w w w . L a w y e r S e r v i c e s . i n



Kamalakanta Mishra v/s Sima Satpathy

    RPFAM No. 235 of 2019

    Decided On, 24 June 2021

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE BISWANATH RATH

    For the Petitioner: J. Rath, P.K. Tripathy, K.C. Baral, N. Acharya, Advocates. For the Respondent: Dillip Ray, S. Das, K.B. Mishra, S.P. Mishra, Advocates.



Judgment Text

1. This case involves a challenge to the order dated 06.06.2019 and the subsequent order 24.08.2019 dated passed by the Judge, Family Court, Balasore in original case as well as execution case respectively.

2. Cr.P. No. 32 of 2016 involves a claim at the instance of the wife for grant of monthly maintenance of Rs. 60,000/- for the grounds involved therein that the marriage between the parties was solemnized on 11.02.2008 following the Hindu rites and rituals. It is alleged that the family members of the husband being not satisfied with the articles asked the wife involved herein to bring more money to met with dowry demand, In the process, they have started harassment to the petitioner mentally and physically . For some time wife accompanied with the husband to his place of working at Delhi but there also she was subjected to harassment even after giving birth to a son. During stay at Delhi, ill-treatment to the wife did not end. The wife even asked to sale the land available in her village to meet with the demand of the husband. It is further disclosed that when the wife was returning from Delhi with her husband, the husband attempted to kill her by pushing her down from the running train. Passengers travelling in the train rescued her but the opposite party-husband went away and escaped from the spot. Finding no reply from the side of the husband and no interest being shown from the husband to take up, the petitioner came back to her father’s house. In the meantime family members of the husband on 17.12.2015 reached the house of the father of the petitioner and forcibly took the child to their custody compelling the wife to lead a life of destitute. On the premises that the husband was working in a Software company is earning Rs. 80,000/- per month besides further earning a sum of Rs. 5,00,000/- per annum from the cultivable land to the extent of 10 acres and that the mother of the husband was also getting Rs. 10,000/- per month as pension, the wife got constrained to file both the cases claiming monthly maintenance @ Rs. 60,000/- per month. The present opposite party-husband appeared and filed his objection resisting of the claim at the instance of the wife and disclosed that for the pendency of a PWDV Act case, present litigation is not maintainable. It was also further pleaded by way of objection of the husband that the wife since was working as a Teacher under Sarva Sikya Abhijan, which itself is sufficient to maintain the wife. Husband also disputed the wife’s claim on husband’s income and contended that the husband rather working as a Labourer in New Delhi and is earning paltry sum of Rs. 15,000/-. It is in the above premises, the husband resisted the claim of the wife.

3. Basing on the pleadings, the Trial Court framed the following issues:

(i) Whether the petition filed claiming maintenance is maintainable?

(ii) Whether the petitioner has just cause of action to file the petition?

(iii) Whether the petitioner-wife having no source of income has reasons to stay away from the O.P. and is liable to be maintained by him?

(iv) Whether the O.P. having sufficient means neglected or refused to maintain the petitioner and as such liable to maintain her and if liable, what would be quantum of maintenance?

(v) To what other relief(s) the petitioner is entitled for?”

Hearing the parties Family Court finally decided the matter on contest by passing the following order:

“Petition claiming monthly maintenance as filed by the petitioner is allowed on contest against the O.P. He is directed to pay monthly maintenance of Rs. 15,000/- (Rupees fifteen thousand) to the petitioner from the date of filing of the petition on dtd. 20.01.2016. The current maintenance amount is to be paid within the first week of the English Calendar month. The arrear maintenance occurring till date is to be paid in instalments within three months, failing which petitioner is to realize the same through the process of the Court.”

4. After final disposal of the Cr.P. No. 32 of 2016, the subsequent impugned order passed by way of disposal of the execution proceeding at the instance of the wife both impugned herein.

5. Filing the RPFAM, learned Counsel for the husband taking this Court to the plea of the husband involving the same disclosures in TRP case between the parties attempted to contest the impugned orders on the premises that for the disclosures in the TRP Case, there has been no consideration of such disclosures in deciding the matter by learned Family Judge. A further stand is also taken by the learned Counsel for the petitioner-husband that for the husband taking a specific plea that the wife was working as Teacher under Sarva Sikhya Abhijan and earning a sufficient sum has also not been taken into account by the Court in disposal of the maintenance application. Besides, the impugned order is also contested on the premises that even though the wife has made the claim on the basis that the husband was working in IT Firm in Delhi but there was in fact no material available to come to find such fact even. It is in the above premises, learned Counsel for the petitioner submitted that the impugned order is in non-consideration of material fact and also in absence of cogent material and thus contended that the impugned order be set aside. Further, the execution order being based on such defective assessment should also be interfered and set aside.

6. Mr. Rath, learned Counsel appearing for the wife-opposite party taking this Court to the disclosure of the case of the wife through the discussions in the impugned order submitted that there has been sufficient discussion on the claim and the rival claim of the parties by the Trial Court. Mr. Rath, learned Counsel for the petitioner relying on some recording in a proceeding in T.R.P. Case since does not form part of the proceeding involved herein, submitted that such contentions should be out-rightly rejected. It is further alleged by Mr. Rath, learned Counsel that husband has brought some material to establish that wife is an employee in some establishment is a blatant lie for wife producing clear material to establish that she is no more an employee. Further for the recording of the Family Court that there has been material available on record establishing the claim of the husband for bail on the apprehension of his losing the job involving a D.V. Act proceeding, it is contended that there is sufficient material to establish that the husband is an employee in an establishment in Delhi. It is further contended that the order of the Family Court is based on materials available on record and, therefore, there is no requirement of interference, as a consequence, there is no scope for interfering in the execution order.

7. Considering the rival contentions of the parties, this Court finds there is no dispute that there is marriage between the parties. From the disclosure, it is apparent that in the proceeding under Section 498-A/323/34 I.P.C. read with Section 4 of the D.P.Act, the husband has a clear disclosure that unless he be granted bail, there is likelihood of loosing job. Besides oral evidence on this aspect, there has been also relying on a final report disclosing all above through Ext.“A” submitted in Khandapada P.S. Case No.104 dated 04.03.2016. This Court further also finds there has been material available through evidence in the trial proceeding before the Family Court. For the certificate issued by the Principal, St. Xavier High School, Balasore vide Ext. “2” herein reveals that the wife though was working in a School as Hostel Warden on temporary basis only for two months in the year 2015-16 however, she resigned and left the school hostel. This itself falsifies the claim of the husband that the wife is earning Rs. 10,000/- per month. Discussing the case of the parties and referring the decision of the Family Court in paragraph-10 therein, this Court finds there is a clear recording with regard to the material available establishing the husband’s working in Delhi. It is for the clear material available that the husband was working at Delhi brought by way of evidence at the instance of the wife, it appears, there is no attempt even by the husband at least to prove the same contrary. This Court here also finds surprise that the husband even not volunteered to produce his payment status at the relevant point of time at least for appropriate consideration of the Family Court. In the circumstance, this Court finds the husband was working in an establishment in Delhi and for the attempt to suppress the income of the husband during trial process and further taking into consideration minimum sustenance of a deserted lad

Please Login To View The Full Judgment!

y in the present day society, this Court finds the maintenance awarded by the Family Court, Balasore @ Rs. 15,000/- per month cannot be held to be in higher side. 8. It is in the circumstances, this Court finds there is no infirmity in the order passed by the Family Court, Balasore in Cr.P. No. 32 of 2016. As a consequence of above, this Court finds there is also no question of interfering in the order dated 24.08.2019 passed by the Executing Court in Execution Proceeding. Consequently, the RPFAM stands dismissed. 9. Since there is payment of a sum of Rs. 1,00,000/- (Rupees One lakh) by virtue of the interim order dated 5.12.2019 passed by this Court in I.A. No. 424 of 2019, the balance amount arrear involving the direction in the Execution Proceeding be deposited in lower Court in three equal instalments by the petitioner within a period of three months hence for release of the same in favour of the wife-opposite party. RPFAM dismissed.
O R