Orissa High Court
Jyotsnarani Barik @ Dalei And ... vs Ananda Kumar Dalei on 9 October, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 10-Oct-2023 10:20:52
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 277 OF 2019
Jyotsnarani Barik @ Dalei and another .... Petitioners
Mr. Bijaya Kumar Mishra, Advocate
-versus-
Ananda Kumar Dalei .... Opp. Party
Mr. S. Mohapatra, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.10.2023
RPFAM No. 277 OF 2019
& RPFAM No. 153 OF 2019
3. 1. This matter is taken up through hybrid mode.
2. Judgment dated 7th June, 2019 passed by learned Judge,
Family Court, Baripada in Criminal Proceeding No.27 of 2017 is
under challenge in both the RPFAMs.
3. For convenience of discussion, the parties are described
as per their status before the Family Court.
4. In the impugned judgment, the Opposite Party has been
directed to pay maintenance of Rs.5,000/- per month to
Petitioner No.1 (wife) and Rs.2,000/- per month to Petitioner
No.2 (minor son) from the date of the order. In RPFAM No.277
of 2019, the Petitioners have prayed for enhancement of
maintenance amount and in RPFAM No.153 of 2019, the
Opposite Party has prayed for reduction of the amount of
maintenance directed to be paid by him to the Petitioners.
5. Mr. Mishra, learned counsel for the Petitioners submits
that the relationship between the parties is not disputed.
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 10-Oct-2023 10:20:52
Petitioner No.1 is the wife of Opposite Party and Petitioner No.2
is his minor son through Petitioner No.1. At the time of filing of
the petition under Section 125 Cr.P.C., the Opposite Party was
working as a Lecturer in Mathematics in Govt. Polytechnic
College at Kharsuan in the district of Sadheikala and he was
receiving regular monthly salary. Although the amount of salary
has not been stated, but the Opposite Party being a Govt.
employee must be drawing more than Rs.40,000/- per month at
the relevant time. Although the Petitioner No.1 made her best
endeavour to get the salary particulars of the Opposite Party, but
the Principal of Govt. Polytechnic College did not provide the
same.
6. The income of the Opposite Party being in his special
knowledge should have been disclosed by him in view of the
ratio decided in the case of Rajnesh -v- Neha and another,
reported in (2021) 2 SCC 324. That being not done, adverse
inference should be drawn against him. Being a Lecturer in a
Govt. College, a reasonable presumption arises that he was
earning more than Rs.40,000/- per month. But, a meager
amount of Rs.5,000/- per month to Petitioner No.1 and
Rs.2,000/- per month to Petitioner No.2 has been directed to be
paid that too from the date of the order. Hence, the impugned
order warrants interference by enhancing the maintenance
amount.
7. Mr. Mohapatra, learned counsel, on the other hand,
submits that the Opposite Party was working as a contractual
Lecturer in Govt. Polytechnic College. Although no material is
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 10-Oct-2023 10:20:52
available on record with regard to his salary, but he was not
receiving Rs.40,000/- per month, as alleged by Petitioner No.1.
Direction to pay maintenance of Rs.7,000/- per month to both
the Petitioners is highly unreasonable in comparison to his
salary. It is also submitted by Mr. Mohapatra, learned counsel
for the Opposite Party that he does not have any definite
instruction with regard to the salary, the Opposite Party was
drawing at the time of filing and adjudication of the petition
under Section 125 Cr.P.C. He, however, submits that the
amount, so directed, needs to be reduced, as the Opposite Party
has other responsibilities to discharge and expenses to be
incurred. He, therefore, prays for modification of the impugned
order.
8. Considering the rival contentions of the parties, this
Court finds that no document has been filed by the Petitioners in
support of their contention. Although it is contended that an
application was filed before the Principal of Govt. Polytechnic
College to get the salary particulars of the Opposite Party, but no
document to that effect was exhibited by the Petitioners. Thus,
such a plea at this stage cannot be taken cognizance of.
9. It further appears that the Opposite Party, who has special
knowledge of his income, did not disclose the same before
learned Judge, Family Court. In absence of any material to that
effect, learned Judge, Family Court had to make a guess work
and pass the impugned order. In absence of any material to the
contrary, this Court is not in a position to alter the quantum of
maintenance either by enhancing or by reducing the same.
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 10-Oct-2023 10:20:52
10. It, however, appears that learned Judge, Family Court,
has directed to pay the maintenance from the date of the order,
which is not sustainable. The Petitioners are entitled to the
maintenance from the date of filing of the application under
Section 125 Cr.P.C., as there is no material on record to show
that they are entitled to maintenance from a later date.
11. In view of the above, both the RPFAMs are disposed of
with a modification in the impugned order and a direction that
the Opposite Party shall pay maintenance of Rs.5,000/- (Rupees
five thousand only) per month to Petitioner No.1 (Wife) and
Rs.2,000/- (Rupees two thousand only) per month to the
Petitioner No.2 (minor son) from the date of filing of the
application under Section 125 Cr.P.C.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
ms Judge
