Suresh Pandey vs Saraswati Dash
2023 Latest Caselaw 8977 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2023 13:11:25


                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                                RPFAM No. 43 OF 2018
                                               Suresh Pandey                             ....      Petitioner
                                                                                Mr. Anirudha Das, Advocate
                                                                          -versus-
                                               Saraswati Dash                             ....       Opp. Party

                                                     CORAM:
                                                     JUSTICE K.R. MOHAPATRA
                                                                      ORDER

                      Order No.                                      10.08.2023
                            6.            1.       This matter is taken up through hybrid mode.

2. Judgment dated 26th March, 2016 (Annexure-8) passed by learned Judge, Family Court, Bhubaneswar in Criminal Proceeding No.72 of 2014 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.5,000/- per month to the Opposite Party from the date of filing of the application, i.e., from 16th July, 2014.

3. Mr. Das, learned counsel for the Petitioner assails the impugned order under Annexure-8 on two grounds. Firstly, he submitted that the Opposite Party is not the legally married wife of the Petitioner and secondly, the Opposite Party left the matrimonial home and lived separately without any reasonable cause.

4. It is his submission that the Opposite Party had married to one, Nalini Kanta Satpathy on 30th June, 1994, who died on 20th January, 1995. After his death, she married to Bhabani Prasad Satpathy, the younger brother of Nalini Kanta Satpathy. When the marriage with Bhabani Prasad Satpathy was subsisting, the Opposite Party by playing fraud obtained

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 13:11:25

signature of the Petitioner and got the marriage certificate dated 29th June, 1999. Thus, the alleged marriage of the Opposite Party with the Petitioner is void one. As such, she is not the legally married wife.

5. He further submitted that the Opposite Party left the matrimonial home without any reasonable cause and is living separately. Thus, she is not entitled to maintenance under Section 125 Cr.P.C.. These material aspects although discussed by learned Judge, Family Court, but it failed to appreciate the same and passed the impugned order under Annexure-8. Hence, the impugned order is not sustainable and is liable to be set aside.

6. Upon hearing learned counsel for the Petitioner and on perusal of the impugned order under Annexure-8, it appears that learned Judge, Family Court framed four points for adjudication of the petition under Section 125 Cr.P.C., those are as under:

"(1) Whether petitioner is the legally wedded wife of the Opp. Party?

(2) Whether petitioner is living separately from the Opp. Party with sufficient cause and unable to maintain herself?

(3) Whether the Opp. Party having sufficient means neglected or refused to maintain the petitioner? (4) What would be the quantum of maintenance to be allowed to the petitioner, if point No. 2 and 3 are answered in her favour?"

7. While answering Point No.(1), learned Judge, Family Court has categorically held that although the Petitioner alleges that the Opposite Party had married to one, Nalini Kanta Satpathy on 30th June, 1994 and after his death on 20th January, 1995, she married to one Bhabani Prasad Satpathy, who is the

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 13:11:25

younger brother of Nalini Kanta Satpathy, but no material was placed in support of the same. As such, the allegation of the Petitioner is not established.

8. In course of hearing, Mr. Das, learned counsel for the Petitioner submits that although oral evidence was led to that effect, but no documentary evidence in support of the marriage of the Opposite Party with Nalini Kanta Satpathy and Bhabani Prasad Satpathy could be filed. Thus, learned Judge, Family Court has committed an error in holding that the Opposite Party married to the Petitioner during subsistence of a valid marriage, as oral evidence was not assessed properly. Such a contention is not sustainable as the marriage certificate dated 29th June, 1999 showing that the Petitioner married to the Opposite Party has not yet been set aside. Thus, it is established that the marriage between the Petitioner and Opposite Party still subsists. The Petitioner in his evidence has categorically admitted that he had given shelter to the Opposite Party, when she was driven out by Bhabani Prasad Satpathy. Thus, it is also established that the Petitioner and Opposite Party lived under one roof. Taking into consideration the material in its entirety, this Court is of the considered opinion that the plea of the Petitioner to the effect that no valid marriage is subsisting between the Petitioner and Opposite Party, does not hold good.

9. So far as the allegation of the Petitioner that the Opposite Party is living separately without any reasonable cause is concerned, this Court is of the considered opinion that the same is also not sustainable. It is apparent from the record that the Petitioner had married to one Jaya Devi, daughter of Hanshulal

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Prasad Mishra of Utter Pradesh. Concealing the said fact, the Petitioner married to the Opposite Party. The Petitioner also admitted the same in his evidence. Thus, the Opposite Party has reasonable cause to live separately when the Petitioner had a subsisting marriage.

10. In view of the above, this Court is of the considered opinion that learned Judge, Family Court has committed no error in allowing the application under Section 125 Cr.P.C..

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

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

                                                                            (K.R. Mohapatra)
              ms                                                                  Judge