Vivek Kumar Vaishnava vs Puspalata Das
2023 Latest Caselaw 7033 Ori

Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: SECRETARY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 22-Jun-2023 20:18:45



                                        IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                      RPFAM NO. 178 of 2023
                                     Vivek Kumar Vaishnava              ....  Petitioner
                                                                                Mr. S.K.Parida, Advocate
                                                                  -versus-
                                     Puspalata Das                                  ....      Opp. Party

                                                        CORAM:
                                                       JUSTICE K.R. MOHAPATRA
                                                             ORDER

                Order No.                                   21.06.2023
                   1.           1.       This matter is taken up through hybrid mode.

2. Judgment dated 27th April, 2023 (Annexure-3) passed by learned Judge, Family Court, Nabarangpur in Cr.P. No.65 of 2022 is under challenge in this RPFAM whereby the Petitioner has been directed to pay Rs.4,000/- per month to the Opposite Party-Wife from the date of application, i.e., 20th August, 2022.

3. Mr. Parida, learned counsel submits that relationship between the parties is not disputed. The Petitioner is working in a motor garage and has dependants, such as parents, two sisters and a brother. Thus, he does not have any sufficient means to provide maintenance to the Opposite Party-wife as directed. It is further submitted that in view of the ratio in the case of Rajnesh Vs. Neha and another, reported in (2021) 2 SCC 324, the Opposite Party should have filed affidavit of assets and liabilities along with the petition under Section 125 Cr.P.C. Although it is admitted that the Petitioner had also not filed such affidavit of assets and liabilities, but learned Judge, Family Court before adjudicating the matter should have directed the parties to file affidavits in terms of the guidelines in Rajnesh

// 2 // Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Jun-2023 20:18:45

(supra). It is his submission that no material has been filed by the Opposite Party-Wife in respect of income and landed property of the Petitioner. While adjudicating the matter, learned Judge, Family Court has lost sight of the aforesaid aspects and passed the impugned judgment. As such, the impugned judgment is not sustainable and the same is liable to be set aside.

4. Upon hearing Mr. Parida, learned counsel for the Petitioner and on perusal of record, it appears that no evidence has been adduced by the Petitioner with regard to his income. Income of a person is in his special knowledge and the onus is on him to prove the same. It further appears that during cross-examination, the Opposite Party-wife, who was examined as PW-1, categorically stated that the Petitioner was driving Police vehicle and his family has nine acres of landed property. No material to the contrary appears to have been filed by the Petitioner before learned Judge, Family Court. In absence of any material in support of the case of the Petitioner, learned Judge, Family Court had to make a guess work and assess the income of the Petitioner. Taking into consideration the materials available on record, learned Judge, Family Court came to a categorical finding that the Petitioner is earning Rs.15,000/- per month as a driver and has landed properties in the name of his family members. Since the finding recorded by learned Judge, Family Court is based on materials on record, this Court should not substitute the same by sitting over it as an appellate authority, more particularly in absence of any material to the contrary.

// 3 // Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 22-Jun-2023 20:18:45

5. Taking into consideration the facts and circumstances and materials available on record, learned Judge, Family Court directed the Petitioner to pay maintenance at the rate of Rs.4,000/- per month, which does not appear to be unreasonable. In that view of the matter, this Court is not inclined to interfere in the impugned judgment and order.

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

(K.R. Mohapatra) Judge

s.s.satapathy