Orissa High Court
Minati Dash vs Gelamani Dash on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 201 OF 2017
Minati Dash .... Petitioner
Mr. Basudev Mishra, Advocate
-versus-
Gelamani Dash .... Opp. Party
Mr. Tukuna Kumar Mishra, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.05.2023
9. 1. This matter is taken up through hybrid mode.
2. This RPFAM has been filed assailing the judgment
dated 11th July, 2017 passed by learned Judge, Family Court,
Jeypore in C.R.P. No. 185 of 2013, whereby the Petitioner has
been directed to pay maintenance of Rs.1,000/- per month to
the Opposite Party from the date of application i.e., from 28th
November, 2005.
3. Mr. Mishra, learned counsel for the Petitioner submits
that the Petitioner had married to one, Kailash Chandra Dash,
who was the son of the Opposite Party. After death of Kailash
Chandra Dash, the Petitioner has remarried on 21st May, 1999 to
one, Simanchal Mishra. The family pension of her husband
granted in her favour has been stopped since 21st March, 1999
(Ext.A) as per direction of the C.D.M.O., Malkanigiri, as she
has remarried. The said family pension is being released in
favour of the Opposite Party. Thus, the Opposite Party has
sufficient means to maintain herself. As such, she is not entitled
to maintenance under Section 125 Cr.P.C.. Although the
aforesaid issues were raised before the learned Family Court,
// 2 //
but the same was rejected on the ground that the Petitioner has
been given the appointment under Rehabilitation Assistance
Scheme after death of her husband and that there is no material
available on record to establish that the Petitioner has remarried.
It is his submission that Ext.C, the affidavit filed by the
Petitioner clearly discloses that she has remarried to one
Simanchal Mishra. Further, her husband namely, Simanchal
Mishra has been examined as O.P.W. 2, who has admitted the
fact of their marriage in his evidence. These material aspects
were not properly considered by learned Judge, Family Court,
while allowing the application under Section 125 Cr.P.C.. . It is
also submitted that the Opposite Party has landed property of
11.00 Acres, from which she has sufficient income for her
sustenance. Hence, he prays for setting aside the impugned
order.
4. Mr. Mishra, learned counsel for the Opposite Party
vehemently objects to the same. It is his submission that no
material was procured by the Opposite Party to the effect that
she has landed properties. Admittedly, the Opposite Party is the
mother-in-law of the Petitioner. Although, it is claimed that the
Petitioner has remarried to one, Simanchal Mishra, but she is
still continuing in the service which she got under the
Rehabilitation Assistance Scheme on the death of her husband.
Thus, the plea of her marriage with Simanchal is not correct.
There is no material on record to come to a conclusion that the
family pension of her son namely, Kailash Chandra Dash is
sufficient for sustenance of Opposite Party. Save and except the
family pension, the Opposite Party has no other source of
income. Considering the same, learned Judge, Family Court has
// 3 //
directed the Petitioner to pay a meager amount of Rs.1,000/- per
month as maintenance to the Opposite Party. As such, there is
no illegality in the impugned order. Hence he prays for the
dismissal of the RPFAM.
5. Considering the rival contentions of parties and on
perusal of the record, it reveals that the Petitioner had married to
one, Kailash Chandra Dash, the son of Opposite Party, who died
during continuance of his service. The Petitioner has been
appointed under the Rehabilitation Assistance Scheme. Before
her appointment, the Petitioner was receiving the family pension
of her husband. But subsequently, vide order dated 21st March,
1999 passed by the C.D.M.O, Malkanagiri, the family pension is
being released in favour of the Opposite Party. Although, the
Petitioner claims to have remarried in the meantime, but in the
cause title of the revision petition she has described herself to be
the widow of late Kailash Chandra Dash, which reveals that the
Petitioner has not remarried. There is also no clinching material
to establish that the Petitioner has married to Simanchal Mishra
after the death of Kailash Chandra Dash. When the Petitioner is
receiving the benefit as the widow of Kailash Chandra Dash,
she cannot deny her liability and obligation of her deceased
husband, which includes maintenance of Opposite Party.
Except Ext.C, the affidavit of Opposite Party and the oral
testimony of Simanchal Mishra- O.P.W.2, there is no material
on record to show that Petitioner has remarried to Simanchal
Mishra. As discussed earlier, the Petitioner is still receiving the
service benefit as the widow of late Kailash Chandra Dash.
6. Taking into consideration the materials on record,
learned Judge, Family Court disbelieved the marriage of the
// 4 //
Petitioner with Simanchal Mishra. This being a petition under
Section 19(4) of the Family Court Act, 1984, this Court is not
competent to substitute its own finding on re-appreciation of
evidence. On perusal of the impugned order, it does not appear
that the findings of learned Judge, Family Court is either
perverse or the impugned order suffers from flagrant
miscarriage of justice. When the Petitioner is receiving benefit
of being the widow of the son of the Opposite Party, she is
liable to maintain the Opposite Party, more particularly, when
there is no material on record to come to a conclusion that the
family pension, which is being received by the Opposite Party is
sufficient for her sustenance. It also appears that a meager
amount of Rs.1,000/- per month has been directed to be paid by
the Petitioner to the Opposite Party. When the Petitioner has
described herself to be the widow of the son of the Opposite
Party and is receiving the benefit in that capacity, this Court
holds that the petition under Section 125 Cr.P.C. filed by the
Opposite Party to be maintainable. Hence, I find no infirmity in
the impugned order.
7. Accordingly, the RPFAM being devoid of any merit
stands dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
MADHU Digitally signed
by MADHUSMITA
SMITA Date: 2023.05.12
SAHOO
SAHOO 20:37:32 +05'30'
Rojalin
