Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 466 (ORI)

Purna Chandra Lenka v. Kanakalata Lenka

2018-04-24

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This application is directed against the judgment dated 16.01.2017 passed by the learned Judge, Family Court, Balasore in C.P. No. 206 of 2012 directing the present petitioner to pay a monthly maintenance of Rs. 3000/- to the opposite party from the date of application i.e. 06.08.2012. 2. The present opposite party filed the application under Section 125, Cr.P.C. before the learned Judge, Family Court, Balasore on 06.08.2012 with the submissions that her marriage with the present petitioner took place on 02.03.1982 as per Hindu rites and customs. Out of their said wedlock one daughter and one son were born. She alleged that at the time of marriage, the family members of the present petitioner had demanded a sum of Rs. 10,000/- (rupees ten thousand) as dowry which was given along with some other household articles. She alleged that the husband demanded more dowry and tortured her and on 28.05.1984 she was driven out of her matrimonial house by the present petitioner and since then she has been residing separately. She further alleged that the present petitioner-husband has been residing with his concubine for the last twenty five years without providing any maintenance to the opposite party-wife despite her repeated demands. She further submitted that the present petitioner-husband was serving as a Mechanic in the Agro Industries Corporation getting monthly salary of Rs. 15,000/-. Submitting that on the last occasion she approached her husband on 05.08.2012 demanding maintenance which was refused, she filed the application claiming a monthly maintenance of Rs. 5000/- 3. The present petitioner-husband as opposite party in the proceeding filed his counter denying the entire allegations including the marriage with the petitioner and parenthood of the children with further submissions that the petitioner-wife in the proceeding was leading a adulterous life staying in her father’s house and was harassing the opposite party-husband. He submitted that he has never neglected or tortured the petitioner-wife. Hence, she is not entitled for maintenance, moreso after staying away on her own admission for more than twenty five years. 4. In course of hearing the petitioner-wife examined herself as P.W.1 besides the priest as P.W.2 to prove the marriage and the opposite party-husband besides examining himself also examined two other witnesses. Some documents were relied upon by both the sides. 5. 4. In course of hearing the petitioner-wife examined herself as P.W.1 besides the priest as P.W.2 to prove the marriage and the opposite party-husband besides examining himself also examined two other witnesses. Some documents were relied upon by both the sides. 5. The learned trial Court on scrutiny and consideration of material evidence placed before it reached the conclusion that the petitioner was the legally married wife of the opposite party and she is entitled to get maintenance from the opposite party husband since the opposite party-husband had not taken care of her and their children during all these years. It was observed by the learned trial Court that even if it is difficult to find out the exact reason after so many years as to what made the petitioner-wife to leave her matrimonial house or what was the reason therefor, still considering the testimonies of the parties and their witnesses that the petitioner-wife had brought up their two children who have become major in the meantime and she had lost her job, she is definitely entitled to maintenance from her husband who is legally bound to do so. 6. The observation and findings of the learned trial Court have been assailed in the present application with the contentions that the learned trial Court has erred in holding that the present opposite party; is the legally married wife of the petitioner on the face of denial by the petitioner-husband with specific submissions that he is having his family with wife besides a son and three daughters. It is submitted further that the present opposite party-wife had no reason to come up claiming maintenance after a period of more than twenty five years of living separately without placing any acceptable material to show that she was either tortured or neglected or driven out by the present petitioner at any point of time. It was also submitted that the son and daughter of the present opposite party have filed a civil suit claiming partition in respect of the properties standing recorded in the name of the present petitioner and the present opposite party has also filed a proceeding under the P.W.D.V. Act. It was submitted by learned counsel for the petitioner that the petitioner has already retired from his service and has his family to maintain. In such circumstances, he is unable to give a sum of Rs. It was submitted by learned counsel for the petitioner that the petitioner has already retired from his service and has his family to maintain. In such circumstances, he is unable to give a sum of Rs. 3000/- every month to the present opposite party besides the arrears as claimed, which the opposite is not legally entitled to. 7. It is further submitted that due to dispute between the present petitioner and his brothers, these cases have been filed against the petitioner planting the opposite party as his married wife. 8. Per contra, it was submitted by the learned counsel for the opposite party; that being driven out of her matrimonial house only after about one and half years of conjugal life, the opposite party with much difficulty has brought up her two children out of whom one was in the womb while she was driven out by the present petitioner. It was further submitted that the opposite party; was in some temporary job which she has already lost and in her old age she has no other source for her maintenance and the present petitioner, being her husband after a legal and valid marriage, which has been sufficiently proved before the learned trial Court, is liable to pay maintenance to the opposite party. It was also submitted that a meager amount of Rs. 3000/- in the present day standard of living has been rightly awarded by the learned trial Court which needs no interference. 9. As seen from the lower Court records, the specific claims of the petitioner-wife in the proceeding were that their was marriage was performed on 02.03.1982 a daughter and son were born out of their wedlock and she was driven out of her matrimonial house on 28.05.1984. As it appears from the evidence and the materials in the lower Court record, she was brought back by her mother-in-law for some days while the present petitioner was staying apart. The learned trial Court has discussed in detail the materials like the testimonies of the petitioner-wife along with the priest who performed the marriage taken together with the educational certificates issued in favour of her children which named the present petitioner and the opposite party as the parents of those children. The learned trial Court has discussed in detail the materials like the testimonies of the petitioner-wife along with the priest who performed the marriage taken together with the educational certificates issued in favour of her children which named the present petitioner and the opposite party as the parents of those children. Further the opposite party except denying the claim of the petitioner-wife, has not succeeded in placing any substantial material on record to refute the legal marriage between the parties as claimed by the petitioner-wife. On the other hand, one of the witnesses of the opposite party as O.P.W. 3 has stated that he regularly visits the house of the opposite party and he had seen the petitioner living as wife of the opposite party in the rented house of the opposite party. However, going through the evidence placed during trial on behalf of the opposite party, I do not find any cogent reason to interfere with the finding of fact by the learned trial Court that the present opposite party was the married wife of the petitioner at least for the limited purpose of considering an application Section 125, Cr.P.C. 10. It was strenuously contended by the learned counsel for the petitioner relying on a decision of the Hon’ble Apex Court as reported in (2003) 11 SCC 303 (Deb Narayan Haldar v. Anushree Halder) that there being no acceptable reason as to why the wife left the company of the husband as well as her matrimonial house or there being no material evidence to show that the husband neglected or refused to maintain the wife, the wife is not entitled for any maintenance. It may be mentioned here that the factual scenario of the case in the cited decision are different from the present one. In the cited case, the marriage between the parties was in the year 1985, a son was born in the year 1987 and the parties lived together till 1997 when the wife left her matrimonial house and went to reside with her parents. Immediately thereafter, she filed an application for maintenance under Section 125, Cr. P.C. and the trial Court refused the maintenance with was reversed by the Hon’ble High Court. the Hon’ble Apex Court observed that there was no material to show that the husband ill-treated or neglected the wife, rather the materials showed that they had led a happy conjugal life. Immediately thereafter, she filed an application for maintenance under Section 125, Cr. P.C. and the trial Court refused the maintenance with was reversed by the Hon’ble High Court. the Hon’ble Apex Court observed that there was no material to show that the husband ill-treated or neglected the wife, rather the materials showed that they had led a happy conjugal life. Thus, it was observed by the Hon’ble Apex Court that why this happened was difficult to find out, but the evidence on record did not establish that the petitioner-wife was subjected to torture and harassment by her husband. Thus, the refusal of maintenance by the trial Court was confirmed. Relying on the said observation, it was contended by the learned counsel for the petitioner that the opposite party-wife had not produced any material to show that either she was neglected or tortured by the present petitioner or was forcibly driven out. But, on the other hand, she came up with an application for maintenance after living separately for more than twenty five years. But, such a contention is difficult to be accepted in the peculiar circumstances of this case since because the petitioner has refuted the marriage and the father hood of children in toto. Further their marital life was only for two years and two months and as found out from record, the opposite party-wife had a conception out of which the son was born when she was driven out of her matrimonial house as alleged. It was also submitted on behalf of the opposite party-wife that peculiarly while denying the marriage and martial relationship in toto, the petitioner-husband has alleged that the opposite party-wife was leading an adulterous life. But, peculiarly, the petitioner had made absolutely no effort to place any material in support of such allegation. Further as submitted on behalf of the opposite-party wife, there is no time limit as to when the wife would claim maintenance against her husband. Being neglected by her husband, the opposite party-wife with much difficulty brought up her two children and now she finds it difficult to maintain herself for which she has claimed maintenance. It is also her case that she had some casual engagement which she has lost. 11. Being neglected by her husband, the opposite party-wife with much difficulty brought up her two children and now she finds it difficult to maintain herself for which she has claimed maintenance. It is also her case that she had some casual engagement which she has lost. 11. Considering the rival contentions and the materials available on record, I find no reason to interfere with the findings of the learned trial Court that the present opposite party is entitled to get maintenance from the petitioner. 12. It was submitted on behalf of the petitioner that he was merely a mechanic and he has already retired from service. Of course neither of the parties has placed any material as to their respective incomes excepting their bare contentions. 13. Considering the submissions and the peculiar circumstances, it is directed that the order of paying monthly maintenance @ Rs. 3000/- per month by the present petitioner to the opposite party is modified as Rs. 2,500/- (Rupees two thousand five hundred only) and it should be paid from the date of order of the trial Court i.e. 16.01.2017 and not from the date of filing of the application i.e. 06.08.2012 as directed in the impugned judgment. The RPFAM is disposed of accordingly. RPFAM disposed of.