Nihar Kanta Sahoo vs Indira Sahu And Another
2023 Latest Caselaw 13487 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRLMP No.1086 of 2022

            Nihar Kanta Sahoo                ....          Petitioner
                                     Ms. M. Kanungo, Advocate

                                  -versus-

            Indira Sahu and another     ....      Opp. Parties
                                 Mr. Ramdas Achary, Advocate

                  CORAM:
                  JUSTICE CHITTARANJAN DASH
               DATE OF JUDGMENT : 01.11.2023
Chittaranjan Dash, J
1.

Heard learned counsel for the parties.

2. By means of this application the Petitioner seeks to challenge the order dated 11th January 2022 passed by the learned Judge, family court, Berhampur in Cr.P. No. 122 of 2020 wherein the learned court while deciding a petition for interim maintenance allowed it favour of the wife and daughter, directing the Petitioner husband to pay a sum of Rs.4,000/- each to the Opposite Parties per month besides a sum of Rs.5,000/- towards one time litigation expenses.

3. The main plank of challenge to the impugned order is that the learned court while deciding the Civil Proceeding No.73 of 2011 initiated at the behest of the Opposite Party wife praying for judicial separation was declined by the court whereas the Civil

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Proceeding No.244 of 2011 initiated at the behest of the Petitioner praying for restoration of conjugal rights was allowed. According to the learned counsel since the Opposite Party wife did not carry out the direction of the learned court in joining the Petitioner in restituting the conjugal rights she is not entitled to the interim maintenance. Learned counsel also submitted that the Opposite Party wife was a working lady and has the potentiality to earn her livelihood better than what would be received and as such she is not entitled to the interim maintenance which she claimed only in the year 2021. One more ground that surfaced in the application of the Petitioner challenging the impugned order is that the Opposite Party wife voluntarily abandoned the company of the Petitioner even though the Petitioner is all along willing to continue the relationship and take care of the Opposite Parties does not deserve her for the interim maintenance.

4. Learned counsel for the Opposite Parties, on the other hand, vehemently objected the contentions raised by the learned counsel for the Petitioner and submitted that the Petitioner since the time of their marriage continued to inflict torture and never took care of her wife or the daughter. He also alleged a wild allegation as regards the living of the Petitioner in adultery categorically mentioning the name of the woman.

5. Considering the submissions of the learned counsels for the parties this Court took an endeavour for resolution of the issues by a personal hearing of the parties but it did not fetch any result.

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6. In the case of Jaiminiben Hirenbhai Vyas & another v. Hirenbhai Rameshchandra Vyas and another in Criminal Appeal No.2435 of 2014 (Arising out of SLP (Crl.) No.3345 of 2013 the Supreme Court was considering an appeal made before it by a wife and her minor daughter. Her son was living with his father, the appellant's husband, who was maintaining him. Under Section 125 of the Code of Criminal Procedure, 1973, the Family Court ordered the payment of interim maintenance to the wife and minor daughter of Rs.6,000/- per month. Interim support of Rs.3,000/- per month was also granted under Section 24 of the Hindu Marriage Act, 1955, payable to both parties. By Order dated 31.01.2009, the Family Court ultimately resolved the maintenance procedures. The Family Court ordered maintenance to the daughter in the amount of Rs.5,000/- per month from the date of the verdict. The Family Court also held that the appellant- wife would be entitled to no more than the interim maintenance she was getting under the Act of 1955.

7. The son was living with his father, who was paying his maintenance, and hence was not entitled to it. The major reason for the Appellant's denial of maintenance was that she was found to have worked before her marriage, and the Family Court believed she could earn a living even after the separation, therefore she was refused support. The High Court did not agree with this viewpoint, noting that the Appellant had ceased working

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following her marriage and had two children. She had quit working since she was solely focused on her family. The High Court, therefore, overturned the Family Court's decision and awarded Rs.5,000/- in maintenance. But, the High Court had directed that the maintenance should be paid only from the date of its order and had not given any reason why it had not directed maintenance from the date of the application for maintenance. On being aggrieved by the same, the appellate approached the Supreme Court of India.

Supreme Court's observations

1.Every final order issued under Section 125 of the Criminal Procedure Code, 1973 shall include points for determination, the decisions thereon, and the reasons for such decision. To put it another way, Sections 125 and 354 (6) of the Code of 1973 must be read together.

Section 125 of the CrPC implies that the Court should consider making the maintenance order effective from any of the two dates (the date of the order or the date of the application). It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. The Apex Court had noted that the High Court had offered no reason why maintenance should not be granted from the date of the application. In light of the fact that the appellant worked before marriage but not throughout her marriage, the Apex Court concluded that the

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circumstances eminently warranted the grant of maintenance with effect from the date of the application as there was no record of her earnings throughout the time the couple was married. Hence, the Order of the High Court was reversed by the Supreme Court in the present case as it held that the amount of maintenance should be paid to the appellant from the date of the application for maintenance itself.

8. Proviso to subsection 1 of Section 125 of the Code of Criminal procedure enables the court to direct for interim maintenance as inserted to the provision by act 50 of 2001 w.e.f 24.09.2001. Consequently, the direction for interim maintenance perse is not illegal. Even otherwise, inherently, for the safeguard of the dependent from vagaries enables the court by implication to grant such maintenance subject to the final outcome in the application. Needless to say that the nature of provision enshrined under section 125 Cr.P.C being a social legislation is required to be given a distinct approach unlike adversarial litigation.

9. In the case at hand all that is submitted by the Petitioner thwarting the direction in the impugned order has been reversed by the Apex court in the spirit of the decision above noted. As far as the ground that the Opposite Party wife did not join the matrimony of the Petitioner despite the direction of the court

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could have been proved abortive to the Opposite Party in accepting the order granting interim maintenance but for the allegations brought by the Opposite Party that the Petitioner is in adultery which in the given circumstance is a serious aspect that need to be gone into in the main application. It is more so when specific ground has been taken by the Opposite party in that regard by indicating the name of the woman and as such cannot be ignored vis-à-vis the order directing the Opposite Party to join the matrimony which in itself may not be possible for the Opposite Party wife to reconcile with if proved. Consequently, therefore, the order impugned cannot be interfered with at this stage but to direct the Petitioner to comply the same forthwith by clearing the arrear before the resumption of the hearing on the main application. The learned court shall also take appropriate step on failure of the Petitioner in complying the direction to clear the arrear interim maintenance. It may, however, be observed that the learned court below shall take steps for expeditious disposal of the case.

10. The application being devoid of merit deserves no consideration for interference. The impugned order, therefore, stands confirmed. The CRLMP is dismissed accordingly.

Signature Not Verified Digitally Signed Signed by: KRUSHNA CHANDRA BISOI (Chittaranjan Dash) Designation: Secretary Reason: Authentication Location: orissa high court Judge Date: 03-Nov-2023 11:49:21 KC Bisoi /A.R.-cum-Sr Secretary Dated 1st November, 2023