High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Mar-2024 19:13:41 Order No. 1. IN THE HIGHCOURT OF ORISSA AT CUTTACK W.P.(C)NO.5502 of 2024 Dillip Kumar Das
Legal Reasoning
Petitioner …. Mr.Bijaya Kumar Behera-1,Advocate Chandan Behera …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 15.03.2024 1 . This matter is taken up through hybrid mode. 2. Petitioner in this writ petition seeks to assail the order dated 6th February, 2024 (Annexure-6) passed in CMC No.38 of 2022 (arising out of CP No.120 of 2022), whereby learned Judge, Family Court, Berhampur directed the Petitioner to pay pendente lite maintenance of Rs.3,000/- per month to the Opposite Party – wife from the date of order, i.e., 6th February, 2024. 3. Mr. Behera, learned counsel submits that the Petitioner is serving as a Constable in the office of Superintendent of Police (Vigilance), Berhampur. He is getting a sum of Rs.65,000/- per month as salary. The Opposite Party-wife is also in receipt of maintenance of Rs.4,000/- per month pursuant to the direction of learned JMFC, Khallikote in a proceeding under Section 125 Cr.P.C. in Misc. Case No.220 of 2020. Thus, the Opposite Party is not entitled to any further maintenance including the impugned order. In support of his submission, he relied upon ratio of a decision in the case of Shri Bhavin Shah Vs. Smt. Sapna Shah, reported in 2016(I) P a g e 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Mar-2024 19:13:41 OLR 577, wherein this Court held as under:- “5. Considering the submissions and the specific objection raised by the petitioner-husband in the Misc. Case No.05 of 2013 and further considering the fact that the wife-opposite party is already in enjoyment of interim maintenance as per the direction of a court at Maharashtra, it appears that the Misc. Case No.5 of 2013 was misconceived and there is abuse of process of the Court by the wife-opposite party in pressing her Misc. Case No.05 of 2013 before the Judge, Family Court, Cuttack. In view of grant of interim maintenance in favour of the wife by another competent court of law and this fact having been brought to the notice of the Family Court in the present proceeding, the Family Court ought to have refused interim maintenance. By virtue of the interim order, the wife- opposite party is in enjoyment of maintenance from two courts which is not permissible in the eye of law in spite of her knowledge that her interim maintenance has already been granted by another court.” In view of the above, learned Judge, Family Court committed an error in directing the Petitioner to pay maintenance as aforesaid. He, therefore, prays for setting aside the impugned order under Annexure-6. 4. Taking note of the submission made by learned counsel for the Petitioner and on perusal of record, this Court finds that learned Judge, Family Court, Berhampur has taken into consideration that the Opposite Party-wife is getting maintenance of Rs.4,000/- per month pursuant to the direction of learned JMFC, Khallikote in a proceeding under Section 125 Cr.P.C. in Misc. Case No.220 of 2020. Section 24 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) clearly stipulates that a spouse is entitled to maintenance pendente lite if he/she does not have sufficient means for his/her P a g e 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Mar-2024 19:13:41 sustenance. In the instant case, learned Judge, Family Court is of the opinion that Rs.4,000/- per month as maintenance to the Opposite Party is not sufficient for her sustenance. Admittedly, the Petitioner is serving as a Constable in Odisha Police and is getting Rs.65,000/- per month as his salary, as submitted by Mr. Behera, learned counsel. Thus, a direction to pay a further sum of Rs.3,000/- per month as maintenance pendente lite does not appear to be excessive in view of decision of the Hon’ble Supreme Court in the case of Rajnesh Vs. Neha and another, reported in (2021) 2 SCC 324, wherein, it is held as under:- “60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the DV Act and Section 125 CrPC, or under HMA. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/Family Court shall take into account the instituted maintenance awarded proceeding, and determine the maintenance payable to the claimant. in any previously To overcome the issue of overlapping jurisdiction, 61. and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding.” P a g e 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 18-Mar-2024 19:13:41 While passing the impugned order, learned Judge, Family Court has taken note of the maintenance, the Opposite Party- wife is receiving in the proceeding under Section 125 Cr.P.C. Thus, there is no illegality committed by learned Judge, Family Court in directing the Petitioner to pay maintenance as stated above. 5. Accordingly, the writ petition being devoid of any merit stands dismissed. s.s.satapathy (K.R.Mohapatra) Judge P a g e 4 of 4