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2014 DIGILAW 96 (ORI)

CHANDRA SEKHAR CHINARA v. NALINIPRAVA SAHU

2014-02-06

B.K.NAYAK

body2014
JUDGMENT : B.K. Nayak, J. - Order dated 01.10.2012 passed by the learned Judge, Family Court, Khurda in Criminal Petition No. 254 of 2011 u/s 127 of the Code of Criminal Procedure enhancing the monthly maintenance in favour of the opposite parties respectively to Rs. 3500/- and Rs. 4000/-, is the subject matter of challenge in this revision. The petitioner is admittedly the husband of opposite party No. 1 and father of opposite party No. 2. In Criminal Misc. Case No. 69 of 2003 filed by the opposite parties u/s 125, Cr.P.C., the J.M.F.C., Khurda by his order dated 26.06.2004 awarded monthly maintenance to both the opposite parties at the rate of Rs. 400/- and Rs. 300/- respectively. In Civil Proceeding (C.M.A. No. 09 of 2004) arising out of M.A.T. Case No. 45 of 2003 the Civil Judge (Senior Division) had awarded interim maintenance of Rs. 1000/- per month in favour of the present opposite parties. Order passed by the learned J.M.F.C. u/s 125, Cr.P.C. was challenged by the petitioner before this Court in Criminal Revision No. 511 of 2004. This court stayed the order of maintenance subject to payment of Rs. 1000/- per month as directed by the learned Civil Judge (Senior Division). The said order of stay was subsequently vacated and the revision also ultimately got dismissed. 2. The opposite parties filed Cri. Petition No. 254 of 2011 u/s 127, Cr.P.C. claiming enhanced maintenance of Rs. 15,000/- for each of the opposite parties on the ground of price rise and financial difficulties faced by the opposite parties to meet their bare necessities of life. It was claimed by them that they have got no source of income in managing their livelihood and for the study of opposite party No. 2. It was also claimed that opposite party No. 1 was suffering from several ailments and money was also necessary for her treatment. They claimed that the present petitioner is working as a distributor of Britannia Company, a Surveyor in Proctor and Gamble, besides having a jewellery shop and doing share trading business. Apart from denying the assertions of the opposite parties, the petitioner took the stand that opposite party No. 1 has a monthly earning of Rs. 15,000/- and that the petitioner earns only Rs. 3,000/- as a Salesman in Nivedita Enterprises, Jatni. 3. Apart from denying the assertions of the opposite parties, the petitioner took the stand that opposite party No. 1 has a monthly earning of Rs. 15,000/- and that the petitioner earns only Rs. 3,000/- as a Salesman in Nivedita Enterprises, Jatni. 3. The opposite parties examined two witnesses including opposite party No. 1 as P.W. 1 while the petitioner examined three witnesses including himself as O.P.W. No. 1 and Manager of the State Bank of India, Khurda Branch as O.P.W. No. 3. 4. The learned Judge, Family Court, Khurda has passed the impugned order granting monthly maintenance of Rs. 3,500/- to opposite party No. 1 and Rs. 4,000/- to opposite party No. 2 from the date of filing of the application. 5. It is the contention of the learned counsel for the petitioner that the court below has not at all given any finding with regard to the income of the petitioner as well as that of opposite party No. 1 and further, it has also totally ignored the income tax returns of opposite party No. 1 vide Ext. B series which she has filed in the State Bank of India, Khurda Branch for raising house building loan and therefore enhancing the monthly maintenance of Rs. 400/- and Rs. 300/- to respectively Rs. 3500/- and Rs. 4000/- is wholly illegal and unjustified. Learned counsel for the opposite parties, on the other hand, contends that keeping in view the present need of the opposite parties, particularly that of opposite party No. 2, who is a student and having regard to the present cost of living, the quantum of enhancement is not excessive. 6. Apparently, the court below has not come to any definite conclusion/finding about the income of the parties. Though the petitioner filed Ext. A, certificate issued by the proprietor of Nibedita Enterprises, Jatni indicating that the petitioner works in the said organization as salesman with a monthly salary of Rs. 3,000/- and also Ext-B series, which are the income tax returns of opposite party No. 1 for the assessment years 2008-09 and 2009-10 and proved by O.P.W. No. 3, the said documents have not at all been considered. The income tax return for the assessment year 2008-09 of the opposite party No. 1 shows a total annual income of Rs. 1,37,600/- and the income tax return for the assessment year 2009-10 shows an income of Rs. The income tax return for the assessment year 2008-09 of the opposite party No. 1 shows a total annual income of Rs. 1,37,600/- and the income tax return for the assessment year 2009-10 shows an income of Rs. 1,56,400/-, i.e., the total income after expenditure as per the statement attached. These income tax returns have been filed by the opposite party No. 1 before the State Bank of India for raising loan for the purpose of construction and renovation of her house. These income tax returns are not disputed by opposite party No. 1. The returns reveal that the opposite party No. 1 has a monthly income ranging between Rs. 11,000/- to Rs. 13,000/- per month. It appears from the evidence that this income is derived by opposite party No. 1 from private tuition and her tailoring work. There is no credible evidence about the exact monthly income of the petitioner, though he filed an income certificate from Nibedita Enterprises, Jatni showing a monthly salary of Rs. 3000/-. Having regard to the evidence on record, in my view, enhancing monthly maintenance of Rs. 400/- of opposite party No. 1 to Rs. 3500/- is not justified inasmuch as opposite party No. 1 appears to have more income than the petitioner. So far as the opposite party No. 2 is concerned, he being a boy of around 12 years of age, who is prosecuting his study in Saraswati Sishu Bidya Mandir, enhancing his monthly maintenance to Rs. 4000/- does not appear to be in the higher side. Therefore, keeping in view the income of the parties and their needs and the present day cost of living, I am of the opinion that the monthly maintenance in favour of opposite party No. 1 should be enhanced to Rs. 2,000/- (rupees two thousand) instead of Rs. 3,500/- (rupees three thousand five hundred) as has been done by the learned court below and accordingly, I modify the same. The enhancement granted by the court below in favour of opposite party No. 2 needs no interference. The RPFAM stands disposed of accordingly.