B. Panigrahi, J.:— This appeal is directed against an order passed by the learned Judge, Family Court, Rourkela in a Matrimonial Civil Proceeding No. 53 of 1996 whereby a decree of divorce was passed.
2. Undisputedly the marriage between the appellant and respondent was solemnised on 12th May, 1992 in village Chhend within Raghunathpali Police Station in the district of Sundargarh. After the marriage, the appellant joined with the respondent in the matrimonial house at Tagarmunda whereafter both the spouses went to Jamalpur where the respondent was serving in the Railway Department. The appellant after spending some days went back to her parents' residence. Immediately she used to visit her matrimonial house at Tagarmunda. It has been stated by the respondent before the learned Judge, Family Court that gradually the attitude of the appellant became rude and obdurate. In the month of March, 1993 both the spouses stayed in a rented house for about seven months at Jamalpur. During that period the appellant conceived and her husband found that the behavioural pattern of the appellant had completely changed. After some time the respondent secured an employment in Rourkela Steel Plant as a Senior Operator and preferred to stay with his elder sister in quarter No. B/11. Basanti Colony, Rourkela. But the appellant did not join with her husband at Basanti Colony, Rourkela and instead stayed with her parents. When the respondent went to call her from father-in-law's house, they suggested to remain as illatom-son-in-law to which the respondent took exception. After some time the appellant gave birth to a male child. Even after the birth of the child, respondent-husband had claimed to have invited the appellant to join him in their Basanti Colony residence at Rourkela, but the appellant on some pretext or other avoided to join with him. Thus, the respondent having suffered from mental cruelty due to dissociation of the appellant, therefore, filed an application before the learned Judge, Family Court, Rourkela.
3. The appellant on the other hand, had filed her written statement and admitted the marriage which was solemnised on 12th May, 1992. She has strongly refuted about the mental cruelty alleged to have been caused by her. She further denied the allegation of non-performance of the house-hold works in the husband's residence. Rather the wife had claimed that she was subjected to mental cruelty on many occasions. It is stated by the appellant that during her pregnancy she became very anaemic and weak, yet her husband did not take her care. She was also denied the minimum maintenance during her period of stay in her parents' house. None of her family members had ever suggested the respondent to be their illatom-son-in-law.
4. The respondent was examined as P.W 6 before the Family Court. He had claimed that the appellant used to stay in her parents' house without informing her husband. While the respondent was working at Jamalpur, the appellant used to stay at Tagarmunda. During that period they noticed abnormal behaviour of the appellant. In course of time, he came to Rourkela and secured an employment at the Steel Plant as a Senior Operator and was staying at Basanti Colony. P.W 6 was then drawing a salary of Rs. 1250 per month. We find, the above statement has been corroborated by his brother who was examined as P.W 5, P.W 4 is a caste man of the parties. From the evidence of the witnesses examined on behalf of the husband-respondent before the trial Court, we find nothing to suggest that the respondent-husband had suffered from mental cruelty at any time. The suit for divorce was filed only on the ground of cruelty, but since there has been no evidence adduced by the husband that due to the action of the appellant he was subjected to mental cruelty, we are not in a position to approve the decree of divorce granted by the learned Judge, Family Court. Accordingly, the decree of divorce passed under Section 13 of the Hindu Marriage Act is hereby set aside.
5. At this stage, Mr. Dhal, learned counsel appearing for the respondent has fervently pleaded that a further chance be given to the husband for amending the application filed under Section 13 of the Hindu Marriage Act and also for leading further evidence in the case. In that view of the matter, we however remit the matter back to the learned Judge, Family Court by giving a further chance to the husband-respondent to amend the grounds of application to be filed under Section 12 of the Hindu Marriage Act in case such application is filed, the learned Judge, Family Court shall give a further liberty to the appellant to file her objection to the said amendment application. After hearing the said amendment, in case the learned Judge, allows such prayer, a chance be given to the wife to file additional written statement on the amended application. Both parties are at liberty to lead further evidence before the learned Judge, Family Court in course of the hearing of the application.
In course of hearing, the learned counsel appearing for the appellant has filed an application under Section 24 of the Hindu Marriage Act directing the respondent to pay maintenance for the wife as well as child who is admittedly residing with her. It is gathered that at the moment, that the husband is getting more than 10,000/- as his gross salary. It is a settled position of law that the wife shall be entitled to 1/5th of the total income of the husband. But however in order to meet the ends of justice, we accordingly allow the maintenance to be payable by the husband to the appellant and her son @ Rs. 1500/- (Fifteen hundred) per month from today i.e 5-9-2002 till disposal of the application by the learned Judge. Family Court. The respondent shall continue to pay @ Rs. 1500/- towards maintenance to the appellant and her son every month regularly within first week of every succeeding month. In case of any default by the respondent, it is open to the appellant to approach the employer, so that deduction of the said amount shall be made from his salary for payment to the appellant.
6. If an application is separately filed by the wife for litigation expenses, it will be independently dealt with by the learned Judge, Family Court considering the facts and circumstances of the case.
7. For the reasons stated above, we set aside the decree of divorce and remit the matter back for fresh disposal in accordance with law.
Ch. P.K Misra, J.:— 8. I agree.
Order accordingly.