Prabhati Sahu And Another vs Anup Kumar Sahu
2023 Latest Caselaw 8065 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack          IN THE HIGH COURT OF ORISSA AT CUTTACK
Date: 25-Jul-2023 17:52:33
                                                               RPFAM No. 277 OF 2017
                                               Prabhati Sahu and another              ....     Petitioners
                                                                               Ms. Soumi Dash, Advocate
                                                         on behalf of Mr. Santosh Kumar Nanda, Advocate
                                                                        -versus-
                                               Anup Kumar Sahu                       .... Opp. Party
                                                                     Mr. Arjuna Charan Behera, Advocate

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                     Order No.                                     24.07.2023
                           6.             1.      This matter is taken up through hybrid mode.

2. Judgment dated 25th September, 2017 (Annexure-1) passed by learned Judge, Family Court, Bargarh in Criminal Misc. Case No.222-894 of 2015-16 is under challenge in this RPFAM, whereby an application filed by the Petitioner under Section 125 Cr.P.C., has been rejected.

3. Ms. Dash, learned counsel being authorized by Mr. Nanda, learned counsel for the Petitioners submits that the marital relationship between Petitioner No.1 and the Opposite Party is not disputed. The Opposite Party is a Schizophrenic patient. Hence, she was constrained to leave the matrimonial home and live with her parents along with her minor child. The Petitioner No.1 does not have any independent source of income. Hence, she is entitled to maintenance under Section 125 Cr.P.C.. Leaned Judge, Family Court while adjudicating the matter has categorically held that since the Opposite Party is of unsound mind, the Petitioner No.1 has valid ground to leave the company of her husband and stay separately. It has also been held that

// 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack whatever may be the internal reason relating to domestic affair, Date: 25-Jul-2023 17:52:33 but the mental illness of the husband can be treated as sufficient cause for any wife to demand a separate residence and stay. In spite of the aforesaid categorical finding, learned Judge, Family holding that since the Opposite Party is of unsound mind, he should not be burdened with the direction to pay the maintenance to the Petitioners. Hence, this RPFAM has been filed.

4. Mr. Behera, learned counsel for the Opposite Party vehemently objects to the same. It is his submission that in spite of best efforts of the Opposite Party and his family members, the Petitioner No.1 neither cooperated for conciliation nor joined the Opposite Party in the matrimonial home. Thus, she is not entitled to maintenance in view of Section 125 (4) Cr.P.C..

5. Mr. Behera, learned counsel for the Opposite Party also relies upon the decision in the case of Raghbir Singh -v- Krishna, reported in 1982 SCC OnLine P & H 166, wherein it is held that if the wife failed to show sufficient grounds for living separately, she is not entitled to maintenance. He also relied upon the case of Sangita Arun Mhasvade -v- Arun Aba Mhasvade and another, reported in 1984 CRI.L.J.1524, wherein the same view has been reiterated. Since all attempts of the Opposite Party had gone in vein in convincing the Petitioner No.1 to join the matrimonial life, she is not entitled to any maintenance. He, therefore, submits that learned Judge, Family Court has committed no error in dismissing the petition under Section 125 Cr.P.C.

6. Considering the rival contentions of the parties and on perusal of the impugned order under Annexure-1, it is apparent

// 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack that learned Judge, Family Court upon consideration of materials Date: 25-Jul-2023 17:52:33 on record held that the Petitioner No.1 has sufficient reasons to stay separately. Thus, the ground raised by Mr. Behera, learned counsel for the Opposite Party is not sustainable.

7. However, learned Judge, Family Court held that since the Opposite Party is of unsound mind, he should not be burdened with maintaining his wife and child. On perusal of the impugned order, it appears that learned Judge, Family Court has not taken into consideration that the Opposite Party himself adduced evidence in the matter. He has also examined two other witnesses in support of his case. The Opposite Party might have Schizophrenia attach intermittently, but that cannot be a ground to deny maintenance to the Opposite Party. There is no material on record to show that the Opposite Party is not in a position to earn his livelihood.

8. In that view of the matter, the impugned order under Annexure-1 is not sustainable and is set aside. The matter is remitted back to learned Judge, Family Court, Bargarh for fresh adjudication of the petition under Section 125 Cr.P.C. giving opportunity of hearing to the parties concerned.

9. To avoid further delay in the matter, the parties are directed to appear before learned Judge, Family Court, Bargarh on 14th August, 2023 along with certified copy of this order to receive further instruction in the matter.

10. The RPFAM is allowed to the aforesaid extent.

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

                                                                              (K.R. Mohapatra)
             ms                                                                     Judge