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2017 DIGILAW 324 (ORI)

Ramakanta Nayak v. Itishree Mohapatra

2017-03-24

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. The petitioner Ramakanta Nayak has filed this revision petition challenging the impugned judgment and order dated 15.04.2015 passed by the learned Judge, Family Court, Jajpur in Criminal Proceeding No. 591 of 2011 in directing the petitioner to pay maintenance to the opposite party @ Rs.1,000/- (rupees one thousand) per month from the date of application i.e. 18.10.2011 till the order and to pay maintenance @ Rs. 1,500/- (rupees one thousand five hundred) from the date of order i.e. 15.04.2015. It was further directed that the arrear maintenance should be paid within three months and the current maintenance should be paid within first week of every succeeding month. 2. The opposite party filed an application under section 125 of Cr.P.C. indicating therein that she is the legally married wife of the petitioner and their marriage was solemnized on 23.05.2010 as per the Hindu rites and customs and during marriage, cash, gold ornaments and other household articles were given and after marriage, they resided peacefully for about five months. During her stay in her in-laws house, the opposite party found that the younger sister of the elder sister in-law (Bhauja) of the petitioner was visiting the house frequently and mixing with the petitioner very freely and the petitioner had illicit relationship with her. 3. It is the further case of the opposite party that on 7.11.2010 the petitioner and his family members demanded Rs.50,000/- (rupees fifty thousand) more and since such demand could not be fulfilled, the petitioner threatened the opp. party to murder her by pouring kerosene on her body and out of fear and to save her life, the opposite party fled away from the house and reported the matter to the police. The petitioner declared to marry again the younger sister of his sister in-law (Bhauja). The opp. party lodged another report before the police and a criminal case was instituted. It is further stated in the maintenance petition that the opp. party had no source of income and she had come from a lower middle class family and her father depended on agriculture and the petitioner was earning of Rs.12,000/- per month being engaged in a private firm at Bhubaneswar and his family had 8 acres of landed property from which they were earning Rs.50,000/- per annum. She prayed for an amount of Rs. 6,000/- to be paid to her towards maintenance. She prayed for an amount of Rs. 6,000/- to be paid to her towards maintenance. 4. The petitioner appeared in the said case on being noticed and filed his show cause denying the case of the opposite party but admitted the marriage. It is the case of the petitioner that the opp. party was suffering from mental disease and soon after marriage, when it was detected, she was taken to S.C.B. Medical College & Hospital, Cuttack on 09.06.2010 for treatment and she was under treatment in that Hospital. It is further stated in the show cause that the petitioner had no income and he belonged to B.P.L. Family. 5. During course of the proceeding before the learned Judge, Family Court, three witnesses were examined on behalf of the opposite party and four witnesses were examined on behalf of the petitioner. The opposite party examined herself as P.W.1 and the petitioner examined himself as O.P.W.1. The petitioner exhibited certain documents i.e. Ext. A to Ext. E. 6. Considering the evidence adduced by both the sides and the documents proved by the petitioner, the learned Judge, Family Court has been pleased to hold that the plea of the petitioner that the opposite party was living in adultery is not believable. It was further held that from the case record, it shows that the opposite party has sufficient reason to reside separately from the petitioner and she has no sufficient income and she was unable to maintain herself. It was further held that the income of the petitioner can be guessed to be not less than 8,000/- (rupees eight thousand) and accordingly, the impugned judgment and order of maintenance was passed. 7. Challenging the impugned judgment and order of learned Judge, Family Court, Mr. Balaram Nayak, learned counsel for the petitioner contended that the impugned judgment and order suffers from non-application of mind and the material documents which have been proved by the petitioner were not considered by the learned Judge, Family Court in its proper perspective. The learned counsel drew my attention to annexures to the revision petition particularly to the home visit report prepared by the Principal Counsellor to show that the opposite party was living with another person namely Umakanta Senapati in a rented house. It is contended that since the opposite party was living in adultery, she is not entitled to get any maintenance. 8. Mrs. It is contended that since the opposite party was living in adultery, she is not entitled to get any maintenance. 8. Mrs. Sangita Mohanty, learned counsel for the opposite party on the other hand supported the impugned judgment and contended that the revision petition should be dismissed. 9. On perusal of the home visit report, it appears that such a document was not proved before the Family Court. Moreover such report indicates that the Principal Counsellor got information from three persons i.e. Bikram Keshari Mohapatra, Santilata Mohanty and Sradhanjali Sahoo that the opposite party lived with one Umakanta Senapati as his wife. None of these three witnesses has been examined before the learned Judge, Family Court, Jajpur to depose in that respect. The Principal Counsellor has got no personal knowledge about such aspect. Therefore, I am not inclined to accept the home visit report to hold that the opposite party was living with any Umakanta Senapati as his wife. 10. Learned counsel for the petitioner further contended that there is a Notary Certificate dated 18.01.2013 which has been marked as Ext. D which also indicates that the opposite party had married to Umakanta Senapati. In case of Rohit Kumar Behera Vrs. State of Orissa reported in 2012 (2) ILR-Cuttack 395, it is held as follows:- “6. As some Notaries had adopted a self innovated format by issuing authenticated certificate of Marriage purported to be in pursuance of Rules 11(1) and 16 of the Rules, 1956, the Law Department on 18.03.2009 had issued a letter vide Letter No. III-1-7/07 3921/L directing all the Notaries across the State not to issue Marriage Certificate which is not a function of the Notary under Section 8(1) of the Act, 1952. In this context, a Division Bench of this Court on 21.04.2009 while disposing of a writ petition bearing W.P.(C) No. 19719 of 2008 had observed that a Notary does not have competence under the statute to issue marriage certificate but on the basis of the declaration made by the parties declaring themselves as husband and wife, the verification subsequently made by the Notary is very well within the jurisdiction and competence of the Notary as the verification made is in accordance with law. X X X X X X 17. X X X X X X 17. The functions and transactions of business by Notary as envisaged in Section 8 of the Act, 1952 and Rules, 1956 respectively cannot be done in a routine manner without application of mind; otherwise the very purpose of enacting Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 would be frustrated because sanctity is attached to the certificate of the Notary. Thus, Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 cast an obligation on Notary to apply his mind while discharging his notarial functions and transactions of business. 18. Notaries are appointed for authentication of certificates/documents. Documents duly notarized by the Notaries are accepted to be genuine documents in absence of any other material. Certificates duly authenticated by the Notaries are presented before different authorities for various purposes. It is very much necessary that before authenticating any document by putting his signature and Notarial seal, the Notary should ensure that the document is a genuine one. Sometimes, it is found that power given to a Notary is misused. Therefore, it is necessary to regulate the work of the Notaries.” 11. Therefore, I am not inclined to place any reliance on such notarial marriage certificate and it cannot be a valid proof of marriage between the opposite party and Umakanta Senapati. 12. On perusal of the evidence adduced by both the sides and the impugned judgment, I find that the learned Judge, Family Court has discussed the evidence threadbare and rightly came to hold that since the marriage is not disputed between the parties and there is no material that the opp. party was living in adultery and there was justifiable reason for her to live separately from the petitioner and opp. party has no sufficient means to maintain herself, therefore, she is liable to get maintenance from the petitioner. 13. The quantum of maintenance which has been fixed by the learned Judge, Family Court cannot be said to be on the higher side on any stretch of imagination. Therefore, in absence of any illegality or infirmity in the impugned judgment, I am not inclined to interfere with the same. 14. Accordingly, the revision petition being devoid of merits stands dismissed.