Mitu Patro vs Jaya Laxmi Patro
2023 Latest Caselaw 4045 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 RPFAM No. 235 OF 2017
                 Mitu Patro                           ....       Petitioner
                                      Mr. Soubhagya Kumar Dash, Advocate
                                           -versus-
                 Jaya Laxmi Patro                          ....     Opp. Party
                                                                         None

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             21.04.2023
             I.A. No.151 of 2018
   4.       1.      This matter is taken up through hybrid mode.

2. This is an application for condonation of thirty three days in filing the RPFAM, as pointed out by the S.R.

3. None appears for the Opposite Party at the time of call, although she is represented by her learned counsel.

4. Considering the submission made by learned counsel for the Petitioner and averments made in the I.A., delay of thirty three days in filing of the RPFAM is condoned.

5. I.A. is accordingly disposed of.

(K.R. Mohapatra) Judge RPFAM No. 235 OF 2017

5. 1. This RPFAM has been filed assailing the judgment dated 22nd April, 2017 (Annexure-3) passed by learned Judge, Family Court, Berhampur, Ganjam in Criminal Proceeding No.189 of 2015, whereby the Petitioner has been directed to pay maintenance of Rs.3,500/- per month to the Opposite Party from the date of filing of the application, i.e., from 25th August, 2015.

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2. Mr. Dash, learned counsel for the Petitioner submits that the relationship between the parties is not disputed. The Petitioner also does not dispute his liability to pay the maintenance to the Opposite Party. However, it is submitted that the Petitioner does not have sufficient means to pay the maintenance of Rs.3,500/- per month to the Opposite Party. It is his submission that the Petitioner was examined as D.W.1. At Paragraph-11 of his evidence, he categorically stated that he is a daily labourer and hardly getting job for twenty days in a month. He earns Rs.150/- per day when he gets a job. He is elder son of the family. He has no movable or immovable property stands recorded in his name. He has also no other source of income. Although a suggestion was put by the Opposite Party in his cross-examination to the effect that the Petitioner is earning Rs.15,000/- per month from vegetable business, but no materials to that effect could be produced by the Opposite Party. Considering the material on record, learned Judge, Family Court at Paragraph-9 of the impugned judgment has categorically observed that neither the Petitioner nor the Respondent have sufficiently established the source and quantum of income of the present Petitioner. Although the Opposite Party had stated that the Petitioner has landed property, but no material to that effect could be produced.

3. It is his submission that when the evidence of the Petitioner has been accepted, learned Judge, Family Court should have accepted the income of the present Petitioner as stated in his evidence in absence of any materials to contrary to the same. Without appreciating the same, the Petitioner has

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been directed to pay the maintenance, as stated above. Hence, the same warrants interference.

4. Considering the submission made by learned counsel for the Petitioner, this Court finds that the Petitioner was examined as D.W.1. In his evidence, he has categorically stated that he is a daily labourer and hardly gets a job for twenty days in a month. The Petitioner was also deposed that he was getting Rs.150/- per day when he gets the job. Thus, it appears that the amount of maintenance directed to be paid to the Opposite Party is at a higher side and warrants interference. It is also not disputed that the Petitioner is the elder son of his family. There is also no material on record to come to a conclusion that the Petitioner has landed properties or income from any other source.

5. In the facts and circumstances stated above, this Court is of the considered opinion that maintenance as directed to be paid is in the higher side and warrants interference. Accordingly, considering the materials on record, this Court directs that the Petitioner shall pay a sum of Rs.1,500/- (Rupees one thousand five hundred only) per month as maintenance to the Opposite Party from the date of filing of the application under Section 125 Cr.P.C. i.e. 25th August, 2015.

6. With the aforesaid modification in the impugned judgment, the RPFAM is disposed of.

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

                                       (K.R. Mohapatra)
ms                                           Judge