Orissa High Court
Laba Sahu vs Gita Sahu And Another on 22 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 188 OF 2014
Laba Sahu .... Petitioner
Mr. Akansh Acharya, Advocate
on behalf of Mr. Dhananjaya Mund, Advocate
-versus-
Gita Sahu and another .... Opp. Parties
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.03.2023
5. 1. This matter is taken up through hybrid mode.
2. Judgment dated 29th November, 2014 passed by learned
Judge, Family Court, Bhawanipatna in Criminal Proceeding
No.19 of 2014 is under challenge in this RPFAM, whereby the
Petitioner has been directed to pay maintenance of Rs.1,500/-
per month to each of the Opposite Parties from the date of the
filing of the petition, i.e., from 30th April, 2014 along with
litigation cost of Rs.2,000/-.
3. Mr. Acharya, learned counsel being authorized by Mr.
Mund, learned counsel for the Petitioner submits that
relationship between the parties is not disputed. However, the
Petitioner in this revision assails the quantum of maintenance
directed to be paid by him to the Opposite Parties. It is his
submission that he is a daily wage earner and has no sufficient
means to pay the maintenance to the Opposite Parties. He
further submits that although Opposite Party No.1 alleged that
the Petitioner was working as a driver under Surendra Mishra of
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the said village, but Surendra Mishra, who was examined as
O.P.W.2 denied the statement made by Opposite Party No.1.
Learned Judge, Family Court making a guess work that the
Petitioner is working either as a driver or as agricultural labour
under Surendra Mishra, directed to pay the maintenance as
aforesaid.
4. It is his submission that the Opposite Party No.1 has
lodged F.I.R. against the Petitioner under Sections 294,494,498-
A,506 and 34 IPC, which was pending at the time of disposal of
the petition under Section 125 Cr.P.C.. He, therefore, prays for
an adjournment to take instruction with regard to the status of
the said criminal proceeding and as to whether the parties are
reconciled their dispute in the meantime. He, however, submits
that the impugned order is not sustainable in view of the
contention raised and also prays for setting aside the impugned
order.
5. Although the Opposite Parties are represented through
learned counsel, but none appears on their behalf at the time of
call.
6. Upon hearing learned counsel for the Petitioner and on
perusal of the record, it appears that the Petitioner has not
adduced any evidence with regard to his income. Section 106 of
the Evidence Act, 1872 provides that the income being in the
special knowledge of the Petitioner, he should have come up
with clear and cogent evidence with regard to his income. No
evidence being led by the Petitioner with regard to his income,
learned Judge, Family Court had to make a guess work. It is
held that the Petitioner has some landed properties and is also a
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tractor driver by profession. Thus, holding that the Petitioner is
an able-bodied young man and has income by working under
said Surendra Mishra, learned Family Court opined that the
Petitioner is liable to pay the maintenance. Taking into
consideration the income of the Petitioner, need of both the
parties and their social status, learned Judge, Family Court has
directed to pay the aforesaid maintenance.
7. Since the impugned order is based on materials on
record, I am not inclined to interfere with the same in exercise of
power under Section 19(4) of the Family Courts Act, 1984 to
substitute any finding on re-appreciation of evidence.
8. Accordingly, the RPFAM being devoid of any merit
stands dismissed.
9. Interim order dated 24th December, 2014 passed in Misc.
Case No.312 of 2014 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
