Niraja Nalini Mohanty vs Gauraba Das
2023 Latest Caselaw 8135 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 RPFAM NO. 335 OF 2017
                  Niraja Nalini Mohanty             ....                Petitioner
                                                      Mr. Balaram Nayak, Advocate

                                           -versus-
                  Gauraba Das                                ....    Opp. Party
                                                         Mr. A. Mohanty, Advocate

                       CORAM:
                       JUSTICE K.R. MOHAPATRA
                                    ORDER

Order No. 25.07.2023 RPFAM NO. 335 OF 2017 & RPFAM NO.33 OF 2018

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

2. Both the RPFAMs have been filed assailing the judgment dated 25th October, 2017 (Annexure-3) passed by learned Judge, Family Court, Khurda in Criminal Petition No.25 of 2016.

3. For the sake of convenience, parties are described as per their status before learned Judge, Family Court, Khurda. 3.1 Petitioner filed an application under Section 125 Cr.P.C. in Criminal Petition No.25 of 2016 before learned Judge, Family Court, Khurda, claiming maintenance of Rs.1,00,000/- per month from the Opposite Party-Husband. Learned trial Court directed the Opposite Party to pay maintenance of Rs.7,000/- per month to the Petitioner from the date of filing of the application, i.e., from 22nd January, 2016.

4. In RPFAM No.335 of 2017, the Petitioner has prayed for enhancement of the quantum of maintenance. In RPFAM No.33 of 2018, the Opposite Party assails the quantum of maintenance directed to be paid.

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5. Upon hearing, learned counsel for the parties, it appears that there is no dispute with regard to marital status of the parties. The only issue is with regard to the quantum of maintenance.

6. Mr. Nayak, learned counsel for the Petitioner submits that the Petitioner is earning more than Rs.20,000,00/- per month from his profession and business. Hence, he is liable to pay maintenance as claimed under Section 125 Cr.P.C.

7. Mr. Mohanty, learned counsel for the Opposite party submits that the Petitioner was working as a Service Engineer in Autonix Works Garage at Cuttack and getting a monthly salary of Rs.10,000/-.

8. No document, whatsoever has been filed by either of the parties with regard to the income of the Opposite party. Admittedly, the Petitioner has no independent source of income. Thus, learned trial Court, making a guesswork held that since the Petitioner is a qualified engineer and working in a private company, his salary must not be less than Rs.20,000/- per month. Learned counsel for the Opposite Party submits that Opposite Party is regularly paying the maintenance as directed by learned Judge, Family Court, Khurda.

9. Since, no material is available with regard to the income of the Opposite Party, the claim of the Petitioner to the effect that she is entitled to maintenance of Rs.1,00,000/- per month is not sustainable and is rejected. The income of a person is in his special knowledge and the burden is on him to prove the same. Since the Opposite Party did not produce any material with regard to his income, learned Judge, Family Court, making a

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guesswork held that the income of the Opposite Party must not be less than Rs.20,000/- per month and directed the Opposite Party to pay the aforesaid amount as maintenance to the Petitioner.

10. In that view of the matter, both the RPFAMs are devoid of any merit and stand dismissed.

(K.R. Mohapatra) Judge Rojalin

Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 19:09:59