Misc. Case No. 243 of 2021 · Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.493 of 2023 (From the judgment dated 10.08.2023, passed by the learned 2nd Additional Sessions Judge, Rourkela, in Crl. Appeal No. 34 of 2021, modifying the order dated 27.10.2021, passed by the learned J.M.F.C Rourkela, in D.V. Misc. Case No.243 of 2021). Binay Kumar Sahani …. Petitioner (s) -versus- Meera Sahani & Ors. …. Opposite Party (s) Advocates appeared in the case: For Petitioner (s) : -versus- Mr. Maheswar Mohanty, Adv. For Opposite Party (s) : Ms. Anita Das, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-03.02.2025 DATE OF JUDGMENT:-14.02.2025 Dr. S.K. Panigrahi, J. 1. The petitioner has filed this criminal revision challenging the order dated 10.08.2023, passed by the learned 2nd Additional Sessions Judge, Rourkela in Crl. Appeal No. 34 of 2021, modifying the order dated 27.10.2021, passed by the learned J.M.F.C., Rourkela, in D.V. Misc. Case No. 243 of 2021, enhancing the monthly maintenance from Rs. 20,000/- pg. 1 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 to Rs. 25,000/- and granting an additional sum of Rs. 10,000/- towards the education expenses of Opposite Party Nos. 2 and 3. I. FACTUAL MATRIX OF THE CASE
Legal Reasoning
2. The brief facts necessary for disposal of this CRLREV are as follows: i. The petitioner is a lecturer in History at Hrushikesh Ray Higher Secondary School, Chhend, Rourkela. His wife, Opposite Party No. 1, works as a beautician. Their marriage was solemnized on 23.04.1995, and after their marriage, both the parties have continued to stay together at Rourkela till 06.05.2020. They have two daughters, Opposite Parties Nos. 2 and 3. ii. Opposite Party No. 1, along with Opposite Parties Nos. 2 and 3, filed Criminal Misc. Case No. 243 of 2021 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the SDJM, Panposh, Rourkela alleging that they have no independent source of income and are unable to maintain themselves and, therefore, should receive maintenance from the petitioner. iii. The petitioner, on the other hand, asserted that there was a valid marriage between himself and the Opposite Party No.1 but he has not committed any act of domestic violence but he has unnecessarily been subjected to mental torture by the Opposite Party No.1 by staying separately from him. iv. During the pendency of the Criminal Misc. Case No. 243 of 2021, Opposite Parties Nos.1 to 3 filed an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005, seeking interim pg. 2 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 maintenance. Upon considering the application, the J.M.F.C Rourkela vide order dated 27.10.2021, directed the petitioner to pay interim maintenance of Rs. 20,000/- per month towards basic necessities from 30.06.2021, the date on which the application for interim maintenance was filed. v. In compliance with the order dated 27.10.2021 passed by the J.M.F.C., Rourkela, the petitioner has been paying the interim maintenance of Rs.20,000/- per month to the Opposite Party No.1. vi. Subsequently, the Opposite Parties Nos. 1 to 3 filed Criminal Appeal No.34 of 2021 under Section 29 of the Protection of Women from Domestic Violence Act, 2005, before the 2nd Additional Sessions Judge, Rourkela, challenging the interim maintenance order. vii. The 2nd Additional Sessions Judge, Rourkela, allowed the appeal, modifying the interim maintenance amount by directing the petitioner to pay Rs. 25,000/- per month instead of Rs. 20,000/-, along with an additional sum of Rs.10,000/- per month towards the education expenses of the Opposite Parties Nos. 2 and 3. viii. Aggrieved by this enhancement of interim maintenance, the petitioner has approached this Court seeking its intervention. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: pg. 3 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 i. The petitioner submitted that the judgment of the learned 2nd Additional Sessions Judge, which mechanically enhanced the interim maintenance from Rs. 20,000/- to Rs. 25,000/- per month and further directed the payment of an additional sum of Rs. 10,000/- per month towards the education expenses of Opposite Parties Nos. 2 and 3, is without basis, contrary to the weight of evidence, hence, it is liable to be quashed. Accordingly, the order dated 27.10.2021, passed by the learned J.M.F.C., Rourkela, in Criminal Misc. Case. Case No. 243 of 2021, is liable to be restored. ii. It is well settled in law that when the trial court has rendered findings based on an appreciation of evidence and documents, the appellate court should not interfere with such findings unless it is established that they are unsupported by evidence or suffer from perversity. In the present case, the learned J.M.F.C., Rourkela, thoroughly examined the documents and recorded findings accordingly. The 2nd Additional Sessions Judge ought not to have disturbed or altered these findings without bringing any new material on record. iii. The petitioner demonstrated his financial position before the learned J.M.F.C., Rourkela, by filing an affidavit of assets and liabilities, which was duly accepted by the court. It was established that he is employed as a Lecturer in History at Hrushikesh Ray Higher Secondary School, Chhend, Rourkela, with a monthly income of Rs. 77,000/-. On the other hand, Opposite Party No. 1 runs a beauty parlor and earns about Rs.30,000/- per month. In light of these facts, the learned J.M.F.C., pg. 4 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 Rourkela, rightly directed the petitioner to pay Rs. 20,000/- per month towards the basic necessities of the Opposite Parties Nos. 1 to 3. This determination ought not to have been disturbed by the 2nd Additional Sessions Judge, who enhanced the amount to Rs. 35,000/- based on mere presumption. iv. This Court, vide order dated 29.09.2023, passed an interim order directing the petitioner to deposit Rs. 25,000/- per month with effect from 30.06.2021 until the end of September 2023. The period from 30.06.2021 to September 2023 covers 27 months, during which the petitioner had been paying Rs. 20,000/- per month. Consequently, the arrears amounted to Rs. 1,85,000/-, which has already been cleared by the petitioner through Cheque No. 326837 for Rs. 1,85,000/-, deposited in the SBI account of Opposite Party No. 1. Accordingly, no arrears remain outstanding. v. With regard to the payments from October 2023 to April 2024, covering a period of seven months, the petitioner has been regularly paying Rs. 25,000/- per month through account payee cheques deposited in the SBI account of Opposite Party No. 1. Accordingly, no arrear is pending. vi. During the pendency of this Revision Petition, the Opposite Party No. 2, the elder daughter of the Opposite Party No. 1 and the petitioner, has been selected for the post of Junior Assistant in the office of the Sub- Collector, Panposh, with effect from 19.06.2024. Additionally, the Opposite Party No. 3, the younger daughter, has been pursuing a +3 Arts degree with Education Honours at Government Autonomous pg. 5 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 College, Panposh, Rourkela since 2022. In view of these developments, the grant of Rs. 10,000/- per month towards their education expenses is not justified. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
Legal Reasoning
4. Conversely, the learned counsel for the Opposite Parties earnestly made the following submissions in support of their contentions: i. The impugned judgment passed by the learned 2nd Additional Sessions Judge is well-reasoned, having duly considered all relevant aspects while enhancing the interim maintenance. The direction to pay Rs. 10,000/- towards the education expenses of Opposite Parties Nos. 2 and 3 is justified in light of their financial requirements. ii. The RTI information bearing No. 352/HRM/2023, dated 14.03.2023, issued by the Public Information Officer of Hrushikesh Ray Higher Secondary School, Chhend, Rourkela, contains the salary slips of the petitioner for December 2022, January 2023, and February 2023. These documents reflect a progressive increase in salary, with the gross salary rising from Rs. 1,20,000/- in December 2022 to Rs. 1,24,200/- in January and February 2023. The net salary for these months stood at Rs. 84,000/-, Rs. 88,400/-, and Rs. 1,11,000/- respectively. Notably, while passing the order dated 27.10.2021, the learned J.M.F.C., Rourkela, failed to consider the petitioner’s gross salary of Rs. 99,333/- as reflected in the salary slip for June 2021. Moreover, no amount was awarded towards the educational expenses of the Opposite parties, necessitating a challenge to the said order. The Appellate Court has duly taken into account the pg. 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 updated salary details and financial capacity of the petitioner while granting enhanced maintenance. iii. In 2019, the Opposite Party No. 1 availed a loan under the PMEGP Scheme from the Bank of Baroda to establish a beauty parlour. However, due to illness, the COVID-19 pandemic, and the academic responsibilities of her daughters, she was unable to continue operating the business, which resulted in difficulties in repaying the loan. Consequently, in 2023, the Permanent and Continuous Lok Adalat, SNG, issued four notices under Pre-Litigation Case Nos. 10235/2023, 10236/2023, 10237/2023, and 10238/2023. iv. The Opposite Party No. 2 is completing her postgraduate studies while preparing for competitive examinations to secure a government job, while Opposite Party No. 3 is pursuing an undergraduate degree in Education Honours at Government Autonomous College, Panposh, Rourkela. The burden of educational expenses, therefore, persists. Additionally, Opposite Party No. 1 is suffering from Bell’s Palsy (Lt) and requires continuous medical treatment, further constraining her financial capacity. v. The petitioner resides with his father, a retired employee of Rourkela Steel Plant who receives a pension and possesses a medical card that entitles him to free medical treatment at IGH, Rourkela. Given these circumstances, it is evident that the petitioner has no financial dependency apart from the present Opposite Parties. pg. 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 vi. Considering the rising cost of essential commodities and the financial needs of the Opposite Parties, the grant of interim maintenance of Rs. 25,000/-, along with Rs. 10,000/- towards educational expenses, is reasonable and warranted. vii. The petitioner has repeatedly failed to comply with the order directing payment of interim maintenance by the 10th of every month. As a result, the respondents, including the petitioner’s daughters, have suffered a lot due to non-payment of maintenance. Due to the non-compliance of the order dated 29.09.2023 passed in I.A. No. 684 of 2023, the petitioner has the outstanding arrear of Rs.1,95,000/ to pay the Opposite Parties. IV. APPELLATE COURT’S JUDGMENT: 5. The Appellate Court, upon perusal of the record of the lower court, found that the petitioner was receiving a net salary of Rs. 82,600/- per month at the time of the interim order passed in October 2021. However, salary slips obtained through an RTI application revealed that by December 2022, January 2023, and February 2023, the petitioner’s gross salary had increased to Rs. 1,20,000/- per month, with a net salary exceeding Rs. 84,000/- in December 2022 and January 2023, and Rs. 1,11,000/- in February 2023. The court further noted that the petitioner’s father is a pensioner with a medical card, allowing him to receive treatment, and thus, the petitioner has no other dependents apart from his wife and daughters. 6. Taking into consideration the financial burden on the Opposite Party No.1, who was solely handling the maintenance and education of her pg. 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 two daughters, aged approximately 17 and 25 years, the Appellate Court also accounted for the medical treatment she is undergoing at IGH, Rourkela, and AIIMS, Bhubaneswar, as substantiated by the documents filed on record. The contention raised by the petitioner that he had been regularly paying the maintenance amount was also noted. 7. Upon evaluating the overall facts and circumstances, the Appellate Court found that the order of the lower court directing payment of Rs. 20,000/- per month towards maintenance, was inadequate and insufficient to meet the day-to-day expenses of the Opposite Parties, thereby warranting interference. Consequently, the appeal was allowed, and the respondent was directed to pay an enhanced interim maintenance of Rs. 25,000/- per month along with an additional Rs. 10,000/- per month towards the educational expenses of the daughters, effective from the date of filing of the petition. Furthermore, the respondent was directed to ensure payment of these amounts by the 10th of each calendar month and was prohibited from engaging in any act of domestic violence against the Opposite Parties. V. COURT’S REASONING AND ANALYSIS: 8. I have heard learned counsel for the parties and perused the evidence on record. 9. The Protection of Women from Domestic Violence Act, 2005, is beneficial legislation designed to provide immediate relief and protection to victims of domestic violence. The grant of interim maintenance under the Protection of Women from Domestic Violence pg. 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 Act, 2005 serves to address the urgent financial needs of the aggrieved person and her children. 10. Section 20 of the Protection of Women from Domestic Violence Act, 2005, empowers a Magistrate hearing an application under Section 12 to direct the payment of monetary relief to compensate for expenses incurred and losses suffered by the aggrieved person and her children due to domestic violence. The provision is reproduced hereinunder: the loss of earnings; the medical expenses; the loss caused due to the destruction, damage or removal “20. Monetary reliefs (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, (a) (b) (c) of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. (4) … (5) … pg. 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM- SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Feb-2025 17:31:36 (6) ” (emphasis supplied) 11. It is well-established that while there is no rigid formula for determining interim maintenance, courts must consider various factors to arrive at a fair and just quantum of maintenance. 12. In order to clarify such issue, the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors.1, has succinctly observed: “8. …. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, fixed cannot be excessive or extortionate…” the amount so 13. In a similar vein, Rajnesh v. Neha,2, the Supreme Court elaborated on the criteria for determining quantum of maintenance, observing there is no straitjacket formula for such computation. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to