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Dates of hearing: 14 th November, 2023 and 6 th February, 2024 Date of judgment: 6 th February, 2024 --------------------------------------------------------------------------------

ARINDAM SINHA, J. 1. Mr. Dash, learned advocate appears on behalf of appellant-wife. He submits, by impugned common judgment his client’s civil proceeding for divorce met with direction for judicial separation. Respondent-husband’s counter claim for restitution of conjugal rights was accordingly not allowed. Mr.

Samal, learned advocate appears on behalf of respondent, who has preferred independent appeal against the common judgment.

2. Mr. Dash submits, fact of cruelty was pleaded in paragraphs-7 to 10 of the petition. The paragraphs are reproduced below.

“7. That the petitioner, respondent and new born child again gone to Cuttack in the month of January 2010 and during their staying the respondent and the family members started torture both physically and mentally one year, but the petitioner was tolerate with a hope that the respondent will change his behaviour and everything will be normalized.

8. That the respondent instead of changing his behaviour and attitude started brutally assault the petitioner for which the petitioner lodged a complaint against the respondent at Boxi Bazar police station, but the police advised the petitioner to resolve your matter amicably so with a hope the returned and stayed with the respondent till February 2011 .

9. That the respondent continued ill-treatment to the petitioner in a cruel and violent manner regularly and declined to provide basic amenities like food, medicine, clothes etc. to herself and infant baby.

10. That the respondent started picking-up silly quarrels for each and every thing and started beating by abusing un-parliamentary words to the petitioner as such the petitioner without getting any alternative she returned to Bhawanipatna. In the month of March 2011 and since then the petitioner is staying with her parents. (emphasis supplied) 3. He draws attention to paragraphs-6, 13 and 14 in the written statement filed by respondent-husband. He demonstrates therefrom firstly, false allegation of conditions put by his client for shifting to Sindhekela is continuation in corroboration of the cruelty. Secondly, respondent-husband himself said in paragraphs-13 and 14, sometime in year 2011, his client with her son had gone to her parents’ house. Long thereafter in May, 2016 respondent-husband had gone to his father-in-law’s house to bring back his client but allegedly his father-in-law refused. From all this it is clear that the record in paragraph-25 of deposition dated 15th April, 2019 in cross-<br/>

examination of his client saying she continued to stay in her matrimonial home till March, 2017, is clearly incorrect. He seeks reversal of impugned judgment.

4. Mr. Samal submits, there was finding in impugned judgment, of inability on part of appellant-wife to have established cruelty. In the circumstances, she had no reason to have left society of his client. On the top of that his client had filed counter claim for restitution and the family Court erred in not decreeing the claim. In the face of such finding on facts, appellant, if does not want to join society of his client, she may have divorce but cannot claim permanent alimony or maintenance. His client however, will provide for the son.

5. In paragraphs-7 to 10 of the petition allegations of cruelty were made. On query made we have ascertained from Mr. Dash, appellant-wife visited the police station at Buxi Bazar in January, 2010 and on being advised by the police to resolve her matter amicably, she returned and stayed with respondent-husband till February, 2011. It is pleading of appellant-wife herself. The implication is tha