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2017 DIGILAW 670 (ORI)

Manas Chandra Pradhan v. Sonali Sahoo

2017-07-06

B.K.NAYAK

body2017
JUDGMENT B.K. NAYAK, J. - The order dated 09.11.2016 passed by he learned Judge, Family Court, Bhubaneswar in CRP No.172 of 2015 granting interim maintenance of Rs.10,000/- (Rupees Ten Thousand) per month in favour of the wife (petitioner in CRLMP No.275 of 2017) has been assailed in both the writ petitions. 2. Petitioner in CRLMP No.275 of 2017 is the wife and petitioner in CRLMP No.239 of 2017 is the husband. Wife has filed CRLMP No.275 of 2017 for enhancement of the interim maintenance. Petitioner in CRLMP No.239 of 2017 has challenged the order granting interim maintenance itself. Therefore, both the writ petitions were heard analogously and are being disposed of by this common judgment. 3. It is alleged in the maintenance petition that the marriage between petitioners of both the writ petitions was solemnized on 28.11.2004 according to Hindu Customs and rites. After the marriage, the wife came to the house of the husband. In spite of giving dowry in shape of cash and gold ornaments and furnitures the husband and his family members were not satisfied and they started torturing the wife physically and mentally, demanding further dowry of Rs.5,00,000/- (Rupees Five Lakh). However, after the marriage the husband did not keep physical relationship with the wife and demanded Rs.5,00,000/- (Rupees Five Lakh) and when the wife expressed her inability to fulfil such demand, the husband abused her and directed not to touch him until the demand was fulfilled. The in-laws of the wife also tortured her for non-fulfilment of dowry demand. Fifteen days after the marriage, the husband took the wife to his service place at Hyderabad. Soon thereafter the in-laws of the wife arrived at Hyderabad and stayed there with the petitioners for about a month during which period they also tortured the wife physically and mentally. After sometime it was learnt by the wife that her husband was impotent and her parents-in-law persuaded her to go for a test tube baby in Apolo Hospital at Bangalore cunningly suppressing the impotency of the husband. During the medical test in the hospital the wife has confirmed that her husband suffers from impotency and test tube baby was not possible. In the meantime torture on her was continued, but she tolerated all the torture and the cruelty meted out to her. Finally when it became unbearable for her, she came back and stayed with her parents. During the medical test in the hospital the wife has confirmed that her husband suffers from impotency and test tube baby was not possible. In the meantime torture on her was continued, but she tolerated all the torture and the cruelty meted out to her. Finally when it became unbearable for her, she came back and stayed with her parents. It is further stated that her husband is highly educated, Engineering Graduate from the IIT, Kharagpur and serving as an Engineer in the Microsoft Company, getting handsome salary and has acquired landed property worth about Rs.58,00,000/- (Rupees Fifty Eight Lakh), but neglected to maintain the wife. With the aforesaid averments, the wife initially filed petition under Section 125, Cr.P.C. in the Family Court, Cuttack which was registered as Criminal Proceeding No.451 of 2014.She also filed a separate petition claiming interim maintenance @ Rs.68,000/-(Rupees Sixty-Eight Thousand) per month and litigation expenses of Rs.1000/- (Rupees One Thousand) for each date of attending the Court or Rs.50,000/- (Rupees Fifty Thousand) at once. 4. The Family Court, Cuttack finding that it had no territorial jurisdiction to entertain the proceeding, passed order on 04.09.2015 for return of the maintenance petitions to be filed before the competent Court of law. Therefore, the wife took return of the petitions and filed the same before the Family Court, Bhubaneswar where the proceeding was registered as Criminal Proceeding No.172 of 2015. While the proceeding was pending in the Family Court, Cuttack notices had been issued and the husband had appeared and filed counter/objection to the proceeding denying the factum of demand of dowry and torture of the wife and about his impotency. It was also stated that the husband was without employment except his business from which he is earning monthly only of Rs.25,000/- at Bangalore. It was also stated that the wife voluntarily left the company of the husband who never neglected her,. It was also stated that on the request of the wife the husband acquired some shares in her name and some shares in the name of her mother in a firm, namely, M/s. Express Wheels at Bhubaneswar, out of which the wife is getting a monthly return of Rs.60,000/-. 5. It was also stated that on the request of the wife the husband acquired some shares in her name and some shares in the name of her mother in a firm, namely, M/s. Express Wheels at Bhubaneswar, out of which the wife is getting a monthly return of Rs.60,000/-. 5. On consideration of the pleadings of the parties and taking into consideration the materials produced, the learned Judge, Family Court, Bhubaneswar passed the impugned order on 09.11.2016 directing the husband to pay interim maintenance of Rs.10,000/- (Rupees Ten Thousand) per month from the date of filing of the petition, i.e., 30.07.2015 and litigation expenses @ Rs.300/- (Rupees three hundred) per date from the date of the order. It was further directed that arrear interim maintenance shall be cleared in two by-monthly instalments. 6. Learned Counsel for the petitioner (wife) in CRLMP No.275 of 2017 submits that the husband is an IIT Engineer who started service with Microsoft Company with an annual package of Rs.11,00,000/- (Eleven Lakh) and that his present income is much more than his own business though he is no more in service under any employer. Besides, it is submitted by the petitioner that his husband has acquired house properties at different places, and that the wife has no income at all, and, that keeping in view the status of the parties the grant of interim maintenance @ of Rs.10,000/- (Rupees Ten Thousand) per month is very much on the lower side which should be enhanced. 7. The learned Counsel for the husband (petitioner in CRLMP No.239 of 2017) on the other hand submits that no petition for grant of interim maintenance was at all served on the husband and he has not filed any objection/show cause to the interim maintenance petition and, therefore, the impugned order is an outcome of violation of principle of natural justice and as such liable to be set aside. It is his further submission that apparently the husband is not in job and doing his own business having a meagre incomer and that the wife has her own source of income and therefore, grant of interim maintenance @ Rs.10,000/- (Rupees Ten-Thousand) is very much on the higher side. 8. It is his further submission that apparently the husband is not in job and doing his own business having a meagre incomer and that the wife has her own source of income and therefore, grant of interim maintenance @ Rs.10,000/- (Rupees Ten-Thousand) is very much on the higher side. 8. It is found from the lower Court Records that the wife filed the petition under Section 125, Cr.P.C. claiming maintenance of Rs.97,000/- (Ninety Seven-Thousand) per month and at the same time filed separate petition for interim maintenance of Rs.68,000/- per month and copies thereof were served on the husband. It is also found that though the husband did not file a separate objection to the interim maintenance application, he has filed objection to the claim of maintenance itself taking various pleas. The order-sheet of the Court below also revealed that in presence of the parties the proceeding was posted from time to time for hearing of the interim maintenance petition which was accordingly heard. Therefore, the submission of the learned Counsel for the husband that the husband had no knowledge about the filing of interim maintenance application and that he has not filed objections to the same is not tenable. 9. With regard to the quantum of maintenance it is found that the husband filed his income tax returns for the years 2014-15 and 2015-16 showing taxable annual income of Rs.3,70,310/- (Rupees Three Lakh Seventy Thousand Ten) and Rs.3,55,280/- (Rupees Three Lakh Fifty-Five Thousand Two Hundred Eighty) respectively for the aforesaid two years from his business at Bangalore, against which no other material was available before the Court with regard to any higher income of the husband. Similarly the husband also could not be able to produce any material with regard to the personal income of the wife. In the circumstances keeping view the income of the husband reflected in the income tax returns and taking into consideration the cost of living of the husband at Bangalore, the Court below fixed the interim maintenance @ Rs.10,000/- (Rupees Ten Thousand) per month, which cannot be said to be in the higher side. At the same time there was no material before the Family Court about higher income of the husband for which award of Rs.10,000/- (Ten Thousand) per month as interim maintenance appears to be quite proper which needs no enhancement. 10. At the same time there was no material before the Family Court about higher income of the husband for which award of Rs.10,000/- (Ten Thousand) per month as interim maintenance appears to be quite proper which needs no enhancement. 10. In the aforesaid circumstances both the writ petitions being devoid on merit are accordingly dismissed. Send back the lower Court records forth with. The Family Court, Bhubaneswar is directed to hear and dispose of the main application for maintenance expeditiously. Petition dismissed.