The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMP No. 469 of 2023 Banamali Nayak Sukanti Nayak …. Petitioner Dr. B.K. Mishra, Advocate -versus- …. Opp. Party Mr. Shashanka Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 20.02.2024 02. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this application, the Petitioner seeks intervention of this Court praying to set aside the criminal proceedings on the ground of lacking in legality, propriety and correctness of the ex parte orders, i.e. in connection with Crl. Petition No.26 dated 23.04.2022, No.31 dated 03.09.2022 and No.35 dated 05.12.2022 along with Crl. Petition No.4 of 2020 and the illegal ex parte enhancement maintenance order passed on 17.10.2015 in CMC No.117 of 2013, wherein the learned Judge, Family Court, Keonjhar has directed for maintenance to the Petitioner-wife. 3. The background facts of the case are that, pursuant to the direction issued by the learned Judge, Family Court, Keonjhar in CMC No.98 of 1994 filed by the Opp.Party-wife under Section 125, Cr.P.C., an order was passed for payment of interim maintenance by the Petitioner-husband @ Rs.500/-(five hundred) per month. Subsequently, vide Application registered as CMC No.117 of 2013, Page 1 of 5 // 2 // the Opp.Party-wife prayed for enhancement of the maintenance, whereupon the learned court vide order dtd. 17.10.2015 passed order ex parte against the Petitioner enhancing the monthly interim maintenance from Rs.500/- to Rs.7000/- (Rupees Seven Thousand only). For the non-compliance of the direction passed by the learned Judge, Family Court, Keonjhar in the said CMC No.117 of 2013 the Opp.Party-wife proceeded with Execution Proceeding No.104 of 2015. The Petitioner-husband challenged the said ex-parte order and moved an application registered vide CMC No.26 of 2016 for restoration of the original application setting aside the ex parte order. The learned Court while allowing the prayer of the Petitioner- husband, set aside the ex parte order and restored the original application in CMC No.117 of 2013 subject to payment of cost of Rs.10,000/- (ten thousand). 4. While the matter stood thus, the Opp.Party-wife initiated Criminal Proceedings No.68 of 2016, No.78 of 2016 and No.85 of 2016 for realization of the maintenance earlier awarded in CMC No.117 of 2013, which having been challenged by the petitioner in W.P. (C) No.19939 of 2016 converted to CRLMP No.345 of 2016, got the operation of the order stayed as passed in Crl. Petition No.78 of 2016. Similarly, the Opp.Party-wife initiated Crl. Petition No.4 of 2020 for realization of arrear against the enhanced maintenance passed by the learned Judge, Family Court, which was again challenged before this Court in CRLMP No.1606 of 2021 and this Court was pleased to issue an order of stay on the proceeding in Crl. Petition No.4 of 2020. Further, the Opp.Party moved in Crl. Petition No.52 of 2021 and No.11 of 2021, which was challenged by the Page 2 of 5 // 3 // Petitioner-husband in CRLMP No.26 of 2022 and this Court was pleased to pass order of stay. Now the learned Judge, Family Court has passed order for attachment of salary of the Petitioner to the tune of Rs.14,000/- (fourteen thousand) per month till realization of the amount to the tune of Rs.8,40,000/- (eight lakhs forty thousand). 5. Learned counsel for the Petitioner submits that the original application in CMC No.117 of 2013 having been restored to file by the court, the Opp.Party-wife is not pursuing the said application and instead proceeding against the Petitioner-husband for realization of the enhanced maintenance, i.e. Rs.7,000/- (seven thousand) per month since the date of passing of the order on 17.10.2015. 6. According to the learned counsel, once the original application has been restored to file, the order passed by the court enhancing the monthly interim maintenance from Rs.500/- (five hundred) to Rs.7000/- (seven thousand) is no more enforceable until the application is heard and disposed of finally on merit. 7. Keeping in view the aforesaid facts and submission, this Court is of the view that, having passed the order for restoration of the original application wherein the learned Judge, Family Court had directed the Petitioner-husband to pay the enhanced interim maintenance to the tune of Rs.7000/-, not being the condition of restoration save and except the cost of Rs.10,000/-, the subsequent proceeding initiated by the Opp.Party-wife for realization of the arrear maintenance calling upon the Petitioner-husband to comply the same is apparently not maintainable. Page 3 of 5 // 4 // 8. Having regard to the overall facts and circumstances and the fact that the Opp.Party-wife shall be deprived from getting any maintenance for her sustenance for all these years, it is appropriate to direct the Petitioner-husband to pay a lump sum of Rs.3,00,000/- (Rupees Three Lakhs) to the Opp.Party-wife as against her sustenance in lieu whereof all other proceedings initiated against the arrear maintenance shall be dropped. The Opp.Party-wife shall proceed with the original application in CMC No.117 of 2013 upon payment of the first installment by adducing evidence, if any, within two weeks of the disbursement of the first installment. 9. It is further directed that the learned court shall proceed on priority basis. The entire exercise in the above said CMC No.117 of 2013 shall be completed within a period of three months after deposit of the first installment. The amount of Rs.3,00,000/- (Three lakhs) to be deposited by the Petitioner-husband before the learned trial court in three equal monthly installments consecutively, the first installment to be paid by 10th of March, 2024 @ Rs.100,000/- (Rupees One Lakh) only. Upon such deposit, the learned court shall disburse the same in favour of the Opp.Party -wife. 10. It is made clear that, on the failure of the Petitioner-husband to deposit the aforesaid amount of Rs.3,00,000/- (Three lakhs) in the manner as has been directed above, the learned trial court shall do well to take coercive action against the Petitioner-husband as would be deemed just and proper in accordance with law and the guidelines issued in the matter of Rajnesh vs. Neha & another, (2021) 2 SCC 324, including debarring the Petitioner from taking part in the main application and in that event the earlier order dt.17.10.2015 passed Page 4 of 5 // 5 // in CMC No.117 of 2013 shall be restored with the enhanced maintenance, as directed therein. The CRLMP stands disposed of accordingly. Judge (Chittaranjan Dash) S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 21-Feb-2024 19:13:04 Page 5 of 5