Advocates:
['PRAKASH K MISHRA', '', 'R K SAHOO', 'A K DAS', 'B BAL', 'S PRAJNA']

IN THE HIGH COURT OF ORISSA AT CUTTACK

MATA No. 59 of 2021

Madhusmita Sahoo

&.

Appellant

Mr. P.K. Mishra, Advocate

-versus-

Dhirendra Thakur

&.

Respondent

None

CORAM:

JUSTICE S. TALAPATRA

JUSTICE M. S. SAHOO

Order No.

ORDER

08.08.2022

05.

1. This matter is taken up through hybrid mode.

2. Heard Mr. P.K. Mishra, learned counsel for the

appellant.

3. None appears for the respondent, despite due notice

from this court. Even the respondent did not appear to

contest the matrimonial suit being C.P. No.307 of

2019, instituted by the appellant U/s.27 of the Special

Marriage Act, 1954 seeking dissolution of the marriage

that has been subsisting between the parties on the

ground of cruelty and desertion.

4. In the petition, the appellant, wife of the respondent

has pleaded quite categorically that on 03.12.2011 she

had married the respondent under the Special Marriage

Act, 1954, by way of registration U/s.7 of the said Act.

// 2 //

Page 2 of 8

The respondent is totally unemployed, whereas the

appellant has been working in a Bank. There are

several allegations made in the said petition viz. the

respondent was rough and adamant, and used to

abuse her in all possible ways. Even she was

threatened that if she did not give a sum of Rs. 5 lakhs,

she will be subjected to physical torture. When she

denied to provide that fund, she was subjected to

physical assault. No specific date has been referred in

the petition. According to her, for those matrimonial

misconducts, their marital relation had completely

broken down and every passing day was trial for her.

The respondent had behaved in a manner that no

civilized person is expected to live with him. It appeared

to her that it is dangerous to live with the respondent.

In that background, as stated by the appellant, she

was persuaded to file petition seeking dissolution of

marriage. It was also stated that since 14.07.2012, the

appellant and the respondent were living separately

without any sort of cohabitation and meeting. After

that day i.e. 14.07.2012, the appellant was never in the

company of the respondent.

// 3 //

Page 3 of 8

5. As the respondent did not file any written statement,

notwithstanding the summons was properly served on

him, the entire proceeding went ex-parte. However, in

order to prove the allegations, the appellant herein

examined herself as P.W.1. There was no challenge

against the said averments or the testimony of P.W.1.

Despite that, the Judge, Family Court observed that,

<False allegations by one spouse about the other having

alleged illicit relations with different persons outside the

wedlock

also

amounts

to

mental

cruelty.

False

allegations against husband of having illicit relationship

or extramarital affairs by wife in her written statements

constitute cruelty and on that count, the husband cannot

be reasonably asked to live with the wife.=

6. We have really failed to understand under what

context, this observation has been made because on

reading of the entire petition, it is not found any such

allegation has ever been made by the appellant against

her husband. In this regard, the Judge, Family Court

has referred to the celebrated decision of the Apex

Court in Samar Ghosh vrs. Jaya Ghosh reported in

// 4 //

Page 4 of 8

(2007) 4 SCC 511. In the judgment under challenge in

this appeal extricating the principles, laid down in the

said report, from the context, the Judge, Family Court

has observed that even there is no material that the

appellant had instituted a matrimonial suit U/s.9 of

the Hindu Marriage Act, 1955 for restitution of the

conjugal rights. Absence of such action has been

adversely used against the appellant. Having referred

the evidence on record, the appellant has stated that

she lived with the respondent in his house till

14.07.2012 from the d