The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No.265 of 2022 (In the matter of application under Section 19(4) of the Family Courts Act, 1984). Sujata Behera and others … Petitioners -versus- Duryodhan Behera … Opposite Party For Petitioners
Legal Reasoning
: Mr. S. Das, Advocate For Opposite Party : CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:12.11.2024(ORAL) G. Satapathy, J. 1. This present revision petition by the petitioner No.1-wife seeks to assail the impugned judgment dated 09.08.2022 passed in CrP No.13 of 2020 whereby and where under the learned Judge, Family Court, Dhenkanal although granted maintenance to two minor children (petitioner Nos.2 and 3) @ Rs.3,000/- each per month, but refused to grant maintenance to the present petitioner No.1-cum-wife only on the ground that the petitioner No.1-cum-wife could not establish the necessary ingredients that having sufficient means, OP- RPFAM No.265 of 2022 Page 1 of 6 husband namely, Duryodhan has neglected to maintain her. 2. In response to the revision petition filed by the petitioners, notice was issued to the OP, but no one has appeared for the OP despite service of valid notice on him. 3. In assailing the impugned judgment, Mr. Subhankar Das, learned counsel for the petitioners by criticizing the said judgment on various ground, but later on confines his submission to the effect that since the OP- husband is not only an able bodied person, but also was serving as Havildar in Indian Army, he has the duty as well as liability/responsibility to maintain his wife and children and the learned trial Court although is able to take note of the facts that the OP is liable to maintain the children, but it has failed to appreciate the materials on record to refuse maintenance to the petitioner No.1-cum- wife merely on whimsical ground that the petitioner No.1- wife has not established the vital ingredients that the OP has neglected to maintain her, which is contrary to law in view of the fact that when OP has deserted the children, RPFAM No.265 of 2022 Page 2 of 6 who are staying together with the petitioner No.1-cum- mother, it is thereby indicative of justification for the petitioner No.1-wife to reside separately, which was not only appreciated erroneously and whimsically, but also contrary to the intention of legislation. In summing up his argument, Mr. Das prays to set aside the impugned order and pass appropriate order granting maintenance to petitioner No.1-wife. 4. After hearing the learned counsel for the petitioners upon perusal of record, this Court considers it apt to refer to the findings of the learned trial Court as recorded in paragraphs-7(ii) & (v) to (vii) which are extracted as under:- from each other. Sujata “7.ii. No doubt the parties are residing separate is attempting to prove cruelty as one of the grounds for her separate living from her husband and to justify that. There is no doubt that Sujata is residing with her two children and Duryodhan is staying separate from them. Sujata has stated that she has no income of her own and she has two school going children and she is staying in a rented house. 7.v. In this case the evidence of Duryodhan in resisting the claim of Sujata is contextually vital. He claims that he is unemployed as on date. His official date of retirement has passed. But so far he has not been officially retired from the Armed forces. He admits that RPFAM No.265 of 2022 Page 3 of 6 his wife has never raised any allegation in writing to his authority. Since 26.02.2020, he is on leave and has not joined his service thereafter. He has been served the order of discharge, but so far he has not been discharged from his service. So Duryodhan has attempted to prove that he has no income of his own as on date and in fact has succeeded to prove that as well. Duryodhan is an Army personnel. Although he has retired yet there is no evidence on record that he has got any retiral benefits thus far. He has no active income or mode or source of income as on date. her her and 7.vi. More importantly Sujata has not proved by her evidence that Duryodhan has neglected to maintain children notwithstanding the fact that both are residing separate from each other since 03.08.2019. This is admitted by Duryodhan in his cross examination. He stated that he has paid Rs.1,70,000/- to his wife for maintenance. But he could not produce any document concerning this fact. He states that he has transferred his salary account in the name of his wife Sujata and in fact that is a joint account in both their name. But again he has not produced the statement of account or that account in this case. 7.vii. The vital evidence from the view point of claiming maintenance in this case is missing. Except for the fact that Sujata has no income of her own, she has not proved or justified by legal reasons as to why she is residing separate from her husband. Sujata has resorted to the point that she was met with cruelty and for that she has filed F.I.R. and a case under the D.V. Act. But she has not proved what was happened in those cases. Mere filing of different cases is not sufficient to prove cruelty and is sufficiently insufficient to prove or justify her separate RPFAM No.265 of 2022 Page 4 of 6 leaving from Duryodhan. Sujata has failed to prove her separate leaving from Duryodhan. She has also failed to prove the exact or probable income of Duryodhan. She claimed that Duryodhan is working as Havildar and is getting Rs.80,000/- P.M. as salary but has not led any evidence on this aspect. She has never proved the vital ingredient that having sufficient means Duryodhan has neglected to maintain her. Per contra, Duryodhan having proved that he has no income of his own as on date, owing to his awkward service situation, then I am bound to hold that Sujata is not entitled to get any maintenance from her husband.” 5. A careful glance of the aforesaid observation of the learned trial Court in the impugned order, it can be said with certainty that the petitioner No.1-wife has established the very existence of ground that she being a lady and residing separately with no independent income at all, is unable to maintain herself, but the OP-husband is neglecting her and her children by not maintaining them. It is, therefore, clearly found that the petitioner No.1 has established the necessary ingredients for grant of maintenance as required under Section 125 of CrPC, but the learned trial Court has whimsically and arbitrarily passed the order refusing to grant maintenance to petitioner No.1-wife, while allowing maintenance to two children by directing the OP-husband to pay such RPFAM No.265 of 2022 Page 5 of 6 amount. The aforesaid dual standard as adopted by the learned Judge, Family Court, Dhenkanal is contrary to the intention and objective of legislation and, therefore, the impugned order is liable to be set aside. Since the entire set of facts are not available in the present revision, this Court is unable to decide the quantum of maintenance payable to petitioner No.1-cum-wife which can be done by the learned Judge, Family Court, Dhenkanal on appreciation of evidence. 6. In the result, the revision petition stands allowed, but without any cost and the impugned judgment is hereby set aside to the extent of refusal of maintenance to petitioner No.1. Consequently, the maintenance proceeding is remitted back to the learned Judge, Family Court, Dhenkanal for deciding the quantum of maintenance to petitioner No.1-cum-wife in accordance with law. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Reason: Authentication Location: High Court of Orissa Date: 14-Nov-2024 10:48:29 Orissa High Court, Cuttack, Dated the 12th day of November, 2024/Subhasmita RPFAM No.265 of 2022 Page 6 of 6