Arabinda Ram vs Dalismita Sahoo

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 22nd August, 2023 (Annexure-16) passed by learned Judge, Family Court, Jajpur in C.P.I.A. No.16 of 2023 (arising out of Civil Proceeding No.233 of 2021) is under challenge in this writ petition, whereby the Petitioner has been directed to pay pendente lite maintenance of Rs.4000/- per month to the Opposite Party from the date of application, i.e., from 1st May, 2023. The Petitioner has also been directed to pay litigation expenses of Rs.3,000/- to the Opposite Party.

It is submitted by Mr. Bhuyan, learned counsel for the Petitioner that after filing of the show-cause to the petition under Section 24 of the Hindu Marriage Act, 1955 (For short ‘the Act’)

(C.P.I.A. No.16 of 2023) the matter was never posted for hearing of the application but the final order has been passed without affording opportunity of hearing to the Petitioner. Had an opportunity been given to the Petitioner, he would have brought certain relevant facts to the knowledge of learned Judge, Family Court, Jajpur which are necessary for adjudication of the I.A.

It is submitted that the Opposite Party has filed CP. 252 of 2020 under Section 9 of the Act which is pending in the same Court. In the said Civil Proceeding, C.P. I.A. No.13 of 2023 was filed under Section 24 of the Act ,which was dismissed on 15th July, 2023. However, only after 20 days, without any change in circumstances, the impugned order has been passed on 22nd August, 2023 under the same provision in C.P. No.233 of 2021 filed by the Petitioner for dissolution of marriage between the parties.

It is his submission that learned Judge, Family Court, while adjudicating the matter under 24 of the Act, took into consideration the affidavit of assets and liabilities filed in a proceeding under Section 125 Cr.P.C., which is not permissible. In the meantime, due to intervention of the Opposite Party, the Petitioner has lost his job and is earning his livelihood with much difficulties. Learned Judge, Family Court ,without any material on record, held that the Petitioner is earning more than 90,000/- per month and has directed to pay pendente lite maintenance as stated above. He, therefore, prays for setting aside the impugned order under Annexure-16 and to direct learned Judge, Family Court, Jajpur to adjudicate C.P.I.A. No.16 of 2023 afresh giving opportunity to the parties concerned.

Considering the submission made by learned counsel for the Petitioner, this Court finds that C.P.I.A. No.13 of 2023 (arising out of C.P.251 of 2020) was dismissed by order dated 15th

July, 2023 (Annexure-15) by learned Judge, Family Court, Jajpur. Barely 20 days after similar such application in C.P.233 of 2021 under Section 24 of the Act has been allowed vide order dated 22nd August, 2023.

Mr. Bhuyan, learned counsel for the Petitioner submits that the affidavits of asset and liabilities was filed a CP which was taken into consideration by 24 of the Act. If that be so, the Petitioner should have been given an opportunity to have his say when the document of any other proceeding is taken into consideration and is utilized against him. These aspects are not taken into consideration by learned Judge, Family Court, Jajpiur.

In that view of the matter, this Court feels that the matter requires fresh consideration, if moved.

Accordingly, this Court disposes of the writ petition with a direction that in the event, the Petitioner files an application to recall order dated 22nd August, 2023 (Annexure-16) passed in C.P.I.A. No.16 of 2023 within two weeks hence, the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned.

At this stage, Mr. Bhuyan, learned counsel for the Petitioner submits that learned Judge, Family Court, Jajpur is taking coercive measure to recover the arrear amount of pendente lite maintenance.

Since the application under Section 24 of the Act was filed on 1st May, 2023, the arrear amount would be Rs.20,000/- by now. If the Petitioner deposits the amount of Rs.15,000/- without prejudice to his case within a period of 10 days, no coercive measure for realization of the arrear amount shall be taken against him.

It is made clear that the disbursal of the aforesaid amount shall be subject to the order passed by learned Judge, Family Court, Jajpur in the petition, if any, filed for recall of order under Annexure-16 within a stipulated period, as aforesaid.

Urgent certified copy of this order be granted on proper application.

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