Babula Kumar Dhir vs Soudamini Samal @ Dhir And Another
2023 Latest Caselaw 9097 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               RPFAM NO.264 OF 2019
                 Babula Kumar Dhir                ....                 Petitioner
                                                   Mr. Samvit Mohanty, Advocate


                                        -versus-
                 Soudamini Samal @ Dhir and another         ....    Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        11.08.2023

  5.        1.      This matter is taken up through hybrid mode.

2. Judgment dated 19th October, 2019 passed by learned Judge, Family Court, Dhenkanal in Cr.P. No. 106 of 2018 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.2000/- per month to Opposite Party No.1-Wife and Rs.3000/- per month to the Opposite No.2 from the date of application, i.e., from 9th August, 2018.

3. Mr. Mohanty, learned counsel for the Petitioner submits that the relationship between the parties is not disputed. However, the Opposite Party No.2 has become major in the meantime and is not entitled to any maintenance under Section 125 Cr.P.C.

4. It is further submitted that the Petitioner is living with a widow. But she was not made a party to the proceeding under Section 125 Cr.P.C.. Further, the Petitioner is jobless and has no independent source of income. Thus, he is not a position to pay

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the maintenance as directed. It is however, submitted that the Petitioner has complied with the order dated 10th March, 2021. Learned Judge, Family Court did not make any endeavour to ascertain the income of the Petitioner. By accepting the solitary statement of the Opposite Party No.1 and without taking into consideration the oral evidence of the Petitioner to the effect that he is a salesman in a shop and is getting Rs.2,500/- per month and he has no other source of income, learned Judge, Family Court passed the impugned order. In view of the above, the impugned order is not sustainable.

5. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that Opposite Party No.2 has attained the age of majority in the meantime. Thus, he is not entitled to maintenance under Section 125 CR.P.C. from the date he attainted the age of majority.

6. So far as the income of the Petitioner is concerned, no documentary evidence has been filed by the Petitioner in support of the same. He only made an oral submission that he is earning Rs.2,500/- pr month as a salesman in a shop. The opposite Parties alleged that the Petitioner is earning Rs.55,000/- per month from 5 acres of cashew field and Rs.50,000/- per month from mango grove.

7. Income of a person is in his special knowledge and the burden is on him to prove the same. Since, no convincing material was produced by the Petitioner with regard to his income, learned Judge, Family Court making a guesswork has

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passed the impugned order. It further appears that the Opposite Party No.1-Wife is directed to be paid maintenance of Rs.2,000/- per month which I do not find to be unreasonable. In view of the above, this Court is not inclined to interfere with the impugned order.

8. Accordingly, the RPFAM is dismissed.

(K.R. Mohapatra) Judge Rojalin

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 18:34:36