The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 11:43:37 IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No. 237 OF 2019 Bijaya Kumar Behera …. Petitioner Mr. Sanjib Mohanty, Advocate -versus- Mamata Mayee Mohapatra …. Opp. Party
Legal Reasoning
Mr. Amit Prasad Bose, Advocate along with Ms. Debadeepta Sahoo, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 06.09.2024 8. 1. This matter is taken up through hybrid mode. 2. Judgment dated 30th January, 2019 (Annexure-1) passed in Criminal Proceeding No.694 of 2011 is under challenge in this RPFAM, whereby learned Judge, Family Court, Kendrapara entertaining an application filed by the Opposite Party under Section 125 Cr.P.C., directed the Petitioner to pay maintenance of Rs.3,000/- each per month to the Opposite Party-Wife and the minor daughter from the date of application, i.e., from 26th December, 2011. 3. Mr. Mohanty, learned counsel for the Petitioner submits that relationship between the parties is not disputed. She is the wife of Petitioner. They have a minor daughter born out of their wedlock. As dissention arose between the parties, the Opposite Party left the matrimonial home, for which the Petitioner filed C.P. No. 743 of 2009 under Section 9 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’), which was allowed vide judgment dated 19th July, 2010. But the Opposite Party did not Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 11:43:37 respect the same and join the Petitioner in spite of the direction in the decree passed in the proceeding under Section 9 of the Act. Since the Opposite Party did not join the matrimonial life with the Petitioner, he filed C.P. No.1149 of 2010 for dissolution of marriage by a decree of divorce before learned Judge, Family Court, Cuttack. The same was subsequently renumbered as C.P. No.566 of 2013. During pendency of the proceeding for dissolution of marriage, due to intervention of the well-wishers of both the parties, it was decided that the Petitioner will pay a sum of Rs.1,50,000/- to the Opposite Party towards permanent alimony and shall return the gifts given to him at the time of marriage. It was also decided that he will give custody of the daughter to the Opposite Party. As per the settlement made, the Petitioner paid a sum of Rs.1,00,000/- to the Opposite Party and also paid a sum of Rs.50,000/- subsequently. The dowry articles and ornaments were also returned to the Opposite Party. But, she did not come forward for a mutual divorce, as agreed upon. A decree of divorce was passed on 17th July, 2015. The Petitioner does not have any regular income. He earns a little amount from the agriculture and by engaging himself in daily wage works. Thus, he does not have any sufficient means to pay the amount to the Opposite Party, so directed. 4. It is submitted that the minor daughter has not been made a party to the proceeding under Section 125 Cr.P.C.. But, she has been awarded maintenance of Rs.3000/- per month. Although the Petitioner filed income certificate obtaining it from the Tahasildar, Kujang for the year, 2012, 2014 and 2017 (marked as Exts.G,H and J) respectively, but the same was not taken into Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 11:43:37 consideration by learned Judge, Family Court while adjudicating the petition under Section 125 Cr.P.C. Hence, Mr. Mohanty, learned counsel for the Petitioner submitted that the impugned judgment may be set aside and the matter may be remitted to learned Judge, Family Court, Kendrapara for fresh adjudication of the matter. 5. Mr. Bose, learned counsel for the Opposite Party submits that although the minor daughter has not been made a party, but in the petition under Section 125 Cr.P.C., maintenance was also claimed on her behalf. The Petitioner, at the relevant time, was working as a caterer and was earning more than Rs.15,000/- per month. The Petitioner is the only son of his parents and was earning Rs.10,000/- per month from house rent. He was also earning Rs.50,000/- per annum from agricultural sources. The certificate under Exts.G,H and J were managed without conducting proper enquiry and without giving any opportunity of hearing to the Opposite Party. As such, learned Judge, Family Court discarded those documents to determine the income of the Petitioner. It is his submission that the maintenance awarded is reasonable taking into consideration the status of the parties and requirement of Opposite Party to maintain herself with the minor daughter. Hence, the impugned judgment under Annexure-1 should not be interfered with. 6. Heard learned counsel for the parties. Perused the materials on record. 7. It appears that the marital relationship between the parties is not disputed. Although the Petitioner claims that his annual income is varying from Rs.20,000/- to Rs.30,000/- during the Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 11:43:37 year, 2012 to 2017, but it appears from his deposition as discussed by learned Judge, Family Court that he had paid Rs.1,50,000/- to the Opposite Party during pendency of the petition for dissolution of marriage. It also appears from the record, more particularly, Exts.A and B that the Petitioner had paid a sum of Rs.30,000/- and Rs. 35,000/- on 24th September, 2009 and Rs.50,000/- on 4th December, 2009. Ext.F, the certified copy of the order sheet in C.P. No.1149 of 2010 also reveals that the Opposite Party had received a sum of Rs.1,50,000/- from the Opposite Party in lieu of the dowry articles. It is submitted by learned counsel for the Petitioner that after divorce, the Petitioner had remarried and leading a peaceful life with his wife. From the record, it reveals that the Petitioner was capable of giving lump sum amount to the Opposite Party. Although it is submitted by Mr. Mohanty, learned counsel that the Petitioner had given the same by taking hand loan, but there is no material on record in support of the same. 8. True it is that learned Judge, Family Court although referred to Exts.G,H and J, but the same was not discussed in the impugned judgment. Be that as it may, this Court feels that a sum of Rs.3,000/- per month to Opposite Party and Rs.3,000/- per month to minor daughter as maintenance does not appear to be reasonable keeping in mind the status of the Petitioner and cost of living during 2019. 9. In that view of the matter, I am not inclined to interfere with the impugned judgment under Annexure-1. Only because a different view may be possible on re-appreciation of evidence, Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 11:43:37 this Court should not substitute its own findings in a proceeding under Section 19(4) of the Family Courts Act, 1984. 10. As such, this Court finds no infirmity in the impugned judgment under Annexure-1. Hence, the RPFAM being devoid of any merit stands dismissed. 11. Interim order dated 11th January, 2021 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5