relying upon an earlier decision of the Full Bench of the

same Court in Parmeswar Mahadeo J. v. Nagar Mahapalik, Kanpur 1979 All L.J 840 observed :

The Full Bench clearly lays down that it was open for the Court hearing in appeal against ex as parte decree to go into the grounds of non-

appearance of the defaulting party unless it be debarred from doing so either under the doctrine of res judicata or under other positive rule of law.

In this case this Court can therefore, certainly go into the reasons for. defendant''s non-appearance and also to look into if. the order rejecting the

application was justified. The Court can also consider whether the appellant, was prevented by any sufficient cause in failing to appear before the

court on the date fixed.

The Karnataka High Court in Gangadhar Bhai v. Srikant and another, reported in A. I. R, 1981 Karnataka 35 followed the decision of the Full

Bench of the Madras High Court and the Bombay High Court and has held :

.....The Appellete Court, in my view, has power to examine the question as to whether the trial Court was not right in proceeding to decide the

case ex parte. The reason for the same is not for to seek. When the material on record pertaining to the decree appealed against is sufficient for the

appellate Court to find whether the Trial Court was not justified in refusing an adjournment and proceeding ex parte there would be no justifiable

ground to prevent the Appellate Court from holding that the non-grant of an adjournment has affected the decision, and on that basis setting aside

the ex parte decree. If is is held otherwise, it may result in denial of justice to a party entitled to it.

The Calcutta High Court also dissented from its earlier view and held in favour of the appellate Court''s power to question propriety of ex parte

order and remand a case for a fresh decision if it is satisfied about the sufficiency of the cause for non-appearance. The views as expressed by

Madras, Bombay, Allahabad and Calcutta High Courts appear to be in consonance with justice and various provisions of the CPC including

sections 96, 104 and Order 41, Rule 33. Accordingly, it is held that the appellate Court while hearing the appeal against an ex parte decree has the

power to consider the propriety of the order for ex parte hearing also, However, in such case the appellate Court cannot go beyond the materials

on record unless any other material is placed before it by appropriate application under Order 41 Rule 27 of the C. P. C.

In present case it appears that whenever the Court was readey to take up hearing the wife either prayed for adjournment ot filed some kind of

application to defer final hearing. After May 16, 1992 the wife was always taking the ground of her illness for adjournment. On May 3, 1994 a

clear hint was given that on the next date the case would be finally disposed of. On August 6. 1994 on the same ground of illness a prayer for three

months'' adjournment was made. A Division Bench of the High Court also directed to dispose of the case within three months. In such

circumstances on the basis of the materials on record, this Court is unable to hold that the Family Court committed any impropriety in rejecting the

applicationfor adjournment and in hearing the case ex parte.

As already pointed out the husband-respondent made serious allegations of mental cruelty against the wife-appellant and has sought a decree

for divorce. The wife has not only denied the allegations, but has made serious counter-allegations accusing the husband of inhuman, bestial

activities including merciless beating of the wife, attempting to kill her and her relations. She has also depicted him as a person addicted to drinks

and women. Some of the relevant allegations made by the wife in the written statement are reproduced below :

(a) That the petitioner-husband has got an ill- repute in his own private life centering round drunke nness..... ( Para 4 )

(b) .....at a matter of fact it is the husband who under the influence of liquor goes on beating his wife and keeps her tettorised and this is backed by

his own parents and relations.....Such acts of cruelty by the petitioner towards the respondent was rather enjoyed passively by the mother-in-law

whenever she used to be present.....she was encouraging her son to illtreat and beat the respondent..... ( Para 13 )

(c) .....he is not a one-woman man and has got the worst habits to make friendship instantly with other woman as he thinks that either he is a hero

of some drama or picture and a false bellooned and puffed up air to show that he is a person of extraordinary personality and an Appollo whom

the girls and women would run after..... The petitioner is a sadist and being always drunk his sex activities being with and some-times and with

unusual pattern of alcoholic behaviour which shown that he is not satisfied with his wife..... ( Para 14 )

.....her husband used to come late in the night, drinking and getting drunk in the club and thereafter in the house and bringing drunk friends in the

late hours of the night, gambling and thereafter quarrelling, breaking chairs, bottles, plates, glasses and thereafter asking the respondent to serve

them hot food without having the simplest consideration that the wife is not a slave and for any delay on her part the petitioner not only used rude

language but threw bottles and glasses and chairs to her ..... ( Para 15)

.....the petitioner hot only used harsh and vulger language but also used to beat the respondent. ( Para 16 )

That womanising is a disease both mental and physi cal which cannot be cured by burning T-Shirts or scissering suits specially to a person like the

petitioner, who holds a respectable job and draws high salary and can always replenish his stock. ( Para 20 )

The truth of the fact is that the petitioner most of the time fully drunk and still continues drinking at home, sometimes bringing his disorderly friends

and sometimes they gamble, sing and dance.....and in totality create a chaps in the house and whenever the respondent used to resist such conduct

she used to be given a good beating, sometimes in presence of the servants.....The petitioner has no stomach for drink and becomes an animal after

getting drunk, but he still continues his drinking.

( Para 26 )

.....but it is the petitioner who is bohemian, who wants change the woman from time to time including his wife and that is all due to his drinks and a

super ego which makes him think that no woman can be his partner for life..... (Para 35)

.....it is well known that at sometime or other the petitioner was trying to get a new wife by looking up the respondent as a maniac in the lunatic

asylum.....

(Para 47)

In paragraph 61 of the written statement the wife narrated several instances in support of her allegations that the husband'' was of ten beating

her black and '' blue, and even threatened to kill her with revolver. The wife has also accused that the husband has become a slave of drinks and

smokes and other bad habits in life which make him inbuman and bring him down to an animal existence.

It is thus clear from the pleadings of the parties that both the sides have attempted to paint tbe other as black as possible. Even if the allegations

made by the appellant-wife in her written statement are accepted to be true, it is absolutely clear that it is not possible for any wife to tolerate suet a

man and to live like-a slave. The serious allegations against each other show a relationship of mutual dislike bordering on hatred,

In this appeal the respondent-hasbahd has affirmed an affidavit bringing on recofd certain subsequent developments alleging further aggravation

of the bitterness between the parties and to show that the appellant-wife has really no emotional attachment towards him. From the said material, it

appears that the appellant-wife submitted a written complaint before the Chief Minister and the Chief Secretary o''f the State alleging that her life is

in danger in the hands of the respondent and requesting them to give protection against the attrocities of the husband. On the basis of the said

complaint, a Departmental Proceeding was initiated against the husband and his prosecution was held up for two years. In the said disciplinary

proceeding the appellant-wife herself deposed as a witness in support of the charge. The appellant-wife''s brother lodged F. I. R. with the Police

against the respondent. Tbe Police enquired and submitted a final report in favour of the respondent. The appellant''s brother thereafter filed a

complaint case against the respondent in the court of the Sub-Divisional Judicial Magistrate, Cuttack (G. R. Case No. 93/90). In the said criminal

case the appellant-wife has been cited as a prosecution witness.

It further appears from the records of the proceeding in the trial Court that all attempts for reconciliation failed. On three dates fixed for

reconciliation the appellant-wife did not turn up and the Trial Court recorded on August 8, 1991 that the wife was not interested to participate in

reconciliation process and no useful purpose would be served by making any further attempt for reconciliation. On October 13, 1993 when the

case was going to be taken up for final disposal, she suddenly filed an application for reconciliation and got the hearing adjourned. On March 7,

1994 the wife prayed for an adjournment and on the next, two dates i.e. May 3, 1994 and August 7, 1994 she remined absent and prayed for

adjournment. In the present appeal also attempt was made to find out the possibility of reconciliation, but it failed. It has been recorded in Order

dated March 24, 1999 that there is no chance for reconciliation between the parties.

The judgment of the Family Court has also been assailed on merit. It has been submitted that the Family Court-committed serious error in

mechanically relying upon the uncorroborated evidence of the husband and in accepting all his allegations as proved. The Family Court has entered

into surmises and conjectures on the basis of certain peculiar personal ideas wholly extraneous to the case and materials on record. According to

the appellant there is no sound basis for holding her allegations as untrue and finding her guilty of cruelty to the husband. According to the

appellant, the Family Court has misapplied the docrine of irretrievable break-down, of marriage particularly when there is no material to discard

her allegations as baseless or connected. It has been pointed out that the judgment contains certain remarks which indicate that the Family Judge

has been influenced by certain personal and subjective opinion about the husband.

The judgment really contains some remarks which are nothing but personal opinion of the Family Judge about husband''s nature and qualities as

an Officer of the State. Those remarks are not borne out by materials on record and wholly extraneous and irrelevant for the purpose of the case.

There is reason to gather an impression that the Family Judge has been guided by his personal knowledge and impression about the respondent-

husband. The findings about the mental cruelty is also not very clear. It is really difficult to affirm the finding that the allegations of mental cruelty

made by the husband have been conclusively proved. The husband did not examine any other witness to corroborate his allegations. Even in ex

parte hearing in matrimonial case the Court should be very careful before accepting the allegations made by the petitioner-spouse.

Although it is not very explicit, but it appears from paragraph 14 of the Family Court''s judgment that it had also applied the doctrine of

irretrievable break-down of marital ties as enunciated by the Supreme Court. Mr. Pangari learned Advocate for the respondent-husband has also

urged this Court to consider the present dispute in the light of the doctrine of irretrievable break-down in stead of prolonging the agony by

remanding the case on the ground that the judgment is not happily worded. In support of his submission Mr. Pangari relies upon the decisions of

the Supreme Court in V. Bhagat Vs. Mrs. D. Bhagat, ; Chanderkala Trivedi (Smt) Vs. Dr. S.P. Trivedi, and Romesh Chander Vs. Smt. Savitri, .

It appears that the doctrine of ""irretrievable breakdown"" was first applied by the Supreme Court in Chanderkala Trivedi''s case. In the said

case, the husband filed an application u/s. 13 of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. Both the husband and

wife in the said case from middle class families. In the written statement the wife made allegation of adultery against the husband. As a counter

blast, the husband introduced an added allegation of undesirable association of his wife with young boys. The application for divorce was allowed.

The wife filed SLP before the Supreme Court. The Supreme Court granted Special Leave as it prime facie appeared to it that some point of law

deserved consideration. While granting special leave the Supreme Court expressly recorded that it also appears that the marriage between the

parties was dead for all practical purposes. At the time of final hearing of the appeal the wife opposed the decree of divorce and expressed a

feeling that a conservative Hindu lady would not prefer to be known as divorcee in the society. While appreciating the feeling of the wife the

Supreme Court observed :

But when the SLP was taken up for hearing the parties adopted very tough and rigid attitude. And that too when they are grandparents by now.

Prime of life is lost but the fire of dislike for each other was still burning hot. We do share feelings of wife expressed by the learned counsel that a

conservative Hindu lady would not prefer to be known as divorcee in the society. At the same time we cannot be oblivious of the impossible

situation in which the parties have landed themselves which indeed is unfortunate.

Supreme Court dismissed the appeal and observed:

.....Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three courts are

correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious

that the marriage of tbe two cannot in any circumstances be continued any further. The marriage appears to be practically dead as from cruelty

alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.

The aforesaid decision was followed by the Supreme Court in V. Bhagat''s case (supra). In the said case the husband filed application for divorce

on the ground that the wife was guilty of adulterous course of life, In defence the wife not only denied the allegation, but made a counter allegation

that the husband lacked mental equilibrium and his allegations were product of such mental inequilibrium, The husband amended his petition and

took a new ground of mental cruelty on the basis that the wife''s allegation in the written statement amounted to act of mental cruelty. In the said

factual context the Supreme Coutt followed its decision in Chanderkala Trivedi (supra) and observed :-

.....The allegations against her may not be true it may also be true that the petitioner is a highly suspicious character and that he assumes things

against wife which are not well-founded. But on that ground to say that the petitioner has lost his normal mental health, that he is a mental patient

requiring expert psychological treatment and above all to brand him and all the members of his family including his grand-father as lunatics is going

far beyond the reasonable limits of her defence. It is relevant to notice that the allegations of the wife in her written statement amount in effect to

psychopathic disorder or any other disorder"" within the meaning of the Explanation to clause (iii) of subsection (1) of section 13, though, she has

not chosen to say that on that account she cannot reasonably be expected to live with the petitioner-husband nor has she chosen to claim any relief

on that ground. Even so, allegations of paranoid disorder,'' ''mental patient needs psychological treatment to make him act a normal person'' etc.

are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his

entire family. These assertions cannot hut constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the

several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner

herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts

of this case show that the respondent is deliberately feigning a posture which is wholly unmatural and beyond the comprehension of a reasonable

person. She has been , dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the

petitioner is genetically insane, Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that sbe has resolved tn

live in agony only to make life a miserable-hell for the petitioner as well. Tbis type of callous attitude in the context of the facts of this case, leaves

no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage

between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the

peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved u/s 13(1)(ia) of Hindu Marriage Act

and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years -- detailed

hereinbefore we are of the opinion that it is a fit case for cutting across tbe procedural objections to give a quietus to the matter.

Of couse, Supreme Court also added a note of caution :--

Before patting with case, we think it necessary to append a clarification. Meraly because there are allegations and counter-allegations, a decree of

divorce cannot follow. Nor is more delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary

features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable broak-down of the

marriage is not a ground by itsalf. But while scrutinising the evidence on record to determine whether the ground (s) alleged is made out and in

determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be

resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties.

The said doctrine was again applied by the Supreme Court in the case of Ramesh Chander (supra). In the said case Supreme Court dissolved the

marriage therein holding :

...In this case the marriage is dead both emotionally and practically. Continuance of marital alliance for namesake is prolonging the agony and

affliction.

The husband in his petition made serious allegations against the wife. We have extensively quoted from the written statement of the wife to

indicate the nature of her allegations. Certain undisputed subsequent developments brought on record indicate how bitter is relationship between

the parties. Even assuming that the husband has not sufficiently proved his allegation against the wife and accepting the allegation of the wife against

the husband as true, there is no escape from a reasonable conclusion that it is no longer possible for the parties to live together and the wife''s

assertion that she still wants to live with the petitioner is nothing but a revengeful resolve to live in agony and to continue an emotionally dead tie in

name as an act of revenge.

21 Mr. Mukherjee, learned Advocate for the appellant has pointed out that in all those cases it was found that the allegations levelled by the wife

were baseless and as such without a finding that the wife''s allegations are imaginary or baseless this Court should not invoke the doctrine of

irretrievable break-down. We have quoted the relevant observations of the Supreme Court in this regard. The doctrine has been applied on the

basis of the mutual allegations as those are irrespective of the fact whether the allegations have been proved or not. It is correct that the allegations,

however grave those may be cannot amount to cruelty, if those are true, but the nature of the allegations is indicative of the state of relationship

between the parties on the basis of which court can draw a reasonable inference whether the marital tie is already dead for all practical purposes.

At the time of hearing of this appeal the husband has affirmed an affidavit on March 22, 2000 expressly stating that if this Court confirms the

decree of divorce passed by the trial Court, the respondent-husband will return all the ornaments, a list of which has been given in paragraph 5 of

the affidavit (total weight is 448.050 gms.) and other articles mentioned in Annex-ure-1 of the plaint. The husband has also stated that the

husband-respondent has purchased a plot of land measuring 120'' X 80'' in the name of appellant-wife near present Motel Cocoo Palm in Puri on

the Sea Beach, the present market value of which is about Rupees Fifteen lakhs and assures that he intends to hand over all the documents relating

to the said property, to acknowledge the ownership of the appellant in the said property and to hand over possession thereof. The husband has

also expressed his willingness to pay one-time alimony to the appellant as may be determined by this Court.

Considering the facts and circumstances of the present case, we are of the view that this is a case fit for application of the doctrine of

irretrievable break-down.

For the reasons aforesaid, we affirm the decree of divorce subject to the condition that the husband-respondent will return all the ornaments as

mentioned in paragraph 3 of his affidavit dated March 22, 2000 and all the articles as mentioned in Annexure-1 to the plaint; that the husband-

respondent will execute and register an appropriate document relinquishing his claim in the land at Puri as mentioned in paragraph 6 of his affidavit

dated March 22, 2000 and that he will pay one-time alimony of Rupees Five lakhs within three months from the date of this judgment. It is made

clear that this decree, will come into effect from the date when all these conditions are complied with.

The appeal is accordingly disposed of.

P. K. Tripathy, J.

I agree.

Appeal disposed of.