The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No.338 of 2024 (In the matter of an application Under Section 19(4) of the Family Court, 1984, r/w Section-528 of the BNSS) Shrutisudha Nayak and another …. Petitioners Abhijit Nayak …. Opposite Party -versus- For Petitioners : Mr. B.P.B. Bahali, Advocate : Mr. A.P. Bose, Advocate For Opposite Party CORAM: JUSTICE G. SATAPATHY DATE OF HEARING : 30.04.2025 DATE OF JUDGMENT: 07.05.2025 G. Satapathy, J. 1. This revision is directed against the impugned judgment dated 07.05.2024 passed by the learned Judge, Family Court, Cuttack in CrP. No. 83 of 2011 directing the present OP-husband/father to pay to the Petitioner No.2-cum-daugther a sum of Rs. 2,000/- per month w.e.f 05.02.2011 till 06.05.2024 and Rs. 5,000/- per month w.e.f 07.05.2024 till she attains majority towards her maintenance while refusing to RPFAM No.338 of 2024 Page 1 of 7 grant any maintenance to Petitioner No.1-cum-wife in an application U/S. 125 of the CrPC. 2.
Legal Reasoning
Heard, Mr. Biplab B. Bahali, learned counsel for the Petitioners and Mr. Amit Prasad Bose, learned counsel for OP in the matter and perused the record. 3. Admittedly, the relationship between the parties is not in dispute, but the refusal of maintenance to the wife and quantum of maintenance to daughter are under challenged in this revision. A careful scrutiny of the impugned order would go to reveal that the maintenance to wife has been refused on the ground of non-compliance of the decree of restitution of conjugal rights which is apparent from the following finding of the learned trial Court. it xxx xxx “6. xxx is well proved that she is well aware about the order of restitution of conjugal rights passed against her, but she has willfully disobeyed the order passed by this court. She also admits that she has not filed W.S. in C.P. 585/2010(A proceeding for restitution of conjugal rights) stating about the facts regarding torture inflicted upon her by her husband and in-laws. So, it is proved that she has deserted her husband and refuses to live with him without sufficient reason.” RPFAM No.338 of 2024 Page 2 of 7 Whether a husband would be stood absolved from paying maintenance to his wife, if such wife refuses to abide by a decree of restitution of conjugal rights to return to her matrimonial home, but such question has been answered by the Apex Court in Rina Kumari @ Rina Devi @ Reena Vrs. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and another; (2025) SCC Online SC 72 by observing that the mere presence of a decree for restitution of conjugal rights was, therefore, held insufficient to disentitle a wife from claiming maintenance, if the conduct of the husband is such that she is unable to obey such a decree or if the husband creates such circumstances that she cannot stay with him. 4. The embargo created U/S. 125(4) of the CrPC disentitling the wife from getting maintenance is applicable, if it is established by the husband that the wife has deserted him without sufficient cause, but non-compliance of a decree of restitution of conjugal rights obtained by the husband per se is not sufficient to attract the disqualification as contemplated U/S. 125(4) of the CrPC which would further required to be RPFAM No.338 of 2024 Page 3 of 7 established that the wife voluntarily withdrew from the Company of the husband without any sufficient cause. What constitutes sufficient cause is dependent on facts and circumstances of each case and it could be decided on the strength of the materials and evidence produced by the parties. However, the wife can still establish that she has valid/sufficient reason to refuse to live with her husband despite a decree of restitution of conjugal rights. It is, therefore, very clear that the decree of restitution of conjugal rights obtained by the husband coupled with its non-compliance by the wife would not be sole determinative factor to disentitle her from getting maintenance, but the husband is further required to establish that the wife has in fact no valid/sufficient reason to live separately to absolve him from the liability of paying maintenance to his wife. 5. It is also claimed by the Petitioners in this case that the OP-husband has filed CP No. 222 of 2011 against the Petitioner No.1 U/S. 13 of the Hindu Marriage Act for decree of divorce before the learned Judge, Family Court, Cuttack which has not been disputed by the OP, but at the same time, the plea of RPFAM No.338 of 2024 Page 4 of 7 the OP against the Petitioners is for non-compliance of decree of conjugal rights which is contrary to the claim of the OP in CP No. 222 of 2011. It transpires from the impugned order that the affidavit filed by the OP- husband disclosing his assets and liabilities reveals his net salary to be Rs. 1,59,019/- and he has got an ailing & dependent parents and he is spending Rs. 5000/- per month towards their medicines and maintenance, besides EMI for Car loan and hand loan to the tune of Rs. 73,000/- out of which 50,000/- per month has been shown towards house rent, maintenance and miscellaneous which is without any document and proof and appears to be inflated figure. 6. Be that as it may, the learned trial Court by the impugned order while quantifying the maintenance to Petitioner No.2-daughter has not discussed anything, but simply quantified the amount. No reason has been assigned by the learned trial Court, while quantifying the maintenance to Petitioner No.2 @ Rs. 2000/- per month w.e.f 05.02.2011 till 06.05.2024 and Rs. 5000/- thereafter. Law on this point is very clear that the wife and children are entitled to RPFAM No.338 of 2024 Page 5 of 7 maintenance commensurate to the standard of living of the husband/father. Since no reason has been assigned, while quantifying the maintenance to daughter, the impugned order also suffers from illegality on that score. From the discussion made hereinabove and applying the law laid down by the Apex Court in the decision referred to above, this Court does not find the order to be legally sustainable and there is no other option left, but to remit the matter back for fresh disposal in accordance with law. Accordingly, the impugned order is hereby set aside and the matter is remitted back for fresh disposal in accordance with law by giving proper finding on the issue of right to maintenance of the Petitioner No.1 and the quantum of maintenance to the Petitioners. It is, however, made clear that the parties may produce fresh evidence, but each of the parties may not be granted more than one adjournment for the said purpose. 7. In the result, the revision stands allowed on contest, but in the circumstance, there is no order as to costs. Consequently, the impugned judgment RPFAM No.338 of 2024 Page 6 of 7 dated 07.05.2024 passed by the learned Judge, Family Court, Cuttack in CrP. No. 83 of 2011 is hereby set aside and the matter is remitted back for fresh disposal in the light of observation made hereinabove. Further, during the pendency of the proceeding, the OP-husband shall pay interim maintenance @ Rs. 5,000/- per month to each of the Petitioners w.e.f 1st April, 2025 and the same would be adjusted from the final maintenance that would be granted to the Petitioners. Since the proceeding between the parties is pending since 2011, the learned trial Court is hereby requested to dispose of the case within three months from the date of receipt of the copy of this order. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 7th of May, 2025/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 07-May-2025 13:53:54 RPFAM No.338 of 2024 Page 7 of 7