The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Apr-2024 14:11:13 IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.196 OF 2023 Saroj Kumar Nayak Bijayalaxmi Rana CORAM: …. Mr. Prafulla Kumar Kar, Advocate -versus- Petitioner …. Opp. Party Order No. 01. 1. 2.
Decision
JUSTICE K.R. MOHAPATRA ORDER 19.04.2024 This matter is taken up through hybrid mode. Judgment dated 18th May, 2023 (Annexure-1) passed by learned Judge, Family Court, Jagatsinghpur in Crl. Proceeding No.34 of 2020 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.5,000/- per month to the Opposite Party-wife from the date of application i.e., 4th August, 2020. 3. Mr. Kar, learned counsel for the Petitioner submits that marital relationship between the parties is not disputed. But prior to marriage, the Opposite Party-wife had relationship with one Hadibandhu Rana. Due to the same, she left the matrimonial home without any justifiable reason and started living with said Hadibandhu Rana. After the Opposite Party deserted the Petitioner, he became a psychiatric patient and is being treated at SCB Medical College and Hospital, Cuttack. Documents to that effect were also filed before learned Judge, Family Court, Jagatsinghpur (Ext.G & H). A proceeding under Section 9 of the Hindu Marriage Act, 1955 filed by the Petitioner is also pending for consideration. In spite of the same, learned Judge, Family Court, Jagatsinghpur, without arriving at a definite conclusion with regard to the income of the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Apr-2024 14:11:13 Petitioner, directed him to pay the maintenance as stated above. Hence, he prays for setting aside the impugned order under Annexure-1and to remit the matter to learned Judge, Family Court, Jagatsinghpur for fresh consideration of the petition under Section 125 Cr.P.C. giving opportunity of hearing to the parties concerned. 4. Taking note of the submission made by learned counsel for the Petitioner, this Court is of the considered opinion that the Opposite Party is the legally married wife of the Petitioner. An allegation is made to the effect that the Opposite Party had relationship with one Hadibandhu Rana prior to their marriage. Hence, the Opposite Party did not pull on well with the family members of the Petitioner and left the matrimonial home without any reasonable cause. Learned Judge, Family Court, Jagatsinghpur considering the same, categorically observed that Hadibandhu Rana is the uncle of the Opposite Party being the husband of sister of her mother. Hence, visiting of said Hadibandhu Rana to the house of the Petitioner should not be taken as an exception. No material was placed before learned Judge, Family Court to arrive at a conclusion that Hadibandhu Rana had an illicit relationship with the Opposite Party. No case is also made out by the Petitioner to establish that the Opposite Party left the matrimonial home without any reasonable cause. Only because the Opposite Party is staying apart from the Petitioner, it cannot be presumed that she left the matrimonial home without any reasonable cause. 5. Mr. Kar, learned counsel for the Petitioner further relies upon Ext.B, C and D and submits that meetings were held in presence of Sarpanch of both the Grampanchayats and guardians of the parties along with Inspector-in-Charge, Banki where the Opposite Party refused to join the matrimonial home. Since the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Apr-2024 14:11:13 Opposite Party has made definite allegation of torture meted out to her during her stay at matrimonial home, refusal if any to join the matrimonial home, cannot be construed to be unreasonable. No concrete material has been placed before this Court to arrive at a conclusion that the Opposite Party unreasonably refused to join the matrimonial home with the Petitioner. 6. Income of a person is in his special knowledge. Thus, the burden is on the Petitioner to prove the same. Mr. Kar, learned counsel for the Petitioner, however, submits that after desertion of the Opposite Party, the Petitioner became a psychiatric patient and is being treated in the Department of Mental Health of SCB Medical College and Hospital, Cuttack. He also drew attention to Ext.G which is an OPD Prescription issued by the department of Mental Health, SCB Medical College and Hospital, Cuttack on 3rd March, 2021. From the solitary occasion of visiting the Department of Mental Health of SCB Medical College and Hospital, Cuttack cannot be a proof of the fact that the Petitioner was mentally ill and was unable to earn. The Petitioner, being the husband, is under legal obligation to maintain his wife. 7. In absence of any material with regard to the income of the Petitioner, learned Judge, Family Court, Jagatsinghpur had to make a guesswork and consider the status of the parties as well as requirement of the Opposite Party to assess the quantum of maintenance. Accordingly, a direction was made for payment of Rs.5,000/- per month as maintenance to the Opposite Party by the Petitioner. 8. Law is well settled that only because a different view may be possible by re-appreciation of evidence, this Court should not substitute its own finding by scrutinizing the materials on record in a Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Apr-2024 14:11:13 proceeding under Section 19(4) of the Family Court’s Act, 1984 which is akin to the provision under 397 Cr.P.C. 9. On perusal of the impugned judgment, it appears to be a well discussed and reasonable one. In that view of the matter, this Court is not inclined to interfere with the impugned judgment. 10. Accordingly, this RPFAM, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4