The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No.38 of 2023 Abhaya Kumar Mallick … Petitioner Renubala Mallick Mr. R.K. Bisoi, Advocate -versus- … Opposite Party Mr. S. Samal, Advocate Order No. 09. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 07.08.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
has approached this Court in this present CRLMP. 5. At the outset, Mr. Bisoi, learned counsel for the petitioner apprises this Court that the petitioner- husband has not yet deposited any arrear maintenance, but he, however, strongly contends that since the OP- wife has filed the interim application with false and forged documents and suppressing the material fact, she is not entitled to any maintenance. Mr. Bisoi further submits that this Court, by taking into consideration the argument placed by the parties, passed an order on 20.01.2023 directing the State to obtain instruction as to whether the petitioner and OP are residing together in village Khandagiribihar under Khandagiri Police Station in the district of Khordha in Qtr. No.125/5664 and whether the petitioner is taking care of the OP or not and after passing of such order, the OP-wife voluntarily left the company of the petitioner-husband and started Page 2 of 6 residing separately with effect from 21.02.2023 and, therefore, the OP is only entitled to interim maintenance, if any, with effect from the said date. Accordingly, Mr. Bisoi has prayed to pass appropriate order in accordance with law. 6. On the other hand, Mr. Siddhartha Samal, learned counsel for the OP very seriously contends that the petitioner-husband has suppressed material facts to dispute the residence of the OP-wife and by manipulating documents, the present petitioner is incorrectly saying that the OP-wife was jointly staying with the petitioner till 21.02.2023 and, thereafter, voluntarily deserted him. He further submits that merely because the wife and husband are staying together, it would not render the OP-wife for not being entitled to interim maintenance and law is very clear that interim maintenance can be paid to the OP-wife during the proceeding for grant of maintenance. It is further submitted by Mr. Samal that the object behind Section 125 of CrPC is to provide maintenance to the wife, who is unable to maintain herself to prevent her from the vagrancy and destitution, but nowhere it has been said that if the wife is residing together with the husband, she would not be entitled to maintenance and even if it is to be alternatively considered that the OP-wife was staying together with petitioner-husband, it is a question of fact which can be gone into in the course of Page 3 of 6 trial/inquiry of the regular proceeding for grant of maintenance under Section 125 of CrPC, but at this stage, grant of interim maintenance to the OP-wife cannot be refused. He, accordingly, prays to dismiss the present CRLMP. 7. After having considered the rival submissions upon perusal of record, there appears no dispute with regard to status of petitioner and OP as husband and wife and the claim of maintenance by the wife from the petitioner-husband. On the other hand, learned counsel for the petitioner also does not dispute about the liability of the petitioner to pay interim maintenance to the OP- wife, but he, however, only confines his submission to entitlement of the OP-wife with effect from 21.02.2023 and since the petitioner was maintaining his wife prior to the above date, the OP-wife is not entitled to any maintenance before 21.02.2023. This contention as advanced by the learned counsel for the petitioner with regard to entitlement of the OP-wife in terms of her staying together with the petitioner-husband in same house is a question of fact and can be addressed to by the learned Judge, Family Court, Bhubaneswar in the regular proceeding under Section 125 of CrPC, but at this stage, the petitioner cannot refuse to pay the interim maintenance. It is of course true that this Court has called for an instruction from the State to produce information with regard to OP-wife staying together with Page 4 of 6 petitioner-husband and the petitioner taking care of her, but the same can be addressed to by the learned trial Court in the course of adjudication of the proceeding under Section 125 of CrPC, but for want of such information, the present CRLMP which has been filed to assail the order granting interim maintenance to the OP- wife cannot be stalled, more particularly when the OP- wife is an unemployed lady and she has not been paid with a single pie of interim maintenance till today, as admitted by learned counsel for the petitioner. The only dispute in this case is with regard to the date of entitlement of OP-wife for maintenance. 8. In view of the aforesaid facts and circumstance and taking into consideration the undisputed facts, this Court does not feel it proper to interfere with the impugned order and accordingly, the present CRLMP stands dismissed, but however, the petitioner-husband is directed to pay the interim maintenance to the OP- wife with effect from 21.02.2023 on the admitted facts. 9. This Court, however, leave the question of entitlement of the OP-wife with effect from the date of application to be decided by learned Judge, Family Court, Bhubaneswar in the regular proceeding in CRP No.120 of 2021 by taking evidence. The arrear interim maintenance with effect from 21.02.2023 may be immediately paid to the OP-wife within a period of two weeks hence. It is clarified that this Court has not Page 5 of 6 expressed any opinion about the entitlement of the OP- wife w.e.f. the date of application of CRP No. 120 of 2021 which is required to be addressed after taking evidence in respect of rival claims about maintenance of wife by the husband during the period from the date of application to 21.02.2023. 10. Accordingly, the present CRLMP stands dismissed. (G. Satapathy) Judge Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 08-Aug-2024 17:19:41 Page 6 of 6
Arguments
Heard, Mr. Rama Krishna Bisoi, learned counsel for the petitioner and Mr. Siddhartha Samal, learned counsel for the OP. 3. The petitioner-husband has approached this Court in the CRLMP challenging the order dated 04.05.2022 passed by the learned Judge, Family Court, Bhubaneswar in CRP No.120 of 2021 by which an interim maintenance of Rs.8,000/- per month was awarded to the OP-wife with effect from the date of application i.e. 28.06.2021. 4. The undisputed facts involved in this case is that the present petitioner is the husband of OP and their marriage was solemnized on 30.05.1993 in terms of Hindu rites and customs in presence of their family members, friends and relatives, but due to dissension, the OP-wife filed a petition against the petitioner- Page 1 of 6 husband for grant of maintenance, which came to be registered as CRP No.120 of 2021, wherein an application for interim maintenance was filed by the OP- wife. On such petition, the learned Judge, Family Court, Bhubaneswar after taking into consideration the averments therein and other materials placed on record, passed the impugned order directing the present petitioner-husband to pay a sum of Rs.8,000/- per month to the OP-wife towards interim maintenance. Being aggrieved with such order, the petitioner-husband