Signed by: MADHUSMITA SAHOO v. This matter is taken up through hybrid mode

ORDER 24.07.2023

This matter is taken up through hybrid mode.

Although A.D. of notice on the Opposite Party has not yet returned, but the tracking report of the Postal Department confirms the delivery of notice on the Opposite Party. Hence, notice is treated to be sufficient.

Judgment dated 29th November, 2017 passed by learned Judge, Family Court, Jeypore in Criminal Proceeding No.25 of 2017 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.4,000/- per month to the Opposite Party with effect from the date of application, i.e., from 15th March, 2017.

Ms. Naidu, learned counsel for the Petitioner submits that the Opposite Party has sufficient means to maintain herself. She has categorically admitted in her evidence that she has a bangle shop and she has constructed a house over the land recorded in her name. That itself indicates that she has sufficient means to maintain herself. Further the Petitioner has alleged in his objection that the Opposite Party took up quarrel with the Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 17:52:34 // 2 // Petitioner and left the matrimonial home without any reasonable cause. The objection raised by the Petitioner was not at all dealt with by learned Judge, Family Court while adjudicating the petition under Section 125 Cr.PC.. Learned Judge, Family Court only relying upon the evidence of the Opposite Party held that she was driven out from the matrimonial home. Although it is not raised in objection, it is the specific case of the Petitioner that the Opposite Party had extra marital relationship. Thus, she is not entitled to maintenance in view of the provision under Section 125(4) C.P.C.. These material aspects were not dealt with by learned Judge, Family Court while adjudicating the petition under Section 125 Cr.P.C. Hence, this RPFAM has been filed.

As observed earlier, notice on the Opposite Party has been held to be sufficient in view of the tracking report of the Postal Department.

Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned order, it appears that learned Judge, Family Court framed two points for adjudication. No issue/question of fact was framed with regard to leaving matrimonial home by the Opposite Party as alleged by the Petitioner. Of course, there is no evidence on record with regard to income of the either parties. But it appears that the Opposite Party in her evidence has categorically admitted that she has a bangle shop and she has constructed a residential house over the land recorded in her name. That itself gives a reasonable presumption that Opposite Party has sufficient means to maintain herself. Further learned Judge, Family Court did not Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 17:52:34 // 3 // take any pain to discuss the evidence of the Petitioner with regard to the cause of leaving of the Opposite Party from the matrimonial home. Only taking into consideration the judgment and decree passed in C.S. No.11 of 2011, it is held that the Petitioner did not allow the Opposite Party to stay in the house. The observation, if any, made in the judgment on C.S. No.11 of 2011 should have been considered along with other materials available on record in the present proceeding under Section 125 Cr.P.C.

In that view of the matter, this Court feels that the matter requires fresh consideration.

With the aforesaid observation and direction, RPFAM is disposed of.

Interim order dated 19th February, 2020 passed in I.A. No.65 of 2020 stands vacated. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge