Orissa High Court
Paramananda Dehury vs Menaka Behera on 8 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.163 of 2015
Paramananda Dehury .... Petitioner
Mr. D. Chhotray, Advocate
-versus-
Menaka Behera .... Opp. Party
Mr. D.K.Dhar, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.02.2023
4. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this RPFAM seeks to assail the judgment
dated 25th July, 2015 passed by learned Judge, Family Court,
Cuttack in Cr.P. No.125 of 2014 (registered as Crl. Misc. Case
No.109 of 2013 in the Court of learned SDJM, Dhenkanal),
whereby the Petitioner has been directed to pay maintenance at
the rate of Rs.1,000/- per month to the Opposite party from the
date of filing of the application, i.e., 4th July, 2013.
3. Mr. Chhotray, learned counsel for the Petitioner submits
that the Opposite party is not the legally married wife of the
Petitioner. It is alleged by the Opposite Party that their marriage
was solemnized on 7th March, 2007 before the Notary at Angul
in presence of parents of both the parties and relations. But the
Petitioner has married since 2006 to one Chhaya Dehury and out
of their wedlock; a male child had already begotten by the time
petition under Section 125 Cr.P.C. was filed. Learned Judge,
Family Court, heavily placing reliance on a joint photograph of
the Petitioner and the Opposite Party (MO-I) photo identity card
of Opposite Party (MO-2) passed the impugned order. It is his
// 2 //
submission that the said documents cannot be the proof of
marriage more particularly when there is material on record to
show that the Petitioner is married since 2006. Learned Judge,
Family Court, further relied upon the order passed in MAT Case
No.15 of 2013 (Ext.1). The said application was filed under
Section 9 of the Hindu Marriage Act, 1955 by the Opposite
Party for restitution of conjugal right. No notice whatsoever in
the said petition was served on the Petitioner. The application
was allowed ex-parte. As such, the same is not binding on the
Petitioner. However, the application to get the said ex-parte
order is pending, but he has no instruction with regard to fate of
the said petition. He, therefore, submits that the matter requires
reconsideration for which he prays for setting aside the
impugned order and to remit the matter back to learned Judge,
Family Court, Dehenkanal for that purpose.
4. Mr. Dhar, learned counsel for the Opposite Party
vehemently contends and submits that the Petitioner has never
challenged the authenticity of MO-1 and MO-2. The order of
restitution of conjugal right is staring at the Petitioner, which
had already been passed at the time of passing of the impugned
order. Any subsequent development cannot be taken into
consideration in the petition under Section 19(4) of the Family
Courts Act, 1984, which is in the nature of a petition under
Section 401 Cr.P.C. The Petitioner has remedy to seek for
variation of the impugned order, if there is any subsequent
development. Considering the materials, oral as well as
documentary evidence on record, learned Family Court has
passed the impugned order. Hence, the same warrants no
interference.
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5. Taking into consideration the submission made by
learned counsel for the parties and on perusal of record, it
appears that learned Family Court has discussed the evidence of
the parties in detail. He also relied upon the order passed in
MAT Case No.15 of 2013 (Ext.1), which is passed in a
proceeding under Section 9 of the Hindu Marriage Act. As
submitted at the Bar, a direction for restitution of conjugal right
passed in the said MAT Case was an ex-parte order. Although it
was an ex-parte order, the same is binding on the parties until it
is set aside in accordance with law. Admittedly, the order passed
in MAT Case No.15 of 2013 (Ext.1) was in vogue at the time of
adjudication of the proceeding under Section 125 Cr.P.C. Thus,
there is prima facie evidence available on record that the
Opposite Party is wife of the Petitioner. Strict proof of marriage
is not necessary in a petition under Section 125 Cr.P.C. Since
basing upon the oral and documentary evidence, learned Judge,
Family Court has come to the conclusion that the Opposite Party
is the wife of the Petitioner and directed to pay maintenance at
the rate of Rs.1,000/- per month, I am not inclined to interfere
with the same. However, if there is any subsequent development
in the matter, Petitioner if so advised, may workout his remedy
available in the Cr.P.C.
6. The RPFAM is disposed of with observation, as
aforesaid.
(K.R. Mohapatra)
Judge
s.s.satapathy
