Orissa High Court
Tabruk Khan vs Ruksana Bibi on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM NO. 84 of 2023
Tabruk Khan .... Petitioner
Mr. Samarendra Bahadur, Advocate
-versus-
Ruksana Bibi .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.05.2023
1. 1. This matter is taken up through hybrid mode.
2. Judgment dated 25th February, 2023 (Annexure-3) passed
by learned Judge, Family Court, Khurda in Criminal Petition
No.109 of 2013 is under challenge in this RPFAM, whereby the
Petitioner has been directed to pay maintenance of Rs.5,000/- per
month to the Opposite Party-Wife from the date of filing of the
application, i.e., 12th April, 2013.
3. Mr. Bahadur, learned counsel submits that the Petitioner
was set ex-parte and he moved this Court in RPFAM No.172 of
2016. The said RPFAM was disposed of on 1st August, 2022 with
a direction to the parties to appear on 16th August, 2022 and
participate in the proceeding. Accordingly, the Petitioner
appeared and filed his show cause. On 6th February, 2023, the
Petitioner was examined, cross-examined and discharged and
thereafter the matter was posted to 13th February, 2023 for further
evidence on behalf of the Petitioner. On the said date, the
Petitioner filed an application for time, which was rejected and
SASANKA Digitally signed by
SASANKA SEKHAR
SEKHAR SATAPATHY
Date: 2023.05.12
the matter was posted to 14th February, 2023, i.e., the next day
SATAPATHY 20:51:03 +05'30'
// 2 //
for argument. An application was filed on 15th February, 2023
praying for an adjournment to advance argument on behalf of the
Petitioner, the same was allowed and the matter was posted on
16th February, 2023 for argument. Thereafter, the impugned order
was passed on 25th February, 2023.
3.1 It is his submission that the Petitioner was not given
ample opportunity to adduce evidence in the matter.
Mr. Bahadur, learned counsel further submits that the Petitioner
is working in a chicken shop and earns rupees eight to ten
thousand per month. As such, the direction for payment of
Rs.5,000/- as maintenance is highly excessive. Learned Judge,
Family Court also did not take into consideration the income of
the Opposite Party from a tailoring shop.
4. It is his submission that the parents and a lunatic brother
of the Petitioner are depending on him. Hence, he prays for
setting aside the impugned order and to remit the matter back to
learned Judge, Family Court to allow the Petitioner to adduce
further evidence in the matter.
5. Considering the submission of learned counsel for the
Petitioner and on perusal of order dated 13th February, 2023
(Annexure-2), it appears that after disposal of RPFAM No.172 of
2016, the Petitioner was directed to file his show cause and
contest the proceeding. On 26th December, 2022, Petitioner filed
his show cause. As such, the case record was posted to 30th
January, 2023 for evidence of the Opposite Party. On that date,
the Opposite Party filed time petition, which was allowed
imposing cost of Rs.200/-. On 6th February, 2023, the evidence of
// 3 //
the Petitioner was recorded and he was discharged. Thereafter,
the matter was posted to 13th February, 2023 for adducing further
evidence on behalf of the Opposite Party. Instead of producing
his witness, a petition was filed by the Petitioner stating that he is
having chest pain. Since the Petitioner has already been
examined as OPW-1 in the case, his illness is immaterial for
producing witness on his behalf. Thus, learned Judge, Family
Court has committed no error in holding that the Petitioner is
adopting dilatory tactics and trying to linger the matter. The
submission of Mr. Bahadur to the effect that in absence of any
material on record, a direction has been made by learned Judge,
Family Court to pay a sum of Rs.5,000/- per month, is also not
sustainable, inasmuch as the Petitioner has not filed any material
in respect of his income. Although it is submitted by Mr.
Bahadur, learned counsel that the Petitioner is working in a
chicken shop, but no material to that effect has been produced.
Petitioner also alleges that the Opposite Party-Wife is working in
a tailoring shop, but no material in support of the same was
produced by him. Since the burden is on the Petitioner to prove
his income, he cannot shift his responsibility on the Opposite
Party to prove the same. As no material has been produced to
show the exact income of the Petitioner, learned Judge, Family
Court had to resort to guess work, which I find to be reasonable.
6. Accordingly, the RPFAM is dismissed being devoid of
any merit.
(K.R. Mohapatra)
Judge
s.s.satapathy
