PANCHANAN MISHRA Vs. ARATI PANDA

JUDGEMENT

(1.) CIVIL Proceeding No. 145 of 1992 was filed before the Judge, Family Court, Cuttack, by Shri Panchanan Mishra (hereinafter referred to as 'the husband') against Smt. Arati Panda (hereinafter referred to as 'the wife') for a decree of divorce. On the other hand, Civil Proceeding No. 85 of 1991 was filed by the wife against her husband for restitution of conjugal rights. The Judge, Family Court, Cuttack disposed of these two Civil Proceedings, by a common judgment on 30.8.1997. Both the cases, namely, that filed by the husband for divorce and the one file by the wife for restitution of conjugal rights, were dismissed on contest. However, a decree under Section 10 of the Hindu Marriage Act (in short, 'the Act') for judicial separation was passed with a direction to the husband (the petitioner in Civil Proceeding No. 145 of 1992) to pay maintenance of Rs. 2,000/ per month to the wife (respondent in that proceeding).

(2.) AGGRIEVED with the judgment of the Family Court, the husband has preferred Civil Appeal No. 33 of 1997 praying for a decree of divorce and the wife has preferred Civil Appeal No. 34 of 1997 for setting aside the order of the Court below and for decreeing her claim for restitution of conjugal rights. Since both the appeals arise out of a common judgment, they were heard analogously and are being disposed of by this common judgment.

(3.) DENYING each and every allegation made by her husband, the wife prayed for dismissal of the proceeding for divorce. It is the wife's case that she never insisted that her mother in law should stay apart from them, that she never purchased sub standard goods for the household as alleged nor was she practicing any witchcraft.She denies that she had withdrawn from the society of her husband by not cohabiting with him. She denies to have addressed her husband as 'Maichia'. It is also pleaded that she never ill treated or quarreled with her husband, but on the contrary, acted the part of a dutiful wife taking all care for the household. She denies to have gone out of the house at odd hours of night by locking the husband and her mother in law inside the house and indulged herself in practicing witchcraft. She also denies that she was in the habit of chanting 'Mantras' in front of the idol in the nude. She denies that she had given some 'Prasad' to her husband who after eating the same became unconscious and suffered from food poisoning. She denies that she had obtained the 'Prasad' from a GUNIA to give it to her husband so that he would be under her absolute control. She denies that it is because of the fear that they may be harmed by the wife that the Husband and her mother in law went away to live elsewhere. She denies that on being informed, her father and brother came and took her away on 7.1.1984. According to the wife, all the allegations levelled against her are 'false, baseless, imaginary, concocted and fictious..'. The real facts leading to the problem according to the wife is that the husband and his family were dissatisfied with the dowry and began teasing her and insisting on her that she should bring more articles as dowry befitting the status of her husband's family. She expressed her inability to obtain more gifts, money, from her father's house and as they were unable to satisfy the demands, she tolerated the 'pasturing' of her husband. This brought about the dissension between them and resulted in more torture being inflicted on her. The husband started to ill treat her and never cared to look after her well being. She was also physically assaulted on several occasions and because of physical and mental torture, she developed ill health and sickness. In spite of that, she was not provided proper medical assistance. Being a lecturer, her husband started freely roaming around with some girt students and when she objected to his conduct, she was physically assaulted. Her husband also got addicted to liquor. All these facts were brought to her father's notice who on a few occasions came to Sambalpur in order to amicably settle their differences but of no avail. On one occasion, when her father was on a visit to Sambalpur and she was narrating her miseries to him, the husband slapped her. However, there was some patch up and her father left. It is her further case that due to constant physical assault, she had two abortions and her third conception resulted in she giving birth to a stillborn child. Her inability to bear further child was like adding fuel to the fire and resulted in more torture being inflicted on her as being a curse to their family and her mother in law suggested to her son that he should divorce her wife and marry again. It is further alleged that time and again she had been pressurized by her husband to ask her father to purchase and land in her name and as she did not agree, she was subjected to ill treatment. It is her further case that the husband used to come home in a drunken stage and physically assault her. On 29.12.1983, her husband took her to Cuttack and left her at her father's house. Thereafter, he never cared about her welfare not did he bother to send any amount towards her maintenance. Her father also tried to reason with her husband but to no avail and on the contrary, he replied that he would be filing a suit to divorce her wife so that he could marry again. Being destitute and helpless, the wife approached the Orissa Legal Aid and Advice Board, Cuttack (presently known as the Orissa Legal Services Authority, Cuttack) for reconciliation, but the husband did not turn up. Fearing that the wife may take proceedings for restitution of conjugal rights, the husband filed T.S. No. 51 of 1990 (on transfer, C.P. No. 145 of 1992) for a decree of divorce 'to counter blast and defeat the case of the respondent'. Considering the status and salary of the husband, she laid claim for maintenance of Rs. 5,000/ , as she had no income to support herself and she was also compelled to file O.S. No. 36 of 1990 before the Subordinate Judge, First Court, Cuttack, for restitution of conjugal rights which was subsequently transferred to the Judge, Family Court.