Orissa High Court
Jitendra Jena vs Sailabala Jena on 1 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 22 OF 2010
Jitendra Jena .... Petitioner
Ms. N. Pattnaik, Advocate
-versus-
Sailabala Jena .... Opp. Party
None
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 01.05.2023
13. 1. This matter is taken up through hybrid mode.
2. Judgment dated 19th March, 2009 passed by learned
Judge, Family Court, Cuttack in Criminal Proceeding No.468 of
2002 is under challenge in this RPFAM, whereby the Petitioner
has been directed to pay maintenance of Rs.1,000/- per month to
the Opposite Party from the date of filing of the application, i.e.,
from 8th July, 2002.
3. The main contention of Ms. Pattnaik, learned counsel for
the Petitioner is that the Opposite Party-Wife left the matrimonial
home voluntarily without any reasonable cause. The Petitioner is
deaf and dumb, for which the Opposite Party did not want to lead
marital life with him. The Petitioner is a daily wage earner and
has no sufficient income to pay the amount of maintenance as
directed. It is submitted that the plea of voluntarily desertion of
the Opposite Party, though raised, was not taken into
consideration by learned Judge, Family Court, Cuttack while
adjudicating the petition under Section 125 Cr.P.C.. No
interpreter was appointed by learned Judge, Family Court when
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the Petitioner has admittedly deaf and dumb. In view of the
above, the entire proceeding including the judgment passed
therein are vitiated and the same are liable to be set aside.
4. None appears for the Opposite Party although she is
represented through her learned counsel.
5. Considering the submission made by learned counsel for
the Petitioner and on perusal of the record, it appears that marital
relationship between the parties is not disputed. It further appears
that the Petitioner was not examined as a witness in the
proceeding under Section 125 Cr.P.C. There is also no material
on record to show that the Petitioner wanted to examine himself
in the proceeding. Thus, the contention of learned counsel for the
Petitioner that no interpreter was appointed by learned Judge,
Family Court has no relevance for just adjudication of this case.
It appears that the Petitioner has examined his father, namely,
Bansidhar Jena on his behalf, who has led evidence in the matter.
6. On perusal of the impugned judgment, it appears that the
Opposite Party has categorically stated in her evidence that she
was driven out from the matrimonial home on demand of dowry.
Although plea of voluntarily desertion was taken by the
Petitioner, but no evidence to that effect was led, as observed by
learned Judge, Family Court. Admittedly, a criminal proceeding
is pending against the Petitioner for demand of dowry and torture.
Taking into consideration the materials available on record,
learned Judge, Family Court held that the Opposite Party is
justified for separate living in her father's house. Hence, the plea
that the Opposite Party has left the matrimonial home voluntarily
is not acceptable.
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7. So far as the income of the Petitioner is concerned, it
appears from the record that he was working in a Saw Mill and
was earning a sum of Rs.2,000/- per month. He had also income
from agricultural sources. No evidence has been adduced on
behalf of the Petitioner with regard to his income. Thus, learned
Judge, Family Court making a guess work, has directed the
Petitioner to pay a meager amount of Rs.1,000/- per month as
maintenance. As such, I find no infirmity in the impugned
judgment.
8. Accordingly, the RPFAM being devoid of any merit stands
dismissed.
9. Interim order dated 5th April, 2010 passed in Misc. Case
No.40 of 2010 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
