The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.162 of 2023 Mahan @ Babula Behera …. Appellant -versus- Kuni Behera …. Respondent Learned advocates appeared in the case: For appellant : Mr. Hrudananda Mohapatra, Advocate For respondent : Mr. S. K. Dash, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO ----------------------------------------------------------------------------------- Date of hearing and Judgment: 16th April, 2024 ------------------------------------------------------------------------------------ ARINDAM SINHA, J. 1. The appeal has been preferred by the husband against judgment dated 14th March, 2023 of the Family Court directing monthly maintenance to be paid at ₹1,500/- (rupees fifteen hundred) per month from 9th August, 2018 till date of the judgment and thereafter, ₹3,000/- (rupees three thousand) per month including further directions regarding clearing the arrears. It was made on a petition Page 1 of 8 filed by respondent-wife claiming maintenance under section 18 in
Legal Reasoning
Hindu Adoptions and Maintenance Act, 1956. Mr. Mohapatra, learned advocate appears on behalf of appellant-husband and Mr. Dash, learned advocate, for respondent-wife. 2. At the outset, we reproduce below section 18. “18. Maintenance of wife. — (1)Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,— (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; [Clause(c)omitted by Act 6 of 2019, S.6(w.e.f. 1-3- 2019)]. (d) if he has any other wife living; MATA no. 162 of 2023 Page 2 of 8 (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.” (emphasis supplied) 3. Mr. Mohapatra submits, his client cannot be called upon to pay maintenance as he had proved before the Family Court that respondent-wife is not entitled to separate residence or maintenance because she is unchaste. The matter was cause for convening a village panch. The village elders decided that the parties should separate upon his client giving ₹1.05 lakhs as permanent alimony. A ‘faisala patra’ was executed by the panch, saying so. It was tendered in evidence and marked exhibit A. His client clearly deposed on respondent-wife being unchaste. Two villagers, who were present in the village panch, also took the box and corroborated his client’s testimony. In the MATA no. 162 of 2023 Page 3 of 8 circumstances, there was clear proof before the Family Court that respondent-wife had been unfaithful. 4. Without prejudice he submits further, the Family Court also formulated a point, for respondent-wife to establish that his client had means to pay maintenance. There was no evidence laid by respondent- wife in the Family Court. The point having been formulated, was not answered. Impugned judgment should be set aside, also on that ground. 5. Mr. Dash supports impugned judgment and submits, bare allegation, admittedly based on rumor, was made by appellant- husband for him to throw his client out of the house. She has no income of her own and is entitled to be maintained by him. 6. The village panch or meeting held did not find place in the pleadings. Respondent-wife in her petition made brief allegations of facts as would appear from paragraphs 3 to 5, reproduced below. “3. That the plaintiff had been living with the defendant very peacefully without any disturbance in their daily life. One Nabaghan Behera, the cousin brother of the defendant is must litigant and mischievous person of the locality. The defendant for the last five year has been addicted with ganja and wine with the active support and assistance of Nabaghan Behera. As the petitioner objected to the MATA no. 162 of 2023 Page 4 of 8 defendant for taking ganja and wine, the said Nabaghan Behera poisoned the ears of the defendant against the plaintiff. 4. That one day night in the month of June in the year 2014, the defendant returned to the house and making some unfound allegation against the plaintiff, as to her character assaulted the plaintiff and drove her out from the house in the night. The plaintiff spent her night in outside in miserable condition. The plaintiff on the next day morning finding no other way came to her father house at village: Singakuda where she has taken shelter since June, 2014. 5. That the brother of the plaintiff and other wel wishers of the parties made attempt to solve the dispute. But the defendant refused to accept the plaintiff and to maintain the plaintiff.” (emphasis supplied) Appellant-husband had filed objection. He denied having relation with Nabaghan Behera, to allege he is very hard working, always busy in his job and so allegations against him are all false and fabricated. 7. Respondent-wife introduced fact of the village meeting by her answer to question in cross-examination. We reproduce paragraphs 13 to 17 from her deposition in cross-examination recorded on 14th November, 2022. “13. I have been residing separately since nine years ago. MATA no. 162 of 2023 Page 5 of 8 14. The OP had been blaming me falsely alleging my illicit relationship with other during my entire stay in my matrimonial home. 15. Trinath Pradhan is co-villager of my in-laws village. 16. My in-laws family members consist of my two elder brother-in-law, their wife and their children, my mother-in- law. 17. A Panchayat was convened by both the family members and relatives of both the parties regarding the allegation of my family in-laws member questioning of my chastity. Said meeting was prior to lodging of this proceeding. (emphasis supplied) 8. Evidence by way of affidavit was filed by appellant-husband and he was cross-examined. He said in paragraphs 15 and 16, in answer to questions in cross-examination that one Trinath Pradhan, with whom respondent-wife was allegedly having an affair, is his co- villager and he heard rumor in year, 2017. He then said the relationship thereafter was also running good. We reproduce below said paragraphs from his deposition dated 16th January, 2023 in cross- examination. “15. Trinath Pradhan in co-villager. 16. I heard the rumour about petitioner during RAJA, 2017. Thereafter our relationship was also running good.” MATA no. 162 of 2023 Page 6 of 8 9. Two persons also adduced evidence as party witnesses of appellant-husband. They are one Padma Charan Behera (OPW-2), who said he is a co-villager, alleged that it is a fact respondent-wife had illicit affair with one Trinath Pradhan and for that reason only disturbance arose between the couple. He said further that Trinath Pradhan admitted before him to have affair with respondent-wife. Paragraph-12 from his deposition dated 23rd February, 2023 in cross- examination is reproduced below. “12. I have not seen visiting Trinath to the house of Mohan. On the day of meeting, I came to know that the petitioner had illicit relationship with Trinath Pradhan.” One Shyam Sundar Behera was OPW-3. He said, inter alia, the parties had signed on the ‘faisala patra’. The ‘faisala patra’ is ext.A. Signatures of the parties do not appear. There is no necessity to further look into evidence adduced by said witnesses. 10. On analysis of above evidence we are clear in our mind that appellant-husband acted on rumor. We are convinced there is no material to conclude respondent-wife did have affair with Trinath Pradhan. Allegation of OPW-2 in his chief that said Trinath Pradhan had admitted before him to have had affair with respondent-wife was demolished in cross-examination. Our above conclusions on facts MATA no. 162 of 2023 Page 7 of 8 make applicable to respondent-wife clause(g) under sub-section(2) in section 18. She is justified in living separately. Appellant-husband has miserably failed to prove respondent-wife was unchaste and hence, he is liable to pay maintenance. Furthermore, respondent-wife saying the husband has milk business was corroborated by the husband’s allegation of being hardworking. In the premises, omission by the Family Court to decide on the point of capacity to pay maintenance is not an error vitiating the judgment. 11. Impugned judgment is confirmed. Respondent-wife or through her learned advocate will produce website copy of our judgment to Registrar (Judicial). The Registrar will thereupon encash the deposit and make over same along with accruals to her/her learned advocate.
Decision
12. The appeal is dismissed. ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 18-Apr-2024 17:27:43 MATA no. 162 of 2023 Page 8 of 8