Orissa High Court
Govinda Barik @ Gobinda Prasad vs Sabita Barik And Another on 1 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.144 of 2016
Govinda Barik @ Gobinda Prasad .... Petitioner
Barik
Mr. D.N.Pattnaik-2, Advocate
-versus-
Sabita Barik and another .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.03.2023
6. 1. This matter is taken up through Hybrid mode.
2. Judgment dated 23rd day of April, 2016 (Annexure-1)
passed by learned Judge, Family Court, Baleswar in Cr.P. No.19
of 2013 is under challenge in this RPFAM, whereby the
Petitioner has been directed to pay maintenance of Rs.3,500/-
per month to the Opposite Party No.1 and Rs.2,000/- per month
to the Opposite Party No.2 from the date of application.
3. Learned counsel for the Petitioner submits that
relationship between the parties is not in dispute. However,
there was a compromise between the parties before the village
gentries for mutual divorce and pursuant to such compromise
Opposite Party No.1 had received Rs.50,000/- from the
Petitioner towards permanent alimony. The Opposite Party No.1
is also receiving Rs.3,000/- per month in a proceeding under the
Protection of Women from Domestic Violence Act, 2005 (for
short, 'the DV Act'). Petitioner is working as a daily-wage
earner and is earning Rs.3,000/- per month. Although the
Opposite Party No.1 has alleged that the Petitioner is earning
Rs.30,000/- per month, but there is no material in support of the
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same. No evidence has been adduced by the Opposite Party
No.1 to show that she has not received the sum of Rs.50,000/- in
terms of the compromise. However, no mutual divorce could
take place as the Opposite Party No.1 did not come to the Court.
Conduct of Opposite Party No.1 shows that she is not willing to
stay with the Petitioner but wants to extract money from him.
This material aspect has lost sight of the learned Judge, Family
Court while adjudicating the matter. Moreover, maintenance
awarded is excessive and unreasonable. He, therefore, prays for
setting aside the impugned order.
4. Although the RPFAM was filed on 5th July, 2016, but
notice on admission to the Opposite Parties has not yet been
issued.
5. Considering the submission made by learned counsel for
the Petitioner, this Court finds that no material has been placed
before learned Judge, Family Court with regard to income of the
Petitioner. In view of Section 114 (g) of the Evidence Act,
income of the Petitioner being in his special knowledge, burden
is on him to prove the same. On perusal of record, it appears
that although the Petitioner alleges that he has paid Rs.50,000/-
to Opposite Party No.1 towards permanent alimony for mutual
divorce, but no material to that effect has been filed. No money
receipt has been filed by the Petitioner in token of such
payment. It is, however, submitted by learned counsel for the
Petitioner that since the money was paid in presence of village
gentries no money receipt was executed. No villager (witness)
has been examined to support the stand of the Petitioner with
regard to payment of money. It further appears from record that
although the Petitioner was directed to pay Rs.3,000/- per month
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to the Opposite Party No.1 in a proceeding under the DV Act,
the same was not paid. Admittedly, the Opposite Party No.1 has
no independent source of income. Thus, the Petitioner is under
legal obligation to maintain her and the child, as well.
6. On consideration of materials on record, learned Judge,
Family Court found that the Petitioner is capable of earning
Rs.20,000/- per month and Rs.30,000/-from cultivation. Since
no material to the contrary is available on record, I am of the
considered view that direction to pay maintenance of Rs.3,500/-
per month to Opposite Party No.1 and Rs.2,000/- per month to
Opposite Party No.2 is neither unreasonable nor excessive.
7. Accordingly, I find no infirmity in the impugned order.
Hence, the RPFAM is dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
