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2014 Supreme(Ori) 287
IN THE HIGH COURT OF ORISSA, CUTTACK.
VINOD PRASAD AND S.K. SAHOO, JJ.
Dipti Mohanty @ Kanungo & another - Appellants
Versus
Surya Prakash Mohanty - Respondent
MATA NOs. 66 AND 67 OF 2010
Decided on: 12.09.2014
Advocate Appeared
For Appellants: -M/s. Sidheswar Mohanty, P.K. Mohanty, S. Pattnaik,
For Respondent:-M/s. R.K. Mohanty, D.K. Mohanty, S. Mohanty, Sumitra Mohanty, S.Rath, S.N. Biswal and B.K. Nayak-3.(for sole respondent).
Headnote:1. HINDU MARRIAGE ACT, 1955 - Sec. 9 - Husband’s petition for restitution of conjugal rights allowed by learned Judge, Family Court - Appeal - Discussing the facts, contention and evidences held, evidence of P.W.1 and P.W.2 make it clear as to how the appellant was physically and mentally tortured and humiliated in the hands of the respondent and how the respondent made her character assassination and how she was threatened to be killed - Nothing has been elicited in the cross-examination of the appellant - Appellant has proved as to what was the reasonable excuses for her to withdraw from the society of the appellant - Appellant has proved the aspect of "reasonable excuse" on her part for withdrawal from the society of the respondent - Held, learned Judge Family Court was not justified in allowing C.P.No. 382 of 2008 and observing that the respondent is entitled to a decree of restitution of conjugal rights and also directing the appellant to return to her marital home with her son and to resume conjugal life with the respondent.
2. HINDU MARRIAGE ACT, 1955 - Sec. 9 - Restitution of conjugal rights - If one of the party i.e. either the husband or the wife withdraws from the society of the other and that too without any reasonable excuse, then the petition for restitution of conjugal rights filed by the other side would be maintainable and once the Court holds that there was no reasonable excuse for withdrawal of one of the party from the society of the other, it may pass the decree of restitution of conjugal rights accordingly - It is the party withdrawing from the society of the other has to prove that there are reasonable excuses for him/her for such withdrawal and the burden of proof would lie on him/her. (Para - 7)
3. MAINTENANCE - While fixing the quantum of maintenance, the following significant points should necessarily be taken into account such as :
(i) position and status of the parties;
(ii) reasonable wants of the claimant towards food, clothing, shelter and medical attendance;
(iii) income of the respondent;
(iv) income, if any of the claimant;
(vi) number of persons the respondent is obliged to maintain.
(Para - 12)
4. HINDU MARRIAGE ACT, 1955 - Sec. 9 - Burden on the party who has withdrawn from the society of the other to prove the reasonable excuses, but strict proof of such matter should not always be insisted upon - What would be the proper reasonable excuse for a party to withdraw from the society of the other would depend upon the facts and circumstances of each case and no straight jacket formula can be laid down - It may vary from house to house or to person to person - It all depends upon the type of life the parties are accustomed to or their economic and social conditions - It may also depend upon their culture and human values to which they attach importance - In some cases, even a single incident would be sufficient for a party to withdraw from the society of the other. (Para - 7)
5. HINDU MARRIAGE ACT, 1955 - Sec. 9 - A petitioner in an application under the section has to establish the following aspects :
(a) That the respondent has withdrawn from the society of himself/herself;
(b) That such withdrawal was without reasonable excuse.
The term ’excuse’ is something more than a mere whim, fad or brain-wave of the respondent. (Para - 7)
Judgment
S.K.SAHOO, J.
“Marriage is that relation between man and woman in which the independence is equal, the dependence mutual and the obligation reciprocal.”
-LOUIS K. ANSPACHER
Both the appeals arise out of a common judgment and order dated 27.07.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No. 835 of 2008 and C.P. No.382 of 2008.
The appellants in MATA No.66 of 2010 i.e., Dipti Mohanty @ Kanungo (appellant No.1) and Saktiswaroop Mohanty (appellant No.2) have challenged the judgment and order dated 27.7.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No.835 of 2008 in dismissing the application filed by them under Section 18 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter for short “Maintenance Act”) wherein prayer was made for a direction to the respondent to pay Rs.15,000/-per month towards the maintenance of the appellants as well as educational expenses of appellant No.2 with effect from December 2007.
The appellant in MATA No.67 of 2010 i.e., Dipti Mohanty @ Kanungo has challenged the same judgment and order dated 27.7.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No.382 of 2008 in allowing the petition filed by the respondent under section 9 of Hindu Marriage Act, 1955 for decree of restitution of conjugal rights and directing the appellant to return to her matrimonial home with her son Saktiswaroop Mohanty within three months and further directing her to resume conjugal life with the respondent in three months.
Since both MATA No.66 of 2010 and MATA No.67 of 2010 arise out of a common judgment, both the appeals were heard analogously and common judgment is passed.
MATA No.66 of 2010
2. It is the case of the appellants in MATA No. 66 of 2010 that the marriage between the appellant No.1 and the respondent was solemnized on 28.4.1999 as per Hindu customs and rites at Cuttack and at the time of marriage, cash of Rs.3 lakhs, gold ornaments of about 200 gms and other household articles were given and after the marriage, the appellant no.1 came to stay at her in-law’s house at Jatni where she and the respondent lived together as husband and wife and their marriage was consummated. The respondent was serving as an Art Teacher in Jawahar Navodaya Vidyalaya at Zinc Nagar in the district of Sundargarh and after two months of marriage, the respondent took the appellant No.1 to his service place where the couple lived together. During such stay, the appellant No.1 was neglected and tortured by the respondent, for which the father of appellant no.1 brought her back to his house in the month of November 1999. By that time the appellant no.1 was pregnant and she was physically and mentally weak due to non-providing of proper food by the respondent and she was also not getting proper care and moral support from the respondent. Appellant no.2 was born on 20.2.2000 at the parental house of appellant no.1 and the respondent did not pay a single pie towards the medical treatment or the expenses as was incurred during child birth and also during 21st day celebration and all the expenditure were borne by the parents of appellant no.1. In the month of July 2003, the respondent was transferred to Jawahar Navodaya School at Jharsuguda and with much reluctance, the respondent took the appellants to Jharsuguda wherein they stayed inside the school campus. During such stay, the respondent persuaded the appellant no.1 to bring a cash of Rs.5 lakhs from her parents to purchase a vehicle for business purpose and the father of the appellant no.1 was compelled to pay such amount to the respondent so that the appellant no.1 would live peacefully. The respondent persuaded the appellant no.1 to start business to maintain herself and opened a stationary shop and S.T.D. Booth in the said school campus which was managed by the appellant No.1. Even though the appellant No.1 was looking after the business but the respondent was handling the cash and taking away all the profits and most of the tim
