BIRENDRA SAHOO Vs. JYOSHNA RANI SAHOO

JUDGEMENT

(1.) This appeal has been filed by the appellant-husband under Section 19 (1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and order dtd. 29.04.2011 of the Judge, Family Court, Bhubaneswar passed in Civil Proceedings No. 239 of 2011 (MAT Case No. 426 of 2009) in allowing the petition filed by the respondent-wife under Section 13 of Hindu Marriage Act, 1955 for a decree of divorce and thereby dissolving the marriage between the appellant and the respondent and further directing the appellant to pay Rs. 5 lakhs to the respondent within a month i.e., Rs. 1.5 lakhs towards her ornaments and the rest towards permanent alimony. It was observed that the appellant is at liberty to return the jewellery items of the respondent within a month and in that event he is not required to pay its money value of Rs. 1.5 lakhs. It was further observed that in case some of the ornaments are returned and some are withheld, then the estimated value of the withheld ornaments be calculated and payment to be made. The cost was assessed at Rs. 5,000.

(2.) The respondent-wife filed a petition under Section 13 of Hindu Marriage Act, 1955 stating therein that her marriage was solemnized with the appellant on 15.02.2002 at Bhubaneswar as per Hindu rites and customs. After the marriage, they lived together for a period of about 5-6 years but they had no issues. The appellant subjected her to both physical and mental cruelty in connection with demand of dowry and she lodged an F.I.R. in Balanga P.S. against the appellant, on the basis of which G.R. Case No. 424 of 2009 was instituted and the case was subjudice. It is further stated in the divorce petition that since last two years prior to the filing of the petition for divorce, there had been no relationship between the appellant and the respondent and in between the appellant had married for a second time and he was blessed with a daughter.

(3.) After considering the contentions raised by both the parties and on perusal of the order-sheet annexed to the appeal memo as Annexure-1, it is clear that on some dates the appellant was absent and on some dates the respondent was absent and on some dates both were absent. The order dtd.19.04.2011 does not indicate about filing of any time seeking petition on behalf of the appellant though a copy of such time seeking petition has been annexed to the appeal memo as Annexure 2. In the time seeking petition though it is mentioned in the bottom that the outdoor patient ticket has been attached but the copy of the outdoor ticket is not annexed to the appeal memo. Moreover, the date given in the time seeking petition reflects that the appellant himself has signed the time seeking petition and the date is put as 14.04.2011. Thus, the contention raised by the learned counsel for the appellant that any time seeking petition was filed on 19.04.2011 is neither borne out from the order of the Judge, Family Court, Bhubaneswar nor the time seeking petition itself reflects that it was a time seeking petition dtd.19.04.2011. When the appellant himself has signed the time seeking petition and the date has been put as 14.04.2011, the viral fever plea which has been taken is also prima-facie not acceptable. The copy of the time seeking petition was not served either on the counsel for the respondent or on the respondent who was present in the Court on that date. Similarly, the affidavit which is annexed in the appeal memo vide Annexure 3 indicates that the appellant was present in the Court in person on 25.04.2011 and sworn the affidavit before the Oath Commissioner at 12.45 p.m. There is nothing to show that the copy of this affidavit was served on the counsel for the respondent on that date. It was stated to have been filed in the Court of Judge, Family Court, Bhubaneswar on 25.04.2011. However, even though there are some laches on the part of the appellant but all the same we feel that in the interest of justice and equity, he should be afforded another opportunity of hearing in the Court of Judge, Family Court, Bhubaneswar to contest the case.