Research › Browse › Judgment

Orissa High Court · body

1992 DIGILAW 124 (ORI)

SWASTI KAR v. GIRIJA SHANKAR KAR

1992-04-16

S.C.MOHAPATRA

body1992
JUDGMENT : S.C. Mohapatra, J. - Refusal to grant interim maintenance u/s 125 Criminal Procedure Code to wife and child is assailed in this Criminal Revision. 2. For the purpose of this application there is no dispute that the petitioners are the wife and child of opposite party. On account of differences wife and child are remaining separately and have claimed maintenance in an application u/s 125, Criminal Procedure Code. As provided u/s 125 Criminal Procedure Code, Court has jurisdiction to grant maintenance at such monthly rent not exceeding Rs. 500/- in the whole. It is also not in dispute that wife is a teacher in a private School at Puri on monthly remuneration of Rs. 400/- per month. In this background an application for interim maintenance was filed. 3. Opposite party husband contested the application on the ground that the wife is earning and application for interim maintenance is only to harass him. Considering the application, trial Court held that it cannot be said that wife is unable to maintain herself which is the main ingredient to grant maintenance u/s 125 Cr.P.C. It came to conclusion that there is no material that she is going to starve or die till the final order to enjoy the fruits of the proceeding. 4. Mr. G. S. Rath, learned counsel for petitioner is correct in his submission that impugned order cannot be sustained since, trial Court has not considered the question of interim maintenance to child. Besides, starvation or impending death in absence of interim maintenance are not the only consideration for grant of interim maintenance. Existence with self-respect being deprived of company of husband would be the standard to be applied to consider question of interim maintenance in case prima facie case for maintenance is made out. This would depend upon the social economic circumstances in which the wife was brought up before her marriage on marriage and after separation. Maintenance of a child would be in accordance with the standard of living of his father. The statutory limit of Rs. 500/- in the whole cannot be forgotten since the Court has no jurisdiction to grant maintenance beyond the same. 5. Trial Court ought to have examined the question of interim maintenance in this light. Therefore, impugned order cannot be sustained as is vacated. 6. Although Mr. The statutory limit of Rs. 500/- in the whole cannot be forgotten since the Court has no jurisdiction to grant maintenance beyond the same. 5. Trial Court ought to have examined the question of interim maintenance in this light. Therefore, impugned order cannot be sustained as is vacated. 6. Although Mr. G.S. Rath has relied upon series of decisions relating to grant of interim maintenance including decision reported in Savitri Rawat Vs. Govind Singh Rawat which principle has been followed by this Court in 1992 1 Cri 66 (Narayan Sahu v. Susama Sahu), Jayaram Thakra ' Jhagara Vs. Sabitri Thakra and Others 1990 (II) OLR 602 (Smt. Sabita Shoo v. Captain Khirod Kumar Sahoo). Principle is well settled and support is necessary for coming to the conclusion that interim maintenance can be awarded in just circumstances and quantum of maintenance is to be determined on the facts and circumstances of each case. In a decision reported in, 1990 (1) OLR 301 : (1990) CLT 380 (Smt, Sudhirlata Dei v. Krushna Chandra Mohanty) while considering the question of Interim maintenance u/s 24 of the Hindu Marriage Act it was held that earning of wife by itself is not a ground to reject prayer. Deficit is to be directed to be paid. Same should also be the standard in an application u/s 125 Cr.P.C. subject to restriction put therein. 7. In case I delve into the facts as available in detail and give prima facie finding, either party may be prejudiced at stage of enquiry. However marital relationship and birth of child who are separate are facts which are to be noted. Wife is a Post Graduate degree-holder. Her husband (opposite party) is an officer in a Bank. Child is now reading in Nursery standard in the school where her mother is a teacher. This would be sufficient to hold that an amount of Rs. 400/- only would not be sufficient for their maintenance. It is required to be supplemented. Source of supplementing this amount is the income of the husband who is legally bound to maintain atleast the child even though the mother might hot be entitled to maintenance immediately. Clear materials are, however, not on record to come to the conclusion as to the requirement of the wife and the child. It is required to be supplemented. Source of supplementing this amount is the income of the husband who is legally bound to maintain atleast the child even though the mother might hot be entitled to maintenance immediately. Clear materials are, however, not on record to come to the conclusion as to the requirement of the wife and the child. In such circumstances, ends of justice would be best served, in case, I direct that opposite party shall open an account in any Bank at Bhubaneswar where the wife stays to commute the distance to Puri on School days in the name of the child with guardianship of mother and deposit Rs. 500/- (five hundred) each month in such account till disposal of the application u/s 125 Cr.P.C. Court cannot permit withdrawal of amounts from out of the deposited amount as and when mother guardian applies for such amount for proper maintenance of the child determining the nature of necessity. Application when filed shall be disposed of within seven days of service of copy of such application on learned counsel of husband (opposite party). This would give opportunity to the opposite party to contest the application if so advised. 8. Amount at Rs. 500/- (five hundred) per month shall be deposited with effect from month of December, 1991. Amounts in the months of December, January, February, March and April shall be deposited on or before 5th May, 1992. Application form being duly signed by the petitioner No. 1 for opening of account at Bhubaneswar Bank as directed shall be filed in Court on or before 25th April, 1992 which can be received by the opposite party from counter for opening of the Account. In case any other documents are required, the same shall also be filed. 9. With the aforesaid direction, this Criminal Revision is allowed. Final Result : Allowed