The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO. 300 OF 2023 (An application under Section 19 of the Family Courts Act, 1984) Hemanta Kumar Ray * * * * -versus- …. Petitioner Romani Das @ Ray and another …. Opp. Parties Advocates appeared: For Petitioner : Ms. Pratyusha Naidu, Advocate For Opp. Parties : Mr. Ajit Kumar Hota, Advocate CORAM: JUSTICE K.R. MOHAPATRA ----------------------------------- Date of Judgment-16.05.2024 ----------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Judgment dated 16th August, 2023 (Annexure-1) passed by learned Judge, Family Court, Jajpur in Criminal Proceeding No.268 of 2019 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.15,000/- per month to the Opposite Party No.1 (wife) and Rs.10,000/- per month to the Opposite Party No.2 (minor son) from the date of filing of the application under Section 125 Cr.P.C., i.e., 9th December, 2019. RPFAM NO. 300 OF 2023 Page 1 of 6 3.
Legal Reasoning
Ms. Naidu, learned counsel for the Petitioner submits that relationship between the parties is not disputed. It is also not disputed that the Petitioner is working as Senior Geologist in ONGC and posted at Ahemadabad. The Opposite Party No.1 is also highly qualified lady. Monthly gross salary of the Petitioner at the relevant time was Rs.1,95,633/-. After deduction, take home salary of the Petitioner was Rs.50,793/- per month. The Petitioner is serving at Ahemadabad, where the cost of living is very high. Though the Opposite Party No.1 is a working lady, but unfortunately the Petitioner could not lead evidence to that effect as he could not collect material to that effect. The Petitioner has other responsibilities to discharge. Civil Proceeding No. 279 of 2021 filed by the Petitioner is pending before learned Judge, Family Court, Jajpur under Section 13(1) of the Hindu Marriage Act, 1955 (for short ‘the Act’) seeking for dissolution of marriage by a decree of divorce with the Opposite Party No.1. In the said proceeding, learned Judge, Family Court, Jajpur vide order dated 3rd January, 2023 directed the Petitioner to pay pendente lite maintenance of Rs.12,000/- per month to the Opposite Party No.1-wife. Of course, said order is under challenge in W.P.(C) No.6877 of 2023, which is sub- judice before this Court. The Opposite Party No.1 did not disclose the same before learned Judge, Family Court, Jajpur during adjudication of the petition under Section 125 Cr.P.C. Learned Judge, Family Court, Jajpur has also not justified in granting maintenance of Rs.15,000/- per month to the Opposite Party No.1, who is a highly qualified lady and Rs.10,000/- per RPFAM NO. 300 OF 2023 Page 2 of 6 month to the Opposite Party No.2, who is a minor child of three years only. Thus, the matter requires fresh consideration. 4. Finding a prima facie case in favour of the Petitioner, this Court, while issuing notice to the Opposite Parties vide order dated 7th December, 2023, as an interim measure, directed that if the Petitioner goes on paying a sum of Rs.15,000/- per month to the Opposite Parties as maintenance, no coercive action should be taken against him for realization of the arrear maintenance pursuant to the impugned judgment under Annexure-1. She, therefore, prays for setting aside the impugned judgment and to remit the matter to learned Judge, Family Court, Jajpur for fresh adjudication of the petition under Section 125 Cr.P.C., giving opportunity of hearing to the parties concerned. 5. Mr. Hota, learned counsel for Opposite Parties vehemently objects to the same and submits that income of the Petitioner was about Rs.2,00,000/- per month during August, 2021, but the same has increased manifold in the meantime. Admittedly, the Opposite Party No.1 is a destitute lady having no independent source of income. The Opposite Party No.2 is their minor son, who will be admitted to School in few days. Further, the Opposite Parties are entitled to maintain the status as they would have enjoyed being with the Petitioner. Since the Petitioner is getting a salary of more than Rs.2,00,000/- per month during the relevant period, there is no difficulty on his part to provide Rs.25,000/- per month as maintenance to the Opposite Parties. Learned Judge, Family Court, Jajpur taking note of the contentions raised by learned counsel for the parties RPFAM NO. 300 OF 2023 Page 3 of 6 and the materials available on record arrived at the conclusion as aforesaid. The conclusion being based on scrutiny of the materials on record is not open to challenge in a petition under Section 19(4) of the Family Courts Act, 1984, which is in the nature of a petition under Section 397 Cr.P.C. He, therefore, prays for dismissal of the RPFAM. 6. Heard learned counsel for the parties and perused the materials on record. 7. There is no dispute to the fact that the Opposite Party No.1 is the wife of the Petitioner and Opposite Party No.2 is their minor son. It is also not disputed that the Petitioner is serving as Senior Geologist in ONGC and is posted at Ahemadabad. Although no document was exhibited by either of the parties with regard to the income of the Petitioner, learned Judge, Family Court, Jajpur on scrutiny of the materials on record found that the gross salary of the Petitioner for the month of August, 2021 was Rs.1,95,633/-. Although pay slip relied upon by the Opposite Party No.1 in her evidence disclosed that take home salary of the Petitioner was Rs.50,793/- in August, 2021, but it is not clear from the record as to the net salary of the Petitioner after compulsory deduction. Law is well settled that voluntary deductions like, re-payment of loan, payment of Insurance Premium and other deposits, which are voluntary in nature, cannot be taken into consideration while assessing the net income of the Petitioner for determination of the quantum of maintenance in a proceeding under Section 125 Cr.P.C. 8. It further appears that although learned Judge, Family Court, Jajpur directed the Petitioner to pay a sum of Rs.15,000/- RPFAM NO. 300 OF 2023 Page 4 of 6 per month to the Opposite Party No.1-wife and Rs.10,000/- per month to the Opposite Party No.2 (minor son) as maintenance but the basis of such assessment has not been stated. No doubt, the Opposite Parties are entitled to enjoy the status they would have maintained being with the Petitioner, but that does not absolve the Opposite Parties of their burden to prove their need. No material is placed on record to ascertain the actual need of Opposite Party No.1 and their minor son (Opposite Party No.2). At the time of filing of the petition under Section 125 Cr.P.C., the Opposite Party No.2 was aged about one year and eight months. Thus, at the time of disposal of the civil proceeding, the Opposite Party No.2 would be around three years. This Court does not find any material justifying a maintenance of Rs.10,000/- per month to the Opposite Party No.2 (minor son). No discussion to that effect is also made by learned Judge, Family Court, Jajpur in the impugned judgment. Learned Judge, Family Court, Jajpur has also not taken into consideration the reasonable personal expenditure of the Petitioner. It is also stated by learned counsel for the Petitioner that in a proceeding under Section 24 of the Act arising out of C.P. No. 279 of 2021 pending in the same Court, the Opposite Party No.1 has been awarded with pendente lite maintenance of Rs.12,000/- per month. Said fact was also not taken into consideration by learned Judge, Family Court, Jajpur while adjudicating the matter. 9. On a cumulative assessment of the materials on record and the discussion made above, this Court feels that the aforesaid aspects being crucial should have been taken into RPFAM NO. 300 OF 2023 Page 5 of 6 consideration by learned Judge, Family Court, Jajpur while adjudicating the petition under Section 125 Cr.P.C. That being conspicuously absent in the impugned judgment, the same is not sustainable in law. 10. Accordingly, the impugned judgment under Annexure-1 passed in Criminal Proceeding No.268 of 2019 is set aside and the matter is remitted to learned Judge, Family Court, Jajpur for fresh adjudication of the petition under Section 125 Cr.P.C., giving opportunity of hearing to the parties concerned. Till disposal of the petition under Section 125 Cr.P.C., the Opposite Parties shall be entitled to maintenance of Rs.15,000/- per month, which is without any prejudice to the case of either of the parties. 11. 12. The RPFAM is allowed to the aforesaid extent. The interim order dated 7th December, 2023 passed in I.A. No. 369 of 2023 stands vacated. (K.R. Mohapatra) Judge Orissa High Court, Cuttack Dated the 16th May, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-May-2024 11:51:37 RPFAM NO. 300 OF 2023 Page 6 of 6