Sanjay Dalai vs Subhrata Dalai And Another
2023 Latest Caselaw 7210 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 05-Jul-2023 10:12:12


                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               RPFAM No. 160 OF 2018
                                               Sanjay Dalai                            ....       Petitioner
                                                                              Mr. J. Samantaray, Advocate
                                                                       -versus-
                                               Subhrata Dalai and another            .... Opp. Parties
                                                                        Mr. Durga Prasad Dhal, Advocate

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                        Order No.                                  04.07.2023
                              5.          1.      This matter is taken up through hybrid mode.

2. Judgment dated 17th April, 2018 (Annexure-1) passed by learned Judge, Family Court, Berhampur, Ganjam in Criminal Proceeding No.25 of 2015 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.7,000/- per month to Opposite Party No.1 and Rs.2,000/- per month to Opposite Party No.2 from the date of the application, i.e., from 24th February, 2015.

3. Mr. Samantaray, learned counsel for the Petitioner submits that the relationship between the parties is not disputed. However, the Opposite Party No.1 without any justifiable reason left the matrimonial home along with their minor son. Opposite Party No.1-Wife had filed an application in Civil Proceeding No.55 of 2015 under Section 10 of the Hindu Marriage Act, 1955 (for short 'the Act') for judicial separation. In the said proceeding, the Petitioner had filed counter claim under Section 9 of the Act for restitution of conjugal right. While dismissing the petition for judicial separation, the counter claim for

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jul-2023 10:12:12

restitution of conjugal right was allowed vide judgment dated 16th January, 2018 (Annexure-2). In spite of the same, Opposite Party No.1 did not join the matrimonial life. The Petitioner does not have any sufficient means to pay the maintenance as directed. As such, he prays for setting aside the impugned order under Annexure-1.

4. Mr. Dhal, learned counsel for the Opposite Parties submits that the Petitioner had not whispered a single word either in his objection or in his examination that the Opposite Party No.1 had left the matrimonial home voluntarily. It has been so observed by learned Judge, Family Court at Paragrapg-9 of the impugned order. It is his submission that while directing restitution of conjugal right, learned Judge, Family Court had directed that Opposite Party No.1 is entitled to maintenance of Rs.7,000/- per month and Rs.5,000/- towards litigation expenses. The Petitioner has not challenged the said judgment. Hence, direction to pay maintenance of Rs.7,000/- to Opposite Party No.1 may not possibly be challenged by the Petitioner in this RPFAM. Direction to pay maintenance of Rs.2,000/- per month to the minor son is also not excessive, as the Petitioner was working as a Supervisor in a poultry firm at Sambalpur and his salary as well as income from the agriculture was sufficient to pay the maintenance.

5. Considering the rival contentions of the parties, this Court finds that while disposing of the petition under Section 10 of the Act along with counter claim under Section 9 of the Act in C.P. No.55 of 2015, learned Judge, Family Court, Berhampur, Ganjam vide its judgment dated 16th January, 2018 directed

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jul-2023 10:12:12

restitution of conjugal right along with maintenance of Rs.7,000/- per month to Opposite Party No.1. The said judgment was never challenged by the Petitioner. As such, the direction to pay maintenance of Rs.7,000/- per month which has been reiterated in the proceeding under Section 125 Cr.P.C. cannot be challenged by the Petitioner. There is no material on record with regard to the income of the Petitioner. It appears from the impugned judgment that the Petitioner has not adduced any evidence with regard to his income, which is in his special knowledge. Thus, learned Judge, Family Court taking into consideration the status of the parties and that the Petitioner at different times had deposited substantial amount of money in the name of Opposite Party No.1, came to hold that he is a man of means and directed to pay maintenance, as above. The maintenance as directed does not appears to be unreasonable.

6. As such, I find no infirmity in the impugned judgment under Annexure-1.

7. Accordingly, the RPFAM being devoid of any merit stands dismissed.

8. Interim order dated 28th July, 2018 passed in I.A. No.217 of 2018 stands vacated.

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

(K.R. Mohapatra) Judge ms