JUSTICE SUBHASIS TALAPATRA

Arun Kumar Sahu v. Smt. Madhumita Puthal

Case Number: MATA No.28 of 2020

Coram: Justice S. Talapatra, Justice B. P. Routray

Date of Decision: 29th June, 2022

In this case, the Appellant had challenged the judgement of the Judge, Family Cpurt, Baripada wherein he had been directed to pay Rs.4,00,000/- as permanent alimony. The Appellant and the Respondent had filed a petition under section 13(B) of the Hindu Marriage Act, 1955 for dissolution of their marriage, after they had lived two years separately. During that period, it had been asserted by the parties that there had been no cohabitation. The Appellant contended that the Respondent had expressly waived any claim of alimony, any other claim from him. He further contended that the Court on due consideration found the clauses of the settlement in order and not unlawful. The Respondent while referring to Section 25 (1) of the Hindu Marriage Act, contended that it is the duty of the Judge, who is passing decree of divorce under the provisions of Hindu Marriage Act, 1955 to pass the appropriate direction for alimony or maintenance.

This Court while relying on Ganesh v. Sunil Kumar Srivastava and Anr. (2020) 20 SCC 787, observed that either of the parties, the wife or the husband, may give up any claim so far as the maintenance or permanent alimony is concerned. It was further observed that, the Court while adjudicating the petition U/S. 13 (B) of the Hindu Marriage Act is permitted to examine whether the consent terms is hit by Section 23 of the Indian Contract Act, 1872, in as much as the considerations and objects in the said consent terms have to be lawful.

Consequently, the Court iterated that as it has been postulated in Section 23 of the Indian Contract Act that the considerations and objects are lawful, unless it is forbidden by law or is of such a nature that, if it is permitted to operate, it would defeat the provisions of any law. Therefore, any clause of the consent terms in a proceeding under Section 13(B) of the Hindu Marriage Act is subject to the test of Section 23 of the Indian Contract Act. If it is observed that for the said waiver clause, the respondent has been completely debarred from approaching the court seeking alimony or maintenance, it would defeat the provisions of law as provided by Section 25(1) of the Hindu Marriage Act and that would, in that event, stand contrary to the public policy against vagrancy or destitution. Thus, the appeal was allowed.

Poreddy Raj Rao v. State of Orissa and Ors.

Case Number: W.P.(C) No.18046 of 2014 and batch

Coram: Justice S. Talapatra, Justice Dr. B.R. Sarangi, Justice D. Dash

Date of decision: 16th November, 2022

Chief Justice had referred this matter to this Bench for adjudicating on the following issues: Whether the judgment of the Hon’ble Supreme Court in the case of Deepak Kumar etc. v. State of Haryana and Others etc. in I.A. Nos.12-13 of 2011 arising out of Special Leave Petition (Civil) No.19628-19629 of 2009 lays down any restriction for transport of sand to a place outside the State? And whether Rule-73 (1)(b) of any other Rule of the Orissa Minor Minerals Concession Rules, 2004 imposes such restriction restricting transport of sand from Orissa to any other State?

Regarding the second issue, this Court clarified that the Orissa Minor Minerals Concession Rules, 2004 as referred above has been suppressed by the Odisha Minor Minerals Concession Rules, 2016. Therefore, any interpretation in respect of Rule-73(1)(b) of the Orissa Minor Minerals Concession Rules, 2004 would serve no purpose, as the said provision has been repealed without saving any part of it.

The Court observed that in Deepak Kumar and others v. State of Haryana & others (2012) 4 SCC 629, the Supreme Court directed the State Governments and Union Territories to take immediate steps to frame necessary Rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 on the line of the recommendation of the MOEF, as reflected in their aforesaid report of March, 2010 and the model guidelines framed by the Ministry of Mines, Government of India into consideration. Further it was observed from the judgement of the Gujarat High Court that no power flows from the provisions of Section-23(c) to make the Rules for regulating transportation of the legally excavated minerals. Thus, this Court observed in finality that the restriction on transportation of sand will be regulated by the Odisha Sand Policy, 2021.