Krushna Chandra Siala vs Nirupama Jena And Another
2023 Latest Caselaw 7348 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                               RPFAM NO.171 OF 2018
                 Krushna Chandra Siala            ....                 Petitioner
                                                 Mr. S.S. Mohapatra, Advocate
                                        -versus-
                 Nirupama Jena and another                 ....    Opp. Parties
                                                                    None


                      CORAM:
                      JUSTICE K.R. MOHAPATRA

                                       ORDER

Order No.                             05.07.2023

  7.        1.      This matter is taken up through hybrid mode.

2. Judgment dated 13th January, 2017 passed by learned Judge, Family Court, Jajpur in Criminal Proceeding No.117 of 2015 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.3,000/- per month to the Opposite Party No.1 and Rs.1,000/- per month to the Opposite Party No.2 from the date of application, i.e., from 20 th May, 2015.

3. Mr. Mohapatra, Learned counsel for the Petitioner submits that the Opposite Party No.1 is not entitled to maintenance as she was living with adultery. Admittedly, the Opposite Party No.2 was born much after the Opposite Party No.1-Wife left the matrimonial home. It is further submitted that the Petitioner is a daily wage earner and has no sufficient means to pay the maintenance as directed. Hence, he prays for setting aside the impugned order.

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4. Although office note discloses that receipt showing payment of cost of Rs.700/- has not been paid to learned counsel for the Opposite parties for condonation of delay, but learned counsel for the Petitioner submitted that the same has already been paid on 11th April, 2019.

4. None appears for the Opposite Parties although they are represented by learned counsel.

6. Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned order, it appears that although a plea was taken by the Petitioner to the effect that the Opposite Party No.1 was living in adultery, but no material to that effect could not produced by the Petitioner. The Petitioner failed to prove that the child (Opp. Party No.2) was born due to the adulterous life of the Opposite Party No.1. Had it been so, the Opposite Party No.1 would not have been entitled to maintenance under Section 125 Cr.P.C., in view of the provision under Section 125(4) Cr.P.C. There is no material on record to show as to when the Opposite Party No.2 was born. On the other hand, from the impugned order it appears that the Opposite Party No.1 had taken a specific plea in her petition under Section 125 Cr.P.C. to the effect that she was pregnant when she left the matrimonial home.

7. Income of a person is in his special knowledge. There is no material on record to show the exact income of the Petitioner. In absence of any material, learned Judge, Family Court, Jajpur had to make guesswork with regard to the income of the Petitioner.

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8. Taking into consideration the need of the Opposite Parties and their status, the maintenance as above has been directed to be paid to them.

9. In view of the above, I find no infirmity in the impugned order.

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

11. Interim order dated 12th July, 2018 passed in Misc. Case No.230 of 2018 stands vacated.

(K.R. Mohapatra) Rojalin Judge

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Jul-2023 14:18:45