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HIGH COURT OF ORISSA
R. K. Das And G. K. Misra, JJ.
AKASAM CHINNA BABU - Appellant
Versus
AKASAM PARBATI - Respondent
First Appeal 77 Of 1964
Decided On : JANUARY 10, 1967
HINDU MARRIAGE ACT, 1955 - SECTION 25 - MAINTENANCE - WIFE - PERMANENT ALIMONY - DISMISSAL OF SUIT - COURT'S JURISDICTION - SECTION 24 - PENDENTE LITE MAINTENANCE - DAUGHTER - MAINTENANCE - SECTION 27 - RESTITUTION OF PROPERTY - JOINT PROPERTY - PRESENTATION AT OR ABOUT TIME OF MARRIAGE - COURT'S JURISDICTION.
Fact of the Case:
Husband filed a suit for divorce on the ground of adultery. The trial court dismissed the suit and awarded pendente lite and permanent maintenance to the wife and the daughter. The husband appealed.
Finding of the Court:
The trial court was justified in dismissing the suit for divorce as the husband failed to prove the adultery of the wife. The trial court was not justified in allowing a decree and in passing an order for permanent alimony in favor of the defendant-wife or the daughter. The wife is entitled to maintenance pendente lite at the rate granted by the Trial Court. The daughter is not entitled to any maintenance either, pendente lite or permanent in the proceedings. The trial court was not justified in directing for restitution of the properties mentioned in the schedule to the written statement of defendant No. 1.
Issues: 1. Whether the trial court was justified in dismissing the suit for divorce? 2. Whether the trial court was justified in awarding permanent alimony to the wife and the daughter? 3. Whether the trial court was justified in awarding pendente lite maintenance to the daughter? 4. Whether the trial court was justified in directing for restitution of the properties mentioned in the schedule to the written statement of defendant No. 1?
Ratio Decidendi: 1. The trial court was justified in dismissing the suit for divorce as the husband failed to prove the adultery of the wife. 2. The trial court was not justified in allowing a decree and in passing an order for permanent alimony in favor of the defendant-wife or the daughter as Section 25 (1) of the Act does not authorize the Court to pass such an order while dismissing the petition. 3. The wife is entitled to maintenance pendente lite at the rate granted by the Trial Court as per Section 24 of the Act. 4. The daughter is not entitled to any maintenance either, pendente lite or permanent in the proceedings as Section 24 of the Act applies either to the wife or the husband as the case may be. 5. The trial court was not justified in directing for restitution of the properties mentioned in the schedule to the written statement of defendant No. 1 as there is no finding that the properties mentioned in the written statement in this case belong jointly to the plaintiff and his wife the defendant and were presented at or about the time of marriage or that they belong to both husband and the wife as per Section 27 of the Act.
Final Decision: The appeal is partly allowed. The order of dismissal of the suit for dissolution of the marriage and also the grant of pendente lite maintenance to defendant No. 1 at the rate of Rs 30 per month is maintained but the remaining part of the order, that is grant of permanent alimony to defendant No. 1 and the daughter as also the pendente lite maintenance to the daughter as also the order for restitution of the properties to defendant No. 1 is set aside. Each party to bear his own costs of this Court.
DAS, J.
( 1 ) THE plaintiff-appellant is the husband of defendant-respondent No. 1, Akasam parbati. They were married sometime in February 1956. It is the case of the plaintiff that after their marriage his wife lived with him for a short time and thereafter she was forcibly removed by defendant No. 2, her maternal uncle, to his house where she lived an adulterous life with him and gave birth to a daughter who is now about five to six years old. Their relationship continued to remain unhappy. A registered notice was sent on behalf of the appellant to defendants nos. 1 and 2 alleging that they were living an adulterous life and in the said notice the plaintiff also disclaimed the parentage of the daughter horn to defendant No. 1
( 2 ) THE defendant No. 1 denied the allegations and made counter-allegations of cruelty against the plaintiff in reply to the said notice dated 9-5-1959. The defendant No. 1 started a criminal case against the plaintiff and some Others alleging that they assaulted her. During the pendency of that case, the plaintiff filed the present suit under Section 18 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act') praying for a decree of divorce on the ground that defendant No. 1 was living in adultery with defendent No. 2.
( 3 ) THE defendants denied the plaint allegations. Their case is that defendant No. 1 lost her parents in her childhood and was brought up by her maternal uncle, defendant No. 2, who gave her in marriage with the plaintiff. Defendant No. 1 lived with the plaintiff for about six months and during that period she conceived through the plaintiff. The plaintiff and his parents continuously treated defendant no. 1 with cruelty and in the fourth month of her pregnancy, she was forcibly driven out of their house Defendant No. 1 had no alternative but to take shelter in the house of her maternal uncle, defendant No. 2, where she gave birth to the daughter. After prolonged negotiations by some respectable persons of the locality the plaintiff tool; his wife and the daughter to his house, but again they left the house as they were subjected to continuous ill-treatment and the present suit has been filed only with a view to relieve the plaintiff from the monetary obligation of maintaining the wife and the daughter
( 4 ) THE learned trial court negatived the plaintiff's case of adultery He found that defendant No. 1 was subjected to cruelty by the plaintiff who deserted her. He dismissed the plaintiff's suit for dissolution of the marriage. While dismissing the petition however he awarded both pendente lite and permanent maintenance at the rate of Rs. 30/- and Rs. 10/- per month respectively to the defendant No. 1 and the daughter He also held that defendant No. 1 was entitled to restitution of some of the properties which remained with the plaintiff when defendant No. 1 left his house. Against this decision of the trial court the plain tiff' has filed this appeal.
( 5 ) THE finding of the trial court that the plaintiff has failed to prove the adulterous life of his wife is well supported by evidence It is an admitted fact that defendant no. 2 gave the defendant No. 1 in marriage with the plain tiff as she lost her parents from her childhood Defendant No. 1 was living in the house of defendant no. 2 where his mother and wife were also staying It is hardly believable that defendant No. 2 who is fairly advanced in age would carry on adulterous transaction with his young niece. That apart there is no evidence worth the name in support of such adultery except the bare assertion of the plaintiff and his father p W 4 a close relation of the parties said nothing about any such adultery Nobody else has been examined in support of the charge. It appears that when the feelings between the parties became somewhat strained on account of some assault committed on defendant No. 1 by the plaintiff on 9-51959 the charge of adultery was made against defendant No. 1 as a counterblast ext. D is a s
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