Orissa High Court
Sri Gopal Krishna Das vs Smt. Trupti Mishra on 5 May, 2025
Bench: B. P. Routray, Chittaranjan Dash
Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.44 of 2013
Sri Gopal Krishna Das .... Appellant
Ms. K. Banarjee, Advocate on behalf
of Mr. S.K. Dash, Advocate
-versus-
Smt. Trupti Mishra .... Respondent
CORAM:
JUSTICE B. P. ROUTRAY
JUSTICE CHITTARANJAN DASH
ORDER
05.05.2025
Order No.
07. 1. Heard Ms. K. Banarjee, learned counsel for the Appellant and
no one entered appearance for the Respondent despite notice is
made sufficient.
2. The matter was called in the first hour and it has been passed
over permitting Ms. Banarjee to call her senior. Instead of the
same, her senior does not appear and it is submitted by Ms.
Banarjee that a copy of the TCR may be supplied to the counsel
for the Appellant enabling them to argue in the matter.
3. It is true that the Appellant has no right to get a copy of the
TCR (Trial Court Record) from this Appellate Court. The
Appellant has to substantiate his case on the basis of materials
brought in the Trial Court. Accordingly, the prayer of Ms.
Banarjee to get a copy of the TCR from this Court is refused.
Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29
4. We perused the impugned judgment including the evidences
and materials produced on record.
5. It is seen that the husband has come up against the decree of
learned Family Judge, Berhampur dated 5th April 2013, passed in
Civil Proceeding No.606 of 2010, wherein his prayer to grant the
decree of divorce has been refused.
6. The husband approached learned Family Judge in C.P.
No.606 of 2010 for granting decree of divorce on the ground of
cruelty and desertion. As per the allegations, the wife-Respondent
subjected the husband to mental cruelty from the very beginning
of their marital life by returning late in the evening. It is also
alleged that in one occasion the wife refused to cook ‘PINDA’ in
the Sradha ceremony of late father of the husband and again, on
one particular occasion the wife along with the minor baby
reached at the office of the husband and shouted there.
7. The wife on her part refuted all such allegations made against
her and made counter allegations against the husband stating that
the husband and his family members continued harassing her by
scolding in filthy languages and passing comments. Even during
her pregnancy she was beaten up and tortured by the family
members of the husband. She did not leave the matrimonial house
on her own, but due to compulsion and threat put by the husband
and his family members. Compelled by such circumstances, the
wife left the matrimonial home along with her minor child for
safety and security.
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Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29
8. Both parties examined two witnesses each on their part to
substantiate their stand. Besides adducing such oral evidences, the
husband relied on three documents marked as Ext.1, Ext.2 and
Ext.3. The learned Family Judge framed five issues and all such
issues were answered against the husband. Among such issues,
Issue no.3 speaks about the cruelty and desertion to justify the
ground of divorce. P.W.1, who is the husband himself, has though
stated in his evidence regarding the fault committed by the wife
and about her late return in the evening, but could not able to
stand confirmed to such statements during his cross-examination
and cross-examination of the wife. Since the husband was the
plaintiff before the learned Family Judge the burden is on him, in
terms of the principles under Section 101 to 104 of the Indian
Evidence Act, to satisfy that the wife has voluntarily left the
matrimonial house or subjected him to such cruelty within the
meaning of Section-13 (1)(i-a) of the Hindu Marriage Act.
To analyse the evidence of the parties on this score, it is seen
that the husband P.W.1 has relied on Ext.3, i.e. an agreement,
more so an undertaking by the wife, executed between the parties
that the wife will not go to the house of one Indira Devi. The
same is seen prepared on a stamp paper worth of Rs.10/-, which
was purchased by the husband on 24th April 2008. P.W.2 is the
attesting witness to said agreement and in her evidence she admits
to have signed on the agreement before the wife has signed.
Taking note of such material irregularity in execution of the
agreement under Ext.3, and taking others surrounding facts with
regard to execution of the same, the learned Family Judge has
rightly disbelieved the same to be a voluntary one. On analysis of
the facts as deposed by the witnesses with regard to execution of
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Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29
Ext.3, we do agree with the opinion of the learned Family Judge
that such undertaking under Ext.3 is not a voluntary one, but
obtained under compulsion, and thus the same has been rightly
disbelieved.
9. So far as the other aspects of cruelty and desertion are
concerned, it is seen from the evidence of wife (D.W.1) that she
was working as a teacher prior to marriage and continued as such
after the marriage and therefore she has to discharge her duties
from 7:00 A.M. to 2.30 P.M. on every working day and she used
to return during the evening hour. She refused to all such
allegations of the husband regarding any sort of misbehavior to
in-law members. She has rather disclosed that the husband and
his family members used to harass her on different pleas and even
physically assaulted her. Even on one occasion the husband
slapped her in front of her mother and aunt. The narration of the
statements by the wife and her answers given during cross-
examination justifies her plea that she was compelled to leave the
matrimonial house for her safety and also for safety of the minor
child.
10. It is not the case of the husband that, he has attempted to
bring the wife to him at any point of time or has approached the
competent Court of law under appropriate provision for
restitution of conjugal right. The burden being on the husband to
prove his contentions regarding commission of cruelty by the
wife and he being failed to satisfy the same through satisfactory
evidence and appropriate materials, we are not inclined to accept
such contention on the part of the husband that he was subjected
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Signature Not Verified
Digitally Signed
Signed by: SARBANI DASH
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-May-2025 11:25:29
to mental cruelty by the wife to entitle him to get the decree of
divorce on such ground. Having not found any infirmity in the
order of the learned Family Judge, we refuse to interfere with the
same. Accordingly, the appeal is dismissed.
(B.P. Routray)
Judge
(Chittaranjan Dash)
Judge
C.R Biswal/Sarbani
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