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High Court Of Orissa
P. K. TRIPATHY
RANKANIDHI BEHERA - Appellant
Versus
JAYANTI SAHOO - Respondent
CRIMINAL REVISION 214 Of 1997
Decided On : 01/08/1999
MAINTENANCE - SECTION 125 (3), CR. P. C. - SECTION 13 (B) OF THE HINDU MARRIAGE ACT - MAINTENANCE ORDER - ARREAR MAINTENANCE - LIMITATION - ADDITIONAL EVIDENCE - ADULTERY - DESERTION - MUTUAL DIVORCE - ADJUSTMENT OF AMOUNT - INTEREST - EXECUTION OF DISTRESS WARRANT AND NON-BAILABLE WARRANTS - ATTACHMENT OF SALARY - SECTION 125 (3), CR. P. C. - SECTION 13 (B) OF THE HINDU MARRIAGE ACT - MAINTENANCE ORDER - ARREAR MAINTENANCE - LIMITATION - ADDITIONAL EVIDENCE - ADULTERY - DESERTION - MUTUAL DIVORCE - ADJUSTMENT OF AMOUNT - INTEREST - EXECUTION OF DISTRESS WARRANT AND NON-BAILABLE WARRANTS - ATTACHMENT OF SALARY - SUMMARY OF THE COURT'S DECISION ON MAINTENANCE, ARREAR MAINTENANCE, LIMITATION, ADDITIONAL EVIDENCE, ADULTERY, DESERTION, MUTUAL DIVORCE, ADJUSTMENT OF AMOUNT, INTEREST, EXECUTION OF DISTRESS WARRANT AND NON-BAILABLE WARRANTS, AND ATTACHMENT OF SALARY UNDER SECTION 125 (3), CR. P. C. AND SECTION 13 (B) OF THE HINDU MARRIAGE ACT.
Fact of the Case:
Petitioner challenged the maintenance order passed by the Family Court under Section 125 (3), Cr. P. C., claiming that the opposite party was leading an adulterous life and had voluntarily deserted him. The opposite party filed an application for realization of the arrear maintenance, which was challenged by the petitioner on the ground of limitation. The petitioner also filed a petition to adduce additional evidence, which was rejected by the court.
Finding of the Court:
The court found that the petitioner failed to prove the allegations of the opposite party leading an adulterous life and that the opposite party had been ill-treated, deserted, and refused to be maintained along with her children from 1989. The court also found that the petitioner had not come out with a clean mind projecting a proper case justifying his action in refusing and neglecting to maintain the opposite party members.
Issues: 1. Whether the maintenance order passed by the Family Court was justified? 2. Whether the application for realization of the arrear maintenance was barred by limitation? 3. Whether the petitioner was entitled to adduce additional evidence? 4. Whether the amount of Rs. 30,000/- received by the opposite party under Section 13 (b) of the Hindu Marriage Act could be adjusted towards the arrear maintenance?
Ratio Decidendi: 1. The court held that the maintenance order passed by the Family Court was justified as the petitioner failed to prove the allegations of the opposite party leading an adulterous life and had not come out with a clean mind projecting a proper case justifying his action in refusing and neglecting to maintain the opposite party members. 2. The court held that the application for realization of the arrear maintenance was not barred by limitation as it was filed within two months from the date of the judgment. 3. The court held that the petitioner was not entitled to adduce additional evidence as he had not been able to show as to under what circumstance, he failed to adduce evidence of those two persons at the time of hearing before the Judge, Family Court. 4. The court held that the amount of Rs. 30,000/- received by the opposite party under Section 13 (b) of the Hindu Marriage Act could be adjusted towards the arrear maintenance.
Final Decision: 1. The court dismissed the petition challenging the maintenance order passed by the Family Court. 2. The court dismissed the petition challenging the application for realization of the arrear maintenance. 3. The court rejected the petition to adduce additional evidence. 4. The court directed the Family Court to calculate and disburse the amount of Rs. 30,000/- received by the opposite party under Section 13 (b) of the Hindu Marriage Act towards the arrear maintenance.
P. K. TRIPATHY, J.
( 1 ) BOTH the aforesaid revisions have been heard analogously and disposed of by this judgment.
( 2 ) OPPOSITE party No. 1 for herself and on behalf of opposite parties 2 and 3 who were the minor children, filed petition under Section 125 (3), Cr. P. C. claiming for maintenance from the petitioner on the ground that she and opposite parties 2 and 3 born out of the wedlock were ill-treated and deserted by the petitioner though he is capable of maintaining them having sufficient means. That application was registered as Crl. Misc. Case No. 74/89 in the Court of SDJM, Jajpur. Later on it was transferred to the file of Judge, Family Court, Cuttack and registered as Crl. Proceeding No. 388 of 1991. Petitioner contested that case. In his show cause he admitted the relationship, but refused to pay maintenance on the ground that opposite party No. 1 is leading an adulterous life with one Mina Behera and voluntarily deserted him. In support of their respective cases both the parties adduced oral and documentary evidence. Opposite Parties examined O. P. No. 1 as P. W. 1 and another witness namely Kapila Ch. Sahu as P. W. 2. The petitioner examined himself as O. P. W. No. 2 and his mother as O. P. W. 1. He also relied upon postal receipts vide Exts. 1 to 8 to prove that opposite party No. 1 was residing with said Mina Behera. On assessment of evidence in record, learned Judge, Family Court recorded the findings that the inter se relationship being an admitted factor, petitioner failed to prove the allegations of O. P. No. 1 leading an adulterous life and on the contrary at the time of adducing evidence, he offered to maintain the opposite parties if they rejoin him. In that connection he further recorded a finding that opposite party No. 1 apprehending danger to her life was not willing to join with her husband who, according to her, in the meantime had accepted a second wife. Learned Judge, Family Court also took into consideration the factum of desertion, non-providing of maintenance in the intervening period, the quantum of income of the petitioner as a Senior Stenographer working in the State Secretariat and allowed a monthly maintenance of Rs. 50 to the opposite party No. 1 and at the rate of Rs. 200/- to each of the opposite parties Nos. 2 and 3. That order was passed by the Judge, Family Court on 9-9-96 granting the monthly maintenance in the aforesaid manner with effect from the date of application i. e. 26-4-1989. That order has been challenged in the abovenoted Criminal Revisionno. 444 of 1996.
( 3 ) DUE to non-payment of maintenance amount by the petitioner in accordance with the judgment dt/- 9-9-1996, about two months thereafter Opp. Party No. 1 filed application under Section 125 (3), Cr. P. C. for realisation of the arrear maintenance and that application was registered as Criminal Proceeding No. 724 of 1996. After receipt of the notice to show cause, as it reveals from the Order dt/- 12-5-1997 (impugned order), petitioner challenged maintainability of that application on the ground of limitation relating to the period beyond 12 months from the date of application. After hearing the parties, learned Judge, Family Court vide impugned order dt. 12-5-1997 rejected that show cause filed by the petitioner on the ground that two months after the judgment the Opp. Parties filed the petition for realisation of the arrear maintenance and therefore, that application was legally sustainable. That order has been challenged in Crl. Revision No. 214 of 1997.
( 4 ) IT has been noted in the revision application that Civil Proceeding No. 220 of 1994 was filed by both the parties under Section 13 (b) of the Hindu Marriage Act praying for a mutual divorce. According to the petitioner on 26-10-1994 learned Judge, Family Court allowed the application by way of a decree of divorce in the event of payment of Rs. 30,000/- by the petitioner to the opp. party on that date itself and accordingly, petitioner paid Rs. 30,000/- t
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