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2016 DIGILAW 24 (ORI)

Jagabandhu Panda v. State of Odisha

2016-01-11

B.K.NAYAK

body2016
ORDER : B.K. Nayak, J. 1. Heard learned Counsel for the petitioners and learned Counsel for the opposite party No. 2-Caveator. The petitioners in this application under Section 482, Cr.P.C. have challenged the order dated 14.10.2015 passed by the learned Sessions Judge, Bhadrak in Criminal Appeal No. 27 of 2015 directing payment of 50% of the arrear maintenance as well as compensation amount awarded by the Trial Court as a condition precedent for stay of the final order dated 15.04.2015 passed by the learned J.M.F.C., Bhadrak in D.V Misc. Case No. 70 of 2014 and further proceeding of execution Misc. Case No. 187 of 2015. 2. Admittedly, opposite party No. 2 is the wife of present petitioner No. 1, Opposite party No. 2 filed a petition under Section 12 of the Protection of Women From Domestic Violence Act (in short, 'D.V Act) against the petitioners, which was registered as D.V. Misc. Case No. 70 of 2014. Opposite party No. 2 claimed monetary relief of Rs. 15,000/-, per month towards her maintenance and compensation of Rs. 25,00,000/- towards physical and mental agony. It transpires that serious allegations of physical and mental torture of opposite party No. 2 by the petitioners and also sexual abuse by her brother-in-law (husband's younger brother) and another in-law were made. The petitioners contested the proceeding till 02.09.2014 without filing any written statement or objection and ultimately remained ex-parte since 09.09.2014. An order of interim maintenance in favour of opposite party No. 2 was passed on 09.09.2014, but the petitioners did not pay a single pie towards interim maintenance to opposite party No. 2.Ex-parte hearing of the proceeding was taken up by the learned J.M.F.C, who passed final order on 15.04.2015 directing payment of monthly maintenance of Rs. 10,000/- and compensation of Rs. 20,00,000/- to opposite party No. 2 by petitioners with a direction to pay the maintenance on or before 10th of each succeeding month and the compensation money within two months from the date of the order. The order was not complied with, as a result of which, opposite party No. 2 filed an application for execution before the learned S.D.J.M., Bhadrak, which was registered as Execution Misc. Case No. 187 of 2015. 3. In the meantime, the petitioners challenged the final order in the D.V. proceeding before the learned Sessions Judge, Bhadrak in Criminal Appeal No. 27 of 2015. Case No. 187 of 2015. 3. In the meantime, the petitioners challenged the final order in the D.V. proceeding before the learned Sessions Judge, Bhadrak in Criminal Appeal No. 27 of 2015. By the impugned order dated 14.10.2015, the learned Sessions Judge directed stay of execution of order dated 15.04.2015 passed in D.V. Misc. Case and stay of further proceeding of the execution Misc. Case, subject to payment of 50% of the arrear maintenance amount as well as the compensation amount awarded by the learned J.M.F.C, with a direction to deposit the same in the appellate Court in shape of challan in the name of the claimant. 4. It is submitted by the learned Counsel for the petitioners that the learned Magistrate while passing the maintenance and compensation order has not considered nor decided whether the amount awarded in favour of opposite party No. 2 was just and proper and further that the learned Magistrate has not considered any report of the protection officer. Learned Counsel for opposite party No. 2 on the other hand, submits that petitioner No. 1 is a Television and film Artist having good income of his own and that his father is a very renowned and experienced Opera Artist, whose income is around Rs. 35,00,000/- per year as per the averments made in the petition filed by the opposite party No. 2, so also in her evidence given on affidavit. It is also his submission that after contesting the proceeding- for sometime without filing any written statement, the petitioners chose to remain ex-parte before the learned J.M.F.C, and, therefore, the learned J.M.F.C. took up ex-parte evidence and passed the order for maintenance and compensation. It is also submitted by him that the husband and father-in-law of opposite party No. 2 have sufficient landed properties and house properties, evidence in respect of which was led before the learned Magistrate. It is also submitted that the appellate Court has granted stay in favour of petitioners subject to payment of 50% of the arrear maintenance and the compensation amount only, which is in consonance with the provisions of Order 41 of the Code of Civil Procedure and, therefore, there is no infirmity in the impugned order. It is also submitted that the appellate Court has granted stay in favour of petitioners subject to payment of 50% of the arrear maintenance and the compensation amount only, which is in consonance with the provisions of Order 41 of the Code of Civil Procedure and, therefore, there is no infirmity in the impugned order. He has also submitted that though an interim maintenance order was passed during the pendency of the proceeding before the learned J.M.F.C, the petitioners have not paid a single pie to opposite party No. 1 towards interim maintenance. 5. The Hon'ble Supreme Court in the case of Shalu Ojha v. Prashant Ojha: (2005) 2 SCC 99, though refrained from deciding the question whether the Sessions Court has the power to grant interim order during the pendency of an appeal under Section 29 of the D.V. Act held however as follows: "23. In a matter arising under a legislation meant for protecting the rights of women, the High Court should have been slow in granting interim orders, interfering with the orders by which maintenance is granted to the appellant." 6. Apart from the above, it is also noticed that the conduct of the petitioners is a gross abuse of judicial process, inasmuch as not only that they did not file any written statement and allowed the proceeding to continue ex-parte, they have not complied the Magistrate's order granting interim maintenance in favour of opposite party No. 2. At any rate, the learned Sessions Judge has granted stay subject to deposit of only 50% of the arrear maintenance and the compensation, which needs no interference. The CRLMC is dismissed.