Criminal Petition No. 32 of 2014 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No.209 of 2024 (In the matter of an application Under Section 19(4) of the Family Courts Act 1984 read with Section 442 of BNSS 2023) Sukadev Majhi … Petitioner Sarojini Majhi & another … Opposite Parties -versus- For Petitioner : Mr. H.S. Mohanty, Advocate For Opposite Parties : CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:07.11.2024(ORAL) G. Satapathy, J. 1. This RPFAM by the petitioner seeks to challenge the impugned order dated 10.05.2024 passed by the learned Judge Family Court, Keonjhar in Criminal Petition No.32 of 2014 granting maintenance to each of the Opposite Parties @ Rs.7,500/- per month as maintenance with further direction to pay the arrear maintenance with effect from the date of filing of the application on RPFAM No.209 of 2024 Page 1 of 12 24.03.2014 within three months with further stipulation for realization of the amount through process of the Court, if the same is not paid by the Petitioner. 2. The facts in precise are that the Opposite Party No.1 claiming her to be the legally married wife of the Petitioner has filed a proceeding before the learned Judge Family Court, Keonjhar for grant of maintenance to her and her daughter, but the Petitioner on being noticed took a stand that the Opposite Party No.1 is not his legally wedded wife as no marriage was performed so also Opposite Party No.2 is not his daughter. The petition for maintenance by the Opposite Parties came to be registered as Criminal Petition No.32 of 2014 and the learned trial Court after inviting and receipt of objection from the present Petitioner proceeded with the proceeding and took evidence from both the sides. Accordingly the present Opposite Party No.1 examined four witnesses on her behalf as against the RPFAM No.209 of 2024 Page 2 of 12 oral evidence of four witnesses by the present Petitioner, but no documentary evidence was adduced by the present Petitioner, whereas four documents were admitted in evidence for Opposite Parties. The learned trial Court, however, after considering the rival submissions upon taking into consideration the evidence on record passed the impugned order directing the Petitioner to pay monthly maintenance of Rs.7,500/- to each of the Opposite Party, all total Rs.15,000/- per month w.e.f. 24.03.2014. Being aggrieved with such order, the Petitioner has preferred this revision. 3.
Legal Reasoning
In the course of hearing Mr. Himansu Sekhar Mohanty, learned counsel for the Petitioner at the outset submits that although the marriage of the Petitioner with Opposite Party No.1 is disputed from the very inception of the proceeding, but the learned trial Court ignoring such fact and on erroneous appreciation of evidence passed the impugned order notwithstanding to the fact that the documents as RPFAM No.209 of 2024 Page 3 of 12 admitted in evidence for OPs were objected to by the Petitioner and same were marked with objection and, therefore, when the marriage of the Petitioner with Opposite Party No.1 has not been established, the direction for grant of maintenance to Opposite Party Nos. 1 and 2 is unsustainable in the eye of law and liable to be set aside. Accordingly, Mr. Mohanty prays to issue notice to Opposite Parties. Further, Mr. Mohanty also prays to allow the revision petition. 4. After hearing the learned counsel for the Petitioner upon perusal of the record, it appears to the Court that the learned trial Court in the impugned judgment at Paragrah-9 has observed as under:- in “9. On an analysis of the evidence adduced on behalf of the Petitioners and the O.P. it is seen that the petitioners have filed this proceeding the year 2014 claiming maintenance. Since the hearing of said case was not commenced, the petitioners have filed one I.A. No.1/2015 against the O.P. after more than one year of filing of this case which was dismissed by this Court on 04.12.2015. Against the said dismissal order the petitioners preferred the revision before the Hon’ble Court vide RPFAM No.96/2016 and after hearing the learned counsel for both the parties the Hon’ble Court after taking into consideration the documents RPFAM No.209 of 2024 Page 4 of 12 relied on by the petitioner no.1 which are prima facie indicate that the petitioner no.1 is the wife and petitioner no.2 is the daughter of O.P. and further held that the is not impugned order dt.04.12.2015 sustainable in the eye of law and the same is liable to be set aside. As such the Hon’ble Court directed the O.P. to pay Rs.5000/- to each interim maintenance from the date of filing of I.A. on 01.08.2015. When the Hon’ble Court prima facie observed that the petitioner no.1 is wife and petitioner no.2 is the daughter of O.P., this court has no power/jurisdiction to observe adversely against the said order.” petitioners the as of 5. A careful scrutiny of the aforesaid observation, it would go to disclose that this Court had occasion to deal with the dispute between the parties in the aforesaid RPFAM, when the Opposite Parties had approached this Court against the order of refusal to grant interim maintenance to them, which was passed by the same Family Court, but this Court, however, directed the present petitioner to pay @ Rs.5,000/- per month to each of the OPs as interim maintenance. In the course of argument, learned counsel for the Petitioner has not placed this fact before this Court despite knowing the same and instead it is submitted for the Petitioner that the RPFAM No.209 of 2024 Page 5 of 12 Petitioner is not the husband of Opposite Party No.1 and father of Opposite Party No.2. When interim maintenance has been granted to the present OPs by this Court in RPFAM No.96 of 2016 and when this Court has directed the present Petitioner to pay Rs.5,000/- to each of the Opposite Parties as interim maintenance from the date of filing of said I.A. on 01.08.2015, it would be inappropriate to consider such finding to be not in accordance with law since the petitioner is unable to dispute such order of this Court. Further, nothing was placed before this Court to indicate that the aforesaid order of this Court has either been set aside or varied and unless the said order has been disturbed or set aside/modified in subsequent proceeding on the plea as advanced by the Petitioner, the same cannot be brushed aside. 6. Besides, the proof of marriage as required in a proceeding U/S 125 of the CrPC which is an enquiry to be conducted summarily is not the same as required in a proceeding for dissolution of RPFAM No.209 of 2024 Page 6 of 12 marriage or divorce or penal proceeding and strict proof of marriage in a proceeding for maintenance is not necessary and it is sufficient to grant maintenance in a proceeding U/S. 125 CrPC, if a man or woman are proved to be living together as husband and wife and treated as such by the society. Law is also well settled that the findings in a proceeding U/S. 125 of CrPC with regard to status of the party as husband or wife would not be decisive or operate as a bar with regard to declaration of status of party as such in a subsequent civil proceeding specifically brought for declaration of status of the parties either as husband/wife or not. The underlying object and purpose of Sec. 125 of CrPC is to redress the grievance of the neglected relations like wives, minor children and dependant parents unable to maintain themselves to save them from vagrancy. 7. The words appearing in Sec. 125 CrPC has to be liberally constructed without doing any hairsplitting interpretation since the provision is a RPFAM No.209 of 2024 Page 7 of 12 measure of social justice and specially enacted to protect women and children and it falls within the sweep of Article 15(3) of the Constitution of India which is further reiterated by Article 39 of the Constitution of India. Further, in a case of live-in relationship too, a woman is also entitled to get maintenance and the children born out of void and voidable marriages are also entitled to maintenance U/S. 125 CrPC. The aforesaid view of this Court is well fortified by the decision in Kamala and others vrs. M.R. Mohan Kumar; (2019) 11 SCC 491 wherein the Apex Court has held that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife U/S. 125 of CrPC. It is of course true that the findings arrived at by the Court in a proceeding U/S. 125 CrPC does not determine the rights and obligation of the parties conclusively nor it declares the status of the party as either husband or wife. It is, however, observed that RPFAM No.209 of 2024 Page 8 of 12 if by some evidence, it is established that the parties lived together as husband and wife and begotten a child, maintenance cannot be denied to the lady on the ground that she has not entered into marriage with the man, but, however, the aforesaid finding is based on presumption of marriage which is a rebuttable presumption. It is also equally important that the revisional Court has no power to re- appreciate the evidence on record and substitute its views on a finding of fact. The grounds as advanced by the petitioner disputing his marriage with OP No.1 as also his parentage with OP No.2 are question of facts which cannot be decided in a revisional proceeding and the submissions as advanced in this regard to decide the same by re-appreciating the documentary evidence under Exts. 1 to 4 on the ground that the same were marked with objection is unacceptable and doing so, would be doing violence to the well recognized principle of impermissibility of appreciation of evidence in revisional proceeding. In RPFAM No.209 of 2024 Page 9 of 12 this case, the learned Judge Family Court, Keonjhar after appreciating the evidence on record which includes documentary evidence like Voter identity card of OP No.1, residential certificate, caste certificate and certificate issued by school and oral evidence of four witnesses led by each of the parties, has come to a conclusion that the OPs are entitled to maintenance from the petitioner which in the circumstance appears to be reasonable and there is no scope for re-appreciation of evidence by this Court to take a contrary view to refuse maintenance to the OPs. In the premises, especially when no other plea except the plea of OPs being not related to petitioner as wife and daughter has been advanced, the RPFAM does not merit any consideration. 8. At this stage, this Court with anguish notes that not a single word was whispered or referred to in the oral submission to the earlier order passed by this Court in RPFAM No. 96 of 2016, but the averments made in the present RPFAM only RPFAM No.209 of 2024 Page 10 of 12 discloses that this Court in RPFAM No. 96 of 2016 has directed the petitioner to pay a sum of Rs.5,000/- per month to each party, however, the petitioner in the present case has neither annexed the copy of the order passed in RPFAM No. 96 of 2016 nor has discussed the details of such order which in the circumstance appears to be suppression of fact and such acts of the petitioner is not only deplorable, but also is deprecated. Thus, the Petitioner is liable to be penalized with cost for suppressing such facts with a view to get a favourable order or to notice the other side to harass them with the agony of another litigation, since the certificate appended to the present RPFAM discloses institution of number of proceedings by the petitioner, majority of which were either withdrawn or dismissed as withdrawn. 9. In the result, the present RPFAM being devoid of merit stands dismissed, but the Petitioner is imposed with a cost of Rs.20,000/-(Rupees twenty thousand) to be paid to the Opposite Parties for RPFAM No.209 of 2024 Page 11 of 12 misleading and suppressing the fact before this Court. The aforesaid cost shall be paid to the Opposite Parties within eight weeks’ hence, failing which the same shall be recovered from the petitioner in accordance with law. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 7th of November, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 09-Nov-2024 14:43:08 RPFAM No.209 of 2024 Page 12 of 12