Kamalakanta Mishra vs Sima Satpathy
2021 Latest Caselaw 6538 Ori

                        ORISSA HIGH COURT: CUTTACK
                                  RPFAM No.235 of 2019

          In the matter of an application under Section 19 of the Family Courts Act read
          with Section 401 of the Code of Criminal Procedure.

                                                  ----------

          Kamalakanta Mishra                      ... ...          ...                Petitioner

                                                   -versus-

          Sima Satpathy                       ...          ...     ...               Opp. Party


                 For Petitioner               :     Mr.J.Rath, P.K.Tripathy, K.C.Baral &
                                                       N.Acharya.


                 For Opp.Party                    : M/s.Dillip Ray, S.Das, K.B.Mishra &
                                                        S.P.Mishra.


                          Date of Hearing & Judgment: 24.06.2021

          P R E S E N T:

                        THE HONOURABLE MR. JUSTICE BISWANATH RATH

Biswanath Rath,J. 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 traveling 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. Sri 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. Sri 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 Sri 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 lady 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. .

.

....................................

Biswanath Rath, J.

Orissa High Court, Cuttack The 24th day of June,2021/sks