Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ori) 483

THE HIGH COURT OF ORISSA AT CUTTACK
S.TALAPATRA, SAVITRI RATHO, JJ.
Sri Ganesh Prasad Khatua, S/o. Late Rathunath Khatua – Appellant
Versus
Smt. Laxmirani Khatua, W/o. Ganesh Prasad Khatua –Respondent
MATA No.137 of 2019
Decided On : 03-04-2023

Advocates Appeared:
For the Appellant :Mr. Gautam Mukherji, Senior Advocate Ms. K. Banerjee, Advocate
For the Respondent:Mr. G. Madani, Advocate

Unsubstantiated allegations of infidelity can constitute mental cruelty in divorce proceedings, particularly when claims of condonation are not proven, leading to an irretrievable breakdown of marriage.

Headnote:(A) Hindu Marriage Act, 1955 - Sections 13(1)(i-a), 23(1)(b), and 9 - Appeal for divorce on grounds of cruelty - Appellant's claims of cruelty countered by respondent's allegations of extramarital affairs - Judge concluded lack of evidence supporting allegations, and that evidence of prior settlement barred claims of cruelty - Family Court's dismissal upheld, but appeal allowed based on findings regarding condonation and irretrievable breakdown of marriage. (Paras 4, 26, 37)

(B) Condonation - Condonation elucidated as forgiveness or reconciliation, not established here due to lack of evidence of continuation after misconduct claimed - Inadequate proof of respondent's allegations leads to acceptance of appellant's claims of cruelty. (Paras 2, 36)

Facts of the case:
The appellant sought a decree of divorce citing alleged cruelty from the respondent, while the respondent countered with claims of the appellant's infidelity. Evidence of their separation since 2013 and a prior settlement was highlighted, leading the court to question the validity of claims of cruelty. (Paras 36, 37)

Findings of Court:
The allegations made by the respondent were found to be unsubstantiated and insufficient for proving cruelty, despite being presented late in trial. The court noted that the marriage was effectively over with no chance of reconciliation. Permanent alimony of Rs.20,00,000/- was awarded. (Paras 37, 39)

Issues: The main issues included the credibility of allegations, existence of prior settlements, and whether the appellant's claims of cruelty were valid in light of the appellant's own conduct. (Paras 36, 38)

Ratio Decidendi: The court determined that unproven allegations of extramarital affairs constituted mental cruelty sufficient to grant a divorce, paralleling relevant case law illustrating the seriousness of such claims and setting a precedent for how the courts evaluate claims of cruelty. (Paras 30, 32)

Result: Appeal allowed, marriage dissolved, and permanent alimony of Rs.20,00,000/- directed. (Paras 37, 38)

Table of Content
1. grounds for divorce and implications of condonation. (Para 1 , 2)
2. rejection of condonation claim based on lack of evidence. (Para 3 , 6)
3. importance of substantiated evidence in allegations of cruelty. (Para 4 , 5 , 15 , 21 , 22)
4. the necessity for concrete evidence in counterallegations. (Para 10 , 12)
5. unsubstantiated allegations can constitute cruelty. (Para 23 , 29)
6. irretrievable breakdown as a factor in granting divorce. (Para 30 , 31 , 32 , 34 , 36)
7. final orders regarding the dissolution of marriage and alimony. (Para 37 , 38 , 39 , 40 , 41 , 42)

Judgment :

S. Talapatra, J.

1. The matrimonial suit was instituted by the appellant, being Civil Proceeding No.320 of 2016 seeking dissolution of marriage that subsists between him and the respondent by a decree of divorce on the ground of cruelty. The said suit has been dismissed by the judgment dated 31.08.2019, which is under challenge in this appeal under Section-19(1) of the Family Courts Act, 1984

2. While dismissing the judgment, it has been observed by the Judge, Family Court, Bhadrak as follows:

“Instead of taking steps for restitution of conjugal rights, he (the appellant) straightway filed the present proceeding terming the alleged misconduct to be cruelty. The above approaches made by P.W.1 to resume conjugal life with the respondent clearly amounts to condonation of so-called cruelty in terms of Section-23(1)(b) of the Hindu Marriage Act, 1955. By this act, P.W.1 wanted to reconcile intending to forgive the respondent for her wrongs and to restore her to previous position. In this regard, the case of Nirmala Devi vs. Ved Prakash : AIR 1993 Himachal Pradesh 1 may be referred. In this (sic) case, the petitioner-husband had sought a decree of divorce on the ground of cruelty and desertion. Prior to filing of the case, the petitioner had filed a petition for restitution of conjugal rights under Section-9 of the Hindu Marriage Act against the respondent-wife which was later on withdrawn. The trial court allowed the divorce proceeding holding the wife to have caused cruelty to the husband. The aggrieved wife approached the Hon’ble High Court challenging the said judgment.

It is pertinent to note that the Judge, Family Court has extracted the following passage in order to support his analogy:

“Condonation has not been defined anywhere. ‘Condonation’ is a word of technical import, which means and implies wiping of all rights of injured spouse to take matrimonial proceedings. In a sense condonation is reconciliation, namely, the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. The forgiveness in order to constitute condonation need not be express. It may be implied by husband of the wife’s conduct and vice versa. Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct. When a petition is filed claiming a decree for restitution of conjugal rights, it clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other spouse and even if there was any cause or complaint, the same has either been condoned or forgiven. The intention being to resume normal cohabitation. As held in Dastane’s case (AIR 1975 SC 1534 (supra), matrimonial offence is erased by condonation. In view of clear provisions contained in Clause (b) of sub-section(1) of Section-23 of the Act, it is always for the person who has approached the Court to satisfy that the act of cruelty has not been condoned.”

3. We would like to observe that the above observation as regards the condonation is absolutely out of context. As on scrutiny of the petition filed by the appellant under Section-13 of the Hindu Marriage Act, we do not find any averment relating to the institution of a matrimonial suit under Section-9 of the Hindu Marriage Act, 1955 for restitution