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2019 DIGILAW 599 (ORI)

Sanghamitra Moharana v. Balaram Moharana

2019-09-23

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. In this revision petition under section 19(4) of the Family Courts Act, 1984, the petitioner Sanghamitra Moharana has challenged the impugned judgment and order dated 27.07.2013 of the learned Judge, Family Court, Cuttack in Criminal Proceeding No.217 of 2008 in dismissing her petition for maintenance under section 125 of Cr.P.C. 2. The petitioner and her daughter Lusna Moharana (proforma opposite party) filed the maintenance petition wherein it is stated that the petitioner is the legally married wife of the opposite party Balaram Moharana and their marriage was solemnized in the year 1989 as per Hindu rites and customs and out of their wedlock, Lusna Moharana (proforma opposite party) was born in the year 1990 and since the petitioner was tortured by her husband and in-laws family members, she left her matrimonial house and came to reside at her paternal place with her minor daughter. It is the further case of the petitioner that at the intervention of the Orissa State Legal Aid and Advice Board, the opposite party took back the petitioner and their minor daughter and thereafter the petitioner conceived for the second time but again she was tortured and driven out of her matrimonial house and she came to reside at her paternal place with her minor daughter again and there she delivered her second daughter. Since the opposite party did not provide anything for the maintenance of the petitioner and their two daughters, maintenance petition was filed by the petitioner for herself and her two minor daughters. The opposite party then filed a divorce case against the petitioner but took her and the minor children back by executing an agreement where she was tortured again for which she came back again to her paternal place with two minor daughter. The second daughter while prosecuting her studies in class-VII died on 23.04.2006 on account of her illness. The opposite party being a Govt. servant did not provide any maintenance even if the minor daughter (proforma opposite party) prosecuted her studies in Ravenshaw College, Cuttack and the petitioner was taking all her care for which the maintenance application out of which the impugned judgment arises, was filed. 3. During course of hearing of the maintenance proceeding, the petitioner examined herself as P.W.1 and her mother was examined as P.W.2. 3. During course of hearing of the maintenance proceeding, the petitioner examined herself as P.W.1 and her mother was examined as P.W.2. The opposite party denying the allegations of torture to the petitioner and dismissing his liability to pay maintenance examined himself as O.P.W. No.1 and one witness namely G. Venka Prasad was examined as O.P.W.2. 4. The learned Judge, Family Court, Cuttack after analyzing the evidence adduced by both the sides came to hold that the case of the petitioner-wife is substantiated by her evidence adduced in the form of the affidavit which is getting support from the evidence of her mother (P.W.2) adduced in the form of affidavit which has remained unchallenged being not cross-examined by the opposite party no.1-husband. However, taking into account the provision under sub-section (4) of section 125 of Cr.P.C., the learned Court held that the wife is not willing to go back to her husband s house and to live with him along with her daughter on the ground that on three occasions he had taken her back and again ousted her. It was further held that the petitioner was not tortured or driven out by the opposite party-husband from his house rather she out of her on own volition left the matrimonial house and started living separately from her husband at her maternal place at Cuttack along with her daughter to avoid discharging her matrimonial obligation. It was further held that the petitioner-wife having refused to live with her husband without any sufficient reason is not entitled to get maintenance from the opposite party-husband more particularly when the opposite party is ready and willing to maintain her properly if she joins his company. 5. Mr. Siddhartha Mishra-1, learned counsel appearing for the petitioner contended that the findings of the learned Court below are perverse and contrary to the evidence appearing on record. It is submitted that when a finding has been given by the learned Court that the evidence of the petitioner is getting corroboration from her mother s evidence who has been examined as P.W.2 and the mother s evidence has remained unchallenged being not cross-examined by the opposite party and there was no such material that without any sufficient reasons, the petitioner is staying separately from the opposite party, the learned Court should not have deprived the petitioner from getting the maintenance dues. It is submitted that the evidence on record indicates that on number of occasions, the petitioner-wife was tortured for which she left the company of the opposite party-husband and she was again and again taken back but the same thing was repeated by the opposite party-husband and therefore, the finding that there was no sufficient reason on the part of the petitioner-wife to leave the company of her husband is an error of record. It is further submitted that since maintenance proceeding under section 125 of Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children, the learned Court should not have refused maintenance. Mr. Dusmanta Biswal, learned counsel appearing for the opposite party on the other hand contended that the evidence adduced by the opposite party is clear that the petitioner-wife was not shouldering the burden of taking care of old and ailing parents-in-laws for which she left the company of the opposite party and in view of sub-section (4) of section 125 of Cr.P.C., since without any sufficient cause, the petitioner-wife left the company of her husband, she is not entitled to receive any maintenance and therefore, rightly the learned Family Court has passed the impugned judgment. 6. Considering the submissions made by the learned counsel for the respective parties and after going through the evidence adduced by both the sides, it is apparent that the petitioner right from the beginning has made out a case that she was tortured by her husband (opposite party) for which she left his company again and again. She has narrated in detail how at different phases of her matrimonial life, she was tortured and humiliated in her in-laws house, driven out and again taken back and how the same thing was repeated again and again. It cannot be said that there was no sufficient reason for the petitioner-wife to leave the company of the opposite party-husband. A woman who is tortured in her in-laws house physically and mentally cannot be denied of maintenance if she leaves her husband s company for that reason and lives separately. Therefore, I am of the view that the findings of the Court in impugned judgment are perverse and not sustainable in the eye of law and hence hereby set aside. A woman who is tortured in her in-laws house physically and mentally cannot be denied of maintenance if she leaves her husband s company for that reason and lives separately. Therefore, I am of the view that the findings of the Court in impugned judgment are perverse and not sustainable in the eye of law and hence hereby set aside. It is submitted by the learned counsel for the petitioner that in pursuance of the interim orders passed by this Court in Misc. Case No.340 of 2015 on 22.12.2015 and in Misc. Case No.28 of 2016 on 15.02.2016, the petitioner was getting maintenance of Rs.5,000/- (rupees five thousand) every month from the salary of the opposite party which was stopped since January 2019. It is submitted by the learned counsel for the opposite party that the petitioner has filed a writ petition before this Court which is also subjudiced and in that case notice has been issued for which the authorities are not disbursing the full pensionary benefits to the opposite party. It is further submitted that another proceeding has been instituted by the petitioner before the learned Judge, Family Court which is also subjudiced. Learned counsel for the petitioner submitted that if suitable order of maintenance amount is passed in favour of the petitioner then the petitioner shall withdraw not only the writ petition which is subjudiced before this Court but also the civil proceeding which is subjudiced before the learned Judge, Family Court, Cuttack. Considering the submissions made by the learned counsel for the respective parties and taking into account the necessity of the petitioner to sustain a decent living and the fact that the opposite party has retired from Government service, I think it proper to fix the maintenance amount @ Rs.5,000/- per month from the date of impugned judgment. The outstanding dues since January 2019 as per the quantum of maintenance fixed today is Rs.45,000/- (rupees forty five thousand). The opposite party shall deposit a sum of Rs.25,000/- on or before 30th September 2019 in the account of the petitioner and the balance amount of Rs.20,000/- shall be deposited on or before 31st October 2019. The current monthly maintenance dues shall be paid by the 10th of the every succeeding month. The opposite party shall deposit a sum of Rs.25,000/- on or before 30th September 2019 in the account of the petitioner and the balance amount of Rs.20,000/- shall be deposited on or before 31st October 2019. The current monthly maintenance dues shall be paid by the 10th of the every succeeding month. On receipt of the arrear maintenance dues of Rs.45,000/- as stated above, the petitioner shall take steps for withdrawal of the writ petition pending before this Court as well as well as the civil proceeding which is subjudiced before the learned Judge, Family Court, Cuttack. The arrear maintenance dues starting from the date of the impugned judgment passed on 27.07.2013 @ Rs.5,000/- per month till December 2015 comes to Rs.1,50,000/-(rupees one lakh fifty thousand). This amount shall be paid by the opposite party to the petitioner in fifteen equal monthly installments i.e. Rs.10,000/- per month which would commence from November 2019 onwards in addition to the payment of current maintenance dues as directed above. With the aforesaid observation, the RPFAM is disposed of.