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2018 DIGILAW 734 (ORI)

Bijay @ Vijay Shankar Singhdeo v. Pournamasi Jema

2018-08-14

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - In this application the petitioner assails the order dated 04.05.2018 passed by the learned Judge, Family Court, Bhubaneswar in C.M.C. No.1 of 2016 rejecting an application filed by the present petitioner under Section 126 (2) of the Code of Criminal Procedure with a prayer to set-aside the exparte order of maintenance passed against him in Criminal Proceeding No.150 of 2013. 2. The Proceeding under Section 125, Cr.P.C. vide Cr.P.C. No. 125 of 2013 was filed by the present opposite party with the averments that she married the present petitioner on 11.05.2012 but since there was some dispute between the couple, she was forced to leave her matrimonial house shortly after the marriage and stayed in a rented house with her parents. She further claimed that the petitioner is a practising advocate and has also other sources of income but intentionally neglected to maintain her. The present petitioner as opposite party entering appearance denied the claims of the petitioner-wife as regards negligence as well as his status of income. He also pleaded that the petitioner-wife was working in the State Bank of India earning Rs.40,000/- per month. 3. In course of hearing, the present petitioner defaulted in attending the court for which, the exparte order of maintenance was passed on 22.01.2016 by the learned trial court directing the present petitioner to pay a monthly maintenance of Rs.12,000/- to the opposite party. Thereafter, the petitioner filed the application to set-aside the exparte order with the plea that during the relevant period, he was suffering from malaria and typhoid for which, he could not attend the court and the exparte order was passed. In the impugned order the learned trial court has rejected the said application with the findings that the plea taken by the present petitioner-husband as regards illness, was not sufficiently established and his plea of ignorance was also not believable since he was a practising advocate in the court. 4. It is submitted in the present application that the learned trial court has rejected the prayer of the petitioner erroneously without considering the plea of illness which was sufficiently established on the medical documents filed by the petitioner. 4. It is submitted in the present application that the learned trial court has rejected the prayer of the petitioner erroneously without considering the plea of illness which was sufficiently established on the medical documents filed by the petitioner. It was submitted by learned counsel appearing for the opposite party that the petitioner being a practising advocate, has been filing repeated applications before this Court since the inception of the proceeding in order to avoid paying maintenance to the opposite party and thereby has also put the opposite party to mental and financial strains. It was also submitted that the petitioner had every knowledge about the proceeding before the learned trial court but intentionally avoided to remain present and subsequently, filed the applications to set-aside the exparte order only to linger the proceeding. It was further submitted that the medical documents as have been filed by the petitioner before the learned trial court could not have been believed, more so, in absence of the concerned doctor being examined to prove the certificates to have been issued by him. 5. The present petitioner had filed certain documents in support of his plea of illness but the doctor who had issued the same, had not been examined before the trial court for which, the learned trial court disbelieved the said medical documents. As seen from the record, the default of the petitioner was within a period of about one month during which the exparte hearing was taken up and the exparte order was passed. 6. Needless to say that in a proceeding of the present nature, both the parties should be given sufficient opportunities to place their materials before the Court in order to enable the trial court to reach a correct finding as to the liability of the husband to pay the maintenance vis-a-vis the entitlement of the wife to get the same apart from the quantum of maintenance. 7. Considering all these aspects, I am of the view that the present petitioner should be given an opportunity to place his materials before the trial court, of course, subject to conditions. 8. 7. Considering all these aspects, I am of the view that the present petitioner should be given an opportunity to place his materials before the trial court, of course, subject to conditions. 8. Accordingly, it is directed that the impugned order dated 04.05.2018 passed by the learned Judge, Family Court, Bhubaneswar, in C.M.C. No.1 of 2016 is set-aside as well as the exparte order of maintenance dated 22.01.2016 passed in Criminal Proceeding No.150 of 2013 before the said court subject to the condition that the petitioner shall pay an amount of Rs.20,000/- (twenty thousand) as cost to the opposite party within a fortnight of receiving a copy of this order by the learned trial court. 9. On compliance of the aforesaid condition by the present petitioner, learned trial court shall proceed with the trial of the proceeding according to law. The R.P.F.A.M. is accordingly disposed of. RPFAM disposed of.