SABITA SAMAL Vs. BIJOYA KRUSHNA NAYAK

JUDGEMENT

(1.) THIS appeal is directed against the order dated 238.2007 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 595 of 2004 holding the aforesaid civil proceeding maintainable.

(2.) APPELLANT is the wife of the Respondent. The marriage took place on 9.3.1989 and a child was born to them in the year 1991. Thereafter, dissension arose and they started living separately. The child is now under the custody of the Respondent. The Appellant filed C.P. No. 308 of 2000 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 claiming monthly maintenance from the Respondent as well as for a decree of separate residence. The Respondent similarly had filed C.P. No. 20 of 1997 under Section 13 of the Hindu Marriage Act, 1955 praying for a decree of divorce by dissolution of marriage on the ground of desertion and cruelty. The learned Judge, Family Court, Cuttack tagged both the cases and by a common judgment dated 11.7.2002 dismissed the Civil Proceeding No. 20 of 1997 for dissolution of marriage filed by the Respondent and so far as C.P. No. 308 of 2000 filed by the Appellant for maintenance and separate residence is concerned, the learned Judge, Family Court found the Respondent guilty of desertion and directed for payment of monthly maintenance of Rs. 500/ - and the liberty to the Appellant to live separately. After such decree was passed and the parties were living separately, the Respondent again filed C.P. No. 595 of 2004 on 15th September, 2004 in the court of the learned Judge, Family Court, Cuttack for dissolution of marriage on the very same ground of desertion and cruelty. The Appellant after appearing in the said case filed a petition under Order 14, Rule 2. Code of Civil Procedure to decide the question of maintainability as a preliminary issue on the ground that the earlier proceeding filed by the Respondent vide C.P. No. 20 of 1997 the question of desertion and cruelty had been decided and the Appellant having been given liberty to live separately, the question of desertion does not arise. So far as the ground of cruelty is concerned, the very same allegations having been repeated in the subsequent proceeding, the same is not maintainable. The learned Judge, Family Court in the impugned order found, the proceeding to be maintainable and the said order is subject matter of challenge in this appeal.

(3.) ADMITTEDLY , the parties got married on 9.3.1988 and a son was born in the year 1991. They lived together for sometime and thereafter got separated. In 1997 the Respondent filed C.P. No. 20 of 1997 for dissolution of marriage whereas the Appellant filed C.P. No. 308 of 2008 for maintenance and separate residence. Both the proceedings were disposed of in a common judgment dated 11.7.2002. The learned Judge, Family Court in the said judgment held that the statutory period of desertion had not expired and therefore, the proceeding for dissolution of marriage on the ground of desertion cannot be entertained. So far as allegations of cruelty are concerned, the learned Judge, Family Court did not accept the same and dismissed the said proceeding for dissolution of marriage. However, C.P. No. 308 of 2008 filed by the Appellant was allowed and she was not only granted maintenance of Rs. 500/ - per month but also right to separate residence. This judgment was not challenged by either party and the same attained finality. Again in 2004 the Respondent filed the present civil proceeding for dissolution of marriage. The question that arises for consideration in this appeal is as to whether the ground of desertion is available to the Respondent while seeking for dissolution of marriage and as to whether the allegations of cruelty are same in both the proceedings. So far as ground desertion of is concerned, in the judgment dated 11.7.2002 delivered in the earlier proceeding it was specifically held by the learned Judge, Family Court that statutory period had not been expired and therefore, the prayer for dissolution of marriage on the ground of desertion was not available to be taken. Admittedly, in the impugned order also the Appellant was granted liberty for separate residence and since then both the parties are living separately. The Appellant having been granted permission to live separately with maintenance of Rs. 500/ - per month, such separate living cannot be construed to be desertion on the part of the Appellant. Therefore, such ground of desertion was not available to be taken by the Respondent in the present proceeding.