Orissa High Court
Mahabir Barai @ Mahavir Barai vs Sangita Barai And Another on 7 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 141 OF 2012
Mahabir Barai @ Mahavir Barai .... Petitioner
Ms. Geetanjali Majhi, Advocate
-versus-
Sangita Barai and another .... Opp. Parties
Mr. Laxmikanta Tripathy
on behalf of Mr. J.K. Lenka, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 07.02.2023
14. 1. This matter is taken up through hybrid mode.
2. This RPFAM has been filed assailing the judgment dated
19th October, 2012 (Annexure-1) passed by learned Judge, Family
Court, Sambalpur in Criminal Misc. Case No.36/139 of 2007-
2012, whereby allowing an application filed by the Opposite
Parties under Section 125 Cr.P.C., the Petitioner has been directed
to pay maintenance @ Rs.3,000/- to Opposite Party No.1 and
Rs.1,000/- per month to Opposite Party No.2 from the date of the
order.
3. Ms. Majhi, learned counsel for the Petitioner submits that
the relationship between the parties is not disputed. However, the
Petitioner was working as a salesman in Sri Maa Medical Store at
Parmanpur. No opportunity to adduce evidence in support of the
case of the Petitioner was afforded to him during trial. Opposite
Party No.1 has also independent source of income from a tailoring
shop. Had the Petitioner given an opportunity to produce
documentary evidence in support of his case, he would have been
// 2 //
in a position to prove that the Opposite Parties are not entitled to
any maintenance under Section 125 Cr.P.C. Learned Judge,
Family Court, on mere presumption and assumption has passed
the impugned order under Annexure-1, which is not sustainable
and she, therefore, prays for setting aside the impugned order
under Annexure-1.
4. Mr. Tripathy, learned counsel being authorized by Mr.
Lenka, learned counsel for the Opposite Parties, vehemently
objects to the submission made by learned counsel for the
Petitioner and contends that the Petitioner was given ample
opportunity to produce material evidence in support of his case.
No such grievance was raised before learned Judge, family Court.
The Petitioner keenly contested the petition under Section 125
Cr.P.C.. Opposite Party No.1 does not have any independent
source of income. Hence, the maintenance awarded in favour of
the Opposite Parties need not be interfered with.
5. Considering the rival contentions of the parties, it appears
that Opposite Party No.1 in her evidence had stated that the
Petitioner is the owner of Maa Medical Store at Parmanpur. But
in the cross-examination the Petitioner himself admitted that he is
not the owner, but a salesman in the aforesaid medical store. No
documentary evidence with regard to the income of the Petitioner
has been filed. The income of the Petitioner being in his special
knowledge, he should have adduced evidence to that effect.
There is no material on record to come to a conclusion that the
Petitioner had made a prayer before learned Judge, Family Court
to adduce evidence in the matter. In view of the above, learned
// 3 //
Judge, Family Court had to make a guess work with regard to
income of the Petitioner and assess the quantum of maintenance.
6. Taking into consideration the requirement of the Opposite
Parties and cost of living at the relevant period, learned Judge,
Family Court directed to pay maintenance to the Opposite Parties
at the rate stated above, which appears to be just and reasonable.
Accordingly, this Court finds no infirmity in the impugned order
under Annexure-1.
7. In view of the above, this RPFAM being devoid of any
merit stands dismissed.
8. Interim order dated 24th December, 2014 passed in M.C.
No.311 of 2014 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
