Harihara Sahoo vs Urmila Sahoo
2023 Latest Caselaw 1290 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK


                              CRLREV NO.879 OF 2019

            (From the order dated 21st October, 2019 passed by learned
            Addl. Sessions Judge, Berhampur, Ganjam in Crl. Appeal
            No.16/2019)

                  Harihara Sahoo                           ...          Petitioner


                                              -versus-

                  Urmila Sahoo
                                                          ...         Opposite Parties



              Advocates appeared in the case through hybrid mode:

                 For Petitioner                          : Mr.Debasis Sarangi,
                                                           Advocate.

                                             -versus-

                 For Opp.Party                            : Mr.L.N.Patel,
                                                             Advocate
              ---------------------------------------------------------------------------
                  CORAM:

                                JUSTICE SASHIKANTA MISHRA

                                          JUDGMENT

07.02.2023.

Sashikanta Mishra,J. The Petitioner has preferred this revision

questioning the correctness of order dated 21st

October, 2019 passed by learned 3rd Addl. Sessions

Judge, Berhampur in Crl. Appeal No.16/2019

whereby the order passed by learned J.M.F.C.,

Berhampur on 20th April, 2019 in M.C. No.146/2017

was confirmed. The original case before the learned

Magistrate being Misc. Case No.149 of 2014 was filed

by the present Opposite Party (wife) under Section 12

of the PWDV Act claiming maintenance and other

incidental reliefs. The said case was disposed of by

learned Magistrate by order dated 27th February, 2017

directing the Petitioner(husband) to pay Rs.3,500/-

towards monthly maintenance along with other reliefs

including Rs.2,500/- as monthly house rent and

Rs.4,000/- towards compensation. The said order was

challenged by the husband in Crl. Appeal No.24/2017

which is pending in the court of Sessions Judge,

Berhampur. In the meantime, in an execution case

being filed by the wife viz Misc .Case No.146/2017,

learned Magistrate by order dated 20th April, 2019

directed issuance of conditional NBW for Rs.28,000/-

against the husband for failure to comply with the

original order. The said order was carried in appeal by

the husband being Crl. Appeal No.16/2019. By order

dated 21st October, 2019, which is impugned in the

present revision, learned 3rd. Addl. Sessions Judge,

dismissed the appeal and thereby confirmed the order

dated 20th April,2019 passed by learned S.D.J.M.,

Berhampur.

2. Heard Mr. Debasis Sarangi, learned counsel for the

Petitioner and Mr. L.N.Patel, learned counsel for the

Opposite Party.

3. It is submitted that in addition to the proceeding

under the P.W.V.D. Act, the wife had also approached

the Judge, Family Court, Berhampur in Criminal

Proceeding No.156/2014 for maintenance, which was

allowed by order dated 11th August, 2016 directing

payment of maintenance at the rate of Rs.8,000/- per

month from the date of filing of the application along

with other expenses. Mr. Sarangi further submits that

the Petitioner preferred appeal against the said order

before this Court vide RPFAM No.233/2016. By order

dated 16th December, 2022, copy of which has been

filed by Mr. Sarangi, the order passed by learned

Judge, Family Court was set aside and the matter was

remitted to the said Court for fresh adjudication giving

opportunity of hearing to the parties keeping in mind

the observations made in the said order. Mr. Sarangi,

further submits that this Court had set aside the order

passed by the learned Judge, Family Court by holding

that the evidence adduced was not adequate to prove

the relationship of marriage between the parties. On

such ground, it is contended that the order passed by

learned J.M.F.C. becomes vulnerable to challenge as

the very basis thereof has been disbelieved by this

Court.

4. Mr. L.N. Patel, on the other hand, submits that

the mater being remitted to the Judge, Family Court,

it cannot be conclusively held at this stage that the

proceeding has attained finality and therefore, there is

no reason to interfere with the order passed by the

learned Magistrate regarding grant of maintenance.

5. Having considered the rival submissions, this

Court is of the view that since a statutory appeal is

pending against the original order passed by the

learned Magistrate directing payment of maintenance

and other relief, the same ought to be decided on

merits. To such extent therefore, the impugned in so

far as it relates to non-interference with the order

passed by the learned J.M.F.C. in the execution

proceeding cannot be sustained in the eye of law.

Resultantly, the order dated 21st October, 2019 passed

by learned 3rd Addl. Sessions Judge, Berhampur is

hereby set aside. Learned Sessions Judge, Berhampur,

before whom the Crl. Appeal No.24/2017 is pending,

shall do well to dispose of the same on merit as

expeditiously as possible, preferably, within a period of

two months.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera