Sebati Soreng @ Anna Lakra @ Soreng vs Jena Xalxo
2023 Latest Caselaw 1457 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                RPFAM No. 81 of 2016
                 Sebati Soreng @ Anna Lakra @ Soreng ....         Petitioner
                                       Mr. Partha Saranti Nayak, Advocate
                                          -versus-
                 Jena Xalxo                              ....         Opp. Party
                                                                         None
                          CORAM:
                          JUSTICE K.R. MOHAPATRA
                                      ORDER

Order No.                            13.02.2023


 3.         1.      This matter is taken up through Hybrid mode.

2. Judgment dated 15th March, 2016 (Annexure-3) passed by learned Judge, Family Court, Rourkela in Criminal Proceeding No.92 of 2014 is under challenge in this RPFAM, whereby an application filed by the Petitioner under Section 125 Cr.P.C. has been rejected.

3. Mr. Nayak, learned counsel for the Petitioner submits that although the Opposite Party has categorically admitted the marriage between the parties in his written statement and the Petitioner has exhibited their marriage certificate under Ext.1, but the learned Judge, Family Court, without considering the same, unnecessarily delved into the issue as to whether the Petitioner and Opposite Party stayed as husband and wife and rejected the petition under Section 125 Cr.P.C. The Petitioner being a destitute lady has no sufficient means to maintain herself. Hence, she had filed the application under Section 125 Cr.P.C. claiming maintenance of Rs.10,000/- per month.

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Learned Judge, Family Court, on the aforesaid flimsy ground rejected the said petition. Hence, this RPFAM has been filed.

4. Although notice issued to Opposite Party is sufficient, as revealed from the Office note, but he preferred not to defend his case by entering appearance.

5. Considering the submission made by Mr. Nayak, learned counsel for the Petitioner and on perusal of record, it appears that marriage certificate of the parties has been marked as Ext.1. But there are some confusion with regard to name of father of the Petitioner in the marriage certificate. Although it is pleaded in the petition under Section 125 Cr.P.C. that as per advice of the Opposite Party, father's name of the Petitioner was changed in the marriage certificate, but the Opposite Party in his written statement stoutly denied the same. Be that as it may, admission is the best piece of evidence. It is submitted by Mr. Nayak, learned counsel for the Petitioner that in para-4 of the written statement, Opposite Party has already admitted marriage between the parties. Hence, no further proof of marriage is necessary to entertain the application, as strict proof of marriage between the parties is not necessary in a proceeding under Section 125 Cr.P.C. Learned Judge, Family Court, without considering the same, unnecessarily delved into the question as to whether parties lived as husband and wife. There is evidence on record to show that the parties lived together under one roof as husband and wife, but the learned Judge, Family Court disbelieved the same by stating that merely staying under one roof does not establish that the parties have married.

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5.1 Since there are some materials on record to suggest that there might be a marriage between the parties, this Court feels that the matter requires reconsideration.

6. Accordingly, the impugned order is set aside and the matter is remitted back to learned Judge, Family Court, Rourkela for fresh consideration of the petition under Section 125 Cr.P.C. giving opportunity of hearing to the parties concerned.

7. The RPFAM is allowed to the aforesaid extent.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge s.s.satapathy