The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.425 of 2023 (An application U/S. 401 CrPC read with Section 19(4) of the Family Courts Act). Ashok Kumar Patra … Petitioner Mr. B.Mishra, Advocate -versus- Rajani Pattanaik @ Patra & others … Opposite Parties Mr. B.B.Singh, Advocate CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING :18.12.2024 DATE OF JUDGMENT: 04.03.2025 G. Satapathy, J. 1. This revision by the petitioner-husband is directed against the impugned judgment dated 06.10.2023 passed by the learned Judge Family Court, Jeypore in Criminal Proceeding No. 44 of 2022 directing the petitioner-husband to pay a sum of Rs.5,000/- to OP No.1-cum-wife and Rs.2,000/- each to OP Nos. 2 & 3-cum-minor sons as monthly maintenance w.e.f. 18.04.2022 with further stipulation to pay the arrear maintenance within three months from the date of passing of the impugned order. RPFAM No.425 of 2023 Page 1 of 13 2. The undisputed facts as found from the record are that the petitioner and OP No.1 are husband and wife and their marriage was solemnized on 19.06.2006 and they are being blessed with two sons-cum-OP Nos. 2 & 3. The petitioner was earlier working as a Constable in BSF, but in the year 2013, he took voluntary retirement from his job and the petitioner and OP remained at Damanjodi where the present petitioner joined in the HAL as a security in-charge, but in the year 2020, the petitioner was suspended from the job due to his negligence and the petitioner then joined as a security guard at FCI, Jeypore, however, the petitioner later on joined at HAL, Sunabeda as security in-charge. On the other hand, the OP No.1-cum-wife is a house wife and the two minor children are completely dependent. Due to dissension, the petitioner and OP started living separately, however, the petitioner-husband issued notice through lawyer for restitution of conjugal rights, but the OP-wife never voluntarily deserted the petitioner. RPFAM No.425 of 2023 Page 2 of 13 3. On the aforesaid backdrop and claiming herself to be purely dependent house wife, OP No.1 has approached the learned Judge Family Court, Jeypore against the petitioner-husband for grant of maintenance to her and their minor children in an application U/S. 125 of CrPC which came to be registered as Criminal Proceeding No. 44 of 2022. In the aforesaid proceeding as moved by the OP-wife, the petitioner-husband appeared and filed his objection denying all the allegation made against him and inter alia coming with a plea of desertion by wife in addition the petitioner-husband has also denied his income at Rs.38,000/- per month as security in-charge at HAL, Sunabeda, rather he claims to be getting pension of Rs.19,891/- per month. The petitioner-husband also claims that his engagement as security in-charge at HAL, Sunabeda is purely temporary and on the basis of no work no pay and his income from such employment is very meager and may be around Rs.9,000/- to Rs.10,000/- per month, but he has to pay EMI of Rs.5,953/- per month towards bank loan, RPFAM No.425 of 2023 Page 3 of 13 Rs.4,250/- per month as LIC premium to protect the future of the OPs and incurring medical expenses of Rs.5,000/- per month for his dependent mother. 4. In the proceeding before the learned Judge Family Court, Jeypore, both the parties adduced evidence, both oral and documentary. After analyzing the evidence on record upon hearing the parties, the learned Judge Family Court, Jeypore has passed the impugned order granting maintenance to the OPs. Being aggrieved with the aforesaid judgment, the husband has preferred this revision. 5.
Legal Reasoning
In the course of hearing, Mr.Basudev Mishra, learned counsel for the petitioner-husband while not disputing the relationship between the parties has, however, challenged the impugned order mainly on two grounds; firstly the OP-wife is not entitled to maintenance because she voluntarily deserted the petitioner and secondly the quantum of maintenance is excessively high because the petitioner is only getting monthly pension @ Rs.21,167/-, out of which, he has to pay Rs.5,953/- per month towards bank loan, RPFAM No.425 of 2023 Page 4 of 13 Rs.4,250/- per month towards LIC premium to protect the future of the OPs and Rs.5,000/- per month towards medical expenses of his dependent old mother. In elaborating his contention, learned counsel for the petitioner has submitted that the learned trial Court has not only committed illegality by giving emphasis on the evidence of wife, but also has erroneously interpreted the law to grant maintenance w.e.f. the date of application instead of the date of order. Mr.Mishra, learned counsel for the petitioner has accordingly relied upon the decisions in Pashupati Acharya V. Dipali Acharya; 2012 (I) ILR-CUT-504 and Rasmita Rout @ Baral and others V. Maheswar Baral; 2001(I) OLR-411. 6. In reply, Mr.B.B.Singh, learned counsel appearing for OP Nos. 1 to 3 has, however, strongly refuted the submission as advanced for the petitioner by contending inter alia that the impugned order stood confirmed having been challenged by the OPs in RPFAM No.397 of 2023 claiming enhancement of maintenance, but the petitioner-husband is seeking an RPFAM No.425 of 2023 Page 5 of 13 review of such order indirectly by pressing this revision to set aside the impugned order which is impermissible under law. It is also submitted by Mr.Singh that the maintenance is payable from the date of filing of application which has been reiterated by the Apex Court in Rajnesh V. Neha and another; 2021(1)OLR(SC) 348. Further, Mr.Singh has submitted that the learned trial Court after due application of mind has passed the impugned order which calls for no interference in this revision. Accordingly, he has prayed to dismiss the revision. 7. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of record, it appears to the Court that the revision- petitioner has challenged the impugned judgment mainly on three grounds; firstly the OP-wife is not entitled to maintenance because she has withdrawn from the society of the petitioner-husband without any sufficient cause; secondly, the quantum of maintenance as granted to the OP-wife is excessive and liable to be reduced; and lastly, the maintenance RPFAM No.425 of 2023 Page 6 of 13 amount is payable from the date of the impugned judgment. Addressing the first contention of the petitioner, this Court makes it ample clear that in a revision, appreciation of evidence by Revisional Court is impermissible, unless the findings recorded on a fact is so perverse that is unacceptable to a prudent man, but the revisional-petitioner in this case has mainly relied upon the evidence of OP-wife to contend that the wife has withdrawn from the society of the husband without any sufficient cause. The main thrust of the petitioner-husband challenge is based on the admission of the OP-wife in her evidence to the effect that she did not join with the husband even after getting a notice from the Court in a proceeding U/S. 9 of the Hindu Marriage Act for restitution of conjugal right and she had never approached the police about the alleged torture made to her by the petitioner- husband and his family members. Although the appreciation of evidence is not permissible in revisional proceeding, but as a abundant precaution to address the contention of the petitioner, this Court RPFAM No.425 of 2023 Page 7 of 13 reminds that the evidence has to read as a whole, but not on piecemeal. Merely because the wife has received a notice U/S. 9 of Hindu Marriage Act, it would not be sufficient to construe that the wife has no cause to refuse to live with her husband and if it is borne out from the materials placed on record that the wife is otherwise justified to refuse to live with her husband, then she is perfectly grounded under law to refuse to live with her husband. 8. In this case, the petitioner-husband has alleged many things against the wife by unsuccessfully suggesting to the OP-wife in the cross-examination that her elder brother removed the petitioner from the service and kept in his clause and later on tortured him and that he engaged to look after the construction work of his elder brother. These allegations are a few, but there is long list of allegation and counter allegation. However, it is not denied that the parties are blessed with two children, but the petitioner- husband has never made any endeavor as found from the evidence to take back his own children. True it is RPFAM No.425 of 2023 Page 8 of 13 that Section 125(4) of the CrPC stipulates that the wife is not entitled to maintenance if she lives an adulterous life or that she has no sufficient reason to refuse to live with her husband or they are living separately by mutual consent. In this case, on analysis of evidence and materials placed on record, the ground of challenge of the petitioner-husband about the entitlement of the OP-wife for maintenance appears to be imaginary and cannot be said to have been established by the petitioner-husband so as to deprive the OP-wife and the children from their legitimate due of maintenance from the revision- petitioner. In this regard, this Court considers it profitable to refer to the decision in Rina Kumari @ Rina Devi @ Reena vrs. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and another;2025 SCC Online SC 72 wherein while answering to the question “will a husband, who secures a decree for restitution of conjugal rights, stand absolved of paying maintenance to his wife by virtue of Sec. 125(4) of the Code of Criminal Procedure, 1973, if his wife refuses to RPFAM No.425 of 2023 Page 9 of 13 abide by the said decree and return to the matrimonial home?”, the Apex Court in paragraph-38 has clearly held that the disqualification U/S. 125(4) of CrPC is not attracted even after passing of a decree of restitution of conjugal rights. In this decision, the Apex Court has further held thus:- and behest “29.Thus, the preponderance of judicial thought weighs in favour of upholding the wife’s right to maintenance under Section 125 CrPC and the mere passing of a decree for restitution of conjugal rights at the non-compliance husband’s therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) CrPC. It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard and fast rule in this regard and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband coupled with non- compliance therewith by the wife would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4) CrPC.” 9. On coming back to the quantum of maintenance, it is the admitted case of the petitioner RPFAM No.425 of 2023 Page 10 of 13 that he is a retired BSF Jawan and getting Rs.21,167/- as monthly pension and he has resigned from contractual service, but the aforesaid evidence itself suggests that the petitioner has capacity to earn more and he was also earning more by joining some contractual service. Accepting, but not admitting that the petitioner is not having any contractual service, but he being quite capable to earn extra amount, the income of the revision-petitioner can be taken at least Rs.30,000/- per month by having some guess work and thereby even after, deducting the liability of the revision-petitioner towards EMI of loan which is for a temporary period till clearance of loan, LIC premium and medical expenses of dependent mother, the petitioner can pay the maintenance amount to the wife and children to the tune of Rs.9,000/- per month and, therefore, the impugned order passed by the learned trial Court directing the petitioner to pay a sum of Rs.5,000/- to the wife and Rs.2,000/- each to the minor children per month as monthly maintenance cannot be considered as exorbitant, rather the same RPFAM No.425 of 2023 Page 11 of 13 can be well considered to be commensurate to the standard of living of the husband and, therefore, the aforesaid finding of the learned trial Court calls of no interference. 10. Thirdly, the contention of the revision- petitioner with regard to grant of payability of maintenance w.e.f. the date of order, it is clarified by the Apex Court in Rajnesh (supra) wherein it is held that maintenance is payable from the date of application. The relevant paragraph of aforesaid judgment is extracted hereunder: - from “Even though a judicial discretion is the Court to grant conferred upon maintenance either the date of from application or from the date of the order in S.125(2) Cr.PC., it would be appropriate to grant maintenance the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application”. RPFAM No.425 of 2023 Page 12 of 13 11. It is, therefore, clear that the challenge as advanced by the revision-petitioner merits no consideration and is liable to be rejected.
Decision
In the result, the revision stands dismissed on contest, but in the circumstance, there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 4tht day of March, 2025/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 05-Mar-2025 13:26:31 RPFAM No.425 of 2023 Page 13 of 13