Upendra Mallick vs Priyanka Mallick
2023 Latest Caselaw 10446 Ori

Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 31-Aug-2023 16:29:32




                                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                              RPFAM NO. 12 OF 2020
                               Upendra Mallick                   ....                  Petitioner
                                                                  Mr. Rajendra N. Rout, Advocate
                                                           -versus-
                               Priyanka Mallick                            ....       Opp. Party
                                                                Mr. Bhagaban Mohanty, Advocate
                                          CORAM:
                                          JUSTICE K.R. MOHAPATRA
                                                  ORDER

          Order No.                              30.08.2023
             6.           1.        This matter is taken up through hybrid mode.

2. Petitioner in this RPFAM seeks to assail the judgment dated 21st June, 2019 (Annexure-1) passed by learned Judge, Family Court, Jajpur in Criminal Proceeding No.107 of 2016, whereby he has been directed to pay Rs.2,000/- per month as maintenance to the Opposite Party-Wife from the date of filing of the application under Section 125 CrPC, i.e., 7th October, 2016.

3. Mr. Rout, learned counsel for the Petitioner submits that marital relationship between the parties is not disputed. However, the Petitioner is daily-wage earner and he is not getting job every day. So, it is very difficult on his part to pay maintenance of Rs.2,000/- per month to the Opposite Party, as directed. Although the Opposite Party-Wife has alleged that the Petitioner was earning Rs.15,000/- per month from his business, but not a single scrap of paper has been filed in support of the same. Although learned Judge, Family Court took the same into consideration, but directed the Petitioner to pay maintenance of Rs.2,000/- per month holding that that he was earning Rs.6,000/- per month from labour work.

Signature Not Verified Digitally Signed // 2 // Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 31-Aug-2023 16:29:32

4. Mr. Mohanty, learned counsel for the Opposite Party submits that the quantum of income is not unreasonable taking into consideration the cost of living during those days. He also submits that due to non-payment of arrear maintenance execution proceeding was filed. But due to pendency of the present RPFAM, learned Family Court is not proceeding with the same. The Petitioner is also not complying with the interim order dated 28th July, 2021 passed in IA No.18 of 2020. Thus, the Opposite Party is seriously prejudiced.

5. Considering the submission of learned counsel for the Petitioner and that the marital relationship between the parties is not disputed, this Court holds that the Petitioner is liable to maintain the Opposite Party-Wife. It is not the case of the Petitioner that the Opposite Party has independent source of income. It also appears that the Petitioner has not led evidence on his income, which is in his special knowledge. He has only stated that he was working as a labourer. Thus, in absence of any concrete evidence with regard to income of the Petitioner, learned Judge, Family Court had to make guess work and compute the quantum of maintenance. A sum of Rs.2,000/- per month as maintenance does not also appear to be unreasonable in any way.

6. Accordingly, the RPFAM being devoid of any merit stands dismissed.

7. Interim order dated 28th July, 2021 passed in IA No.18 of 2020 stands vacated.

Issue urgent certified copy of the order on proper application.

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