Smt. Santa Kumari Das And Anr. vs The Judge, Family Court And Anr. on 17 April, 2003

    Smt. Santa Kumari Das And Anr. vs The Judge, Family Court And Anr. on 17/4/2003

JUDGMENT

   R.K. Patra, J.

   1. Petitioner No. 1 is the wife of opposite party No. 2. Their daughter is
petitioner No. 2. The petitioners have filed this writ petition challenging the
judgment dated 18.4.2000 made in Civil Proceeding No. 262 of 1996 by which the
learned Judge. Family Court, Cuttack, has directed dissolution of the marriage
between petitioner No. 1 and opposite party No. 2 by a decree of divorce subject
to the conditions that opposite party No. 2 would pay/deposit Rs. 25,000/-
towards permanent alimony of petitioner No. 1 and a further sum of Rs. 30,000/-
towards the marriage expenses of their daughter petitioner No. 2.

   2. Opposite party No. 2 commenced the aforesaid Civil Proceeding No. 262 of
1996 in the Court of learned Judge, Family Court, Cuttack by a petition under
Section 22 of the Indian Divorce Act, 1869 read with Section 7 of the Family
Courts Act, 1984 for a decree of divorce against petitioner No. 1 on the grounds
of cruelty and desertion.

   3. Admittedly, the parties belong to Christian community. There is no dispute
that petitioner No. 1 and opposite party No. 2 married in the year 1985 and led
their conjugal life till July, 1993. Out of the wed-look, a son and a daughter
(petitioner No. 2) were born who are now grown-up. The son is married and is
carrying on business. Opposite party No. 2 in his petition under Section 22 of
the Indian Divorce Act, 1869 alleged that petitioner No. 1 with the help of
their major son and daughter tried to kick him out.of the house. She started
misbehaving with him as a result of which he was forced to stay at Bhubaheswar.
The petitioner contested the case denying the allegations made by the opposite
party No. 2. Petitioners' case is that he (opposite party No. 2) has been
spending his days at Bhubaneswar by keeping a concubine, thereby leading an
adulterous life.

   4. The learned Judge, Family Court, by accepting the evidence of opposite
party No. 2 held that the case of cruelty and desertion has been made out.
Having regard to the fact that opposite party No. 2 was a government servant and
was getting more than Rs. 5000/- per month as salary, the learned Judge, Family
Court directed payment of Rs. 25,000/- towards permanent alimony of petitioner
No. 1 and Rs. 30,000/- towards the marriage expenses of petitioner no. 2.

   5. Learned counsel for the petitioner contended that the learned Judge.
Family Court could not have straightaway passed a decree of divorce by
dissolving the marriage without getting it confirmed by this Court as required
under Sections 17 and 20 of the Indian Divorce Act, 1869. There is force in the
above contention.

   6. The present case is a case covered under the Principal Act. The Principal
Act has come to be amended by the Indian Divorce (Amendment) Act, 2001 (Act 51
of 2001) which has come into force with effect from 3.10.2001 by virtue of which
Sections 17 and 20 of the Principal Act stand amended dispensing with the
provision of confirmation of the decree by this Court. Under the Principal Act,
every decree for dissolution of marriage or for a decree of nullity of the
marriage was subject to confirmation by the High Court as required under
Sections 17 and 20. The impugned decree having been made prior to the
commencement of Act, 51 of 2001, required confirmation by this Court which the
learned Judge, Family Court, did not seek as per Sections 17 and 20 of the
Principal Act.

   7. Learned counsel for the petitioner also contended that permanent alimony
granted in favour of petitioner No. 1 and marriage expenses granted in favour of
petitioner No. 2 is inadequate. The submission of the learned counsel is that
opposite party No. 2 was a Senior Technician in the Text Book Press, Bhubaneswar
and was drawing more than Rs. 8000/- as salary per month. There may be some
substance in this submission, but we are not expressing any opinion in the
matter since we are inclined to remit the matter for fresh disposal by the
learned Judge, Family Court, as the decree is not workable because it suffers
from lack of confirmation by this Court.

   8. In the result, the impugned judgment and decree are hereby set aside and
the matter is remitted to learned Judge, Family Court for fresh disposal on
merit according to law. The writ petition is accordingly allowed.