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2018 Supreme(Ori) 60
IN THE HIGH COURT OF ORISSA : CUTTACK
S.K. Sahoo, J.
Dr. Hrudananda Das – Petitioner
Versus
State of Orissa & Others – Opposite-Parties
WPCRL No. 324 of 2008
Decided On : 15-01-2018
For the Petitioner: Mr. P.R. Chhatoi
For the Opposite-Party :Mr. B.S. Dasparida, Mr. Prem Kumar Patnaik, Addl. Govt. Advocate
The main legal point established is that the bar under Section 397(3) of the Criminal Procedure Code cannot be circumvented, and the court will not interfere with a maintenance order in the absence of illegality.
Headnote:
Maintenance - Criminal Procedure Code - Section 125, Section 397(3) - The court discussed the provisions of Section 125 of the Criminal Procedure Code, which allows for the payment of maintenance, and Section 397(3) which bars further applications by the same person to the High Court or the Sessions Judge. The court also highlighted the legal principle that the bar under Section 397(3) cannot be circumvented by taking recourse to Section 482 or by filing a writ petition.
Fact of the Case:
The petitioner, a doctor, challenged an order directing him to pay maintenance to his wife and children. He argued that his wife deserted him voluntarily and that the maintenance amount was on the higher side. The opposite party contended that the petitioner tortured her and demanded dowry, leading to a criminal case against him.
Finding of the Court:
The court found that the petitioner neglected his wife and children and willfully refused to maintain them. It also noted the background of torture and the criminal case against the petitioner. The court declined to interfere with the maintenance order and allowed the petitioner to file an application for alteration of the maintenance amount.
Issues: The issues involved the entitlement to maintenance, voluntary desertion, and the quantum of maintenance.
Ratio Decidendi: The court held that in the absence of illegality in the maintenance order, it would not interfere. It also emphasized the legal principle that the bar under Section 397(3) cannot be circumvented.
Final Decision: The writ petition was dismissed, and the petitioner was allowed to file an application for alteration of the maintenance amount.
JUDGMENT :
S.K. SAHOO, J.
1. The petitioner Dr. Hrudananda Das who is now posted as Assistant Surgeon in C.H.C., Binjharpur, Jajpur has filed this writ petition challenging the impugned order dated 05.06.2008 passed by the learned Addl. Sessions Judge (Fast Track Court-II), Bhadrak in Criminal Revision No. 16 of 2007 in dismissing the revision and thereby confirming the impugned order dated 06.02.2007 passed by the learned S.D.J.M., Bhadrak in Misc. Case No.48 of 2004.
2. The opposite party no.2 Sumati Jena @ Das is the wife of the petitioner and opposite parties nos. 3, 4, 5 namely Swagarika Das, Adhatmika Das and Dipasikha Das are the children of the petitioner and opposite party no.2. The opposite parties nos. 2 to 5 filed a petition under section 125 of Cr.P.C. in the Court of learned S.D.J.M., Bhadrak which was registered as Misc. Case No. 48 of 2004 claiming maintenance against the petitioner. The learned S.D.J.M., Bhadrak has been pleased to allow the misc. case on contest and directed the petitioner to pay monthly maintenance of Rs.1500/-(rupees one thousand five hundred only) to each of the opposite parties nos. 2 to 5 from the date of institution of the case i.e. from 02.04.2004 with a further direction to the petitioner to pay the arrear maintenance to the opposite parties nos. 2 to 5 within two months of the order.
3. The petitioner preferred a revision before the Court of Session which was heard by the learned Addl. Sessions Judge (Fast Track Court-II), Bhadrak in Criminal Revision No. 16 of 2007 which was dismissed vide order dated 05.06.2008.
4. Mr. P.R. Chhatoi, learned counsel appearing for the petitioner while challenging the impugned orders of the learned Courts below contended that since the opposite party no.2 deserted the petitioner voluntarily, in view of section 125(4) of Cr.P.C., she is not entitled to get any maintenance. He further contended that the amount of maintenance fixed was on the higher side and it should be reduced. In support of such contention, the learned counsel for the petitioner filed the recent pay slip of the petitioner which was issued by the Medical Officer in charge, C.H.C., Binjharpur, Jajpur dated 21.09.2017.
5. Mr. B.S. Dasparida, learned counsel for the opposite party no. 2 on the other hand contended that such a point was raised before the learned Revisional Court which has dealt with such point and held that there is no material to show that the opposite party no.2 and the petitioner were living separately by mutual consent or the opposite party no.2 had left the matrimonial home voluntarily deserting the petitioner and she was staying with her parents. It was further held that the opposite party no.2 adduced evidence to prove that the petitioner deserted her, torture her demanding more dowry for which a criminal case was initiated against him and the same is subjudiced in the Criminal Court. It was further held that there is no evidence from the side of the petitioner to prove that he tried to get back his wife (opposite party no.2) and children (opposite parties nos. 3 to 5) from the parents’ house of the opposite party no.2 at any time or any case was instituted for restitution of conjugal life. It was further held that there is no material on record to show that the petitioner gave a bonafide offer to the wife (opposite party no.2) and the wife refused the offer. Accordingly, the learned Revisional Court turned down such point.
6. Learned counsel for the opposite party no.2 contended that the opposite party no.2 was subjected to torture in connection with demand of dowry for which a criminal case was initiated against the petitioner in which the charge sheet has been submitted under section 498-A of the Indian Penal Code. It is further contended that when the second revision by the selfsame party is barred in view of the provision under section 397(3) of Cr.P.C., in absence of any gross illegality or perversity in the impugned orders passed by the learned Courts below, this wr
