Sanamati Harijan And Another vs Narasingha Harijan
2023 Latest Caselaw 1503 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  RPFAM No. 118 OF 2015
                 Sanamati Harijan and another            ....      Petitioners
                                              Ms. Aiswarya Dash, Advocate
                                  on behalf of Mr. Arijeet Mishra, Advocate

                                           -versus-
                 Narasingha Harijan                        ....    Opp. Party
                                                                        None

                       CORAM:
                       JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             17.02.2023
   4.       1.       This matter is taken up through hybrid mode.

2. Judgment dated 17th July, 2015 (Annexure-2) passed in C.R.P. No.97 of 2014 is under challenge in this RPFAM, whereby refusing maintenance to the Petitioner No.1, learned Judge, Family Court, Jeypore directed the Opposite Party to pay maintenance @ Rs.1,500/- per month to Petitioner No.2 (minor daughter) from the date of filing of the application, i.e., from 14th October, 2014.

3. Ms. Dash, learned counsel being authorized by Mr. Mishra, learned counsel for the Petitioners submits that relationship between the parties is not disputed. There is also material on record that the Petitioner No.1 was tortured and was driven out from the matrimonial home. The Petitioners, accordingly, left the matrimonial home. It is also not disputed that the Petitioner No.1 does not have any sufficient means for her livelihood. Learned Judge, Family Court by misinterpreting the law, observed that the Petitioner No.1 has failed to establish that the Opposite Party has neglected her to maintain. On that ground,

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the prayer for maintenance to the Petitioner No.1 has been refused. It is also submitted that quantum of maintenance directed to be paid to the Petitioner No.2 is also very low in comparison to her need. Hence, she prays for setting aside the impugned order under Annexure-2 and remit the matter to learned Judge, Family Court, Jeypore for proper adjudication of the case considering the materials on record.

4. Although the Opposite Party is represented through his learned counsel, but none represents him at the time of hearing.

5. Considering the submission of learned counsel for the Petitioners and on perusal of the record, it appears that learned Judge, Family Court, Jeypore heavily relied upon the provision under Section 125(5) Cr.P.C. held that the Petitioners have not made out a case of refusal or negligence of the Opposite party to maintain them. On perusal of the petition as well as the discussion made in the impugned order under Annexure-2, it appears that there is material on record to come to a conclusion that the Petitioner No.1 was meted out with mental and physical torture and she was driven out from her matrimonial home. There is also no material on record to arrive at a conclusion that the Opposite Party was paying any money to the Petitioners for their sustenance. It is the legal obligation of the Opposite Party- Husband to maintain his wife and child. Thus, the finding to the effect that the Petitioners could not made out a case of refusal or negligence of the Opposite Party to maintain them is not sustainable. It, however, appears that the maintenance awarded in favour of Petitioner No.2 is just and proper basing upon the materials available on record.

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6. In that view of the matter, the impugned order under Annexure-2 to the extent of refusing maintenance to the Petitioner No.1 is set aside and the matter is remitted back to learned Judge, Family Court, Jeypore to ascertain the quantum of maintenance to be paid to the Petitioner No.1 basing upon the materials on record giving opportunity of hearing to the parties concerned. Learned Judge, Family Court, Jeypore shall act upon production of certified copy of this order.

7. With the aforesaid extent, the RPFAM is allowed.

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

                                          (K.R. Mohapatra)
ms                                              Judge