Susanta Kumar Panigrahi vs Aparna Tripathy
2023 Latest Caselaw 4569 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 RPFAM No. 305 OF 2017
                 Susanta Kumar Panigrahi                ....       Petitioner
                                       Mr. Rakesh Kumar Mallick, Advocate
                                         -versus-
                 Aparna Tripathy                        ....      Opp. Party
                                                      Miss S.Das, Advocate
                           on behalf of Mr. Santosh Kumar Nanda, Advocate
                           CORAM:
                          JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             27.04.2023

  4.        1.      This matter is taken up through Hybrid mode.

2. Judgment dated 2nd November, 2017 (Annexure-1) passed in Criminal Misc. Case No.22-23 of 2016 is under challenge in this RPFAM, whereby learned Judge, Family Court, Bargarh allowing an application filed under Section 125 Cr.P.C., directed the Petitioner to pay maintenance of Rs.3,000/- per month to the Opposite Party from the date of order.

3. Learned counsel for the Petitioner submits that the Petitioner was an employee of SDCC Bank and during the relevant period he was suspended from the service and was drawing subsistence allowance of Rs.15,000/- per month. The Opposite Party along with the children are staying in the house of the Petitioner and not allowing the Petitioner to enter into his house. Dispute between the parties arose when the Petitioner was transferred to different places and could not visit his family regularly. However, he had never neglected to maintain his

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family. Learned Judge, Family Court on assessment of evidence came to a conclusion as under:-

"7.... it is considered sufficient for the Court to conclude that it is not the O.P, but it is the petitioner for whose unilateral decision the O.P has been prevented to stay with the family. Despite the said fact the O.P had extended every financial support to his family till his suspension. As a manager of the bank and working in different remote branches, the O.P had to discharge his official duties and while doing so he might have been late in reaching home in some days. But that cannot be treated as a ground to create a disturbance in the house. So, it can never be stated that the O.P has neglected or refused to look after the petitioner and his children out of his own whim. It is the circumstances, which compelled him to stay away from his family till date. ....."

3.1 It is also submitted that the Opposite Party is a Government Teacher and the children are major by the time the application was taken into consideration. In that view of the matter, the Opposite Party is not entitled to any maintenance under Section 125 Cr.P.C.

4. On the other hand, Miss. Das, learned counsel being authority by Mr. Nanda, learned counsel for the Opposite Party submits that there is no dispute with regard to the relationship between the parties. Children are pursuing their studies and as such the Petitioner is liable to pay maintenance to them for their studies. Maintenance at the rate of Rs.3,000/- per month is not unreasonable looking at the salary of the Petitioner. Therefore, learned Judge, Family Court has committed no error in directing to pay maintenance, as aforesaid.

5. Considering the submission of learned counsel for the parties, this Court finds that when learned Judge, Family Court has come a categorical conclusion that the Petitioner has never

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neglected his family members, they are not entitled to any maintenance under Section 125 Cr.P.C.. It is also not disputed that the Opposite Party is a Government Teacher and their children were major at the time of consideration of the application under Section 125 Cr.P.C. The children were also not parties to the proceeding under Section 128 Cr.P.C. Since there is no material on record to come to a conclusion that the Opposite Party does not have any sufficient means to maintain herself, the Petitioner is not liable to maintain his wife and children and no order of maintenance under Section 125 Cr.P.C could have been passed.

6. Accordingly, the impugned order is not sustainable. As such, the same is set aside.

7. Interim order dated 8th March, 2018 passed in Misc. Case No.424 of 2017 stands vacated.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge s.s.satapathy