Dandapani Pradhan vs Lipsa Kumari Pradhan And Another
2023 Latest Caselaw 8136 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Jul-2023 19:10:14
                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               RPFAM No. 159 OF 2017
                                               Dandapani Pradhan                      ....       Petitioner
                                                                        Miss Deepali Mohapatra, Advocate
                                                                      -versus-
                                               Lipsa Kumari Pradhan and another        ....    Opp. Parties


                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                     Order No.                                     25.07.2023
                           3.             1.      This matter is taken up through hybrid mode.

2. Judgment dated 19th April, 2017 (Annexure-4) passed by learned Judge, Family Court, Berhampur, Ganjam in Criminal Proceeding No.172 of 2014 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.4,000/- per month to Opposite Party No.1 and Rs.1,500/- per month to Opposite Party No.2 from the date of filing of the application, i.e., from 13th August, 2014.

3. Miss Mohapatra, learned counsel for the Petitioner submits that the Opposite Party No.1-wife was leading an adulterous life and paternity of Opposite Party No.2 is also in question. It is further submitted that there is a decree of restitution of conjugal right passed against Opposite Party No.1, which she did not respect. Thus, the case is squarely covered under Section 125(4) Cr.P.C. as the Opposite Party No.1 has left the matrimonial home without any reasonable cause and she was in adultery. Learned Judge, Family Court although accepted the plea of the Petitioner to the effect that Opposite Party No.1 had

// 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 19:10:14 relationship with another person, but held that the stray instances of relationship with a person other than the husband will not amount to adultery as contained under Section 125(4) Cr.P.C. Learned Judge, Family Court also disbelieved the plea of the Petitioner with regard to paternity of Opposite Party No.2 as no evidence to that effect was led.

4. It is her submission that there are evidence on record to show that prior to marriage with the Petitioner, Opposite Party No.1 had intimacy with another person. These material aspects were not properly appreciated by learned Judge, Family Court. Hence, she prays for setting aside the impugned judgment under Annexure-4.

5. Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned judgment under Annexure-4, it appears that learned Judge, Family Court has discussed the objection raised by the Petitioner in his written statement. There are materials on record to show that the Opposite Party No.1 was driven out from the matrimonial home on demand of dowry. Discussing the materials on record, learned Judge, Family Court came to a conclusion that since there is no allegation of continuity of living in adultery by the Opposite Party No.1, the same will not come under the description of "living in adultery" under Section 125(4) Cr.P.C. Law is well settled that decree under Section 9 of the Hindu Marriage Act, 1955 cannot be a ground to justify that the wife was living separately without any reasonable cause.

// 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Jul-2023 19:10:14

6. In view of the discussion made above, I am not inclined to interfere with the impugned judgment, which is based on assessment of oral evidence of the parties.

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

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

                                                                             (K.R. Mohapatra)
              ms                                                                   Judge