Criminal Appeal No. 10/43 of 2022 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.194 of 2023 And CRLREV No.150 of 2023 (From the common judgment dated 13.02.2023 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.10/43 of 2022 and Criminal Appeal No.9/40 of 2022 arising out of the order dated 23.06.2022 passed by learned S.D.J.M., Bhubaneswar in CMC(D.V.) No.590 of 2020) the (In CRLREV No.194 of 2023) Tejasmita Mohapatra …. Petitioner(s) -versus- Lt. Col. Soumya Ranjan Pati & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. Gokulananda Mohapatra, Adv. For Opposite Party (s) : Mr. S.K. Mohanty, Adv. (for O.P.1) (In CRLREV No.150 of 2023) Soumya Ranjan Pati …. Petitioner(s) -versus- Tejasmita Mohapatra …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s)
Legal Reasoning
passed interim maintenance based on prima facie material available on record. There is no denial of the fact that the parties are legally married and stayed together for some time till their separation. It is apparent that there was some kind of disturbance in the marital life of the parties and then the Petitioner/wife got separated from the Petitioner/husband. 15. Taking into account all the facts narrated above, the learned S.D.J.M., Bhubaneswar has awarded Rs.35,000/- towards interim maintenance and Rs.15,000/- for house rent which has been confirmed by the learned 2nd Additional Sessions Judge, Bhubaneswar. It was also observed by the learned 2nd Additional Sessions Judge, Bhubaneswar that the argument with regard to grant of 50% maintenance would be dealt with at the time of final hearing of the main case. 16. Having gone through the materials available on record and the finding arrived at by both the courts below, this Court is of the view that both the courts below have left no stone unturned in awarding the said interim maintenance to the Petitioner/wife so as to warrant interference by this Court. In such circumstances, there appears absolutely no ground to interfere with the impugned order. 17. Accordingly, both the CRLREV are dismissed confirming the common judgment dated 13.02.2023 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.10/43 of 2022 and Criminal Appeal No.9/40 of 2022 arising out of the order dated Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 7 of 8 23.06.2022 passed by the learned S.D.J.M., Bhubaneswar in CMC(D.V.) No.590 of 2020. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 8th Feb., 2024 /B. Jhankar Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 8 of 8
Arguments
Mr. Jatindra Mohanty, Adv. Signature Not Verified For Opposite Party (s) Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 : Mr. Gokulananda Mohapatra, Adv. Page 1 of 8 CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-10.01.2024 DATE OF JUDGMENT: -08.02.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner, in both the CRLREVs, challenges the common judgment dated 13.02.2023 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.10/43 of 2022 and Criminal Appeal No.9/40 of 2022 arising out of the order dated 23.06.2022 passed by the learned S.D.J.M., Bhubaneswar in CMC(D.V.) No.590 of 2020. 2. It is apparent that vide the aforesaid common judgment dated 13.02.2023, the learned 2nd Additional Sessions Judge, Bhubaneswar dismissed both the Criminal Appeal No.10/43 of 2022 and Criminal Appeal No.9/40 of 2022 affirming the order dated 23.06.2022 passed by the learned S.D.J.M., Bhubaneswar in CMC(D.V.) No.590 of 2020. I. FACTUAL MATRIX OF THE CASE: 3. The factual matrix of the present case is that the wife Tejasmita Mohapatra (Petitioner in CRLREV No.194 of 2023) (hereinafter referred to as “the Petitioner/wife” for brevity) filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the D.V Act” for brevity) before the learned J.M.F.C., Bhubaneswar alleging that she is the legally married wife of Maj. Soumya Ranjan Pati who was Respondent No.1 (Petitioner in CRLREV No.150 of 2023) (hereinafter referred to as “the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 2 of 8 Petitioner/husband” for brevity). Respondent No.2 and 3 were parents of Maj. Soumya Ranjan Pati and Respondent No.4 is the sister of Maj. Soumya Ranjan Pati. The arranged marriage between the applicant Tejasmita Mohapatra and the Respondent No.1 Maj. Soumya Ranjan Pati was solemnized on 12.05.2013. After marriage, the applicant/wife was subjected to domestic violence on different occasions. Hence, she came up with the petition under Section 12 of the D.V. Act for necessary order under Sections 17, 18, 19, 20 and 22 of the D.V. Act, which was registered as Criminal Misc. Case (D.V.) No.590 of 2020. During pendency of the petition filed under Section 12 of the D.V. Act, another petition under Section 23 of the D.V. Act was filed for interim maintenance. The learned S.D.J.M., Bhubaneswar vide order dated 23.06.2022 allowed the petition and awarded Rs.35,000/- for monthly interim maintenance and Rs.15,000/- per month towards house rent. 4. Being aggrieved by the said order, both the Petitioner/husband and Petitioner/wife had preferred two separate criminal appeal before the Appellate Court. The Petitioner/husband had filed Criminal Appeal No.40 of 2022 for reduction of the interim maintenance and the Petitioner/wife Tejasmita Mahapatra had filed Criminal Appeal No.43 of 2022 for enhancement of the interim maintenance awarded by the learned S.D.J.M., Bhubaneswar vide the aforesaid order dated 23.06.2022 before the learned 2nd Additional Sessions Judge, Bhubaneswar. Learned 2nd Additional Sessions Judge, Bhubaneswar vide judgment dated 13.02.2023 dismissed both the appeals filed by the Signature Not Verified Petitioner/husband and the Petitioner/wife affirming the order dated Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 3 of 8 23.06.2022 passed by the learned S.D.J.M., Bhubaneswar in C.M.C. (D.V.) No.590 of 2020. 5. Being aggrieved, the Petitioner/wife has filed CRLREV No.194 of 2023 and the Petitioner/husband has filed CRLREV No.150 of 2023. II. SUBMISSIONS ON BEHALF OF THE PETITIONER/WIFE: 6. Learned counsel for the Petitioner/wife earnestly made the following submissions in support of his contentions. 7. The courts below have failed to consider the facts and law in proper perspective while awarding interim maintenance. Therefore, the order dated 23.06.2022 passed by the learned S.D.J.M., Bhubaneswar in C.M.C. (D.V.) No.590 of 2020 affirmed by the learned 2nd Additional Sessions Judge, Bhubaneswar vide judgment dated 13.02.2023 is untenable in law. As per the Petitioner/wife, the learned courts below failed to appreciate the fact that the Petitioner/husband is earning more than 2 lakhs per month being Lt. Col. in Indian Army. Hence, in order to maintain the standard of living at par the wife is accustomed, the interim maintenance should be 50% of the salary. 8. It was also submitted that in view of the facts that all the streedhana of the Petitioner/wife was forcibly snatched away by subjecting her to torture and cruelty. Further, the Petitioner/husband has intentionally with a plan to defame the Petitioner/wife alleging her chastity and otherwise in the work place of the Petitioner/wife in Delhi. As a result, he took away her job. The Petitioner/wife was forced to spend all her savings in the marriage of the sister of the Petitioner/husband and gave Signature Not Verified her jewellery to the sister of Petitioner/husband by subjecting her to Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 4 of 8 assault. The Petitioner was subjected to assault several times by the Petitioner/husband for which she suffers physically and mentally and not able to work properly. The Petitioner/wife is staying in Bhubaneswar and preparing for competitive examinations and sometimes come to the parental house to visit. 9. In such view of the matter, learned counsel for the Petitioner/wife submitted that interim maintenance may be enhanced to Rs.1.00 lakh per month and House Rent Rs.25,000/- per month for the Petitioner/wife to live a reasonable life. The Petitioner/wife may also be granted the arrear interim maintenance amount of Rs.14,50,000/- till May, 2022 from the date of filing of DV application, i.e from December, 2020. The Petitioner/wife may also be granted the arrear house rent as she is unable to pay it for about 3 years. The Petitioner/wife is not able to mitigate the litigation expenses both in the trial court and in the Appellate Court for which she is suffering a lot. Hence, Rs.1,50,000/- as litigation expenses may be granted for each court otherwise she will be highly prejudiced. III. SUBMISSIONS ON BEHALF OF THE PETITIONER/ HUSBAND: 10. On the other hand, learned counsel for the Petitioner/ husband submitted that the Petitioner/ wife is a highly educated person and presently she is a practicing Advocate of this High Court and previously she was earning more than 2 lakhs per month. Now she is also able to earn decently. He further submitted that the Petitioner/wife has a vehicle show room. The Petitioner/husband has alleged that the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 5 of 8 Petitioner/wife is having illicit relationship with another person and showing ill- treatment to his family members. Hence, no interim award should be allowed to the wife. 11. Further, the application filed under Section 12 of the DV Act was to be filed within one year of the relevant date. Hence, the original application itself is barred by limitation. 12. In the impugned orders also the medical expenses incurred by the Petitioner/ husband has not been taken into account though the Petitioner/ husband is suffering from Splenic Marginal Zone Lymphoma. Since the basic ingredients of Section 2 of the DV Act being not made out for final relief, the interim relief under Section 23 of the DV Act does not lie. In such premises, the CRLREV No.150 of 2023 filed by the Petitioner/ husband may be allowed and the impugned orders passed by the courts below may be quashed. IV. COURT’S REASONING AND ANALYSIS: 13. As it appears, there are allegations and counter allegations between the parties. Admittedly, Tejasmita Mohapatra is the wife of Soumya Ranjan Pati. They are staying separately. The husband is earning Rs.1,92,826/- per month being Lt. Col. in Indian Army. Wife is a qualified Master of Law. The Petitioner/husband and the Petitioner/wife are maintaining luxurious cars. The income tax return of the Petitioner/wife for the year 2017-18 shows that she was earning Rs.2,75,695/- per annum and in the year 2020-21 her income was Rs.2,22,080/-. 14. Allegation of the Petitioner/ husband is that the wife having illicit Signature Not Verified relationship with another person was showing ill-treatment towards his Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Mar-2024 18:29:04 Page 6 of 8 family members. However, such allegation is to be taken into account at the end of the trial. Here, the learned S.D.J.M., Bhubaneswar has only