(An Application U/S. 19(4) Of The Family ... vs Bavisetty Santosh Kumar ... Opposite ...
2025 Latest Caselaw 5094 Ori

Orissa High Court

(An Application U/S. 19(4) Of The Family ... vs Bavisetty Santosh Kumar ... Opposite ... on 19 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                RPFAM NOs.231 & 142 of 2024

       (An application U/S. 19(4) of the Family Courts Act,
       1984).
Yernagula Malathi @       ...                           Petitioner
Bavisetti Malathi
(in RPFAM No.231 of 2024)
                                     Mr. R.N. Prusty, Advocate
                            -versus-
Bavisetty Santosh Kumar          ...             Opposite Party
                                       Mr. D. Panda, Advocate

Bavisetty Santosh Kumar   ...                           Petitioner
@ B. Santosh Kumar
(in RPFAM No.142 of 2024)
                                       Mr. D. Panda, Advocate
                            -versus-
Yernagula Malathi                ...             Opposite Party
                                     Mr. R.N. Prusty, Advocate

          CORAM:
                    JUSTICE G. SATAPATHY

   F                DATE OF HEARING :04.03.2025
                    DATE OF JUDGMENT :19.03.2025
 G. Satapathy, J.

1. Both the spouses have preferred the above

two separate revisions challenging the same impugned

judgment dated 22.02.2024 passed by the learned

Judge Family Court, Paralakhemundi in Criminal

Proceeding No. 26 of 2022 directing the husband to

pay a sum of Rs.12,000/- per month to the wife with

effect from 04.08.2022 towards maintenance in an

application U/S. 125 of the Code of Criminal

Procedure, 1973 ( in short the "Code") filed by the

wife.

2. The grievance/relief sought for by the wife in

RPFAM No. 231 of 2024 is for enhancement of the

maintenance amount as awarded to her by the

impugned judgment, whereas the husband's grievance

in RPFAM No. 142 of 2024 is for setting aside the

impugned judgment on the ground of wife voluntarily

leaving his company without any sufficient cause and

in the alternative, for reducing the quantum of

maintenance.

3. The undisputed facts as found from the trial

Court's record in precise are Smt. Yernagula Malathi @

Bavisetti Malathi has married to Bavisetty Santosh

Kumar and their marriage was solemnized on

15.06.2019 at Visakhapatnam, Andhra Pradesh in

terms of Hindu Customary Rites. After marriage, the

wife and husband stayed together at Bangalore for

some time, but in the month of September, 2019, the

wife came to Visakhapatnam to prosecute her MCA

course. It is, however, alleged by the wife that during

her stay at Visakhapatnam, her parents-in-law ill-

treated her and thereafter she returned back to

Bangalore and stayed there with her husband for some

time. However, the dissension between both the

spouses started on various reasons and grounds

leading to lodging of FIR by the wife against the

husband. On the aforesaid backdrop, the wife filed an

application U/S. 125 of the Code against the husband

claiming for maintenance, but the husband initially did

not appear in the proceeding for maintenance and the

maintenance proceeding was decided ex-parte against

the husband vide judgment dated 29.10.2022 and

when such ex-parte judgment for maintenance was

put to execution in CRP No. 45 of 2023 in which

subsequently the bank accounts of the husband was

put on hold in such proceeding, the husband filed an

application U/S. 126(2) of the Code in which he was

successful in setting aside the ex-parte judgment and

the matter was heard afresh and the present

impugned judgment is accordingly passed.

4. In opposing the claim of the wife, the husband

in his written objection while denying all the

allegations raised against him stated inter alia that

when in the month of November, 2020 he was served

with a notice from his employer for termination of his

job w.e.f. 07.04.2021, the wife apprehending to be

deprived of enjoying a luxurious life started creating

disturbance in his family and voluntarily deserted him

by going to attend the marriage ceremony of her

brother and thereafter, did not return and

subsequently lodged criminal complaint against him

and his family members causing harassment and

humiliation to the family. The husband has specifically

stated in his objection that the petitioner being a

qualified lady having MCA Degree has worked with the

company "Zetagile Info Solution Private Ltd" at

Banjara Hills, Hyderabad, Telengana, but she having

suppressed such fact before the Court is not entitled to

maintenance. In the alternative, the husband prays to

reduce the quantum of maintenance on the ground

that he being a jobless husband is unable to provide

maintenance @ Rs.12,000/- per month to his wife who

is working in a Multinational Company with good

salary.

5. On the averments of the parties, the learned

Judge Family Court, Paralakhemundi formulated the

following three points, such as:-

(i) whether the wife has refused to join with the husband without any reasonable and sufficient reason?,

(ii) whether the wife is self-sufficient and as such is not entitled to maintenance? and lastly,

(iii) whether the husband having sufficient means is denying to provide maintenance to the wife?.

Accordingly, the wife and husband were

allowed to lead evidence in the proceeding before the

learned trial Court and after closure of evidence from

both the sides, the learned trial Court upon analysis of

evidence and hearing the parties passed the impugned

judgment granting maintenance to the wife at a rate

of Rs.12,000/- per month to be realized from the

husband which is the subject matter of challenge by

both husband and wife in the aforesaid two separate

criminal revisions.

6. In assailing the impugned judgment with

regard to quantum of maintenance, Mr.Rabindranath

Prusty, learned counsel appearing for wife has

submitted that the learned Judge Family Court,

Paralakhemundi on erroneous appreciation of fact and

evidence directed the husband to pay a paltry sum of

Rs.12,000/- per month, but it is established by the

wife that the salary of the husband was Rs.1,61,169/-

per month and the learned trial Court without any

rhyme and reason assessed the income of the

husband at Rs.1,00,000/- including the income as per

his own admission by the husband at Rs.30,000/- to

Rs.40,000/- per month from freelancing and

erroneously by taking the income of the wife at

Rs.13,000/- has deducted the said amount from the

amount as considered to be entitlement of wife @

1/4th of the income of her husband and awarded a sum

of Rs.12,000/- per month which in the circumstance

not only meager, but also not commensurate to the

standard of living as expected by the wife of a Senior

Software Engineer drawing salary of Rs.1,61,169/-.

Mr.Prusty has accordingly prayed to enhance the

maintenance of the wife by granting 1/4th of such

salary of the husband at Rs.1,61,169/-. In order to

buttress his submission, learned counsel for the wife

has relied upon the decisions in (i) Rajnesh Vrs.

Neha; (2021) 2 SCC 324, (ii) Kalyan Dey

Chowdhury Vrs. Rita Dey Chowdhury Nee Nandy;

(2017) 14 SCC 200 and (iii) Dr.Kulbhushan Kumar

Vrs. Raj Kumari and another; 1970(3)SCC 129.

7. On the other hand, Mr.Devashis Panda,

learned counsel appearing for the husband has

submitted that the wife has claimed maintenance @

Rs.50,000/- per month by falsely stating that she was

unemployed and her husband is getting a salary of

Rs.2,40,000/- per month, but in fact, the husband is

jobless after his termination from service and since the

wife is a qualified lady and working in a Multinational

Company which is found from EPF slips and bank

account statement under Annexure-3 and 3/1, she

having suppressed her salary is not entitled to any

maintenance. It is further submitted by Mr.Panda that

since the wife refused to return to her matrimonial

house and remained adamant for not to go for

amicable settlement by demanding a sum of Rs.1

crore as a permanent alimony, the husband was

forced to file a divorce application before the learned

Judge Family Court, Visakhapatnam in FCOP No. 56 of

2022, but the learned trial Court being swayed away

by the claim of the wife has awarded maintenance to

her by the impugned judgment notwithstanding to the

false declaration made by her regarding her job,

however, the wife being guilty of suppression of fact is

not entitled to any maintenance on that score and

thereby, the impugned order granting maintenance to

wife is liable to be set aside. In support of his

contention, Mr.Panda has relied upon the decisions in

(i) Gaurav Vashishtha v. State of U.P. & Another;

2023:AHC:123312 (in CRL REV No.4498 of

2022), (ii) Niharika Ghosh v. Sankar Ghosh;

(2023) 3 HLR 401 (decided on 12.09.2023), (iii)

Avaneesh Mahodaya v. Smt. Shikha Mahodaya;

2024:MPHC-IND:26313, (iv) ABC v. XYZ; 2023

SCC Online Del 5624 (decided on 12.09.2023)

and (v) Amit Kumar Kachhap v. Sangeeta Toppo

(in CRL REV No.512 of 2023, disposed of on

02.02.2024).

8. After having considered the rival submissions

upon perusal of record, since the husband raises two

points to challenge the impugned judgment, this Court

first confines itself to address the challenge of the

husband. In his first plea, the husband has claimed

that the wife is not entitled to maintenance since she

has withdrawn from the society of her husband

unilaterally without any sufficient cause which is one

of the legal grounds available to husband U/S. 125(4)

of the Code, which prescribes that no wife shall be

entitled to receive any maintenance from her husband,

if she refuses to live with her husband without any

sufficient cause, but such question is of course a

question of facts, which can be decided/answered from

the facts and evidence on record and there is no

straight jacket formula as to what constitutes "without

sufficient cause", but law permits wife to refuse to live

with her husband, if situation so demands. In this

case, it is not in dispute that the husband has filed a

divorce petition before the Court at Visakhapatnam

against the wife in FCOP No. 56 of 2022 which was

admittedly filed on 03.01.2022, but the present

maintenance proceeding was initiated on 04.08.2022

which was after filing of the divorce petition by the

husband who has not filed the copy of the plaint in

FCOP No. 56 of 2022 for perusal of the Court to know

the grounds under which he has sought for dissolution

of marriage, but fact remains that the husband has

prayed for dissolution of marriage by approaching the

competent Court. The learned trial Court in the

impugned judgment while answering point No.1 which

is framed on the legal terms of Sec. 125(4) of the

Code has observed that during conciliation process

also the husband has not consented for resuming

conjugal life with plea that the wife has leveled false

allegation against him and implicated him as well as

his family members in criminal case. On the contrary,

the wife has taken the plea of ill-treatment and torture

on her by her in-laws. In support of such ill treatment,

torture and cruelty, the wife has initiated a criminal

case in Kashinagar PS Case No. 11 of 2022 which is

never denied by the husband. It is of course true that

the criminal charge has not yet been established

against the petitioner, but fact remains that there is

allegation and counter allegation by both the parties

and in the process, the husband has denied to resume

conjugal life and, therefore, the wife can be said to

have justification to live separately. On this point, this

Court considers it apt to refer to the very recent

decision of the Apex Court in Rina Kumari @ Rina

Devi @ Reena vrs. Dinesh Kumar Mahto @ Dinesh

Kumar Mahato and another;2025 SCC Online SC

72, wherein it has been held thus:-

"29.Thus, the preponderance of judicial thought weighs in favour of upholding the wife's right to maintenance under Section 125 CrPC and the mere passing of a decree for restitution of conjugal rights at the husband's

behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) CrPC. It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard and fast rule in this regard and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband coupled with non- compliance therewith by the wife would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4) CrPC."

9. In the aforesaid facts and backdrop of

evidence on record and discussions made, especially

when the husband has denied to resume conjugal life,

the wife has right to live separately and, therefore, by

no stretch of imagination, it can be said in this case

that the wife has unilaterally withdrawn from the

company of the husband without any sufficient cause.

Although the husband takes the plea of Sec. 125(4) of

the Code for wife deserting him, but the husband in

paragraph-20 of his cross-examination has admitted

that there was so many conciliations and mediations,

even by Apex court for their reunion and in every

conciliation, he has stated that he is not ready to join

with the petitioner though she has expressed her

willingness to join with him. Above discussion further

negates the plea of husband with regard to wife

deserting him. In the sequence, the husband has

relied upon the decision in Gaurav

Vashishtha(supra) to contend that the wife is not

entitled to receive any maintenance from husband, if

she refused to live with her husband, but in this case

as has been found, since the husband has refused to

resume conjugal life, this decision will not come to the

aid of the husband. The petitioner has also relied upon

the decision in Amit Kumar Kachhap(supra), but

the same is not applicable to this case at hand

inasmuch as the husband in this case has not been

able to establish that the wife has left the society of

the husband without any reasonable cause. Hence, it

is held that the wife has reason enough to live

separately and, therefore, the next question comes for

adjudication is whether the wife is entitled to

maintenance and if so, whether the husband is liable

to maintain his wife.

10. In the course of argument, learned counsel for

the husband has relied upon the decision in Niharika

Ghosh(supra) to contend that the wife is not entitled

to maintenance because she has suppressed her

income and thereby, guilty of suppression and

although the petitioner has relied upon the decision in

Niharika Ghosh(supra), but has not filed a copy of

such judgment and this Court, therefore, is unable to

peruse such judgment. Further, the petitioner on the

same point has relied upon the decision of Delhi High

Court by producing the hard copy of such judgment in

which names has been redacted and therein it has

been held by a Division Bench of Delhi High Court that

the appellant is highly qualified and has an earning

capacity, but in fact she has been earning, though has

not been inclined to truthfully disclose her true

income. True it is that the person who approaches the

Court should come with clean hand and that is why the

Apex Court has rendered the most celebrated decision

Rajnesh (supra) to minimize and confining the

disputed question of maintenance in a narrow frame

by prescribing a disclosure affidavit to be filed by the

parties for effective and early adjudication in a matter

relating to maintenance of wife and dependent

children. The husband has of course taken a plea that

the wife was working under "Zetagile Info Solution

Private Ltd" and was appropriately earning, but she

has concealed such fact to get maintenance. While

appreciating this plea, this Court has privilege to go

through the evidence on record as produced by the

learned counsel for the husband, but although the

examination-in-chief of the wife does not disclose

about her working in "Zetagile Info Solution Private

Ltd", but no cross-examination has been made to elicit

anything from her mouth with regard to her

employment in "Zetagile Info Solution Private Ltd". A

careful perusal of evidence of wife including cross-

examination, this Court does not find a single word

from her entire evidence with regard to her

employment in "Zetagile Info Solution Private Ltd" nor

the wife was suggested by the counsel for the husband

about her working in such company and earning

something and the only evidence that has been

elicited from the wife by the husband is that the wife

has acquired MCA Degree from Andhra University. On

the other hand, the husband while being examined as

OPW1 has taken the plea of wife working in "Zetagile

Info Solution Private Ltd" in paragraph-29 of his

examination-in-chief, but he has not clarified as to

when she started working and whether such firm still

exists. Be that as it may, the learned trial Court has

answered this issue specifically by observing as

under:-

"On the application of the respondent(husband), a report was called for "Zetagile Info Solution Private Ltd", but the letter from Court could not be served for the reason that the office of "Zetagile Info Solution Private Ltd" at Banjara Hills, Hyderabad, Telengana was found under lock. Husband- respondent has filed documents proved under Ext.N series which indicate, petitioner (Y.Malathi) as an employee is contributing towards EPF scheme. On the basis of rival submissions, a report was called for from UBI, Kashinagar and the account statement

received proved under Ext.C-I reveals, the wife has received money from "Zetagile Info Solution Private Ltd" for few months. In the course of argument, the petitioner in person (wife) and her counsel submitted that she had worked under "Zetagile Info Solution Private Ltd" for some time during pendency of the proceeding, but neither on the date of institution of proceeding nor on the date of argument she was working under "Zetagile Info Solution Private Ltd".

11. The above observation was never validly

disputed by the husband, however, if the wife was not

working at the time of institution of proceeding, she

cannot be held liable for suppression of facts in

disclosure affidavit for not mentioning the same

notwithstanding to the fact that she was working for

some time in said company, but was not working at

the time of argument of the case and, therefore, the

wife cannot be wholly responsible for suppression of

facts. Further, the decision which was relied on by the

husband in Niharika Ghosh(supra), the learned trial

Court has rightly applied the law laid down therein in

the present case by observing that it is not established

that the earning of wife is sufficient to enjoy the status

what she was having in her matrimonial home with

husband. On this issue, the learned trial Court has also

found that the wife was drawing a salary of

Rs.13,876/- per month from "Zetagile Info Solution

Private Ltd" during her employment, but at the same

time, it has held that the husband was drawing of

salary of Rs.1,61,169/- per month. The husband has,

however, stated that his job has been terminated and

at present, he is earning Rs.30,000/- to Rs.40,000/-

per month from freelancing. He has also stated in his

affidavit that at the time of marriage, the parents of

his wife had given three tolas of gold ornaments and

household articles worth Rs.1,00,000/-. It is,

therefore, very clear that the marriage was solemnized

with presentation of gifts to both the parties, but fact

remains to be decided here that since the wife is right

now jobless, whether she is entitled to maintenance

and her husband is liable to maintain her and if so,

how much amount would be just and appropriate for

the maintenance of the wife. It is an admitted fact that

both husband and wife were qualified and were doing

job as per their own disclosure. This Court, however,

makes it very clear as a precaution that law never

appreciate those wives who remain idle only to saddle

the liability of paying maintenance on the husband by

not working or not trying to work despite having

proper and high qualification, but at the same time,

the husband who is well qualified and was admittedly

also in job earlier, but remains idle by quitting the job

without any logic only to shift or avoiding the

responsibility of maintenance of the wife cannot be

accepted in a society of ours. Law will definitely come

to the rescue of such person who after making sincere

efforts has failed in their pursuit to earn to maintain

himself or herself together with his/her family

members. Many a time, the attitude of the spouses is

most important and when such instinct of such spouse

is only to fight and frustrate the efforts of others is

quite deplorable. In other words, spouses having high

qualification, but desirous to remain idle and not

making any efforts for the purpose of finding out the

source of livelihood should be discouraged. True it is

that even if the husband claims to have no source of

income, but his ability to earn given his education and

qualification is to be taken into account as held in

paragraph-26 of the judgment of the Apex Court in

Kiran Jyot Maini vrs. Anish Pramod Patel; (2024)

SCC Online SC 1724; wherein the Apex Court has held

as under:-

"26. Furthermore, the financial capacity of the husband is a critical factor in determining permanent alimony. The Court shall examine the husband's actual income, reasonable expenses for his own maintenance, and any dependents he is legally obligated to support. His liabilities and financial commitments are also to be considered to ensure a balanced and fair maintenance award. The court must consider the husband's standard of living and the impact of inflation and high living costs. Even if the husband claims to have no source of income, his ability to earn, given his education and qualifications, is to be taken into account. The courts shall ensure that the relief granted is fair, reasonable, and consistent with the standard of living to which the aggrieved party was accustomed. The court's approach should be to balance all relevant factors to avoid maintenance amounts that are either excessively high or unduly low, ensuring that the dependent spouse can live with reasonable comfort post-separation."

12. It is also not in dispute that the wife has

challenged the quantum of maintenance by filing

separate revision, but in order to have an equitable

determination of financial support required to the wife, it

can be said that maintenance should be determined

after considering the status and life style of the parties,

and their reasonable needs, educational qualification of

the wife, so also her earning capacity as well as the

financial standing and obligation of the husband shall be

taken into consideration to address the rising cost of

living and inflation to ensure a standard living that is

proportionate to the husband's financial capacity and

commensurate to the standard of his living and the

standard of living of the wife. However, there cannot be

any straight jacket formula for fixing the amount, but

the quantum of maintenance must be subjective to each

case and his dependent on various circumstance and

factors and such factors may be the income of both the

parties; their conduct during subsistence of the

marriage; their individual social and financial status;

their personal expenses; their individual capacities and

duties to maintain their dependents; the quality of life

enjoyed by the wife during the subsistence of marriage

and such other similar factors.

13. It is not disputed that the husband's income

was Rs.1,61,169/- and more per month during the

period when the wife had left the matrimonial home, but

the wife being a qualified lady having MCA Degree is

capable of doing some job and she was also earning

some amount, but the amount of earning which has

been assessed by the learned trial Court from the Bank

statement of the wife reveals her earning Rs.13,876/-

from "Zetagile Info Solution Private Ltd". Further, it is

also found from the record that the wife has reason

enough to stay separately from her husband, but the

husband was well qualified and earning handsome

amount at the time of wife living separately, but he is

liable to maintain his wife which flows from the

alternative submission of the husband to reduce the

amount of maintenance, but at the same time, wife

seeks for enhancement of maintenance.

14. In the factual backdrop as discussed above,

especially by taking into qualification and earning of the

husband and wife at Rs.1,61,169/- and Rs.13,876/- and

balancing other factors as narrated above and taking

into account the dependents of the husband as well as

his conduct of avoiding to participate in the proceeding

earlier till his salary was attached in the execution

proceeding which was evident from the ex-parte order

passed by the learned trial Court and later on set aside

by the same Court in an application U/S. 126(2) of the

Code by the husband, this Court considers that the wife

is entitled to 1/4th income of the husband minus her own

earning per month. In the factual scenario, especially

when both the wife and husband have tried to conceal

their real income which is evident from the proof of

Accounts statement of the husband under Ext.P-41 to 44

that he was drawing salary of Rs.1,61,169/- per month,

but coming with his plea that he is only earning

Rs.30,000/- to Rs.40,000/- per month from freelancing

with his job has already been terminated and the wife

claiming herself to be jobless, but was getting salary of

Rs.13,876/- in the past as observed by the learned trial

Court and both the parties having high qualification and

prospect to earn, but taking into account the admitted

facts as catalogued in the preceding paragraph with

some guess work to consider the income of the husband

at Rs.1.6 Lakhs and that of Rs.20,000/- per month and

striking a balance, since the wife is entitled to

maintenance, it would be just and proper to award a

sum of Rs.20,000/- (1/4 x Rs.1,60,000 - Rs.20,000) per

month to the wife for her maintenance.

15. In the result, while dismissing the revision in

RPFAM No. 142 of 2024 filed by the husband, the claim

of the wife in RPFAM No. 231 of 2024 stands allowed on

contest, but in the circumstance there is no order as to

cost.

Consequently, the impugned judgment dated

22.02.2024 passed by the learned Judge Family Court,

Paralakhemundi in Criminal Proceeding No. 26 of 2022

stands modified to the extent indicated above and

accordingly, the wife is entitled to get maintenance @

Rs.20,000/- per month from the husband w.e.f. the

date of filing of application U/S. 125 of the Code since

04.08.2022.

(G. Satapathy) Judge

Signed by: KISHORE KUMAR SAHOO

Reason: Authentication Orissa High Court, Cuttack, Location: High Court of Orissa Date: 19-Mar-2025 18:36:48 Dated the 19th day of March, 2025/Kishore