JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.342 of 2024 (In the matter of an application under Section 442 read with Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023 and from the judgment dated 24.06.2024 passed by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.90 of 2023) 1. Smt. Ipsa Mishra 2. Chirag Senapati …. Petitioners -versus- 1. Nirmal Kumar Senapati …. Opposite Party For Petitioners For Opposite Party : : Mr. R. Roy, Advocate Mr. T.K. Mishra, Advocate CORAM: JUSTICE V. NARASINGH DATE OF HEARING :14.11.2024 DATE OF JUDGMENT: 30.11.2024 V. Narasingh, J. 1. Heard learned counsel for the Petitioners and learned counsel for the Opposite party. 2. Instant revision petition has been filed by the Petitioners challenging the correctness of the impugned judgment dated 24.06.2024 under Annexure-1 passed in Criminal Appeal No.90 of 2023 by the learned 2nd Additional Sessions Judge, Bhubaneswar, wherein by the orders of learned Lower Appellate Court, the order dated 31.10.2022 (Annexure-5) passed in CMC No.298/2019 granting maintenance and compensation, was set aside and the CRLREV No.342 of 2024 Page 1 of 9 matter was remitted back on the premise that the Opposite Party- husband was set ex parte. 3. Assailing the same, it is submitted by the Petitioners that the learned Trial Court while disposing of CMC No.298 of 2019 allowed monthly maintenance and other financial relief in favour of the Petitioners but the appeal was entertained and disposed of for rehearing without awarding any interim alimony to the Petitioners, which is unjustified and not legally tenable, hence, this revision petition. 4. It is submitted by the Petitioners that the learned Appellate Court below has failed to appreciate that the Opp. Party - Husband chose not to participate in the proceeding before the learned Trial Court in spite of having entered appearance through his advocate and filing his show cause/objection. Since, the Opp. Party - Husband was set ex-parte on account of deliberate latches on his part, the learned Appellate Court, grossly erred in remanding the
Facts
matter to the Trial Court for fresh adjudication. 5. And, it is submitted that without taking into account the provisions of the Act in its proper perspective, the learned Appellate Court has remanded the matter by the impugned order. Thus, there is perverse exercise of jurisdiction which merits
Legal Reasoning
indulgence of this Court in exercise of revisional jurisdiction. 6. Referring to the impugned order at Annexure-1, it is submitted by the learned counsel appearing for the Opposite Party that there is no error committed by the learned Lower Appellate Court in as much as the order impugned therein (order dated 31.10.2022 at Annexure-5) was passed ex-parte without giving an opportunity to him of being heard. And, further the provisions of CRLREV No.342 of 2024 Page 2 of 9 the Protection of Women from Domestic Violence Act, 2005 has been strictly followed. 7. It is further contended that during 2019-2020 the Opposite Party has voluntarily paid a substantial amount of about Rs.6 lakhs to the Petitioners. Besides, in terms of the oral direction of the Appellate Court the Opposite Party-husband has already paid a sum of Rs.3.15 lakhs to the Petitioners, as such the learned Lower Appellate Court rightly not awarded any interim maintenance to the Petitioner. 8. It is admitted that the Petitioner No.l is the legally wedded wife of the Opp. Party-Husband and the Petitioner No.2 is their son. On account of marital discord and persistent physical and mental torture, the Petitioner No.l left the company of the Opp. Party since January, 2019 and has been residing at her parental house. Both the Petitioners are financially dependent on the old parents of the Petitioner No.1, for which the Petitioners filed complaint bearing CMC No.298 of 2019 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short P.W.D.V Act, 2005) before the learned SDJM, Bhubaneswar seeking reliefs under Sections 18, 19, 20 & 22 of the said Act. 9. The Opp. Party on being noticed, appeared and filed his objection through his Advocate on 03.02.2020 but subsequently failed to take any steps at the stage of cross-examination of the witnesses of the Petitioners, for which he was set ex parte on 31.10.2022 by the learned Trial Court. 10. The learned Trial Court after considering the materials on record such as the salary slip of the Opp. Party in the year 2016 and 2018 (Ext.-3), Income Tax return (Ext.-6), as indicated in Para-6 of its order dtd.31.10.2022 under Annexure-5, Page-90, directed the CRLREV No.342 of 2024 Page 3 of 9 Opp. Party to pay a sum of Rs.20,000/- to the Petitioners toward house rent for separate accommodation w.e.f. the date of its order, a sum of Rs. 1,10,000/- per month for other household expenses including medical expenses, w.e.f. the date of the Complaint application i.e.03.06.2019 and compensation (one time) of Rs.2.5 crores. The Opp. Party was also directed not to alienate the movable property standing jointly in the name of the Petitioner No.l and the Opp. Party and to clear the arrear dues. 11. As the Opp. Party failed to comply with the directions of the learned Trial Court, the Petitioners filed an execution proceeding bearing Execution Case No.6 of 2023 before the learned JMFC-I, Bhubaneswar for execution of the said order. On 16.05.2023, since the Opp. Party was absent on repeated calls, a Distress Warrant was issued against him in the execution case and subsequently a Non Bailable Warrant of Arrest had also been issued against him. 12. At this juncture, after issuance of NBW, the Opp. Party on 04.11.2023 filed an appeal bearing Criminal Appeal No.90 of 2023 before the learned District and Sessions Judge, Bhubaneswar under Section 29 of P.W.D.V. Act, 2005 challenging the order dated 31.10.2022. The primary contention of the Opp. Party in the appeal was that due to covid-19 situation as well as due to lack of communication between him and his lawyer he could not participate in the proceeding and he was denied an opportunity of hearing for which he suffered an ex-parte order. Further transfer of case to another court also contributed to the plight of the opposite party. 13. The leaned Appellate Court after hearing both the parties by impugned judgment dtd.24.06.2024 allowed the appeal by CRLREV No.342 of 2024 Page 4 of 9 setting aside the order dated 31.10.2022 of the learned Trial Court and remanded the matter to the learned Trial Court for giving opportunity to the Opp. Party to participate in the hearing with a
Decision
stipulation that the case was to be disposed of within 45 days from the appearance of the parties on 01.07.2024. 14. The said order dated 24.06.2024 is the subject matter of challenge in the present revision petition inter alia on the ground that while remanding the matter no interim maintenance was awarded. 15. It is apt to mention here that as borne out from the record, the Petitioners filed an application seeking direction to the Opp. Party to deposit 50% of the awarded amount before hearing of the appeal. But, the same was rejected by the learned Court below holding that since an execution proceeding has been initiated and during pendency of the appeal the Opp. Party has already paid cheques for Rs.2,15,000/- and Rs. 1,00,000/- to the Petitioners and as the awarded amount is huge, it is improper to direct the Opp. Party to deposit the arrear maintenance. 16. From a conspectus on record, since the order dated 31.10.2022 was passed ex-parte and the Opposite Party-husband had explained sufficient reason for his non-participation, this Court is of the opinion that no error has been committed by the learned Appellate Court in remanding the matter for fresh adjudication giving opportunity to both the parties. 17. Regarding grant of interim maintenance, there is no cavil regarding the aim and objective of the enactment of the P.W.D.V Act, 2005 and as held by Apex Court in Rajnesh vrs. Neha, (2021) 2 SCC 334, that if the maintenance is not made in a timely manner, it defeats the object of social welfare legislation. The case at hand CRLREV No.342 of 2024 Page 5 of 9 needs to be appreciated, keeping in view the legislative intent behind the enactment of the P.W.D.V Act, 2005 and law pronounced by the Apex Court. 18. Admittedly no interim maintenance has been awarded by the Appellate Court while remanding the matter by impugned order dated 24.06.2024. it is not disputed by the Opposite Party that the Petitioner No.l - Wife is living in her parental house and her old retired parents are taking care of every expenses including the educational expenses of the Petitioner No.2. 19. The Apex Court in catena of Judgments have ruled that the duty to maintain the wife is a fundamental obligation and the inability to pay, due to financial constraints or renunciation of worldly wealth does not absolve the individual of this responsibility. The essence of this rule is that the duty of a husband to provide for his wife's maintenance remains regardless of his personal status or wealth, as long as he is capable of earning. 20. Regardless of the above legal principle, the Opp. Party despite being in a marital relationship with the Petitioner No.l has been avoiding his obligation of maintaining his wife and his only child. The Petitioner No.l being a destitute lady has taken recourse to the legal remedies available under law. For sustenance of her living along with her son, she filed an application under Section 12 of the P.W.D.V. Act, 2005 seeking reliefs under the Act. 21. It is contended by the Opposite Party that since the Petitioner No.2 has attained the age of majority, as such is not entitled to any maintenance. It is on record that the Petitioner No.2 is pursuing his studies and the educational expenses are also borne by the parents of the Petitioner No.1. As per section 20 read with Section 2(b) of CRLREV No.342 of 2024 Page 6 of 9 the P.W.D.V Act, 2005, maintenance can be awarded to an aggrieved person and their children. Admittedly, on the date of filing of application under section 12 of the P.W.D.V Act, 2005, the Petitioner No.2 was a minor. It needs no mentioning that law is settled that the obligation of a father towards his child does not end when the child attains majority even though he is still pursuing his studies. This court is inclined to grant interim maintenance qua the Petitioner No.1 as well as Petitioner No.2. 22. The Petitioners have relied upon Para-34 to Para-39 of decision dated 19.01.2024 passed by the Delhi High Court in CRL.REV.P. 224/2021 wherein while remanding the matter, keeping in view the income of the parties and the judgment of the Apex Court in Kulbhushan Kumar v. Raj Kumar, (1970) 3 SCC 129, which was reaffirmed in the judgment of the Apex Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200, the said Court granted interim maintenance. Relying upon the same, the Petitioners pray for grant of interim maintenance in their favour. 23. While passing the impugned order, the learned Appellate Court failed to take note of the objective of interim maintenance which is to provide immediate relief to the victims of domestic violence and it is intended to prevent women from falling into destitution while the case is pending. 24. In the case at hand, from scrutiny of record, it can be seen that the Opposite Party is a man of means and also under legal obligation to maintain the Petitioners who are his wife and son. Admittedly, the Petitioners have no income of their own and are dependent upon the old parents of the Petitioner No.1. Further the Petitioner No.2 is pursuing his studies and the expenses are borne CRLREV No.342 of 2024 Page 7 of 9 by the parents of the Petitioner No.1 and the Opposite Party being the father of Petitioner No.2 and husband of the Petitioner No.1 is not taking any financial responsibility of the Petitioners. Thus, the learned Appellate Court has committed error in not granting any interim maintenance while remanding the matter. 25. From the salary slip of the Opposite Party, it can be seen that in August 2018 gross salary of the Opposite Party was Rs.8920233.00/- per month and from the ITR for the assessment year 2018-19 it is evident that the income of the Opposite Party was Rs.97,81,188.00/- for that year. As revealed from Annexure-2 (Copy of Complaint petition u/s.12 of the P.W.D.V Act, 2005), beside other claims, the Petitioners have claimed for Rs.2.50 lakhs per month for basic expenses under different headings. The contention of the Opposite Party that he has resigned from his job does not ipso facto absolve him of his responsibility of maintaining wife and child regardless of his personal status or wealth. It may be noted here that it is on record that the Opposite Party is well educated and there is nothing on record to suggest he is incapable of earning. It is also on record besides salary other valuable properties are owned by him. 26. Keeping in view the income of the parties, this Court is of the considered view that interest of justice would be subserved, if Rs.50,000/- per month is awarded to the Petitioners as interim maintenance. Accordingly, it is directed that the Opposite Party shall pay a sum of Rs.50,000/- per month to the Petitioners as interim maintenance from the date of filing of application of the C.M.C. No.298/2019. CRLREV No.342 of 2024 Page 8 of 9 27. The impugned Order dated 24.06.2024 is accordingly modified and present revision petition is disposed of with the following directions: (i) The arrears of interim maintenance be calculated on the basis above and 50% of the said amount will be paid to the Petitioners with immediate effect i.e. within 30 days from the production of this order. Balance amount will be paid in a period of 12 months in 12 equal monthly installments, beginning from January, 2025, along with the current amount. (ii) Any payment made to the Petitioners in terms of the above shall be subject to the final judgment that may be passed by the Court fixing the final maintenance. (iii) It is made clear that after adducing evidence the parties are at liberty to seek for variance of quantum of interim maintenance before the learned Court below. All other directions made in order dated 24.06.2024 remain unaltered. Both the parties are directed to appear before the court below on 09.12.2024. 28. Accordingly, the CRLREV stands disposed of. ( V.Narasingh ) Judge Orissa High Court, Cuttack, Dated the 30th November, 2024/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Dec-2024 15:03:08 CRLREV No.342 of 2024 Page 9 of 9