Savitri Ratho, J. The CRLMC has been filed challenging the judgment dated 27.02.2020 passed by the learned Judge, Family Court, Berhampur, District-Ganjam in Criminal Proceeding No. 255 of 2017, filed by the Opposite Party No. 2 under Section 125 of the Criminal Procedure Code (in short “Cr.P.C”) and subsequent order dated 22.03.2021 passed in Criminal Proceeding No.96 of 2020 by the learned Judge, Family Court, Berhampur issuing D.W. and conditional NBW for non-payment of arrear maintenance.

CASE OF THE OPPOSITE PARTIES

Marriage between the Petitioner and Opp. Party No.-2 was solemnized on 05.03.2009 as per the Hindu rites and customs. On 30.04.2012, they were blessed with a son - Sainath Mishra. Opposite Party-2 was subjected to physical and mental cruelty by the Petitioner and his family in connection with dowry demands. The Petitioner drove the Opposite Party No.2 out of her matrimonial house at the dead hour of the night by assaulting her mercilessly by means of iron rod and chain without providing food to her and her son He kept their son Sainath while driving her out . The Petitioner is a businessman having landed properties and he is earning handsome money from his business. But the Opposite Party No.2-wife is a helpless lady having no independent source of income. She is fully dependant upon her father for her day-to-day maintenance. Prayer was made for payment Rs.20,000/- (Rupees Twenty Thousand) per month for her maintenance.

OBJECTION OF THE PETITIONER

The Petitioner filed an objection stating that the Opp. Party No.2- wife had lodged the F.I.R. against the Petitioner and his family members before Gunpur P.S. and P.S. Case No.57 dated 07.11.2013 was registered u/s.498(A)/34 of the I.P.C. and has ended in acquittal. A joint petition was filed u/s.13-B of Hindu Marriage Act by the parties before the learned Senior Civil Judge, Gunpur vide MAT Case No.77/2014. But this case was subsequently dropped due to non-prosecution. In the joint petition it had been stated that the parties are staying separately since long due to mutual consent. On the aforesaid grounds the Petitioner prayed for rejection of the petition filed by the Opposite Party No.2.

IMPUGNED ORDERS

The learned Judge, Family Court allowed the petition on 27.02.2020, directing the Petitioner to pay a sum of Rs. 6,000/- per month towards monthly maintenance of Opposite Party No. 2 and Rs. 4,000/- per month towards her separate residence, from the date of filing the application , i.e. from 11.09.2017 and to pay the arrear maintenance within three months and the current monthly maintenance amount by the second week of each succeeding month.

On 22.03.2021, the learned Judge Family Court has issued DW and conditional NBW against the petitioner in Cr.P. No. 96 of 2020, filed for execution, as he had not paid anything out of the arrear amount of Rs 3,20,000/- .

SUBMISSIONS

PETITIONER

Mr. Biswaranjan Mohapatra, learned counsel for the Petitioner has submitted that the learned court below passed the judgment without application of judicial mind to the mandatory provisions of Section 125(4) Cr.P.C., which clearly stipulate that no wife shall be entitled to maintenance if she is living separately from her husband by mutual consent. He has submitted that in view of the averment in the joint petition filed in MAT Case No. 77 of 2014 (C.S. No. 77 of 2014) which is supported by affidavit of the Opposite Party No.2, that the parties are staying separately due to mutual consent and in view of the provision of Section 125 (4) of the Cr.P.C., the Opposite Party No.2 is not entitled for any maintenance. He has also submitted that the entire provision of Section 125 has to be taken into account, including the provision under Section 125 (4) while deciding an application for grant of maintenance. He has further submitted that learned Court below observed that "Admittedly a joint petition was filed by both the parties u/S. 13-B of Hindu Marriage Act, 1955” before the learned Senior