NAMITA PARIDA Vs. BIJAY KUMAR SAHOO

JUDGEMENT

(1.) THIS second appeal has been filed against the reversing judgment in a matrimonial suit. The appellant is the wife and the respondent is the husband. The respondent filed the original suit being O.S. No. 366 of 2002 before the learned Civil Judge (Senior Division), Bhubaneswar as plaintiff for a decree of divorce with the pleadings that his marriage with the present appellant was solemnized on 16.4.2001 as per the Hindu Rites and Customs. After a short span, the appellant -wife started showing rude behaviour to the respondent and disrespect to the brother -in -law and sister -in -law without any rhyme or reason. The husband made all efforts to change the attitude of the appellant -wife, who even conceived during the said period. In June, 2003, the father of the wife came to the house of the respondent and took the appellant -wife for pre -delivery care. The wife gave birth to a female child in the month of February, 2002. The respondent husband was not given any news with regard to the birth of the child and was also not permitted to see the child. The plaintiff also made other factual allegation against the wife which according to him amounted to mental cruelty.

(2.) THE appellant wife entered appearance in the suit and filed a written statement refuting the allegation made by the husband and made counter allegations that the husband and his brother -in - law and sister -in -law ill treated and tortured her, demanding dowry. During pendency of the suit, the appellant wife prayed for interim maintenance and litigation expenses. The trial court framed three issues on the pleadings and ultimately came to the conclusion that the mental cruelty is not proved and dismissed the suit. The respondent husband preferred MAT Appeal No. 2 of 2008 before the learned District Judge, Khurda, who by the impugned judgment, on analyzing the facts of the case, came to the conclusion that from the evidence of the appellant - wife, it is clear that she has no allegation against the husband except the fact that he refused to stay with her in a separate house and considering what amounted to mental cruelty, came to the finding that the marriage in such situation becomes fictitious though supported by a legal tie. In detailed analysis of the facts, the court below though not recorded that the behaviour of the appellant wife amounted to mental cruelty, but basing on such fact, as alleged by the husband being proved, came to the conclusion that this is a fit case, where a decree for divorce should be granted and, accordingly, reversed the judgment and decree of the trial court by decreeing the suit filed by the respondent husband for divorce.

(3.) ANSWERING to the substantial questions of law, this Court finds that when the appellant wife having full knowledge of the status and way of living of the respondent husband got married to him and the husband was living in a joint family, demanding for a separate residence or, in other words, demanding to break the joint family status of the husband coupled with the fact as found by the courts below that the husband was not allowed to see his child, this Court therefore, finds that the substantial questions of law as framed did not arise in this appeal. However, the lower appellate court should have granted permanent alimony, while passing the decree of divorce between the parties. The lower appellate court, however, disposed of the appeal with an order that the matter of permanent alimony or maintenance is kept open for the parties to settle the dispute amicably or under the process of law.