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Judgment
R.K. Pattanaik, J
Both the revisions have been clubbed together and are disposed of by the following common judgment.
Instant revisions under Section 397 read with Section 401, Cr.P.C. are at the behest of the petitioner challenging the impugned judgment dated 19th October, 2022 passed in connection with Crl. Misc. Case No.339 of 2019 (Trial No.375 of 2022) and the decisions in Criminal Appeal Nos.40 & 42 of 2022 dated 3rd September, 2024 and 13th September, 2024 respectively of the learned First Additional Sessions Judge, Rourkela on the grounds stated.
CRLREV No.73 of 2025: The petitioner questioned the correctness of the impugned judgment in Criminal Appeal No.42 of 2022 against the decision in Crl. Misc. Case No.339 of 2019, whereby, monthly maintenance payable to opposite party No.1 has been enhanced to Rs.13,000/- along with Rs.7,000/- towards alternative accommodation besides compensation of Rs.1,00,000/-from Rs.25,000/- on the grounds inter alia that the learned court below ought not to have modified the order of the learned JMFC (Rural), Rourkela in the DV proceeding wherein maintenance of Rs.3,000/- per month with Rs.5,000/- on alternative accommodation and payment of compensation of Rs.20,000/- was directed and therefore, such enhancement is liable to be interfered with and set aside.
CRLREV No.78 of 2025: Against the order in Crl. Misc. Case No.339 of 2019, the petitioner challenged it in appeal but it was dismissed by the impugned order dated 3rd September, 2024 for non-prosecution and such dismissal is assailed in the present revision on the ground that no intimation was received regarding the status of the proceeding before the learned JMFC (R), Rourkela from the Counsel engaged by him and as a result, it was followed by the order of dismissal when the cost imposed by order dated 6th August, 2024 was not complied with on the date fixed, i.e. 8th September, 2024 and finally on 6th August, 2024 when further adjournment was sought for on medical ground supported by documents.
The order of maintenance and other reliefs granted in favour of opposite party No.1 in Crl. Misc. Case No.339 of 2019 was the subject matter of challenge at the behest of the petitioner in Criminal Appeal No.40 of 2022, whereas, it was sought to be enhanced by opposite party No.1, hence, the other appeal. So, the petitioner questioned the decision of the learned JMFC(R), Rourkela with regard to entitlement of maintenance by opposite party No.1 but the appeal was dismissed for default. On the other hand, Criminal Appeal No.42 of 2022 filed by opposite party No.1 was allowed on contest and to the extent indicted in the judgment dated 13th September, 2024 with a direction to the petitioner to pay the enhanced maintenance and compensation besides to bear the expenses towards her alternative accommodation. Both the decisions of the learned courts below as to the dismissal of Criminal Appeal No.40 of 2022 on account of default and the judgment in Criminal Appeal No.42 of 2022 having been allowed in favour of opposite party No.1, the petitioner has preferred the revisions.
Opposite party No.1 filed Crl. Misc. Case No.339 of 2019 under the Protection of Women from Domestic Violence Act (hereinafter referred to as ‘the DV Act’) seeking protection order and such other reliefs including monthly maintenance besides compensation from the petitioner alleging therein that after their marriage, she was subjected to mental and physical torture. The grievance of opposite party No.1 is that ever since her marriage with the petitioner, for non-fulfilment of dowry demand, there was continuous ill-treatment from his family. The details of the dowry torture and ill-treatment meted out to opposite party No.1 have been described in the application filed under the DV Act. The manner in which opposite party No.1 was subjected to harassment and ill-treatment in the hands of the petitioner and in-laws stands narrated with the facts pleaded on record before the Court of learned JMFC(R), Rourkela, who upon receiving evidence from both the sides disposed of the proceeding by judgment dated 19th October, 2022 and as earlier discussed, monthly maintenance of Rs.3,000/-along with Rs.5,000/- for alternative accommodation and compensation of Rs.20,000/- was allowed in her favour. Such compensation was further enhanced and directed to be payable by the petitioner upon disposal of Criminal Appeal No.42 of 2022.
Whether dismissal of the appeal filed by the petitioner was justified? If it was a just decision to enhance the monthly maintenance, compensation and the sum payable towards alternative accommodation is legally tenable? According to the petitioner, there has been no ill-treatment to opposite party No.1 neither at his instance nor by the in- laws and therefore, she is not entitled to maintenance furthermore when, alimony was directed against him in C.P. No.40 of 2020 by the Family Court at Rourkela while entertaining an application under Section 18 of the Hindu Adoption and Maintenance Act, which is under challenge in MATA No.127 of 2023 and also at her behest in MATA No.305 of 2023 seeking enhancement, wherein, there is also a direction to pay a sum of Rs.1,00,000/- but it has not been taken judicial notice by the learned courts below, hence, any such direction to pay further maintenance is in clear violation of the decision of the Apex Court in Rajnesh Vrs. Neha and another (2021) 2 SCC 324.
On the contrary, opposite party No.1 justifies the decision of the learned court below in Criminal Appeal No.42 of 2022 as the maintenance and other amounts payable by the petitioner were found to be inadequate confirming the findings of the learned JMFC(R), Rourkela with a satisfaction reached at regarding her ill-treatment and mental as well as physical cruelty, she was subjected to, hence, it should not be disturbed. According to opposite party No.1, the learned court below did not err in allowing the appeal to the extent modifying the interim order dated 19th October, 2022 in the DV proceeding, as the petitioner is having sources of income to comply the same, which is also not excess and fixed at Rs.13,000/- towards maintenance and rightly directed other payments.
Heard Mr. Mishra, learned counsel for the petitioner and Mr. Jena, learned counsel for opposite party No.1.
According to Mr. Mishra, learned counsel for the petitioner, the dismissal of the appeal by order dated 19th October, 2022 by the learned court below should be restored to file for its disposal on merit, as it was due to non-payment of cost of Rs.500/- only. Mr. Mishra, learned counsel would further submit that for the absence of the petitioner on the date fixed, the order on cost could not be complied with but it was not just and proper for the learned court below to dismiss the appeal for non-prosecution. It is contended that sufficient grounds exist to direct restoration of Criminal Appeal No.40 of 2022 and that apart, the enhanced sums on all heads cannot be sustained in law in absence of any justification vis-à-vis the financial capacity of the petitioner and also evidence regarding mental and physical torture and cruelty subjected to opposite party No.1, as the allegations were found to be exaggeration and false by the learned JMFC(R), Rourkela Not only that, Mr. Mishra, learned counsel for the petitioner contends that further maintenance and other payments could not have been directed, when it has been considered and allowed in favour of opposite party No.1 by the learned Judge, Family Court, Rourkela in C.P. No.40 of 2022, wherein, a monthly maintenance of Rs.12,000/- has been fixed.
Mr. Jena, learned counsel for opposite party No.1 contends that the learned court below considering the maintenance and other sums payable to be meagre allowed the enhancement while disposing of Criminal Appeal No.42 of 2022. According to Mr. Jena, learned counsel, the learned JMFC(R), Rourkela received evidence and affidavits in terms of the decision in Rajnesh (supra) and considering the materials on record and on a subjective satisfaction reached at that opposite party No.1 was ill-treated and subjected to cruelty, hence, had to separate from the petitioner and that the maintenance is insufficient so also the compensation and payment on alternative accommodation directed enhancement and therefore, the decision of the learned court below in Criminal Appeal No.42 of 2022 is perfectly justified and in accordance with law.
Perused the lower court records.
Opposite party No.1 examined herself, as P.W.1 and proved six documents, whereas, the petitioner in defence examined him as D.W.1 and mother as D.W.2 and similarly marked six documents before the learned JMFC(R), Rourkela. Upon receiving such evidence, the Court of first instance concluded that certain allegations are exaggerated but at the same time, the ill-treatment to opposite party No.1 held to have been proved and allowed the maintenance. The said finding of the learned JMFC(R), Rourkela has been upheld by the learned court below in Criminal Appeal No.42 of 2022 with the other appeal of the petitioner being dismissed for default. Even though there has been no re-appreciation of evidence by the learned court below but it was in complete agreement with the findings of the learned JMFC(R), Rourkela and concluded that a case of maintenance is made out.
This Court is of the view that such a finding vis-a-vis entitlement of maintenance of opposite party No.1 should not be disturbed since the scope of revisional jurisdiction is limited. According to the Court, unless a decision is found to be perverse, the concurrent factual findings of the courts below should not be tinkered with. It is well settled law that in exercise of jurisdiction by way of revision, this Court is not to upset the concurrent findings of facts when there is no perversity and furthermore, when it is not for a revisional court to analyze the evidence on record. It is well established principle of law that the revisional court is not to interfere even if a wrong order has surfaced from a court of having jurisdiction in absence of a jurisdictional error and in this regard, a decision of the Apex Court in Southern Sales and Services & others Vrs. Sauermilch Design and Handels GMBH (2008) 14 SCC 457 may have a reference. In other words, if there is no jurisdictional wrong or perversity in a decision and it has been followed by affirmation in appeal, this Court exercising revisional jurisdiction is not to unsettle the concurrent findings, which was reiterated by the Apex Court in Bir Singh Vrs. Mukesh Kumar (2019) 4 SCC 197. Turning to the case at hand, the Court is of the conclusion that the learned JMFC(R), Rourkela appreciated the evidence, discarded the exaggerations and upheld the entitlement of maintenance, which received confirmation in appeal and in absence of any perversity therein, the same is to be upheld.
As regards the quantum of compensation, Mr. Mishra, learned counsel for the petitioner submits that the learned courts below simply ignored the order in C.P. No.40 of 2020, wherein, a similar direction for maintenance of Rs.12,000/- has been allowed in favour of opposite party No.1, which is also under challenge for enhancement in MATA No.305 of 2023 besides the appeal of the petitioner in MATA No.127 of 2023. The contention of Mr. Mishra, learned counsel is that over and above Rs.12,000/-, a further sum of Rs.13,000/- as maintenance allowed by the learned court below in Criminal Appeal No.42 of 2022 is grossly unjustified and even against the settled norms of law when monthly income of the petitioner has been accepted at around Rs Rs.8000/- having no other assets and resources to comply the same. On a reading of the impugned order in DV proceeding and the judgment in appeal allowed in favour of opposite party No.1, the Court finds that there has been no mention about any such maintenance order of the Family Court in C.P. No.40 of 2020. Law is well settled that the amount of maintenance allowed in one of the proceedings directed earlier is to be set off unless any such direction to the contrary. If the maintenance allowed in multiple proceedings do justify a payment in favour of the aggrieved wife, it has to be specifically directed by the court dealing with the proceeding by assigning reasons therefor. If it is considered that the maintenance is payable but it shall have to be set off as against a sum already determined by an earlier court, it is to be directed accordingly. It is claimed by Mr. Mishra, learned counsel for the petitioner that the order of maintenance by the Family Court in in C.P. No.40 of 2020 was brought to the notice of both the courts below The Court finds that he courts below did have the knowledge regarding maintenance order in C.P. No.40 of 2020, but it has not been taken into account while quantifying the maintenance and enhanced thereafter.
Under the above circumstances, the Court is to consider whether any such additional payment directed against the petitioner can be sustained when opposite party No.1 has been allowed maintenance of Rs.12,000/- with other reliefs by the Family Court, Rourkela and pending disposal of MATA Nos.127 and 305 of 2023. From the record, it is made to suggest that the affidavits were called for from both the sides in terms of the decision of the Apex Court in Rajnesh (supra). It is further revealed that evidence was adduced by the parties in favour of and against vis-a-vis income of the petitioner. On one hand, the petitioner claimed his monthly income at around Rs.7000/- to Rs.8000/- and on the other hand, opposite party No.1 alleged his income to be more and having the means and other sources to pay the maintenance and comply the payments as directed by the learned court below in Criminal Appeal No.42 of 2022.
The Apex Court in Chaturbhuj Vrs. Sita Bai (2008) 2 SCC 316 held and observed that a careful and just balance must be drawn between all the relevant factors and the test for determination of maintenance in matrimonial dispute depends upon the financial status of the respondent and the standard of living that the appellant as she was accustomed to in her matrimonial home. In other words, a balance is to be struck while undertaking an exercise to find out and ascertain a just maintenance payable to the aggrieved wife. The maintenance directed against the respondent shall have to be reasonable and realistic. It is also a well settled law that the husband is not absolved of his moral duty to maintain his wife on the plea of having no source of income when he is able-bodied as held and reiterated by the Apex Court in Reema Salkan Vrs. Sumer Singh Salkan (2019) 12 SCC 312. If the respondent is having no disability affecting his income, he cannot escape from the liability to maintain his wife, which is not only a moral but a statutory obligation but what would be the maintenance payable shall have to be determined considering all such relevant factors keeping in view the income and financial status of the husband and as earlier stated, having regard to the standard of living of the wife to which she is habituated.
In support of the income, though, there has been evidence received from both the sides, but according to the Court, the same is not adequate to reach at a conclusion that the income is sufficient to justify the enhanced maintenance when there is already an order in C.P. No.40 of 2020. If both the orders of maintenance are taken together, it becomes an amount of Rs.25,000/- to be payable by the petitioner and the Court is reluctant to uphold the same considering the nature of evidence on record. The testimony of the mother of the petitioner examined as D.W.2 is rather elaborate and a detailed one. As D.W.2, the petitioner’s mother deposed that the petitioner is a driver and earns a sum of Rs.7000/- and has no other sources of income. It is further deposed by D.W.2 that she had to withdraw money in the year 2018 for the marriage of her daughter and in 2019, at the time when, the marriage of the petitioner took place. It has also been deposed that the younger son is totally illiterate and with casual vocation, he remains idle at home and hence, she used to maintain them both and bear their expenses. The other evidence through Ext.D/4, Ext.D/5 and Ext.D/6 have been brought on to the record by D.W.2 to depose that she receives income from rent @ Rs.16,000/- a month and also to bear her medical expenses between Rs.7000/- to Rs.8000/- on a monthly basis. It is made to understand on a reading of the evidence that the petitioner is having an earning of Rs.8000/- and does not have a permanent job but runs a cab. Against the aforesaid backdrop, it shall have to be considered whether further enhancement to Rs.13,000/- by the learned court below while disposing of the appeal filed by opposite party No.1 is reasonable? According to the Court, in absence of any evidence to show that the petitioner has more income than Rs.8000/- a month, it would be quite unreasonable to direct for an additional sum of Rs.13,000/- towards maintenance as against the order in C.P. No.40 of 2020. It is not rational to fix the monthly maintenance at Rs.13,000/- when the earning of the petitioner hovers around Rs.7000/- to Rs.8000/-. Furthermore, opposite party No.1 has been allowed maintenance of Rs.12,000/- by the Family Court, Rourkela. How the petitioner can manage an amount of Rs.25,000/- towards monthly maintenance when his monthly income is far too less? It has been brought on record that opposite party No.1 is having a source of income and runs a beauty parlour. Whether the beauty parlour is owned by her or someone else, there is no evidence on record, but opposite party No.1 denies any such source of income. Considering the evidence in its entirety and the monthly income of the petitioner assessed at around Rs.8,000/- and not more and the assets as disclosed by D.W.2 belong to the family, the Court reaches at a conclusion that further enhancement of maintenance to a sum of Rs.13,000/- by the learned court below is unjust and unreasonable. When opposite party No.1 is residing with her family, the Court finds no reason and justification to direct payment of Rs.7,000/- towards alternative accommodation. In absence of any such need, a direction to the petitioner for payment towards accommodation on monthly basis is not necessary. But if opposite party No.1 seeks a separate residence/accommodation, the petitioner shall have to comply the same upon a demand received. The Court, however, is not inclined to disturb the finding of the learned courts below towards compensation and enhanced to Rs.1,00,000/- in the peculiar facts and circumstances of the case but certainly is of the view that the other payments directed by the learned court below is not supported by evidence. The learned JMFC(R), Rourkela fixed the maintenance amount at Rs.3000/-, but in the present-day world, it would be grossly insufficient. Even though the monthly income is assessed at Rs.8000/-, but having regard to the social status of the parties and in view of the fact that opposite party No.1 is required to survive independently, an amount of Rs.5000/- instead of Rs.3000/- would be justified over and above the payment directed by this Court in connection with the proceeding in C.P. No.40 of 2020 pending final decision in the MATAs. So the conclusion of the Court is that in absence of any justification, payment on alternative accommodation is not necessary and the same shall have to be set aside and also the enhanced sum of Rs.13,000/- a month on maintenance, which is to be fixed at Rs.5000/- without disturbing the finding on compensation for an amount of Rs.1,00,000/-, as the same is just and reasonable keeping in view the settled position of law and the dictum of the Apex Court in Rajnesh (supra).
Insofar as the mischief alleged by opposite party No.1 with regard to the nature of order and that it has been tampered with referring to the copies of the orders received by the petitioner, according to the Court, there is no further enquiry into the allegations of manipulation or forgery necessary in view of the report of the learned District & Sessions Judge, Sundargarh in record. In fact, a confidential enquiry was held on the complaint of opposite party No.1 alleging forgery in respect of the order dated 19th October, 2022 in Crl. Misc. Case No.339 of 2019 with a conclusion arrived at that learned JMFC(R), Rourkela either knowingly or unknowingly passed the order on 19th October, 2022. It has been further concluded therein that the learned JMFC(R), Rourkela has been warned not to repeat such mistake in future and should be more vigilant when providing certified copy of evidence/judgment to the parties, as revealed from the report dated 15th August, 2023 available in the record. Under the above circumstances, the Court is inclined to close the chapter and not to direct any further enquiry as the same is unnecessary.
With the above decisions, the Court is of the considered view that there is no need for restoration of the appeal filed by the petitioner and dismissed for default.
Accordingly, it is ordered.
In the result, the revision in CRLREV No.73 of 2025 is hereby allowed to the extent as aforesaid thereby modifying the impugned judgment in Criminal Appeal No.42 of 2022 arising out of Crl. Misc. Case No.339 of 2019, but the other one in CRLREV No.78 of 2025 stands dismissed for the reason stated herein before.
In the circumstances, there is no order as to costs.