Durga Prasad Mishra vs Lili Mishra
2023 Latest Caselaw 1089 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  RPFAM No. 9 OF 2006
                 Durga Prasad Mishra                      ....       Petitioner
                                                     Mr. A. Biswal, Advocate
                                        on behalf of Mr. P.K. Dash, Advocate
                                           -versus-
                 Lili Mishra                                ....    Opp. Party


                       CORAM:
                       JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             01.02.2023
   3.       1.       This matter is taken up through hybrid mode.

2. Judgment dated 11th April, 2006 (Annexure-2) passed by learned Judge, Family Court, Cuttack in Criminal Proceeding No.420 of 2001 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance @ Rs.400/- per month to the Opposite Party from the date of application, i.e., from 14th August, 2001.

3. Mr. Biswal, learned counsel appearing on behalf of Mr. Dash, learned counsel for the Petitioner submits that the relationship between the parties is seriously disputed. The Opposite Party is not the legally married wife of the Petitioner. Although such an objection was raised, but learned Judge, Family Court, failed to appreciate the same and passed the impugned order under Annexure-2. It is also submitted that the Petitioner had filed a suit to declare that the Opposite Party is not the legally married wife. However, he has no instruction with regard to the fate of the said suit. Since the Opposite Party is not the legally

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married wife of the Petitioner, she is not entitled to any maintenance under Section 125 Cr.P.C.. He, therefore, prays for setting aside the impugned order under Annexure-2.

4. Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned order under Annexure-2, it appears that at Paragraph-7, learned Judge, Family Court has discussed the issue of marital status of the Opposite Party. Relying upon the evidence of P.Ws-3 and 6, learned Judge, Family Court held that marital relationship is existing between the parties. Strict proof of marriage is not necessary in a proceeding under Section 125 Cr.P.C.. If it is established that the parties to the proceeding are living under one roof as husband and wife for a considerable period, it will suffice to entertain an application under Section 125 Cr.P.C. Since on the basis of material on record, learned Judge, Family Court came to a conclusion that the Opposite Party is the wife of the Petitioner, this Court exercises the power under Section 19(4) of the Family Courts Act, 1984, which is in the nature of a petition under Section 401 Cr.P.C., should not sit over the same as an appellate Court to re-appreciate the evidence. It further appears that a meager amount of Rs.400/- per month has been directed to pay to the Opposite Party, as maintenance.

5. On perusal of the order sheet, it appears that although the matter was filed on 21st June, 2006, no step for issuance of notice to the Opposite Party has yet been taken. The matter was last listed on 21st November, 2016 on which date, the matter was adjourned on the prayer of learned counsel for the Petitioner. It is at the instance of the Court, the matter has been listed today.

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6. In view of the above, I am not inclined to interfere with the impugned order under Annexure-2.

7. Accordingly, the RPFAM stands dismissed.

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

                                        (K.R. Mohapatra)
ms                                            Judge