Subhasis Pani vs Itishree Panda @ Pany And Another
2023 Latest Caselaw 8660 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 08-Aug-2023 10:28:09

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               RPFAM No. 2 OF 2019
                                               Subhasis Pani                          ....       Petitioner
                                                                          Mr. Dayanidhi Mishra, Advocate
                                                                       -versus-
                                               Itishree Panda @ Pany and another     .... Opp. Parties
                                                                           Mr. H.N. Mohapatra, Advocate


                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                     Order No.                                     07.08.2023
                                          RPFAM No. 2 OF 2019 & RPFAM No. 284 OF 2018
                           6.             1.      This matter is taken up through hybrid mode.

2. Order dated 11th December, 2018 (Annexure-4) passed by learned Judge, Family Court, Dhenkanal in Cr.P. No.46 of 2018 is under challenge in this RPFAM, whereby an application filed by the Petitioner to hold the proceeding under Section 125(3) Cr.P.C. not maintainable, has been rejected.

3. It is submitted by Mr. Mishra, learned counsel for the Petitioner that vide order dated 6th May, 2016 (Annexure-2) passed in Cr.P. No.145 of 2015, learned Judge, Family Court, Dhenkanal directed the Petitioner to pay maintenance of Rs.5,000/- per month to each of the Opposite Parties. In the meantime, marriage between the Petitioner and Opposite Party No.1 has been dissolved by a decree of divorce vide judgment dated 16th March, 2018 (Annexure-1) passed by learned Judge, Family Court, Dhenkanal in C.P. Case No.47 of 2016. In the said proceeding, a permanent alimony of Rs.10,00,000/- has been awarded in favour of Opposite Party No.1. Thus, the

Signature Not Verified Digitally Signed // 2 // Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2023 10:28:09

Opposite Part No.1 is no more entitled to maintenance under Section 125 Cr.P.C.. However, the Opposite Parties filed Cr.P. No.46 of 2018 under Section 125 (3) Cr.P.C. for realization of arrear maintenance granted in a proceeding under Section 125 Cr.P.C.. The Petitioner on his appearance filed an application on 3rd December, 2018 to hold the execution proceeding not maintainable. The said application was rejected.

4. Mr. Mishra, learned counsel for the Petitioner submits that after passing of the decree in C.P. Case No.47 of 2016 granting divorce and permanent alimony, the order passed under Section 125 Cr.P.C. gets merged with this said order. As such, the Opposite Parties are not entitled to any maintenance under Section 125 Cr.P.C. Learned Judge, Family Court without considering the same, rejected the application. Hence, this RPFAM has been filed.

5. Mr. Mohapatra, learned counsel for the Opposite Parties submits that there is no bar under law for realization of arrear maintenance granted under Section 125 C.P.C. after passing of a decree of divorce and permanent alimony in a civil proceeding. The order passed under Section 125 Cr.P.C. has not yet been set aside or modified. Thus, it is executable. Further, the Opposite Party No.2 is the daughter, who was not a party to the civil proceeding. He further submits that the permanent alimony of Rs.10,00,000/- has not yet been paid to the Opposite Party No.1. Hence, he prays for dismissal of the RPFAM.

6. Considering the rival contentions of the parties, this Court is of the considered opinion that a decree for divorce and permanent alimony shall not stand on the way of executing an order passed under Section 125 Cr.P.C. in accordance with law.

Signature Not Verified Digitally Signed // 3 // Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2023 10:28:09

In the instant case, the order passed under Section 125 Cr.P.C. has never been set aside or modified. Thus, it is executable in accordance with law. Doctrine of merger as submitted by learned counsel for the Petitioner does not apply to the present case. It further appears that the permanent alimony of Rs.10,00,000/- has not yet been paid to the Opposite Party No.1- Wife. Grant of permanent alimony does not debar the Opposite Party No.2-minor daughter to receive maintenance under Section 125 Cr.P.C.

7. In that view of the matter, this Court finds no infirmity in the impugned order under Annexure-4.

8. Accordingly, this RPFAM being devoid of any merit stands dismissed.

9. Interim order dated 12th April, 2019 passed in I.A. No.49 of 2019 stands vacated.

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

                                                                             (K.R. Mohapatra)
             ms                                                                    Judge