ANJANI DEI Vs. KRUSHNA CHANDRA
HIGH COURT OF ORISSA
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Mohapatra, J. -
(1.) This is a plaintiff's First Appeal against the judgment and decree dated 14-51949, of Sri B.S. Patnaik, Additional Subordinate Judge of Cuttack, in a suit brought by the plaintiff for recovery of arrears of maintenance, for future maintenance, and for recovery of the value of gold and silver ornaments alleged to have been forcibly kept back from the plaintiff by the defendants. Defendant No. 1 is the husband of the plaintiff and defendant No. 2 is the father of defendant No. 1. Admittedly the plaintiff and defendant No. 1 married in the month of Baishakha, 1943. The plaintiff left the defendant's house in Ashardha, 1944 and has not gone to her husband's place since then. The further admitted feature of the case is that defendant No. 1 married another wife in Ashardha, 1945. The plaintiff's case is that she comes of a fairly well-to-do family, her father being an Union President and also a contractor. The defendants are also sufficiently rich owning properties valued at rupees fifty thousand and defendant No. 1 is also serving under the Government of Orissa on a salary of nearly seventy rupees. At the time of her marriage, her father gave her dowry of gold and silver ornaments and other articles described in Schedule A of the plaint and also presented valuable articles to the groom including wrist watch and gold wristband. The further story of the plaintiff as to the origin of differences between the two families is that the plaintiff's father possesses about four acres of land in mouza Kolasahi adjoining to the lands of the defendants. The defendants pressed the father of the plaintiff to make a gift of those four acres of land in favour of defendant No. 1 Plaintiff's father, however, agreed to part with one acre only. The defendants put pressure upon the present plaintiff to persuade her father to accede to the aforesaid request of the defendants. The plaintiff having refused, the dissension between the husband and the wife started. The plaintiff thereafter was looked upon with hatred and was neglected in all respects. Even she was not given food and drink properly and was to do all menial work in the household including cleaning of the cowshed and the utensils, etc. She was also physically tortured, slapped and kicked by the mother-in-law. Her husband joined hands with the parents in harassing her. She was also deprived of all the pleasures of a married life. She found it impossible to continue in the house of the defendants any longer and therefore left the house in Ashardha, 1944. While she left the house of the defendants, all the ornaments described in the schedule were forcibly kept back by the defendants. The plaintiff therefore prays for past maintenance at the rate of fifty rupees from Ashardha, 1944 amounting to a sum of Rs. 1475/-. She claims future maintenance at the rate Rs. 50/-per month and charges for separate residence at the rate of Rs. 10/-. She valued the Articles in schedule A at Rs. 4084/-.
(2.) The defence taken by the husband is that the plaintiff is an ill-bred and quarrelsome lady who has no fine sentiment for her husband and has no conception of a wife's duty towards her husband, and the only thing that she expected was the satisfaction of her physical needs, particularly her sexual satisfaction for which the husband was not fully capable since he had constant attacks from colic soon after his marriage. His further case is that she voluntarily left the defendants' house in Ashardha, 1944 and is not coming back in spite of repeated requests. The defendant, therefore, had married for the second time in Ashardha, 1945. The defendant asserts that as his parents were responsible for this unhappy marriage with the present plaintiff, soon after the marriage he is living away from his parents. He is drawing a salary of Rs. 64/-. In the circumstances, he is not liable for any separate maintenance claimed by the plaintiff. He has taken the further plea that the amount charged is excessive. Both the defendants deny the fact that the plaintiff's father gave dowry of the ornaments of the value as alleged by the plaintiff. They further deny that no ornaments were forcibly kept back while the plaintiff left their house. On the contrary, their allegation is that the plaintiff went with all the ornaments on her body and has never come back.
(3.) The learned Court below has dismissed the plaintiff's case for recovery of past maintenance and for future maintenance, but has passed a decree for a sum of Rs. 577/- as the value of the silver ornaments and furniture which were kept back by the defendants. In coming to his conclusions regarding the case of the pltf. claiming separate maintenance, the learned Court below after discussing the oral evidence on record, finds "that the plaintiff has not been able to prove such physical cruelty as will entitle her to separate residence and separate maintenance. He finds that the only evidence on the point of physical cruelty is that of P. W. 3, that is, the plaintiff herself, which is to the effect that for the first six months she lived, comfortably in her husband's place and after that she was being tortured. The only occasion on which she was assaulted was by the motherin- law and in his opinion that cannot be taken to be sufficient reason for holding that there was such physical cruelty as to entitle her to live apart from her husband. We are perfectly aware that the learned Court below trying the suit had the special advantage of examining and seeing the witness himself which advantage of course is denied to us; and further the only evidence adduced on behalf of the parties is the oral evidence of a few witnesses examined from either side. But we are compelled to observe that the learned Court below has completely misdirected itself in not considering at all whether in view of the circumstances transpiring from the written statement and the evidence of the defendants themselves, a case of legal cruelty has been made out to justify the plaintiff for a claim for separate maintenance & residence. Apart from the question of physical cruelty, torture or assault by the mother-in-law or by any other member of the family if the circumstances are such that it is (Sic-not?) possible for her to live as a wife with self-respect and dignity in the house of the husband, indeed she is entitled to separate maintenance and residence. In this connection, we will refer to some passages in the written statement filed by defendant No. 1. In para 22 of the written statement he avers as follows: "That soon after the marriage when there was such conjugal difference between the plaintiff and the defendant, this defendant accused his parents and cut off all connections from them because it is for their choice that this defendant was put to such suffering since they had no business to select such an illiterate overbearing and in every sense undersirable lady like the plaintiff for ruining the life and pleasure of this defendant and soon after his marriage this defendant separated from his parents and has no concern with the parents or the family properties.
"That the plaintiff is an illiterate, ill-bred and quarrelsome lady who has absolutely no fine sentiment for a husband and had no conception of a wife's duty towards her husband and the only thing that she expected from this defendant was the satisfaction of her physical needs for which this defendant was not fully capable since he had constant attacks from colic soon after his marriage and so much was her displeasure that she went back to her fathers house and never returned back to this defendant in spite of this defendant's strenuous efforts to get her back. Having forced a second marriage on this defendant and the burden of maintaining another wife the plaintiff is not entitled to get any maintenance." From these averments, it is clear to us that almost from the beginning of their married life he had an abnormal sort of aversion for this girl. The aversion was to such an extent that, for this marriage, which he considers to be unhappy from the very beginning, he had to live away from his parents as the parents were responsible for this marriage. He calls this girl as illiterate and illbred. It is also clear from this written statement that he was not able to give sexual satisfaction to the girl. This position transpires also from the written statement filed by defendant No. 2. Paragraph 6 runs thus:
"That the real facts are that soon after the marriage the plaintiff and defendant No. 1 had differences and this defendant found that neither plaintiff likes the defendant No. 1 nor the defendant No. 1 likes the plaintiff. However this defendant wanted to patch up the differences but the plaintiff was too obstinate to mend matters. Thereafter the defendant No. 1 accused this defendant and remained separate from this defendant since the later part of 1943. That the defendant is in possession of about 25 acres of ancestral land with another son and an unmarried daughter and besides 4 married daughters and his wife. The defendant had to maintain himself, his Wife, a younger son and a daughter and he is required to maintain them and bear the education expenses of the minor son who is now in the Ravenshow College. Besides this defendant has to meet the expense of occasional presents and partly maintenance of the married daughters and her children." * * * * * It appears therefore from the case of both the defendants themselves that defendant No. 1 developed this aversion as against the plaintiff soon after the marriage and that on account of this unhappy marriage, as he calls it, he went to the extent of cutting off all connections with his parents since the later part of 1943. Defendant No. 1 in his examination admits that from the last part of 1943 to July 1944 he was seldom meeting the plaintiff in the same bed.;
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