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2010 DIGILAW 69 (ORI)

Benudhar Jena v. Minati Jena

2010-02-03

B.K.PATEL, L.MOHAPATRA

body2010
JUDGMENT L. MOHAPATRA, J. — This appeal is directed against the judgment and order dated 30.4.2008 passed by the learned Judge, Family, Court, Rourkela in Civil Proceeding No.229 of 2005 di¬recting the appellant to pay monthly maintenance of Rs.2,500/- to the respondent No.1 and a further sum of Rs.1,500/- towards maintenance to respondent No.2 from the date of filing of the application. 2. The respondents filed an application before the learned Judge, Family Court, Rourkela under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 claiming monthly maintenance of Rs.6,000/- from the appellant. The case of respondents is that respondent No.1 married to the appellant on 22.7.1994 and a child (respondent No.2) was born to them. After having a successful married life for almost nine years, some time in the year 2003 the appellant at the instigation of his mother started demanding a sum of Rs.1,00,000/- for purchasing a car and due to non-payment of the said amount they started ill treating her and she was also subjected to assault. On one occasion respondent No.1 was assaulted by the appellant for which she had to be admitted in Ispat General Hospital at Rourkela. On 31.3.2005 having been assaulted by the appellant, respondent No.1 reported the incident in Mahila Police Station, Rourkela, but later on intervention of their friends, the matter was settled. However, even thereafter, the respondent No.1 was subjected to misbehaviour and the appel¬lant also developed extra-marital relationship with another woman, namely, Sasmita Rout residing in Sector-5 at Rourkela. For the above reasons, respondent No.1 had no other option except staying away from the appellant alongwith her child. Their fur¬ther case is that the appellant is drawing a salary of Rs.15,000/- and, therefore, he is liable to pay maintenance to both the respondents at the rate of Rs.6,000/- per month. 3. The appellant contested the case before the learned Judge, Family Court, Rourkela. He admitted the marriage and birth of respondent No.2, but denied the allegation of demand of cash dowry and allegation of misbehaviour and cruelty as alleged in the petition. According to the appellant due to wrong advice given by the elder brother of respondent No.1, she left his association and, therefore, she is not entitled to maintenance. 4. He admitted the marriage and birth of respondent No.2, but denied the allegation of demand of cash dowry and allegation of misbehaviour and cruelty as alleged in the petition. According to the appellant due to wrong advice given by the elder brother of respondent No.1, she left his association and, therefore, she is not entitled to maintenance. 4. Learned Judge, Family Court, Rourkela on the pleadings of the parties framed four issues and found that respondent No.1 had not voluntarily deserted the appellant and the appellant had also not taken any sincere step to reconcile the matter between him and respondent No.1. Learned Judge, Family Court, Rourkela also held that the respondent No.1. had been subjected to mental and physical cruelty. Having found thus, learned Judge, Family Court, Rourkela assessed the salary of the appellant at Rs.14,000/- per month and, accordingly, directed for payment of monthly maintenance allowance at the rate of Rs.2,500/- to re¬spondent No.1 and Rs.1,500/- to respondent No.2. 5. Sri Mishra, learned counsel appearing for the appellant assails the impugned judgment on the ground that the allegations made in the petition have not been proved at all except a bald statement made by the respondent No.1 in course of her examina¬tion. Since there was no reason for respondent No.1 to leave the company of the appellant and the respondent No.1 is staying away from the appellant in her elder brother’s home without any rea¬son, she is not entitled to maintenance. Learned counsel for the respondents drew attention of the Court to the deposition of respondent No.1 and submitted that each and every allegation made in the petition had been proved through oral evidence and the same having been accepted by the learned Judge, Family Court, Rourkela, there is no reason for this Court to interfere with the impugned judgment. 6. We have carefully gone through the evidence of respond¬ent No.1 examined as P.W.1 as well as evidence of appellant examined as O.P.W.1. Respondent No.1 in her deposition has sup¬ported each and every allegations made in the petition with regard to demand of dowry, assault, misbehaviour and also the allegation with regard to extra marital relationship. Nothing has been brought out in the cross-examination to disbelieve her statement and most part of the cross-examination appear to be suggestions. Respondent No.1 in her deposition has sup¬ported each and every allegations made in the petition with regard to demand of dowry, assault, misbehaviour and also the allegation with regard to extra marital relationship. Nothing has been brought out in the cross-examination to disbelieve her statement and most part of the cross-examination appear to be suggestions. On the other hand, from the evidence of the appel¬lant it appears that the marriage and birth of the child are admitted. He has also made several allegations in his deposition against respondent No.1 so far as her conduct is concerned. On analysis of the evidence of these two witnesses, we find that after eight to nine years after the marriage they were not pull¬ing on well and the allegations and counter allegations clearly establish this fact. Even if a part of evidence of P.W.1 is accepted, it will be a reasonable ground for any wife to stay away from her husband. For the reason stated above, we find no infirmity in the finding of learned Judge, Family Court, Rourkela so far as entitlement of respondents for maintenance is con¬cerned. 7. Coming to the quantum of compensation, learned counsel for the respondents produces a copy of a salary certificate of the appellant and it shows that the appellant is drawing about Rs.22,000/- towards basic pay and D.A. apart from other allow¬ances at present. Therefore, a sum of Rs.4,000/- towards mainte¬nance of both respondents does not appear to be excessive or unjustified. We, therefore, decline to interfere with the quantum of maintenance. For the reasons stated above, the appeal has no merit and, accordingly, stands dismissed. It is stated by the learned counsel for the appellant that divorce proceeding is pending before the learned Judge, Family Court, Rourkela between the parties but the same has not been disposed of because of non-cooperation of the respondent No.1. The appellant may take necessary steps for early disposal of the said case before the learned Judge, Family Court, Rourkela. B.K. PATEL, J. I agree. Appeal dismissed.