The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 4233 of 2023 Nalini Ranjan Jena …. Petitioner Mr. P.K. Kar, Advocate -versus- State of Odisha & another …. Opp. Parties Mr. Shashanka Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 19.10.2023 01. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this application, the Petitioner seeks indulgence of this Court to pass the order dated 18th July, 2023, wherein the learned Judge Family Court, Berhampur issued NBW against the Petitioner under Annexure-11 in CRP No. 107 of 2020. 3. It is submitted by learned counsel for the Petitioner that pursuant to the matrimonial discord between the husband and wife, the Petitioner being the husband and the Opposite Party No.2 and 3 respectively being the wife and the daughter of the Petitioner moved the learned Judge Family Court, Berhampur, Ganjam in a Petition U/s. 125 Cr.P.C registered as Cr.P No. 173 of 2018 praying for maintenance to the tune of Rs.1,00,000/- to O.P. No. 2 and Rs. 30,000/- to the O.P. No. 3, the wife and the daughter respectively along with interim maintenance for a sum of Rs. 55,000/-, Page 1 of 5 // 2 // Rs.40,000/- for Opposite No. 2 and Rs.15000/- for her daughter Opp. Party No.3. 4. On being issued with notice, the Petitioner caused his appearance, filed objection and contested the same. While the application U/s. 125 Cr.P.C subjudice, the learned Judge, Family court, Berhampur passed direction vide order dated 29.10.2019 O.P. to pay interim maintenance of Rs.40,000/- i.e. Rs.20,000/- each to the Opposite Party No.2 and 3 respectively from the date of application i.e. 05.09.2019. Being aggrieved by the said order passed by the learned Judge Family Court for the interim maintenance dated 29.10.2019, the Petitioner moved a Petition before the said court registered as CRP No. 86 of 2020 U/s. 127 Cr.P.C to revoke/alter the order on the ground that learned S.D.J.M., Berhampur has passed order of interim maintenance vide order dated 04.10.2019 in D.V Case No. 114 of 2018 directing the Petitioner to pay a sum of Rs. 25,000/- per month to the O.P. No.2 and Rs. 10,000/- to her minor daughter, whereupon the learned Judge Family Court., Berhampur passed order with an observation that the proceeding in CRP No. 86 of 2020 is not maintainable before it vide order dated 23.03.2022. However, being aggrieved by the said order dated 29.10.2019 in CRP No. 173 of 2018 and orders dated 23.03.2022 in CRP 86 of 2020 as discussed above the Petitioner preferred CRLMP No. 991 of 2022 and connected I.A No. 158 of 2022 before this Court. This Court issued notice on the question of admission and granted stay in respect to the CRP No. 173 of 2018 pending before the Judge Family Court subject to the condition that the Petitioner shall deposit a sum of Rs. 2, 00,000/- Page 2 of 5 // 3 // towards arrear maintenance within three weeks from the date of order and would further pay interim maintenance of Rs. 20,000/- to the Petitioner No.1 every month. Since the Petitioner is jobless could not arrange money to deposit Rs. 2,00,000/- as against the arrear maintenance and also failed to arrange money to pay monthly maintenance as per the order of this Court, he moved an interim application No. 180 of 2022 for modification of the order praying therein to deposit Rs. 1,00,000/- in four installments instead of Rs. 2,00,000/- and the monthly maintenance at the rate of 10,000/- every month instead of Rs. 20,000/-. Before the modification application could be listed before this Court the Petitioner filed a Petition before the learned Judge, family court on 15.03.2023 paying to allow him to pay sum of Rs. 1,00,000/- in four installment as prayed for in interim application No. 180 of 2022 before this Court and thereafter filed another Petition along with a demand draft dated 30.01.2023 for an amount of Rs. 25,000/- as first installment. The learned Judge Family Court having heard the parties rejected the same vide order dated 18.07.2023 on the ground that the Petitioner violated the order of this Court and also held that the Petitioner has no intention to pay the interim maintenance and issued distress warrant and conditional N.B.W.A against the Petitioner for realization of the arrear maintenance amount at the rate of Rs. 20,000/- per month from the period from 27.05.2022 to 27.06.2023 i.e. for 13 months which comes to an amount of Rs. 2,60,000/- along with Rs. 2,00,000/- as per the direction of this Court, in total a sum of Rs. 4,60,000/-. Without depositing the maintenance money, the Petitioner is before this Court seeking the intervention of this court by quashing the order of the learned Judge Page 3 of 5 // 4 // Family court dated 18.07.2023 wherein the Court has passed the order of NBW. 5. The leaned counsel for the Petitioner submitted that the Opposite Party-wife suppressed the fact regarding the pendency of the Petition for maintenance U/s. 12 of the PWDV Act before the learned S.D.J.M and simultaneously agitated for the maintenance U/s. 125 Cr.P.C before the learned Court Family Judge. It is further submitted by learned counsel for the Petitioner that on the application of the Petitioner in CRLMC No. 2359 of 2021 this Court did not interfere with the order passed by the learned S.D.J.M directing payment of interim maintenance with an observation that the matter can be agitated before the Appellate Authority and accordingly the Petitioner moved in appeal before the higher forum against the order of the learned S.D.J.M, passed in Misc. Case No. 114 of 2018 under the PWDV Act. As far as the order passed by the learned Judge Family Court in CRP No. 107 of 2020 arising out of CRP No. 173 of 2018, admittedly the Petitioner has not challenged the said order in any forum save and except seeking the order of NBW for being quashed before this forum. The sum total of the submission reveals that the Petitioner has not deposited any amount either on the basis of the order passed by the learned S.D.J.M in PWDV Act or the direction passed by the learned Judge Family Court for the interim maintenance to the tune of Rs. 40,000/- in CRP No. 107 of 2020. The concern shown by the leaned counsel for the Petitioner that the Opposite Party-wife has obtained order under two forums, one under the PWDV Act and another U/s. 125 of Cr.P.C before the learned Judge family Court is not sustainable in Page 4 of 5 // 5 // the eye of law whereas it is trite law that the Opposite Party-wife is not precluded from claiming maintenance in either of the forum at the same time. However, the sum i.e. higher between the two shall be binding on the Petitioner if otherwise not interfered with by the higher forum. Considering the above since the interim maintenance granted by the learned Judge Family Court being higher than the maintenance directed by the learned S.D.J.M under the PWDV Act, the Petitioner is supposed to comply the direction issued by the learned Judge, Family Court by depositing the interim maintenance to the tune of Rs. 40,000/-. In any case, since this court has already interfered on the application of the Petitioner in I.A No. 158 of 2022 arising out of CRLMP No.991 of 2022 directing the Petitioner to deposit a sum of Rs.2,00,000/- and to pay a sum of Rs.20,000/- per month, this Court does is not inclined to interfere with the order passed by the learned Judge Family Court in CRP No. 107 of 2020. However, in the event the Petititioner deposits the said amount as reflected above passed by this Court in I.A No. 158 of 2022 arising out of CRLMP No.991 of 2022, he shall be admitted to bail on a motion moved to that effect. Failure on the part of the Petitioner to deposit the said amount in compliance with the direction issued by this Court as above shall not be entitled to avail the fruit of this order in any manner whatsoever. 6. The CRLMC is accordingly disposed of. Judge (Chittaranjan Dash) Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 20-Oct-2023 12:50:32 Bijay Page 5 of 5