IN THE HIGH COURT OF ORISSA : CUTTACK
S.K. SAHOO, J.
Pushpanjali Chhuria & another - Petitioners
Versus
Pranab Ku. Chhuria - Opposite party
RPFAM No. 160 of 2015
Decided On : 24-01-2018
(i) if she is living with adultery, or
(ii) if, without any sufficient reason, she refused to live with her husband, or
(iii) if they are living separtely by mutual consent. (Para - 9)
2. PENAL CODE, 1860 - Sec. 497 - Cr.P.C. - Sec. 125 - When the wife destroys the sanctity of marriage and lives in adultery with another person, she would not be entitled either to any maintenance or interim maintenance - Living in adultery denotes a continuous course of coduct and not isolated acts of immorality - It is different from leading an unchaste life - An act of isolated lapse would not disentitle the wife to claim maintenance - Onus is on the husband to establish that the wife is living in adultery - There must be specific and cogent evidence relating to accusatio of adultery - Evidence which creates some sort of suspicion on the conduct of the wife is not enough to establish that she is living in adultery - When the husband comes forward with a case of adultery against the wife in a maintenance proceeding to disentitle the wife from claiming maintenance, there is no back out - He has to prove such aspect by adducing cogent evidence and if he fails in that respect, that by itself would be sufficient to entitle her to remain apart from her husband and claim maintenance. (Para - 9)
3. MAINTENANCE - While determining the quantum of maintenance, the Court is required to determine the income of the payor concerned as well as the necessity of the claimant and has to keep in mind the status, standard and comfort enjoyed by the claimant during her stay with the payor - The amount should be fixed in such a way so as to enable the wife to live with dignity and comfort and not in penury - Living need not be luxurious but simultaneously she should be in a position to meet any kind of man-made misfortune - Object of the provision is to prevent vagrancy and destitution.
In computing the quantum of maintenance, net salary is to be calculated after deducting statutory deductions like income tax from the gross salary, however, violuntary deductions such as house building allowances etc. cannot be excluded - General and reasonable rule is to charge one-fifth of the income of the husband for the purpose of awarding maintenance to the wife. (Para - 11)
JUDGMENT :
S.K. Sahoo, J.
Othello, the General in the Venetian military realized the innocence of his young beautiful wife Desdemona but by that time, it was too late. She had already been strangled to death in their bed in the hands of Othello on the suspicion of adultery with Cassio. That is what the Shakespearean tragedy ‘Othello’ depicts.
Philo Thelos writes in ‘Divine Sex’ as follows:-
“A man commits adultery by taking from the married woman what her husband has claimed as his sole privilege. It is this ‘property rights’ issue that distinguishes adultery. Strictly speaking adultery is not ‘sex with someone other than one’s spouse’. Adultery is taking what belongs to someone else.”
Trust on the spouse makes the bond of marriage stronger, happy and peaceful. When one struggles to trust on the trustworthiness of the spouse and suspects his/her infidelity with unfounded accusation, the bond gets destroyed. Suspicion enters through the back door in a marital life paving way for happiness and peace through the front door. It is said that there is no smoke without fire but sometimes dense fog is mistaken as smoke. It is always better to clear doubt by open discussion in secret and to correct the partner if he/she is in a wrong path. Keeping silence, showing aggressive attitude to the partner without understanding the reality creates volcano in heart where no flowers can bloom. Forgiveness, patience and mutual understanding save the marriage when it is in a slippery path. Paul Bear Bryant quotes, “When you make a mistake, there are only three things you should ever do about it: admit it, learn from it, and don’t repeat it.”
2. This revision petition under section 19(4) of the Family Courts Act, 1984 has been filed by petitioners Pushpanjali Chhuria and Sanvi Chhuria who are the wife and daughter of opposite party Pranab Kumar Chhuria respectively challenging the impugned judgment and order dated 31.08.2015 of the learned Judge, Family Court, Kandhamal, Phulbani in C.R.P. No.62 of 2014 in rejecting prayer for maintenance to petitioner no.1 with a further prayer to award suitable maintenance in her favour so also to enhance the maintenance awarded in favour of petitioner no.2.
3. The petitioners filed a petition under section 125 of Cr.P.C. on 05.06.2014 before the learned Judge, Family Court, Kandhamal, Phulbani claiming maintenance @ Rs.15,000/- (rupees fifteen thousand only) per month from the opposite party from the date of application.
It is the case of the petitioners that the marriage between the petitioner no.1 and the opposite party was solemnized in the year 2001 at Narayani Temple, Phulbani. The opposite party did not take the petitioner no.1 to his parental village Kuchinda till the year 2005, however, during her pregnancy, the petitioner no.1 was taken to the parental village of the opposite party where she stayed for about twenty days. During her stay at Kuchinda, the petitioner no.1 was repeatedly asked by her in-laws about the dowry articles. After her return from village Kuchinda to Phulbani, the petitioner no.1 gave birth to petitioner no.2 on 14.04.2005 at District Head Quarters Hospital, Phulbani. After birth of the girl child, the opposite party started neglecting the petitioner and he had no affection for the girl child. The opposite party was transferred to Daringibadi Block as a Junior Engineer and the petitioner stayed back at Phulbani as desired by the opposite party. The opposite party started neglecting the petitioner no.1 more and used to assault her frequently under the influence of liquor and was also demanding dowry. The petitioners were not provided proper fooding or clothing and due to such negligence, the petitioner no.1 remained under mental agony. During December 2013, the opposite party tried to kill the petitioner no.1 by pressing a pillow on her face in the late night and therefore, apprehending risk to her life, the petitioner no.1 lodged a report at Town police station, Phulbani on 20.12.2013 and a
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