Rajendra Thapa vs Madhabi @ Madhuri Thapa
2023 Latest Caselaw 6401 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 19-May-2023 19:01:36


                                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                         RPFAM No. 201 OF 2018
                                        Rajendra Thapa                     ....       Petitioner
                                                                  Mr. Debendra Dhar, Advocate
                                                             -versus-
                                        Madhabi @ Madhuri Thapa            .... Opp. Party
                                                                                         None


                                             CORAM:
                                             JUSTICE K.R. MOHAPATRA
                                                             ORDER

                      Order No.                             18.05.2023
                           7.      1.      This matter is taken up through hybrid mode.

2. Judgment dated 14th November, 2017 passed by learned Judge, Family Court, Bargarh in Criminal Misc. Case No.239- 814 of 2011-16 is under challenge in the RPFAM, whereby the Petitioner has been directed to pay a monthly maintenance of Rs.2,000/- to the Opposite Party from the date of filling of the application i.e., from 13th December, 2011.

3. Mr. Dhar, learned counsel for the Petitioner submits that the Petitioner assails the order impugned herein on two grounds; firstly, the Opposite Party left the matrimonial home on the allegation that the Petitioner had contacted a second marriage. Secondly, the Opposite Party herself stated in her evidence that the Petitioner was working under one, Nagarmal Agrawal and his monthly salary was Rs.500/-. So far as allegation of second marriage is concerned, learned Judge, Family Court discussing the material on record came to conclusion that the Opposite Party could not prove the same. Further, when the Opposite Party herself admitted in her evidence that the Petitioner was

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-May-2023 19:01:36

earning Rs.500/- per month, she will not be entitled to maintenance, as directed. Hence, he prays for setting aside the impugned order.

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

5. Upon hearing learned counsel for the Petitioner and on perusal of the impugned order, it appears that while answering Issue No.(i), learned Judge, Family court has categorically observed as follows:

"The wife during her evidence though stated above the reason of her separate stay is due to the re-marriage of the O.P with another lady, but from the evidence of her father it is seen that the O.P. has not re- married to Hemabati Thapa."

Further, discussing the rival contentions of the parties, learned Judge, Family Court has also observed that:

"The husband has also admitted that his wife is sickly woman and due to her weakness in the limbs she is unable to work properly. This further speaks about the justification of the wife in staying separate at her parental home and seeking maintenance allowance from her husband."

6. Learned Judge, Family Court has also observed that the conciliation for reunion between the parties has failed and by the time the petition under Section 125 Cr.P.C. was taken into consideration, the parties were staying separately for about seven years. Since, on appreciation of evidence, learned Judge, Family Court came to a conclusion that the Opposite Party has a justification to live separately from the matrimonial home, I am

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-May-2023 19:01:36

not inclined to take a different view, although it is not established that the petition had contacted a second marriage.

7. So far as the quantum of maintenance is concerned, it appears that learned Judge, Family Court disbelieved the statement of P.W.1 to the effect that the Petitioner was drawing a salary of Rs.500/- per month. Admittedly, no material was placed by the Petitioner with regard to his income. Income of a party being in his special knowledge, burden is on him to prove the same. In absence of the same, learned judge, Family Court had to make a guess work and fixed quantum of maintenance of Rs.2,000/- per month to the Opposite Party, which also does not appear to be unreasonable.

8. Hence, I find no infirmity in the impugned order.

9. Accordingly, this RPFAM being devoid of any merit stands dismissed.

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

(K.R. Mohapatra) Judge

Rojalin