Orissa High Court
Debabrata Acharya vs Rajashree Mishra And Another on 1 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM NO. 350 OF 2022
Debabrata Acharya .... Petitioner
Mr. Manoj Kumar Panda, Advocate
-versus-
Rajashree Mishra and another .... Opp. Parties
Mr. D.P. Dhal, Senior Advocate being
assisted by Mr. A. Pradhan, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.08.2023
6. 1. This matter is taken up through hybrid mode.
2. Judgment dated 24th November, 2022 (Annexure-4)
passed by learned Judge, Family Court, Khurda in Criminal
Petition No.19 of 2018 is under challenge in this RPFAM,
whereby allowing an application under Section 125 Cr.P.C., the
Petitioner has been directed to pay maintenance of Rs.9,000/-
per month to each of Opposite Parties from the date of
application, i.e. 15th January, 2018. The Petitioner has also been
directed to pay arrear maintenance in ten equal monthly
installments.
3. Mr. Panda, learned counsel for the Petitioner submits
that an application under Section 125 Cr.P.C. was filed in
Criminal Petition No.7 of 2015, which was disposed of by
learned Judge, Family Court, Khurda vide order dated 26th
April, 2017 directing the Petitioner to pay maintenance of
Rs.5,000/- per month to each of the Opposite Parties from the
date of filing of the application. At the relevant time, the
monthly salary of the Petitioner was Rs.40,000/-. Assailing the
same, the Petitioner filed RPFAM No.133 of 2017, which has
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already been disposed of taking into consideration the
subsequent order passed under Section 127 Cr.P.C., which is
impugned herein.
3.1 It is submitted that at the time of filing of the petition
under Section 127 Cr.P.C., the gross salary of the Petitioner was
Rs.54,971.18 per month. His salary becomes Rs. 74,846/- per
month only from January, 2020. Thus, directing the Petitioner
to pay maintenance at a higher rate from the date of application
would be unjustified as the Petitioner will face immense
difficulty to pay the same from the date of application. It is his
submission that in view of the ratio decided in Kalyan Dey
Chowdhury -v- Rita Dey Chowdhury Nee Nandy, reported in
(2017) 14 SCC 200, the Opposite Parties are entitled to
maintenance of 1/4th of the net salary of the Petitioner. After
deduction, the Petitioner was getting a much lesser amount
towards his salary. Hence, direction to pay the aforesaid amount
is unjustified. It is also submitted that payment of arrear
maintenance in ten monthly equal installments is also
unreasonable, as it is very difficult on the part of the Petitioner
to clear up the arrear dues and to pay the maintenance at the
enhanced rate simultaneously. He, therefore, prays for
modification of the impugned order taking into consideration
the hike in the salary of the Petitioner with effect from January,
2020.
4. Mr. Dhal, learned Senior Advocate for the Opposite
Parties submits that since the Petitioner is getting a salary of
more than 74,000/- per month, there would be no difficulty in
paying the aforesaid amount. The Opposite Party No.2 has
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become nine years old and is a School going child. He requires
more amount for his study and other expenses. Taking into
consideration the matter in its totality, learned Judge, Family
Court, Khurda has directed the Petitioner to pay maintenance at
the aforesaid enhanced rate. Thus, the impugned order warrants
no interference.
5. Taking into consideration the submissions made by
learned counsel for the parties and on perusal of the record, it
appears that gross monthly salary of the Petitioner was
Rs.54,971.18 at the time of filing of the petition under Section
127 Cr.P.C. He was getting a net salary of Rs.22,010/- per
month during that period. But, deduction of salary towards
repayment of installments of loan amount cannot be taken into
consideration at the time of determining the quantum of
maintenance. Admittedly, the Petitioner is receiving a salary of
Rs.74,846/- per month since January, 2020. Thus, directing the
Petitioner to pay maintenance at the enhanced rate of Rs.9,000/-
per month to each of Opposite Parties from the date of
application would be harsh, as the gross salary of the Petitioner
was only Rs.54,917.18 per month at the time of filing of the
petition under Section 127 Cr.P.C. Thus, taking into
consideration the gross salary of the Petitioner from January,
2020, this Court is not inclined to interfere with the quantum of
maintenance with effect from January, 2020 onwards.
However, enhancement of maintenance from the date of
application till December, 2019 requires consideration.
Keeping in mind that the Petitioner was receiving a gross salary
of Rs.54,971.18 at the time of filing of the application under
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Section 127 Cr.P.C., this Court modifies the impugned order
and directs the Petitioner to pay maintenance at the enhanced
rate of Rs.6,000/- (Rupees six thousand only) per month to each
of Opposite Parties from the date of filing of the application
under Section 127 Cr.P.C. i.e. 15th January, 2018 till December,
2019. The arrear maintenance shall be recalculated and paid in
twenty-five equal monthly installments.
6. With the aforesaid modification in the impugned
judgment, the RPFAM is disposed of.
7. The connected matter (RPFAM No. 133 of 2017) be
sent back to the concerned section immediately.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Aug-2023 18:42:11
