Orissa High Court
Tapomaya Pattanayak vs Mitali Madhusmita Mallick .... ... on 5 December, 2023
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.591 of 2023
Tapomaya Pattanayak .... Petitioner
Mr. P. C. Mishra, Adv.
-versus-
Mitali Madhusmita Mallick .... Opposite Party
CORAM:
DR. JUSTICE S.K. PANIGRAHI
ORDER
Order 05.12.2023
No.
02. 1. This matter is taken up through hybrid
arrangement.
2. Heard learned counsel for the Petitioner and
learned counsel for the Opposite Party.
3. The Petitioner has filed this CRLREV challenging
the common judgment dated 04.10.2023 passed in CRLA
No.28/2023 and CRLA No.37/2023 by the learned
Additional Sessions Judge-IV, Bhubaneswar, District-
Khurda, wherein the learned court below without
verifying the material on record, has enhanced the
monthly interim maintenance of the Opposite Party/Wife
by dismissing the Petitioner's CRLA No.37/2023. Hence,
the impugned judgment passed by the learned court
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below is disproportionate to the net income of the present
Petitioner.
4. Learned counsel for the Petitioner submits that
vide order dated 03.03.2023 passed by the learned
J.M.F.C.(LR), Bhubaneswar wherein, the interim
maintenance was fixed for Rs.30,000/- (Rupees Thirty
Thousand) in favour of the Opposite Party/Wife. Further,
learned counsel for the Petitioner submits that the gross
income of the Petitioner/husband is around Rs.1,50,000/-
(Rupees One Lakh Fifty Thousand), who receives the net
amount of Rs.83,000/-(Rupees Eighty Three Thousand)
per month. However, the learned Additional Sessions
Judge-IV, Bhubaneswar vide common judgment dated
04.10.2023 passed in CRLA No.28/2023 and CRLA
No.37/2023 enhanced the interim maintenance as fixed by
the learned J.M.F.C.(LR), Bhubaneswar to Rs.40,000/-
(Rupees Forty Thousand) from Rs.30,000/- (Rupees Thirty
Thousand), which is about 35% of the net income
received by the present Petitioner.
5. Learned counsel for the Petitioner further submits
that the Supreme Court in Kalyan Dey Chowdhury vs
Rita Dey Chowdhury Nee Nandy AIR 2017 SC 2383
wherein, it has been held that the amount of interim
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maintenance should not be more than 25% of the net
income.
6. The decision of Supreme Court in Kalyan Dey
Chowdhury (supra) is extracted hereunder:-
"XXX It was held that 25% of the husband's net
salary would be just and proper to be awarded as
maintenance to the respondent-wife. The amount of
permanent alimony awarded to the wife must be
befitting the status of the parties and the capacity of
the spouse to pay maintenance. Maintenance is
always dependant on the factual situation of the case
and the court would be justified in moulding the
claim for maintenance passed on various factors.
Since in February, 2016, the net salary of the
husband was Rs. 95,000/- per month, the High
Court was justified in enhancing the maintenance
amount. However, since the appellant has also got
married second time and has a child from the second
marriage, in the interest of justice, we think it
proper to reduce the amount of maintenance of
Rs.23,000/- to Rs.20,000/- per month as
maintenance to the respondent-wife and son XXX."
7. In view of the above and having regard to the
present possession of law, the common judgment
dated 04.10.2023 passed by the learned Additional
Sessions Judge-IV, Bhubaneswar is set aside and the
order dated 03.03.2023 passed by the learned
J.M.F.C.(LR), Bhubaneswar is confirmed. Further, the
Petitioner is also directed to deposit the arrear
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interim maintenance amount in the learned
J.M.F.C.(LR), Bhubaneswar within a period of four
months in four equal installments from the date of
filing of the interim application dated 07.06.2022.
8. Accordingly, the CRLREV is disposed of.
(Dr. S.K. Panigrahi)
Judge
Sumitra
Location: Odisha High Court, Cuttack
