Orissa High Court
Naser Ali Khan vs Kouser Begum And Another on 17 May, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 20:03:13
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 111 OF 2019
Naser Ali Khan .... Petitioner
Mr. Mr. A.K. Barik, Advocate
on behalf of Mr. Pratap Chandra Mishra, Advocate
-versus-
Kouser Begum and another .... Opp. Parties
Manish Nag Das, Advocate
on behalf of Mr. Ramesh Agarwal, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 17.05.2023
RPFAM No.111 of 2019 & RPFAM No.72 of 2019
6. 1. This matter is taken up through hybrid mode.
2. Judgment dated 31st January, 2019 passed by learned
Judge, Family Court, Khurda in Criminal Petition No.73 of 2017
filed under Section 127 Cr.P.C. is under challenge in both the
revisions.
3. For the sake of convenience, the parties are described as
per their status before the Family Court, Khurda.
4. While adjudicating the petition under Section 127 Cr.P.C.,
learned Judge, Family Court directed to Opposite Party-Husband
to pay Rs.6,000/- per month to the Petitioner No.1-Wife and
Rs.3,000/- per month to the Petitioner No.2-daughter from the
date of application, i.e., from 9th March, 2017.
5. RPFAM No.72 of 2019 has been filed by the Petitioner-
Wife for enhancement of the maintenance amount and RPFAM
No.111 of 2019 has been filed by the Opposite Party-Husband for
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 20:03:13
reduction of the maintenance amount. Relation between the
parties is not disputed.
6. Mr. Das, on behalf of Mr. Ramesh Agarwal, learned
counsel for the Petitioners submits that the Opposite Party-
Husband, during the relevant period, was drawing net salary of
Rs.51,000/- per month. Earlier, the petition under Section 127
Cr.P.C. was disposed of ex parte directing the Opposite Party to
pay maintenance of Rs.12,000/- per month to both the Petitioners.
On the application filed by Opposite Party, the said ex-parte order
was set aside, vide order dated 26th October, 2017 in Criminal
Misc. Case No. 287 of 2017. Although no material was placed by
the Opposite Party to vary the ex parte order of maintenance, but
learned Judge, Family Court, Khurda reduced the monthly
maintenance from Rs.12,000/- to Rs.9,000/- to both the
Petitioners. Hence, the RPFAM No.72 of 2019 has been filed by
the Petitioners for enhancement of the maintenance.
5. Mr. Barik being authorized by Mr.Mishra, learned counsel
for the Opposite Party-Husband although admits that during
relevant period, net salary of the Opposite Party was Rs.51,000/-
per month, but submits that after desertion of Petitioner No.1-
Wife, the Opposite Party has remarried and has his family. The
Opposite Party has also his ailing mother to be maintained. Since
July, 2019, the Opposite Party has been superannuated from
service and is getting pension of Rs.19,000/- per month, which
has also been attached for non-payment of arrear dues. As such,
the Petitioner does not have a single pie to pay the maintenance.
Hence, he submits that direction to pay maintenance at the rate of
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 20:03:13
Rs.9,000/- per month is highly excessive and warrants
interference.
6. Considering the submissions made by learned counsel for
the parties and on perusal of record, it appears that admittedly the
Opposite Party was drawing a net salary of Rs.51,000/- per month
during the relevant period. It is submitted that the Opposite Party
was superannuated from service in July, 2019, i.e., after disposal
of the petition under Section 127 Cr.P.C. Thus, retirement of the
Opposite Party has got no relevance for determination of the
quantum of maintenance in these RPFAMs. Since, the Opposite
Party-Husband was drawing a net salary of Rs.51,000/- per month
and admittedly the Petitioners are his wife and child, he is under
legal obligation to maintain them. The Wife is entitled upto 1/4th
of the salary of Husband as maintenance, in view of the ratio
decided in the case of Kalyan Dey Choudhury Vs. Rita Dey
Choudhury Nee Nandy, reported in AIR 2017 SC 2383.
6.1 It further appears that, earlier deciding the petition under
Section 127 Cr.P.C., learned Judge, Family Court, Khurda passed
the ex parte order, enhanced the maintenance amount and directed
the Opposite Party to pay a sum of Rs, 12,000/- per month to both
the Petitioners. It is also submitted by learned counsel for the
Petitioners that the Opposite Party was regularly paying the same.
However, on filing an application to set aside the ex parte order in
Criminal Misc. Case No. 287 of 2017, the said order was set aside
and the Petition under Section 127 Cr.P.C. was heard on merit.
The ground taken by the Opposite Party is that he has his ailing
mother as well as his family to maintain. The Petitioners being the
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 20:03:13
wife and child of the Opposite Party have also right to be
maintained by him.
7. Taking into consideration that the Opposite Party was
drawing a salary of Rs.51,000/- per month at the relevant time,
this Court feels that maintenance of Rs.12,000/- per month by the
Opposite Party, as directed by learned Judge, Family Court,
Khurda, in his ex parte order, was just and proper, as no further
material was produced before the learned Judge, Family Court,
Khurda to vary the same.
8. In that view of the matter, the impugned order is modified
and the Opposite Party is directed to pay maintenance of
Rs.12,000/- per month to both the Petitioners, as directed in the
ex-parte order from the date of application.
9. With the aforesaid modification in the impugned order,
both the RPFAMs are disposed of.
10. Interim order dated 21st August, 2019 passed in IA No.215
of 2019 passed in RPFAM No.111 of 2019 stands vacated.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
Rojalin
