Orissa High Court
Santilata Behuria vs Basanta Kumar Behuria on 30 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.24580 Of 2021
(Through hybrid mode)
Santilata Behuria .... Petitioner
Mr. A.P. Bose, Advocate
-versus-
Basanta Kumar Behuria .... Opposite Party
Mr. S.C. Puspalaka, Advocate
CORAM: JUSTICE ARINDAM SINHA
Order ORDER
No. 30.11.2021
02. 1. Mr. Bose, learned advocate appears on behalf of petitioner-
wife. He submits, his client made application under sub-section (1) in
section 18 of Hindu Adoption and Maintenance Act, 1956. Following
law declared by the Supreme Court in judgment dated 4th November,
2020 in Criminal Appeal no.730 of 2020 (Rajnesh -v- Neha and
another), there was direction by the Family Court on parties to file
affidavit regarding assets and liabilities in terms directions given
therein. Mr. Bose submits, opposite party-husband filed affidavit. His
client then filed petition (C.P. no.152 of 2020) praying that proceeding
be launched for opposite party-husband being punished under sections
199/191/193/209 Indian Penal Code, 1860. He submits, the Family
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Court by impugned order dated 13th July, 2021 disposed of the petition
without initiating the proceeding. Impugned order therefore suffers
from material irregularity and illegality.
2. Mr. Puspalaka, learned advocate appears on behalf of opposite
party-husband and relies on impugned order to submit that it is a good
order. He places the last paragraph in impugned order which says that
if in course of trial/conclusion of trial it comes to light that such a
mischief has been committed, petitioner will be at liberty to take steps.
On that observation, the petition was disposed of. There should not be
interference. Mr. Bose responds, in the petition particulars were given
to demonstrate that statements in the affidavit are untrue and incorrect
with potential to jeopardize his client's claim for maintenance.
3. Sections 193 and 195 in the Code provide punishment for
giving or fabricating false evidence with intent to procure conviction
of offence punishable with imprisonment. Section 195 in Code of
Criminal Procedure, 1973 by sub-clause (b)(i) says no Court shall take
cognizance of, inter alia, any offence punishable under sections 193
to 196 (IPC) except on complaint writing of the Court. The Family
Court while dealing with the complaint had posted determination of
maintenance amount to be paid to a later date and given liberty to
petitioner to apply, obviously in event the determination vindicated her
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allegation of offence committed under section 193 or 195 or both
(IPC).
4. Court does not find that the Family Court acted with material
irregularity or illegality in making impugned order since at the stage of
complaint made by petitioner, she cannot presume that the affidavit,
allegedly wherein false evidence is given, will be relied upon for what
it says. The adjudication process for determination of maintenance to
be paid to her will cause the affidavit to be analyzed for its evidentiary
value. It is only on the finding in the maintenance case that it can be
said by Court on a complaint to be thereafter made that it is a fit case
for petitioner to be prosecuted.
5. With above observations, the writ petition is disposed of.
(Arindam Sinha)
Judge
Sks
