S.K. Sahoo, J.@mdashIt is said that a perfect and successful marriage is not getting a perfect partner, perfect love and perfect relationship but a strong relationship between the couple who can sit and communicate with each other regarding each one''s fault, rectify it with an open mind, learn each other''s differences and continue the peaceful journey holding each other''s hand all the way. Conflicts between the couple are not the sign that they have chosen the wrong partner. Such conflicts should be dealt with all patience and love. The institution of marriage can survive only if the partners have trust and confidence on each other and they realize that sooner or later something better has to come after the worse.
2. MATA No. 57 of 2014 has been filed by Pratima Nayak (hereafter "the appellant-wife") challenging the judgment and order passed by the learned Judge, Family Court, Berhampur on 07.03.2014 in C.P. Case No. 319 of 2011 wherein the application filed by Manas Ranjan Nayak (hereafter "the respondent-husband") under section 22 of Special Marriage Act, 1954 for restitution of conjugal rights has been allowed and the appellant-wife has been directed to join the company of the respondent-husband within three months from the date of order and the parents of the appellant-wife were directed to make all arrangement to lead her to her husband with all honour and dignity and not to interfere in the married life of the parties.
3. RPFAM No. 59 of 2013 has been filed by the respondent-husband against the appellant-wife challenging the judgment and order dated 30.11.2012 passed by the learned Judge, Family Court, Berhampur in Criminal Proceeding No. 295 of 2011 directing the respondent-husband to pay a monthly maintenance of Rs. 3000/- to the appellant-wife from the date of order, failing which the appellant-wife would be at liberty to realize the same through process of law.
Since in both the appeals, there is commonality of parties and the cases arise out of matrimonial dispute, with the consent of the parties, both the cases were heard analogously and the same are disposed of by this common judgment.
4. It is the case of respondent-husband in C.P. Case No. 319 of 2011 that he married the appellant-wife on 28.11.2009 at Roman Catholic Church, Berhampur, Ganjam and both of them lived together as husband and wife after their marriage. Due to ill advice of the parents of the appellant-wife, she was always expressing her desire to stay with her parents and in spite of love and affection shown to her by the respondent-husband, she did not reciprocate the same. The appellant-wife was advised by the respondent-husband to give up her idea of staying with her parents but no fruitful result came out and she was not even allowing the respondent-husband to have co-habitation with her during her short stay with him.
It is the further case of the respondent-husband that after marriage the appellant-wife went to her father''s place on 01.01.2010 as per custom and stayed there for three days and during her short stay at her father''s place, even though the respondent-husband visited her but he was not shown due respect. She came to her in-law''s house at Raipanka and stayed there for seven days and then she was taken to the working place of the respondent-husband at Delhi on 11.01.2010. It is the case of the respondent-husband that during the seven days stay at the in-laws'' house, the behavior of the appellant-wife towards the respondent-husband and his family members was unbearable. She was not performing the domestic work and unnecessarily picking up quarrels with her husband and in-laws'' family members. During her stay at Delhi, the appellant-wife also repeated the same attitude and insisted her husband to leave her at her father''s place and accordingly on 11.03.2010 the respondent-husband left the appellant-wife at her father''s place. The respondent-husband thereafter made several attempts for reconciliation and requested the appellant-wife to join his company. In that regard the father of the respondent-husband and the other members of the church as well as caste people also made sincere effort for reconciliation but everything proved futile.
It is the further case of the respondent-husband that the appellant-wife had no love and affection towards him and she intentionally and knowingly deserted him and thereafter falsely declared that the respondent-husband was demanding dowry. It is further stated that the allegation regarding torture to the appellant-wife by the respondent-husband in connection with demand of dowry is absolutely false. It is further stated that in the month of March 2011, the respondent-husband approached the appellant-wife asking her to join him to lead a happy conjugal life but the appellant-wife being the daughter of a Police Officer was very adamant and she avoided her husband at the instance of her parents who are stated to be the root cause for creating disturbance in the married life.
5. The appellant-wife on being noticed appeared before the learned Judge, Family Court, Ganjam at Berhampur and filed her written statement denying the averments made by the respondent-husband in his petition for restitution of conjugal rights.
It is the case of the appellant-wife that when she arrived in the house of her husband as a newly wedded bride, she was not received properly by her parents-in-laws and she was hackled for more dowry and after staying for a couple of days, she along with her husband came to her parents'' place and stayed there for about three days and then they came back to the village of the respondent-husband. It is the further case of the appellant-wife that during her stay at her in-laws'' house, the in-laws family members started torturing her demanding more dowry from her parents and even at Delhi where she stayed with her husband, she was tortured physically and mentally in connection with the demand of dowry and she was even asked to sleep on the floor in the winter days. It is the further case of the appellant-wife that on 15.03.2010 the respondent-husband took her from Delhi and left her on the road near her parents'' house at Berhampur and she was warned that unless she brings Rs. 4,00,000/- as additional dowry from her parents, neither she would be allowed to stay at her in-laws'' house nor she would be taken back to Delhi. It is the further case of appellant-wife that in spite of sending legal notice through her lawyer on 08.03.2011 to the respondent-husband, no positive effort was made from the other side. It is her further case that since she had filed a maintenance case on 17.09.2011 vide Criminal Proceeding No. 295 of 2011 in which the respondent-husband had already appeared, just to avoid making payment of the maintenance amount, he had filed the petition under section 22 of Special Marriage Act four months after the maintenance case was filed. It is the case of the appellant-wife that since she had been threatened to be killed in case of non-fulfillment of demand of dowry and was subjected to physical and mental torture, had she continued her conjugal life with her husband, there would been danger to her life.
6. The learned Judge, Family Court, Ganjam, Berhampur framed the following issues in C.P. Case No. 319 of 2011:-
(i) If the suit is maintainable?
(ii) If the petitioner (respondent-husband) is entitled to the relief sought for?
(iii) Has the respondent (appellant-wife) deserted the petitioner without any just and proper cause?
(iv) To what other relief, the petitioner is entitled to?
7. The respondent-husband examined himself as P.W. 1 and the appellant-wife examined herself as D.W. 1 and she exhibited three documents. Ext. A is the certified copy of the judgment in Cr.P. 295/2011, Ext. B is the certified copy of the order dated 24.08.2013 in Cr.P. 55/2013 and Ext. C is the certified copy of the F.I.R. in G.R. Case No. 921/2013 of S.D.J.M., Berhampur.
8. The learned Judge, Family Court, Ganjam, Berhampur while answering issues Nos. (ii) and (iii) held that on 08.03.2011 the appellant-wife sent lawyer''s notice to respondent-husband to take her back and when she got no response, she filed petition under section 125 Cr.P.C. on 17.09.2011 and the FIR was lodged on 02.07.2013. This shows that the appellant-wife had intended to restore the married life with the respondent-husband and therefore sent notice to him. When it was not effected, subsequent legal step was taken by her such as claiming maintenance and filing criminal case against the petitioner and his family members. It was further held that when the evidence of both the parties were taken into consideration, it was found that both are willing for restitution of conjugal rights. The respondent-husband in his evidence reiterated to take back the appellant-wife despite the fact that she had lodged FIR at police station against him and his family members. It was further held that the evidence of P.W. 1 had not been shattered by the appellant-wife in any manner and that no step had been taken by the appellant-wife earlier to sending of Advocate''s notice to the respondent-husband on 8.3.2011 i.e., after the attempts taken by the respondent-husband to restore their marital life. As the case of the respondent-husband appeared to the learned Family Court Judge to be reasonable and weighty, the petition was allowed.
9. It is the case of appellant-wife in Criminal Proceeding No. 295 of 2011 that she is the legally wedded wife of the respondent-husband and their marriage was solemnized on 28.12.2009 at Roman Catholic Church, Berhampur in the district of Ganjam as per the Indian Christian Marriage Act and since the day of their marriage, they were living together. It is her further case that even though household articles, gold ornaments, cash of Rs. 50,000/- were given at the time of marriage but the respondent-husband was not satisfied and he started quarrelling with her and also assaulted her. It is her further case that she was hackled for more dowry and in-laws family members started torturing her demanding more dowry. During her stay at Delhi, she was physically and mentally tortured by her husband and she was not allowed to share bed with her husband and was asked to sleep on the floor in winter days. It is her further case that on 11.3.2000 the respondent-husband took her from Delhi and left her on the road nearer to her parents'' house and was told to bring Rs. 4 lakhs as additional dowry from her parents otherwise she would not be allowed to enter into the house of her husband nor she would be taken to Puri. It is the further case of the appellant-wife that the respondent-husband is working as a Company Executive in a Software Company and she is unemployed and for her day to day maintenance, she had incurred heavy hand loan. It is her further case that she is staying at her parent''s place at Berhampur and the monthly salary of the respondent-husband was Rs. 21,000/- and he is having landed property and houses at Raipanka and Mohana and accordingly she prayed for a monthly maintenance of Rs. 10,000/- from the date of the application and Rs. 3,000/- towards cost.
10. Notice was issued by the learned Judge, Family Court, Berhampur in Criminal Proceeding No. 295 of 2011 on 18.10.2011 to the respondent-husband and he appeared on 12.12.2011. The matter was sent for mediation but all endeavour for reconciliation between the parties failed. The respondent-husband filed his show-cause denying the averments made in the maintenance petition and reiterated the grounds taken by him in the petition filed for restitution of conjugal rights. It is further stated in the counter affidavit that the appellant-wife was working in a private establishment and earning salary of Rs. 15,000/- per month. It is further stated that the parents and sisters of the respondent-husband are depending upon him and therefore the appellant-wife is not entitled to get maintenance.
11. The appellant-wife examined herself as P.W. 1 and she was cross-examined and discharged on 15.09.2012. The case was posted to 16.10.2012 and on that day the respondent-husband filed a time seeking petition to adduce evidence and accordingly the case was adjourned to 14.11.2012 and on that day the case was adjourned to 16.11.2012 as the Presiding Officer was on leave. On 16.11.2012 the appellant-wife was present and though a time seeking petition was filed on behalf of the respondent-husband but it was not pressed and accordingly the learned Family Court Judge heard argument from both the sides and posted the case to 30.11.2012 for judgment and on 30.11.2012 the judgment was pronounced.
12. The learned Judge, Family Court, Ganjam, Berhampur vide impugned judgment and order dated 30.11.2012 in Criminal Proceeding No. 295/2011 has been pleased to observe that from the available evidence, it is apparent that the respondent-husband not only deserted the appellant-wife but also neglected to maintain her and accordingly taking into account the income of the respondent-husband, fixed the monthly maintenance at Rs. 3000/-.
13. Mr. Prasanna Kumar Mishra, the learned counsel for the respondent-husband strenuously urged while challenging the maintenance amount that the respondent-husband had not been given due opportunity to adduce evidence in the maintenance case and his time seeking petition was arbitrarily rejected by the learned Judge, Family Court, Ganjam, Berhampur. He further contended that the case was never posted for argument nor at any time arguments were advanced by the parties. He further contended that when the appellant-wife had left the company of the respondent-husband without any sufficient cause and she did not join his company in spite of the order passed by the learned Family Court Judge regarding restitution of conjugal rights, she is not entitled to get any maintenance. The learned counsel further urged that the impugned judgment and order of grant of maintenance should be set aside and matter be remanded to the Family Court for fresh disposal affording opportunity of hearing to the respondent-husband.
Mr. Arun Kumar Budhia, learned counsel appearing for the appellant-wife on the other hand contended that the order sheet of the Family Court Judge clearly indicates that due opportunity of hearing was provided to the respondent-husband to adduce evidence and on the last date when the case was posted for adducing evidence, the respondent-husband though filed a time seeking petition but subsequently not pressed it and also participated in the argument of the case and therefore no illegality has been committed by the trial Judge so as to remand the matter back for fresh disposal. It is further contended by the learned counsel for the appellant-wife that in MATA No. 57 of 2014, an order was passed directing the respondent-husband to pay a sum of Rs. 2000/- to the appellant-wife towards interim maintenance pending disposal of the appeal which has not been complied with. He further contended while assailing the impugned judgment in C.P. Case No. 319 of 2011 that since the appellant-wife was apprehensive about danger to her life in view of the physical and mental torture given to her by the respondent-husband and his family members and she had instituted a police case against her husband and in-laws family members which is sub-judiced, it was not proper on the part of the learned trial Judge to compel the appellant-wife to join the company of her husband. He strenuously urged that the impugned judgment in favour of the respondent-husband regarding restitution of conjugal right should be set aside and the petition filed challenging the award of maintenance should be dismissed.
14. Adverting to the contentions raised by the respective parties and coming to the award of maintenance passed by the learned Family Court Judge in Criminal Proceeding No. 295 of 2011, it seems that the main ground of attack is non-affording of reasonable opportunity of hearing to the respondent-husband. During argument the learned counsel for the petitioner fairly conceded that the quantum of maintenance fixed in favour of the appellant-wife is quite appropriate but the manner in which the maintenance proceeding was disposed of, was not proper and therefore the matter should be remanded back to the Court below for fresh disposal in accordance with law.
On perusal of the certified copy of order sheet of the maintenance proceeding, it indicates that the maintenance petition was filed on 17.09.2011, notice was issued on the respondent-husband on 18.10.2011 to appear on 12.12.2011 and he appeared on that day through his lawyer. After the failure of conciliation between the parties, the case was posted for trial. The appellant-wife filed the evidence affidavit on 12.08.2012 and she was cross-examined on 15.09.2012. The matter was then posted to 16.10.2012 for recording of the evidence of the respondent-husband, who filed a time seeking petition on that day and accordingly the case was adjourned on 14.11.2012 but as on that day, the Presiding Officer was on leave, the case was posted to 16.11.2012. It seems that on 16.11.2012 the appellant-wife was present and learned counsel for both the parties were also present. Though the learned counsel for the respondent-husband filed a time seeking petition on that day but it was not pressed and accordingly the argument was heard and the case was posted to 30.11.2012 for judgment and the judgment was pronounced on 30.11.2012.
Thus the contentions raised by the learned counsel for the respondent-husband that no opportunity of hearing was afforded to him to adduce evidence cannot be accepted. In fact after the closure of the evidence from the side of appellant-wife, the case was adjourned to 16.10.2012 for recording the evidence from the side of respondent-husband which was further adjourned to 14.11.2012 on the prayer made on his behalf. A time seeking petition was filed on 16.11.2012 by the learned counsel for the respondent-husband who subsequently not pressed the petition and participated in the argument. Therefore, the proceeding does not suffer from non-compliance of principle of natural justice. Since the quantum of maintenance has not been challenged before us, which in our estimation is also appropriate under the facts and circumstances of the case, we are not inclined to interfere with the impugned order dated 30.11.2012 passed by the learned Judge, Family Court, Berhampur in Criminal Proceeding No. 295 of 2011.
Accordingly, the RPFAM No. 59 of 2013 filed by the respondent-husband being devoid on merit stands dismissed.
15. Coming to the impugned judgment and order challenged in MATA No. 57 of 2014, we find that the learned Judge, Family Court, Berhampur has not properly appreciated the case of the appellant-wife.
Law is well settled that no Court can compel the wife to live in the company of her husband even if she had withdrawn from the society of her husband on the ground that she was subjected to physical and mental torture in connection with demand of dowry. Similarly when the wife feels that her life is at risk in the company of her husband, she has every right to withdraw from the society of her husband and to live separately. In such type of cases, if in spite of the materials available on record that there was reasonable excuse on the part of the wife for withdrawal from the society of her husband and the burden of proof which was on the wife to prove the reasonable excuse has been discharged by her properly, it would be travesty of justice, if the Court passes an order for restitution of conjugal right in favour of the husband even though he is prima facie responsible for torturing the wife or has done something which has caused life risk to the wife.
At the time of granting or refusing to grant a decree for restitution of conjugal rights, the Court must consider the true facts of the case and examine whether the desertion was justified. If the Court finds that there was reasonable cause on the part of the respondent to desert the petitioner, then it must refuse the decree of restitution, because the grating of the decree would result in compelling the Court to treat one of the spouses as deserting the other without reasonable cause, contrary to the real truth of the case. It is not any whimsical, capricious or frivolous ground that one spouse could urge in refusing the society to the other. The fact of ''reasonable excuse'' has to be determined with reference to the respondent''s state of mind in the particular circumstances of each case. If from the conduct of the husband, the wife entertains an apprehension that it is unsafe to live with him, she has reasonable excuse for withdrawing from his society. The spouses should treat each other with dignity and self respect so that they can lead a happy and peaceful life.
On perusal of the available materials on record, we find that even though the appellant-wife had sent a legal notice to the respondent-husband to take her back, there was no response from the side of the respondent-husband. The evidence of the appellant-wife has not only remained unchallenged but also she has filed the copy of the FIR which she had lodged against the respondent-husband as well as her in-laws for physically and mentally torturing her in connection with demand of dowry. Basing on the First Information Report, Berhampur Mahila P.S. Case No. 85 of 2013 was registered on 02.07.2013 under sections 498-A/506/34 of IPC and section 4 of Dowry Prohibition Act which corresponds to G.R. Case No. 931 of 2013 pending in the Court of learned S.D.J.M., Berhampur. The appellant-wife also filed the certified copy of the judgment in Criminal Proceeding No. 295 of 2011 wherein a finding was given that the respondent-husband had deserted her and also neglected to maintain her.
The evidence of the respondent-husband that after receipt of the last notice, he made several attempts through Church for reunion and that his mother and aunt had also been to the house of the appellant-wife to bring her back is not corroborated by any other evidence. Neither anybody from the Church nor the mother and aunt of the respondent-husband were examined to substantiate his case. The petition for restitution of conjugal right was filed on 27.12.2011 after receipt of the notice in the maintenance case. The contention of the learned counsel for the appellant-wife that such a petition for restitution of conjugal right was deliberately filed just to get away from the liability of paying maintenance appears to have sufficient force.
We are of the view that the findings of the learned trial Judge while passing a decree for restitution of conjugal rights in favour of the respondent-husband is totally perverse and cannot be sustained in the eye of law. Therefore, the impugned judgment and order dated 07.03.2014 passed by the learned Judge, Family Court, Ganjam, Berhampur in Civil Proceeding No. 319 of 2011 is hereby set aside.
16. Before parting, we would like to reiterate what Ruth Bell Graham once said, "A happy marriage is the union of two forgivers". Even though we are setting aside a decree of restitution of conjugal rights and upholding the award of maintenance to the wife in view of materials available on record as well as prevailing situation, we hope and trust that good sense would prevail one day and the parties would reunite.
17. In the result, MATA No. 57 of 2014 filed by the appellant-wife is allowed and RPFAM No. 59 of 2013 filed by the respondent-husband is dismissed.
The parties shall bear their respective costs.
