The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.100 of 2024 (An application U/S. 19(4) of the Family Courts Act, 1984 r/w. Section 401 of CrPC). Sujit Kumar Sahoo … Petitioner -versus- Goldy Rani Rout … Opposite Party For Petitioner : Mr. B.Tripathy, Advocate For Opposite Party : Mr. A.Jena, Advocate CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:16.01.2025(ORAL) G. Satapathy, J. 1. This revision by the petitioner-husband seeks to assail the quantum of maintenance as granted by the learned Judge Family Court, Jajpur to OP-wife @ Rs.,42,000/- per month w.e.f. 09.02.2023 in an application U/S. 125 of the CrPC by the impugned judgment dated 26.02.2024 passed in Criminal Proceeding No. 40 of 2023. 2.
Legal Reasoning
In the course of hearing, Mr.Brahmananda Tripathy, learned counsel for the petitioner submits that although the net salary of the petitioner-husband RPFAM No.100 of 2024 Page 1 of 10 is Rs.84,895/-, but the learned trial Court misread the evidence and awarded a sum of Rs.42,000/- per month to the OP-wife as maintenance and, therefore,
Decision
the impugned judgment is liable to be interfered with. Further, Mr.Tripathy by producing photocopy of pay slips of the petitioner submits that the learned trial Court has not taken into consideration all the mandatory deductions while awarding maintenance to the OP-wife and accordingly the learned trial Court by holding PRBS Addl. at Rs.16,570.88 and C&T Society MUM at Rs.19,049.00 to be optional deductions has awarded the maintenance to the OP-wife, but fact remains that these are mandatory deductions and, therefore, it should have been deducted while calculating the quantum of maintenance for the OP- wife. While arguing in the matter, Mr.Tripathy, learned counsel for the petitioner took this Court through the pay slips for the month of November and December, 2023. 3. On the contrary, Mr.Arada Jena, learned counsel appearing for the OP-wife submits that not RPFAM No.100 of 2024 Page 2 of 10 only the petitioner-husband is earning more than what has been taken by the learned trial Court, but also he is not paying a single pai to his wife-cum-OP despite order being passed by the trial Court and the OP-wife is running pillar to post to get some maintenance amount. Further, Mr.Jena also produces one RTI information showing the monthly income of the petitioner-husband at Rs.2,56,484/- for the month of January, 2024, to which Mr.Tripathy submits that the said monthly pay slip includes uniform reimbursement which is granted casually and thereby the grant of maintenance to the OP-wife is excessive and exorbitant which needs to be calculated on the face of the net income of the husband at Rs.84,000/- per month. 4. After having considered the rival submissions upon perusal of record, there appears no dispute about the relationship between the parties. It is, however, contended during the argument that the OP- wife is a working lady, but no document was produced before this Court to evidence the same and the RPFAM No.100 of 2024 Page 3 of 10 learned trial Court in paragraph-20 of the impugned judgment has held that such contention of the petitioner-husband is not supported with any documentary evidence. On the other hand, Mr.Jena, learned counsel for the OP forcefully submits that the OP can file an affidavit to say that she is neither earning nor a working lady. At this stage, Mr.Tripathy submits that since the OP-wife is a educated lady, she has the prospect to earn, but mere assertion of prospect to earn is not sufficient to say that the wife is earning and thereby she is not entitled to maintenance or some meager amount is awardable to her in absence of any concrete evidence in this regard. 5. It is an admitted fact in this case that the OP- wife has filed affidavit of assets and liabilities in terms of the judgment passed by the Apex Court in Rajnesh vs. Neha and another; (2021) 2 SCC 324, but the petitioner-husband has not at all filed any affidavit of assets and liabilities which is a mandatory requirement in terms of the judgment in Rajnesh(supra) wherein the Apex Court while recording its conclusion at RPFAM No.100 of 2024 Page 4 of 10 Paragraph-72 has interalia held the following in Paragraph-72.3(c):- If to this purpose, the Respondent. “72.3. (c) The Respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two adjournments for submission of the Affidavit of Disclosure of Assets the and Liabilities Respondent delays in filing the reply with the affidavit, and seeks more than two adjournments the court may consider for exercising the power to strike off the defence of the Respondent, if the conduct is found to be willful and the proceedings (Kaushalya v. Mukesh Jain, MANU/ SCOR/ 21339/ 2019: (2020) 17 SCC 822). On the failure to file the affidavit within the prescribed time, the Family Court may proceed for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record”. the application contumacious in delaying to decide A perusal of the aforesaid observation of the Apex Court makes it ample clear that if the respondent fails to file any affidavit or disclose his income, the trial Court is at liberty to pass order by taking into account the pleadings and disclosure affidavit of the applicant. In this case, the learned trial Court has interalia observed the following in pagraph-18 of the impugned judgment:- “18. As per the argument of the petitioner, the gross salary of the OP for the month of October, 2023 is Rs.2,33,020/-. After RPFAM No.100 of 2024 Page 5 of 10 like PRBS deductions of CPF of Rs.15,484/-, Income Tax Rs.41,602/-, Professional Tax of Rs.200/-, CSS of Rs.2,000/-, PRBS of Rs.3,870/-, hospital recovery fee of Rs.170/- ONGC of Rs.250/- and white goods rent of are these deductions Rs.1309/-. All the compulsory and mandatory, but deductions of Additional Rs.16,570/- and C&T society MUM of Rs.19,049/- which have been deducted in the salary of the OP are optional deductions and the OP in order to avoid maintenance had adhered to reflect such deductions in his salary. Such argument is not counteracted by the OP to differently think. In view of such unshaken argument, if all optional deductions reflected in the salary of the OP are included in his net salary, his salary becomes Rs.1,68,133/- per month and maintenance can be calculated upon such justifiable salary adjudication to grant maintenance.” equitable and for 6. In this revision, the learned counsel appearing for the petitioner-husband is trying to convince the Court to re-appreciate the evidence by making reference to the salary slips of the petitioner for the month of November and December, 2023, but at the same time this Court also finds from the salary slips produced by the petitioner-husband that his salary for the month of October, 2023 was at Rs.2,33,020.25 and Rs.1,79,179.47 for the month of August and September, 2023 and Rs.1,83,308.41 for the month of RPFAM No.100 of 2024 Page 6 of 10 November and December, 2023 and at the same time the document produced by the OP-wife obtained through RTI reveals the income of the petitioner- husband at Rs.2,56,484/- for the month of January, 2024. It is, however, contended that the PRBS Addl. deduction of Rs.16,570/- is mandatory and that should have been excluded. Accepting for a moment, but not admitting the same, if that deduction is made, still the petitioner-husband would be having an income of Rs.1,51,563/- in the month of October, 2023. At the time of exhibiting the aforesaid pay slip of the petitioner-husband by OP-wife in evidence, it was never objected to and thereby the learned trial Court has rightly taken into account the income of the petitioner-husband. Although re-appreciation of evidence in a revisional proceeding is impermissible, but if we take into account the document as produced by both the parties, the monthly average net income of the petitioner-husband may not be less than Rs.1,60,000/- by considering his annual income. This conclusion has been arrived at by this Court after RPFAM No.100 of 2024 Page 7 of 10 taking into account the document produced by the parties and the observation made by the learned trial Court and in absence of any disclosure affidavit made by the petitioner-husband who appears to be suppressing some facts with regard to his own income by not coming to the Court with clean hands to produce his entire salary slips for the year 2023. 7. In the course of argument, when a question was posed to Mr.Tripathy, learned counsel for the petitioner as to how much amount the petitioner- husband has paid to the OP-wife, he replied that the petitioner-husband has only paid Rs.20,000/- in a DV case and Rs.31,470/- in CP case in an application U/S. 24 of the Hindu Marriage Act, but he could not clarify any payment made by the petitioner-husband in the present case. This shows the conduct of the petitioner- husband in avoiding his liability to pay maintenance to the OP-wife. It also appears that the petitioner- husband is avoiding his responsibility and liability to maintain his wife who is unable to maintain herself, without any valid ground as found by the learned trial RPFAM No.100 of 2024 Page 8 of 10 Court which finding has not been seriously challenged in the present revision. 8. In the aforesaid fact and situation, especially when the petitioner-husband being a highly educated person and has tried to avoid his liability by not filing the affidavit of assets and liabilities in terms of judgment rendered by Apex Court in Rajnesh(supra) and taking into account the findings of the learned trial Court and no ground having been made out by the petitioner-husband to persuade this Court to re- appreciate the evidence, the findings as recorded by the learned trial Court calls for no interference. Further, by taking into account the findings of the learned trial Court and the materials as available on record, this Court does not find any rhyme and reason to interfere with the quantum of maintenance as ordered by the learned trial Court to the petitioner-husband to pay monthly maintenance to OP-wife for her sustenance commensurate to the standard of living of the petitioner- husband. 9. In the result, the revision being devoid of merit stands dismissed on contest, but in the RPFAM No.100 of 2024 Page 9 of 10 circumstance there is not order as to costs. The interim order passed earlier stands vacated. The OP- wife is at liberty to execute the award of maintenance, if the same is not paid to her in terms of the order of the learned trial Court. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 16th day of January, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2025 14:35:15 RPFAM No.100 of 2024 Page 10 of 10