Orissa High Court
Tiki Panda And Another vs Babul Kumar Panda ... Opposite Party on 15 April, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.378 of 2024
(In the matter of application under Section 19(4) of the
Family Courts Act).
Tiki Panda and another ... Petitioners
-versus-
Babul Kumar Panda ... Opposite Party
For Petitioners : Mr. A.K. Nath, Advocate
For Opposite Party : Mr. B.P. Dhal, Advocate
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:15.04.2025(ORAL)
G. Satapathy, J.
1. This revision is directed the impugned
order dated 30.09.2024 passed by the learned Judge,
Family Court, Dhenkanal in Cr.P No.16 of 2021
directing the OP-husband to pay a sum of Rs.3,000/-
(Rupees Three Thousand) per month to the petitioner
No.2-cum-daughter towards her maintenance in an
application U/S.125 of the CrPC.
2. The admitted fact in this case is that the
learned trial Court had earlier on 07.09.2022 passed an
order directing the OP-husband to pay a sum of
Rs.5,000/- (Rupees Five Thousand) per month to the
petitioner No.1-cum-wife and Rs.3,000/- (Rupees Three
Thousand) per month to the petitioner No.2-cum-
daughter towards their maintenance w.e.f. the date of
filing of this application in an application U/S.125 of the
CrPC, which was assailed in RPFAM No.250 of 2022, but
this Court while adjudicating the matter upon hearing
the parties had passed order in RPFAM No.250 of 2022
setting aside the above order of the learned trial Court
by remitting the matter back to the learned Judge,
Family Court, Dhenkanal to decide afresh by giving
opportunity of hearing to the parties to adduce
evidence with regard to income of the parties, however,
the learned trial Court although provided opportunity to
the parties to lead evidence towards their income, but it
adjudicated all the issues on merit again, which was not
the spirit of the order.
3. For clarity, this Court considers it
appropriate to extract the relevant part of the order as
noted by this Court in RPFAM No.250 of 2022:-
"3. Mr. Dhal, learned counsel for the
Petitioner submits that relationship between
the parties is not in dispute. At the time of
marriage, the Petitioner was serving in a
private firm in Gujarat and was earning
Rs.20-22 thousand, but due to an accident,
he had to leave the job. At present, he is
earning his livelihood by running a tiffin shop
in village Kumusi under Parjang. He is hardly
earning about Rs.5 to 7 thousand per month
from the said shop, but learned Judge, Family
Court making a guess work and taking the
notional income of the Petitioner to be
Rs.25,000/- per month, directed him to pay
the maintenance, as aforesaid. Notional
income of the Petitioner could not have been
assessed at Rs.25,000/-, as his income
should have been assessed as an unskilled
labour. The income of Opposite Party No.1
was also not taken into consideration. He,
therefore, submits that the maintenance
directed to be paid by the Petitioner should
be reduced.
4. Learned counsel for Opposite Parties
submits that no material has been placed by
the Petitioner with regard to his income. The
burden is on him to prove his income, but he
failed to discharge the same. Affidavit of
assets and liabilities was also not submitted
by either of the parties. Thus, learned Judge,
Family Court has not committed any error in
making a guess work and directing the
Petitioner to pay the maintenance as stated
above.
7. In that view of the matter, the impugned
order is set aside and the matter is remitted
to learned Judge, Family Court, Dhenkanal to
adjudicate the matter afresh giving
opportunity of hearing to the parties to
adduce evidence with regard to income of the
parties. In the meantime, the Petitioner shall
go on paying Rs.3,000/- (rupees three
thousand only) per month to the Opposite
Parties as maintenance, which would be
without prejudice to case of either of the
parties. Learned Judge, Family Court should
take care in naming the parties while
discussing the matter."
4. From a careful appraisal of the aforesaid
order, it goes without saying that this Court has
remitted the matter back for a limited purpose of
deciding the quantum of maintenance by providing
opportunity to the parties to lead evidence with regard
to their income, but admittedly the learned trial Court
in the impugned judgment has taken all the issues
again to decide the matter on merit afresh, but fact
remains that some of the issues are not in dispute such
as relationship between the parties and the entitlement
of the parties to the maintenance, however, the
quantum of maintenance was in dispute between the
parties in the earlier round of litigation.
5. Be that as it may, since the learned trial
Court has provided opportunity to the parties to lead
evidence on the issue of their income/earnings, this
Court considers it appropriate to determine the
quantum of maintenance in this revision. It is, however,
found from the impugned judgment that the learned
Judge, Family Court in the last part of the paragraph-12
of the impugned judgment has estimated the income of
the OP-husband at Rs.12,000/- (Rupees Twelve
Thousand) per month, which the OP-husband could not
validly dispute inasmuch as the OP-husband was found
by the learned trial Court assisting his father in running
a grocery shop and also earning his livelihood from the
said grocery shop. It is obvious that in absence of
evidence, the Court has to adopt some guess work and
a person working in his father's grocery shop in a
village like the petitioner, it would not be improper to
take his income at Rs.12,000/- (Rupees Twelve
Thousand) per month. At the same time, it is also not
in dispute that the OP-husband is having old parents,
but the admitted evidence is that the father of the OP-
husband runs a grocery shop and, therefore, the
mother of the OP-husband would be dependent on both
her son and husband on their earning from the grocery
shop. In this situation, when the relationship between
the parties are not in dispute and the fact that the
petitioner-wife is also entitled to maintenance because
such finding of the learned trial Court has earlier never
been assailed by the husband, this Court considers that
the wife also deserves some maintenance. Accordingly,
the quantum of maintenance is quantified @ Rs.3,000/-
(Rupees Three Thousand) per month to the petitioner
No.1-cum-wife and Rs.2,000/- (Rupees Two Thousand)
per month to the petitioner No.2-cum-daughter w.e.f.
the date of filing of this application. It is, however,
made clear that the arrear maintenance which would be
calculated from the date of filing of the application
should be paid to the petitioners accordingly in six(6)
equal monthly installments to be fixed by the learned
trial Court and the arrear maintenance of the child shall
be deposited in an interest bearing account till she
attains majority and the current maintenance be paid to
her in cash through the mother guardian.
6. In the result, the RPFAM succeeds and the
impugned order dated 30.09.2024 passed by the
learned Judge, Family Court, Dhenkanal in Cr.P No.16
of 2021 is, accordingly, set-aside and modified to the
extent indicated above, but in the circumstances, no
order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 15th day of April, 2025/Subhasmita
Location: High Court of Orissa
