Kalpana Das vs Nalini Kumar Das
2023 Latest Caselaw 2179 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  RPFAM No. 70 OF 2015
                 Kalpana Das                               ....      Petitioner
                                                   Mr. S.A. Nayeem, Advocate

                                           -versus-
                 Nalini Kumar Das                          ....   Opp. Party


                       CORAM:
                       JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             16.03.2023
   4.       1.       This matter is taken up through hybrid mode.

2. Judgment dated 18th April, 2015 passed by learned Judge, Family Court, Cuttack in Criminal Proceeding No.673 of 2010 is under challenge in this RPFAM, whereby an application filed by the Petitioner under Section 127 Cr.P.C., has been rejected.

3. It is contended by Mr. Nayeem, learned counsel that the Petitioner had filed a series of R.O.R. before learned Judge, Family Court to show that the land belongs to the Opposite Party. It is his submission that although the R.O.R. stood recorded in the name of the father of the Opposite Party, but by the time the petition under Section 127 Cr.P.C. was filed, both the parents of the Opposite Party had died. Thus, it is none other than the Petitioner, who succeeded to the property of his father. This aspect was not taken into consideration by learned Judge, Family Court while adjudicating the matter. The petition under Section 125 Cr.P.C. was disposed of with a direction to the Opposite Party to pay a meager amount of maintenance of Rs.250/- per month vide order dated 21st August, 1999 in Cr.P.

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No.138 of 1998. Thus, the quantum of maintenance warrants enhancement. He, therefore, prays for setting aside the impugned order and to remit the matter back to learned Judge, Family Court, Cuttack for fresh adjudication of the petition under Section 127 Cr.P.C.

4. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that the Petitioner had filed a series of R.O.R. to show that the Opposite Party had sufficient means to pay maintenance at a higher rate. Section 127(1) Cr.P.C. clearly stipulates that on proof of a change in the circumstances after passing of an order under section 125 Cr.P.C., an application under that provision can be entertained for variation of the order of maintenance. There is no material on record that after disposal of petition under Section 125 Cr.P.C., the Opposite Party acquired those properties. On perusal of the petition under Section 127 Cr.P.C., it appears that the application was filed on the ground that due to increase in cost of living, maintenance awarded in her favour should be enhanced. The impugned order was passed on 18th April, 2015 and in the meantime, more than seven and half years have already elapsed. Thus, no fruitful purpose will be served in entertaining the prayer of the Petitioner to remit the matter to learned Judge, Family Court, Cuttack for fresh disposal of the petition under Section 127 Cr.P.C., more particularly, when notice on Opposite Party has not yet been made sufficient in this RPFAM.

5. In view of the above, this Court without interfering with the impugned order, disposes of the RPFAM with an observation

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that in the event, the Petitioner files a fresh application under Section 127(1) Cr.P.C. detailing the change in circumstances for enhancement of maintenance, the same may be considered in accordance with law giving opportunity of hearing to the parties concerned.

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

                                       (K.R. Mohapatra)
ms                                           Judge