Jayanti Behera And Another vs Kabiraj Behera
2023 Latest Caselaw 6277 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 10:05:33

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                                RPFAM No. 128 OF 2018
                                               Jayanti Behera and another               ....      Petitioners
                                                                            Mr. Amit Prasad Bose, Advocate
                                                                         -versus-
                                               Kabiraj Behera                            ....     Opp. Party
                                                                                                       None

                                                    CORAM:
                                                    JUSTICE K.R. MOHAPATRA
                                                                     ORDER

                       Order No.                                    17.05.2023
                             3.           1.      This matter is taken up through hybrid mode.

2. Judgment dated 31st March, 2018 (Annexure-1) passed by learned Judge, Family Court, Bargarh in Criminal Misc. Case No.201-828 of 2012-16 is under challenge in this RPFAM, whereby an application filed by the Petitioners under Section 125 Cr.P.C., has been dismissed.

3. Mr. Bose, learned counsel for the Petitioners submits that learned Judge, Family Court did not appreciate the evidence in its proper perspective. Although birth certificate of the child (Ext.1) clearly discloses that the Opposite Party is the father, but disbelieving the marriage as well as the paternity of the child, petition under Section 125 Cr.P.C. was dismissed. It is his submission that strict proof of marriage is not necessary in a petition under Section 125 Cr.P.C. When prima facie evidence, i.e., Ext.A shows that the Opposite Party is the father of her child, learned Judge, Family Court should not have disbelieved the marriage as well as paternity of the child. He, accordingly, prays for setting aside the impugned order under annexure-1 and to

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 10:05:33

remit the matter back to learned Judge, Family Court, Bargarh for fresh adjudication of the petition under Section 125 Cr.P.C.

4. Although the Opposite Party is represented through learned counsel, but none appears on his behalf at the time of call.

5. Heard learned counsel for the Petitioner and perused the materials on record, more particularly, the findings of learned Judge, Family Court in the impugned order. From the evidence, it appears that the voter list (Ext.A) prepared in the name of Petitioner No.1 discloses that she is the wife of one, Shyam Majhi. Further the Petitioner had filed F.I.R. in Patnagarh P.S. under Sections 498-A/506 I.P.C. against one Pradip Meher, which was registered as G.R. Case No.243 of 2016. In the said case, the Petitioner has described said Pradip Meher as the father of her child. It further appears that the Petitioner No.1 stated she married to the Opposite Party on 12th July, 2010 at Paranpat Temple in presence of her brother, Dura Rana and one Kamala of Bandutikra. But in her deposition she stated that except Dura Rana, nobody was present during her marriage. Further from the evidence recorded in G.R. Case No.263 of 2012, learned J.M.F.C., Bargarh has observed that Petitioner No.1 is in habit of filing false cases against different persons. Surprisingly, the name of child has not been mentioned either in the cause title of the RPFAM or in the body of the petition under Section 125 Cr.P.C.. In this RPFAM, Petitioner No.2 has been described as Baby Child represented though the mother guardian. When the birth certificate of the child is stated to have been prepared under Ext.1, it is not known, as to why, the Petitioner No.1 concealed the name

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 10:05:33

of the child in the petition under Section 125 Cr.P.C. as well as in this RPFAM.

6. In that view of the matter, this Court feels that learned Judge, Family Court, Bargarh has committed no error in disbelieving birth certificate as well as paternity of the child.

7. Since learned Judge, Family Court discussing the materials on record arrived at a conclusion, this Court should not substitute its own finding in a petition under Section 19(4) of the Family Courts Act, 1984 only because a different view may be possible by re-appreciation of evidence.

8. In view of the above, this Court finds no infirmity in the impugned order under Annexure-1.

9. 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