Avas Kumar Swain @ Abhash Kumar vs Babita Swain @ Rout And Another
2023 Latest Caselaw 6163 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-May-2023 19:29:08

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                               RPFAM No. 4 OF 2017
                                               Avas Kumar Swain @ Abhash Kumar     ....      Petitioner
                                               Swain
                                                                          Mr. Anirudha Das, Advocate
                                                                       -versus-
                                               Babita Swain @ Rout and another           ....   Opp. Parties


                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                    ORDER

                     Order No.                                     16.05.2023
                           3.             1.      This matter is taken up through hybrid mode.

2. Judgment dated 13th December, 2016 (Annexure-1) passed by learned Judge, Family Court, Dhenkanal in Cr.P. No.112 of 2015 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.3,000/- per month to Opposite Party No.1 and Rs.1,000/- per month to Opposite Party No.2 from the date of filing of the application.

3. Mr. Das, learned counsel for the Petitioner submits that relationship between the parties is not disputed. However, the Petitioner is not capable to pay the maintenance to the Opposite Parties. Hence, this revision has been filed. It is his submission that the Petitioner is unemployed and has no source of income. Thus, he is not in a position to pay the maintenance, as directed. As such, the impugned order under Annexure-1 warrants interference.

4. Although the RPFAM was filed on 4th January, 2017, but no step has yet been taken either to remove the defects or to get

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-May-2023 19:29:08

the matter listed. In the meantime, more than six years have elapsed.

5. On perusal of the impugned order under Annexure-1, it appears that the Petitioner has not adduced any evidence with regard to his income. The sister of the Petitioner was examined as O.P.W.3, who in her evidence stated that the heath condition of the Petitioner was not good and he was not in a position to do the stunt man work. No evidence with regard to illness or health condition was produced before learned Judge, Family Court. From the evidence of O.P.W.3, it appears that the Petitioner was working as a stunt man.

6. In absence of any evidence with regard to income of the Petitioner which was in his special knowledge, learned Judge, Family Court had to make a guess work to fix the quantum of maintenance. It appears that the Petitioner has been directed to pay a sum of Rs.3,000/- per month to Opposite Party No.1-Wife and Rs.1,000/- per month to Opposite Party No.2 (minor son), which does not appear to be unreasonable.

7. In view of the above, I am not inclined to interfere with the impugned order under Annexure-1.

8. Accordingly, the RPFAM being devoid of any merit stands dismissed.

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

                                                                             (K.R. Mohapatra)
             ms                                                                    Judge