Orissa High Court
Bipin Bihari Dora vs L. Latamani And Another on 2 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 105 OF 2013
Bipin Bihari Dora .... Petitioner
Mr. Bijoy Das Mohapatra, Advocate
-versus-
L. Latamani and another .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 02.03.2023
2. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this RPFAM seeks to assail the judgment
dated 22nd March, 2013 (Annexure-3) passed by learned Judge,
Family Court, Berhampur in Cr.P. No.659 of 2010, whereby the
Petitioner has been directed to pay maintenance of Rs.4,000/- per
month to Opposite Party No.1 and Rs.2,000/- per month to
Opposite Party No.2 from the date of the order.
3. Mr. Das Mohapatra, learned counsel for the Petitioner
submits that relationship between the parties is not in dispute.
However, the Opposite Party No.1 is having sufficient means to
maintain herself along with child, as she is serving as a teacher in
Kendriya Vidyalaya. Gross salary of the Petitioner is only
Rs.32,480/-. No evidence has been adduced by the Opposite
Party No.1 with regard to her income. No opportunity of hearing
was afforded to the Petitioner to bring on record the income of the
Opposite Party No.1. Although the responsibility of maintaining
the children is on both the parents, but the entire burden has been
saddled on the Petitioner by learned Judge, Family Court. These
material aspects were lost sight of by learned Judge, Family Court
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while adjudicating the proceeding under Section 125 Cr.P.C. He
further submits that earlier the criminal proceeding was disposed
of vide judgment dated 24th November, 2011 under Annexure-1
directing the Petitioner to pay maintenance of Rs.3,000/- per
month to the Opposite Party No.1 and Rs.2,000/- per month to
Opposite Party No.2 from the date of the application. However,
the Petitioner moved this Court in RPFAM No.52 of 2012
assailing the said order, which was disposed of vide order dated
4th January, 2013 with the following direction:
"Considering the submissions made, I set
aside the impugned judgment subject to the condition
that the petitioner shall pay a cost of Rs.3000/-
(rupees three thousand) to the opposite parties within
three weeks from today and also within the same
period pay the maintenance amount at the rate of
Rs.5000/- (rupees five thousand) per month from
September, 2012 till date, if the same has not been
paid by him to the opposite parties. On payment as
aforesaid being made, learned Judge, Family Court,
Berhampur shall fix a date for evidence from the side
of the present petitioner, (opposite party in the court
below) and dispose of the proceeding within one
month thereafter.
RPFAM is accordingly disposed of."
But, instead of reducing the maintenance, learned Judge, Family
Court has enhanced the same. As such, the impugned judgment
under Annexure-3 is not sustainable and is liable to be set aside.
4. Considering the submission made by learned counsel for
the Petitioner, it appears that no evidence has been adduced by the
Opposite Party No.1 with regard to her income. However,
Opposite Party No.1 has taken a plea that she has no sufficient
means to maintain herself and her child. When the Petitioner has
taken a plea that the Opposite Party No.1 is employed in Kendriya
Vidyalaya, the onus is on him to prove the same. On the other
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hand, Ext.A, the salary certificate of the Petitioner of August,
2011, clearly discloses the gross salary of the Petitioner was
Rs.32,480/- per month. Considering the same, learned Judge,
Family Court has directed to pay the aforesaid amount as
maintenance to the Opposite Parties.
5. Since there is no contrary material available on record to
take a different view, I am not inclined to interfere with the same
as the quantum of maintenance appears to be just and reasonable.
6. Accordingly, the RPFAM being devoid of any merits
stands dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
