Pramod Behera @ Pramod Kumar vs Bharati Behera And Another
2023 Latest Caselaw 3557 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 RPFAM No. 82 OF 2017
                 Pramod Behera @ Pramod Kumar          ....       Petitioner
                 Behera
                                   Mr. Bhawani Sankar Panigrahi, Advocate
                                         -versus-
                 Bharati Behera and another            .... Opp. Parties
                                                                     None

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            17.04.2023
   6.       1.      This matter is taken up through hybrid mode.

2. Judgment dated 24th January, 2017 passed by learned Judge, Family Court, Nayagarh in Crl.M.P. No.178 of 2016 (arising out of Crl. Misc. Case No.04 of 2013) is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.5,000/- per month to Opposite Party No.1 and Rs.2,000/- per month to Opposite Party No.2 from the date of the order.

3. Mr. Panigrahi, learned counsel submits that the Petitioner had married to one, Milli Nayak in the year, 2000 and they were blessed with a son. Since Milli Nayak belonged to a different caste, dissension in the family arose, for which she left the matrimonial home. As she did not return after insistence of the Petitioner, the Petitioner married Opposite Party No.1 on 10th March, 2001 at the insistence of the villagers. Opposite Party No.2 was born out of their wedlock. After marriage with Opposite Party No.1, Milli Nayak returned to the matrimonial home and dissension arose between said Milli Nayak and Opposite Party No.1. Thus, Opposite Party No.1 expressed her inability to accommodate with said Milli Nayak in the

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matrimonial home and left for her parental house. Till 2012, everything was normal and the Petitioner was maintaining a happy conjugal life with Opposite Party No.1. He was also looking after Opposite Party No.2. Evidence to that effect has been adduced by the Petitioner before learned Judge, Family Court. The Petitioner was working as a daily wage labourer under a contractor at Bhubaneswar and was earning Rs.7,000/- per month.

4. It is also submitted by Mr. Panigrahi, learned counsel for the Petitioner that O.P.W.2 deposed that the Petitioner was earning Rs.3,000/- to 4,000/- per month as a daily labourer. The said evidence was neither rebutted nor any material contrary to the same was produced by the Opposite Parties. It is also submitted that in the application under Section 125 Cr.P.C., Opposite Parties claimed maintenance of Rs.5,000/- per month. But learned Judge, Family Court without considering the same, directed the Petitioner to pay the maintenance, as aforesaid. Hence, the impugned order warrants interference.

5. Although the Opposite Parties are represented through learned counsel, but none appears on behalf of them at the time of hearing.

6. On consideration of the submission made by Mr. Panigrahi, learned counsel for the Petitioner and on perusal of the materials on record, it appears that the petition under Section 125 Cr.P.C. was annexed to the RPFAM as Annexure-1. It clearly discloses that the Opposite Parties claimed maintenance of Rs.5,000/- per month. Further it appears that the Petitioner was examined as O.P.W.4 and stated in his evidence that he was earning Rs.7,000/- per month. The contractor (O.P.W.2) under whom, the Petitioner was working has categorically stated that

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the Petitioner was earning Rs.3,000/- to Rs.4,000/- per month as a daily wage labourer. It is submitted by learned counsel for the Petitioner that the said evidence was neither rebutted nor any material contrary to the same was filed. Learned Judge, Family Court being oblivious to the said materials on record, directed to pay the maintenance, as aforesaid. It also appears that Opposite Party No.2 has already become major in the meantime. In view of the above, this Court feels that the matter requires fresh consideration.

7. Accordingly, the impugned order is set aside and the matter is remitted back to learned Judge, Family Court, Nayagarh for fresh consideration of the petition under Section 125 Cr.P.C. giving opportunity of hearing to the parties concerned.

8. Parties are at liberty to lead further evidence in support of their respective cases before learned Judge, Family Court, Nayagarh for just adjudication of the petition under Section 125 Cr.P.C. It is, however, directed that without prejudice to the case of the Petitioner, he shall go on paying Rs.4,000/- (Rupees four thousand only) per month to the Opposite Parties till disposal of the petition under Section 125 Cr.P.C.

9. With the aforesaid observation and direction, the RPFAM is disposed of.

10. Interim order dated 11th April, 2017 passed in Misc. Case No.110 of 2017 stands vacated.

Urgent certified copy of this order be granted on proper application.

                                        (K.R. Mohapatra)
ms                                            Judge