Orissa High Court
Mamata Behera vs Premananda Behera on 8 August, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No. 320 of 2024
(Appeal under Section 19 of the Family Court Act, arising out of the
judgment and order dated 27.06.2024 passed by the learned Judge,
Family Court, Cuttack in C.P. No.736 of 2021).
Mamata Behera .... Appellant
-Versus-
Premananda Behera .... Respondent
For Appellant : Mr. S.K. Baral, Mr. S.R. Pradhan,
Mr. L.R. Das, J. Sahoo and,
S.R. Acharya, Advocates.
For Respondent : Mr. Debajyoti Chatterjee,
Mr. B.N. Tripathy and
Mr. B. Tripathy, Advocates.
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CORAM:
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
AND
HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
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JUDGMENT
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Decided on : 08.08.2025
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PER MRUGANKA SEKHAR SAHOO, J.
1. As directed by us on 01.07.2025, the parties are present in person
before this Court along with their minor daughter from the marriage,
who is aged about 10 years, studying in Class-VI in Guru Nanak Public
School, Sikharpur, Cuttack.
2. The parties were spoken in the language they understand. The
Appellant-wife was spoken to by this Court in Odia, whereas the
Respondent-husband, who is working as Asst. Sub-Inspector of Police
in Vigilance Department, Odisha, was spoken to by the Court both in
Odia and English. The girl child was also spoken to by the Court in
English and Odia, as she understands both the languages.
3. The Appellant-wife narrated her plight that how she stays alone at
Keonjhar about 180 kilometers away from Cuttack. She is being given
Rs.3,000/- (Rupees Three Thousand) only per month by the
Respondent-husband, which is also indicated in the judgment of the
learned Judge, Family Court dated 27.06.2024 passed in D.V. Misc.
Case No.207 of 2021. She expresses her helplessness and tells before
the Court that it is almost impossible on her part to keep her body and
soul intact with such a meager amount of Rs.3000/- paid to her every
month.
We find, apart from this amount she is receiving, at her level of
education and understanding, she has nothing to say regarding the
merits of the appeal that has been filed by her.
4. The Respondent-husband while addressing the Court did not
address the Appellant-wife in the language which is expected of a
person working as a Govt. Servant in a disciplined force. It was not
expected of him to address the lady in the language he did much-less
before a Court and, that too, by a person like him serving in Police
Department under the State.
5. The small girl child stated certain incidents that happened, as she
remembers, attributed to her mother when she was aged about 6 years.
Her recollections are negative and laced with apparent dislike for her
mother and unusual for a child of her age to form such extreme opinion.
However, on being asked by Court where she was studying when she
was 6 years of age, which was her school, who was her class-teacher,
etc., somehow she could not recollect the same properly. She otherwise
seems to be good, studying well and stays with her grand-mother and
father (Respondent) at Cuttack.
6. We have nothing more to say regarding the highly opinionated
version of the small child; but we record the above in order to reflect
upon the attitude of the Respondent and his family as far as they treat
the Appellant who was the wife and has begotten a child. It is hoped
that the child is given good education both informal and formal and a
better environment as far as her home is concerned, and she does not
outlive her innocence at such an early age to the extent that she speaks
ill about her mother, for reasons not difficult to guess nor far to seek.
7. Now, coming to the merits of the appeal, learned counsel for the
parties are heard at some length.
8. The judgment of the learned Court, as far as the reasoning is
concerned, is evidently based on the fact that the Appellant-wife, who
was the Respondent in the divorce proceeding under Section 13 of the
Hindu Marriage Act, 1955, filed by the Respondent-husband, i.e. C.P.
No.736 of 2021, by order dated 16.01.2024 was precluded from filing
her written-statement, as the written-statement was not filed by her in
time. Thereafter, though the learned Judge, Family Court has analyzed
the case law at paragraph-6(i) of the judgment, but has not written even
one sentence analyzing the evidence adduced by the Respondent-
husband as the petitioner in the said case. The learned trial court
proceeded on an erroneous impression that the pleadings of the
Petitioner, evidence adduced, statements made on behalf of the PWs, if
there were any, are not to be analyzed before granting a decree of
divorce by applying the parameters as specified in Section 13 (1) (1-a),
and in the case at hand the alleged ground was cruelty on part of the
Respondent-wife.
9. The judgment completely falls short of the standard of proof that is
to be applied by the Court, i.e. preponderance of probability as far as
civil cases are concerned and, more so, when serious allegations of
cruelty are made by the Petitioner. The onus and burden of proving
cruelty was on the petitioner who is the respondent here in this case.
Since the learned trial court has not gone into or evaluated any iota of
evidence, we are also not in a position whether the facts alleged were
proved or disproved, as envisaged under the Indian Evidence Act (since
repealed and substituted by the Bharatiya Sakshya Adhiniyam).
10. Mr. Chatterjee, learned counsel for the Respondent, taking a fair
stand, more so when there is no material evidence on record relied upon
by the trial court, does not proceed further to defend the judgment and
decree that was granted ex parte.
11. In response to the effectual fervent prayer made by the Appellant
in person regarding enhancement of the monthly maintenance amount
and also urged by learned counsel Mr. Baral on her behalf, Mr.
Chatterjee, learned counsel for the Respondent produces the Pay-Slip of
the Respondent issued by the Director General & Inspector General of
Police, Vigilance, Odisha. Copy of the said Pay-Slip is kept on record.
12. Learned counsel for the Appellant Mr. Baral relies on the decision
of the Apex Court in the case of Kalyan Dey Chowdhury vs. Rita Dey
Chowdhury Nee Nandy, AIR 2017 SC 2383 = (2017) 14 SCC 200. He
also relies on the decision of the co-ordinate Bench of Orissa High
Court in Swapna Rani Sahoo vs. Niranjan Sahoo, (MATA No.167 of
2015) AIR 2020 Orissa 184 = 2020 (III) ILR-CUT-266, to submit that
at least 25% of the salary of the husband should be given to the wife for
her maintenance.
13. From the Pay-Slip it is apparent that, out of the gross amount of
salary of Rs.77835/- per month, an amount of Rs.32,027/- is being
deducted by the Respondent Mr. Behera. It is told to us that three of
them (Mr. Behera, his mother and daughter) are living in Cuttack city,
at their standard of living they are managing with the rest of the amount,
i.e. Rs.45,808/-. On being asked, Mr. Behera (the Respondent) states
that there is no mandate on him to deduct Rs.25,000/- and to park the
amount in his GPF account. Evidently, the deductions shown in the Pay
Slip is much more at the option of the Respondent than it is actually
required, as deductions like professional tax, income tax, etc., and other
mandated deductions. In our considered opinion, the financial choices
of an individual cannot stand in the way for awarding maintenance
amount reasonably which can be awarded from the income of a party to
the litigation, i.e. the husband in this case.
14. Though 25% of the salary of the Respondent in this case, after
statutory deductions, would come around Rs.15,000/- to Rs.16,000/-, in
our considered opinion, for the time being, the amount that should be
paid to the Appellant-wife is @ Rs.10,000/- (Rupees Ten Thousand) per
month, and we direct accordingly.
15. In such view of the above discussions, the judgment and decree
dated 27.06.2024 passed in C.P. No.736 of 2021 is set aside, and C.P.
No.736 of 2021 is restored to file to be undertaken for fresh
adjudication expeditiously by the Court that may be assigned by the
learned District Judge, Cuttack, for which the records of C.P. No.736 of
2021 shall be placed before the learned District Judge, Cuttack within a
period of two weeks hence. Registry shall intimate the learned District
Judge, Cuttack with a copy of this judgment. Parties shall also have the
liberty to produce the website copy of this judgment before the learned
District Judge, Cuttack to assign the matter to any appropriate court.
16. We also contemplated and discussed with the learned counsel
appearing for the parties, whether the matter can be taken up at
Keonjhar, i.e. the place of residence of the Appellant-wife; but the
learned counsel Mr. Lok Ranjan Das, who is appearing along with Mr.
Baral, learned counsel in the present case for the Appellant, assures us
that the case will be prosecuted with due diligence when the proceeding
resumes before the court of the learned Judge, Family Court, Cuttack or
any Court of jurisdiction that may be assigned by the learned District
Judge. If the appellant requires any legal aid, same shall be provided by
the District Legal Services Authority and the learned Presiding Judge
shall ensure the same.
17. Further, since it is admitted before this Court by the Respondent-
husband that he stays separate from the Appellant-wife, and after setting
aside of the judgment and decree dated 27.06.2024 granting divorce, the
marital status has been restored to the Appellant, the Respondent-
husband shall pay a monthly amount of Rs.10,000/- (Rupees Ten
Thousand) to the Appellant-wife towards maintenance, which shall
include Rs.3,000/- (Rupees Three Thousand) per month awarded earlier
in D.V. Misc. Case No.207 of 2021. The total amount of Rs.10,000/-
(Ten Thousand) per month shall be deducted from the salary of the
Respondent to be credited at source by the Drawing & Disbursing
Officer or the Banker where the salary amount is deposited. The amount
as directed, shall be paid to the Appellant-wife, i.e. Mamata Behera,
State Bank of India, Anandapur Branch, SB A/c. No. 41658213642,
IFSC : SBIN 0001086. A copy of this order shall be forwarded by the
Registry of this Court to the Director General of Police (Vigilance) to
instruct his office accordingly for making the arrangement for crediting
the amount to the account of the appellant-wife.
18. The quantum of monthly maintenance now fixed at Rs.10,000/-
shall abide by the further orders for enhancement that would be made
by the learned Judge, Family Court, Cuttack in appropriate proceeding,
if it is filed on behalf of the Appellant as permissible under law. It is
clarified that, regarding enhancement of quantum of maintenance to be
granted, the learned trial court shall have the freedom to decide if any
application is filed.
19. In view of the remand directed by us, the Civil Proceeding goes
back to the stage of filing of written statement by the Respondent in the
C.P. (who is the Appellant herein). The learned counsel for her shall do
well to take steps in filing the written statement at the earliest within
four weeks. The C.P. shall proceed further from the stage it is remanded
back.
20. We hasten to add that we have not expressed any opinion on the
merits and contentions of the parties to the suit that would be the subject
matter of adjudication by the learned trial court. We also clarify that
either of the parties to the suit have the complete autonomy to decide at
their level whether the matter will be proceeded further or not.
Personal appearance of the parties are dispensed with.
We put on record our appreciation of the learned counsels for both
the parties, i.e. Mr. D. Chatterjee appearing for the Respondent and Mr.
S.K. Baral appearing for the Appellant, for the assistance they have
rendered to this Court in arriving at a just conclusion and also assisting
the parties to achieve the result in the litigation.
21. The appeal is allowed in terms of the detailed orders above. Costs
payable to the Appellant is reluctantly made easy.
(Manash Ranjan Pathak)
Judge
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack. Signed by: SAMIR KUMAR PARIDA
Designation: ADR-cum-Addl. Principal Secretary
The 08th Day of August, 2025. Reason: Authentic Copy
Location: ORISSA HIGH COURT, CUTTACK
S.K. Parida, ADR-cum-APS. Date: 14-Aug-2025 13:16:01
