Orissa High Court
Japi Padhan vs Gopal Krushna Padhan on 13 July, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Jul-2023 10:16:11
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 14 OF 2018
Japi Padhan .... Petitioner
Mr. Himanshu Bhusan Dash, Advocate
-versus-
Gopal Krushna Padhan .... Opp. Party
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 13.07.2023
5. 1. This matter is taken up through hybrid mode.
2. Perused the explanations at Flag-A,B,C and D offered by
the staff of concerned Sections and also enquiry report submitted
by the Deputy Registrar (Judicial) at Flag-E.
3. Although explanations of the concerned staff at Flag-
A,B,C and D are not satisfactory, but taking into consideration
that they have regretted for their mistake and beg unconditional
apology, the matter is closed. It is, however, suggested that the
staff of concerned Sections should be careful in carrying out the
order of the Bench.
4. Judgment dated 27th November, 2017 (Annexure-3)
passed by learned Judge, Family Court, Bargarh in Criminal
Misc. Case No.46-857 of 2014-16 is under challenge in this
RPFAM, whereby allowing an application filed by the Petitioner
under Section 127 Cr.P.C., the Opposite Party has been directed
to pay maintenance at the enhanced rate of Rs.4,000/- per month
to the Petitioner from the date of the order along with a sum of
Rs.10,000/- towards litigation costs.
// 2 //
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Jul-2023 10:16:11
5. Mr. Dash, learned counsel for the Petitioner submits that
the Opposite Party was working as a Gang man in East-Coast
Railway and his gross salary was more than Rs.60,000/-.
Marriage between the Petitioner and Opposite Party has already
been dissolved by a decree of divorce in the year, 2004. The
Opposite Party has also married for the second time and he has
three children out of the said marriage. The Petitioner being the
divorced wife is also entitled to maintenance.
6. Mr. Dash, learned counsel for the Petitioner assails the
impugned order under Annexure-3 on the ground that the
maintenance at the enhanced rate should have been directed to
be paid from the date of application, i.e., from 18th March, 2014.
But, it has been directed to be paid from the date of the
impugned order. Further taking into consideration the salary of
the Opposite Party, the Petitioner is entitled to at least Rs.7,000/-
per month as maintenance. He, therefore, prays for modification
of the order to the aforesaid extent.
7. Although, the Opposite Party is represented through
learned counsel, but none appears on his behalf at the time of
call.
8. On perusal of the impugned order under Annexure-3, it
appears that learned Judge, Family Court has arrived at a
conclusion that the net salary of the Opposite Party must be
Rs.48,000/- to Rs.50,000/- per month. The Opposite Party has
also landed properties, as would be apparent from Exts.3 and 4.
Of course, the Opposite Party had widowed mother, wife and
children to be maintained by him, but the same does not affect
// 3 //
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Jul-2023 10:16:11
the right of the divorced wife, namely, the Petitioner to claim
maintenance at an enhanced rate.
9. In view of the ratio decided in the case of Rajnesh -v-
Neha and another, reported in (2021) 2 SCC 324, it has been
categorically settled that the wife is entitled to maintenance from
the date of the application. The said ratio is also applicable to a
petition under Section 127 Cr.P.C. Grant of maintenance from
the date of the order is an exception. The Court granting
maintenance from the date of the order should assign cogent
reason thereto. In the instant case, no reason has been assigned
by learned Judge, Family Court to grant the maintenance at the
enhanced rate from the date of the order. Thus, the Petitioner is
entitled to maintenance at the enhanced rate from the date of the
application, i.e., from 18th March, 2014.
10. It further appears that the maintenance awarded at the
enhanced rate is not inconsonance with the hike in the income of
the Opposite Party and the requirement of the Petitioner.
Admittedly, the net salary of the Opposite Party was Rs.48,000/-
to Rs.50,000/- per month during the relevant period. Thus,
taking into consideration the facts and circumstances of the case,
the Petitioner is entitled to maintenance higher than that granted
by learned Judge, Family Court, Bargarh.
11. Considering the dependency of the Opposite Party and
paying capacity as well as requirement of the Petitioner, this
Court feels that the Petitioner is entitled to maintenance at the
enhanced rate of Rs.5,500/- per month from the date of filing of
the application under Section 127 Cr.P.C.
// 4 //
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Jul-2023 10:16:11
12. Accordingly, the impugned order under Annexure-3 is
modified to the extent that the Petitioner shall be entitled to
maintenance at the enhanced rate of Rs.5,500/- (Rupees five
thousand five hundred only) per month from the date of filing of
the application under Section 127 Cr.P.C.,i.e., from 18th March,
2014.
13. With the aforesaid observation and direction, this
RPFAM stands disposed of.
14. It is made clear that this Court does not interfere with the
quantum of litigation cost, directed to be paid by the Opposite
Party to the Petitioner.
15. Connected case record shall be returned to the concerned
Section forthwith.
Urgent certified copy of this order be granted on propr
application.
(K.R. Mohapatra)
ms Judge
