IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.19 of 2024 (An application U/S. 19 of the Family Courts Act, 1984).

Bikash Nayak … Petitioner -versus-

Bimala Sahoo & Another … Opposite Parties For Petitioner : Mr. K.C. Rajguru, Advocate For Opposite Parties : Mr. R.B. Mishra, Advocate CORAM:

JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:09.01.2025(ORAL)

G. Satapathy, J.

1. This revision by the petitioner-husband challenges the impugned judgment dated 07.11.2023 passed in Criminal Petition No. 07 of 2023 by which the learned Judge, Family Court, Khurda has directed the petitioner-husband to pay a sum of Rs.5,000/- each to the OP No.-1-wife and OP No.-2-daughter, total Rs.10,000/- in an application U/S. 125 CrPC.

2. In the course of hearing, learned counsel for both the parties without disputing the status of the parties only argues in respect to the quantum of maintenance. Accordingly, Mr. Kishore Chandra Rajguru, learned counsel for the petitioner argues and submits that the learned trial Court by doing some guess work has assessed the income of the petitioner- husband not less than Rs. 20,000/- per month and thereby, ordered to the petitioner to pay Rs.5,000/- each to the wife and daughter, all total Rs.10,000/- per month, however, the petitioner-husband being a driver, his earning cannot be taken at Rs.20,000/-, but at best his income could be assessed at Rs.14,000/- to Rs.15,000/- per month and looking at the responsibility of the petitioner-husband, he is ready to pay a sum of Rs.6,000/- per month to the OPs @ Rs.3,000/- each to both of them. On the other hand, Mr. Rajib Bihari Mishra, learned counsel for the OPs submits that the income of the petitioner-husband is not less than Rs.40,000/- and the learned trial Court has rightly assessed the income of the petitioner- husband and accordingly, directed to pay the maintenance amount to the OPs, which needs no interference in this revision.

3. After having considered the rival submission upon perusal of record, it appears that the learned trial Court while disposing the criminal petition has observed inter alia the following in paragraph-11:-

“11. xx xx xx xx Considering his age and the materials on record it is felt that his monthly income will not be less than Rs.20,000/- per month. On the other hand, P.W.1(wife) in her evidence stated that she is unable to maintain herself and her minor daughter. That statement would be enough to show that she is unable to maintain herself and her minor daughter and it would be for O.P. to prove otherwise, which was not done in this case.”

A reference of the aforesaid observation of the learned trial Court, it goes without saying that the learned trial Court has assessed the income of the petitioner-husband by doing guess work, but no concrete evidence has been led by the OP-wife to establish the income of her husband, however, it is a fact that the husband works as a driver of a truck, which has been admitted by the husband in his cross- examination. Looking at the profession of the petitioner-husband and the probability of his getting work, this Court considers that the driver would be earning at least Rs.15,000/- per month by his profession and thereby, he can part 50% of it for his own child and wife and, therefore, the impugned judgment is liable to be modified. Accordingly, it is directed that the petitioner-husband shall pay Rs.5,000/- per month to the wife and Rs.2,500/- per month to the minor daughter through mother guardian w.e.f. the date of filing of the maintenance application i.e. 10.01.2023. The petitioner-husband is, accordingly, liable to pay the arrear maintenance on this scale.

4. In the result, the present revision petition stands allowed in part and the impugned judgment is modified to the extent indicated above, but in the circumstance without any costs.

(G. Satapathy)

Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication

Location: High Court of Orissa