Pradeep Kumar Jena vs Arya Arpana Bhuyan

S. Pujahari, J

This is an application filed under Section 19(4) of the Family Court’s Act, 1984 read with Section 401 of Cr.P.C. challenging the order dated

05.03.2020 passed by the learned Judge, Family Court, Kendrapara in Criminal Proceeding No.19 of 2015 under Section 125 of Cr.P.C. directing the

petitioner to pay monthly maintenance of Rs.3000/- to the opposite party herein, with effect from the date of filing of the petition.

Heard the respective learned counsel appearing for both the sides and perused the impugned order vis-Ã -vis the other relevant papers on record.

There is no dispute on record that the opposite party is the legally married wife of the petitioner, their marriage having been solemnized on

08.07.1996 in accordance with Hindu Rites and Caste Customs. It is alleged, inter-alia, that the petitioner and his relatives ill-treated the opposite party

and drove her out of her matrimonial home, for which the opposite party has taken shelter in her parental house since June, 2006. Claiming

maintenance @ Rs.10,000/- per month the opposite party filed the petition under Section 125 of Cr.P.C. before the Court below and in the said

proceeding, as per the order dated 13.01.2017, interim maintenance @ Rs.2500/- per month was directed to be paid by the petitioner to the opposite

party-wife with effect from 28.01.2015 pending final disposal of the case. As it further appears, the petitioner continued payment of interim

maintenance till 19.11.2018 and thereafter stopped the payment, for which as per the order dated 01.11.2019 the learned Judge, Family Court,

Kendrapara struck down the defence of the petitioner in the said proceeding and ultimately finally disposed of the petition under Section 125 of

Cr.P.C. vide the impugned order. As it further reveals, the petitioner-husband in his pursuit to get back the opposite party in his company, filed Civil

Proceeding No.334 of 2011 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, and as reported, the opposite party contested

the said proceeding showing her disinclination to join the petitioner.

It is the contention of the learned counsel for the petitioner that there is no negligence on his part and that the opposite party on her own accord

withdrew herself from the society of the petitioner and refused to join him without any valid reason. The impugned order is criticized on the grounds,

inter-alia, that although the petitioner paid interim maintenance to the tune of Rs.30,000/-, for no just reason, his defence was struck down by the

learned Court below and he was deprived of contesting the proceeding. Learned counsel for the petitioner further submitted that while passing the

impugned order the learned Court below remained oblivious of the fact that though the petitioner was willing to get his conjugal rights restituted with

the opposite party-wife by filing the case under Section 9 of the Hindu Marriage Act, the opposite party refused to join him, and thereby lost her right

to claim maintenance.

Per contra, learned counsel appearing for the opposite party while supporting the impugned order, argued that since there are materials on record to

show the opposite party to have been neglected, ill-treated and deserted by the petitioner, the mere filing of a case under Section 9 of the Hindu

Marriage Act by the petitioner cannot absolve him from the liability of maintenance to the opposite party who is unable to maintain herself. He has

further submitted that since the petitioner defaulted in paying the interim maintenance in defiance of the unchallenged order, no fault can be found with

the learned Court below in striking down his defence in the proceeding.

Admittedly, the petitioner has not been allowed to lead evidence in his defence in the proceeding before the Court below. Since he has some points

of defence which could have been substantiated by him, had he been allowed to participate in the proceeding, this Court keeping in view the admitted

subsisting marital relationship between the parties, feels it proper to afford him an opportunity of contesting the said proceeding on his paying a lump-

sum of Rs.30,000/- (rupees thirty thousand) to the opposite party. The said amount shall be adjusted against the arrear pendentilite maintenance,

subject to the final order to be passed on the petition under Section 125 of Cr.P.C.

With the direction as above, the RPFAM stands disposed of. Payment of lump-sum of Rs.30,000/- by the petitioner to the opposite party within two

months from the date of this order shall be condition precedent for revival of the proceeding under Section 125 of Cr.P.C. to the file of the learned

Court below. In case of non-payment of such amount, the present RPFAM shall be deemed to have been dismissed without any further reference to

this Court. Needless to mention that if the aforesaid amount is paid by the petitioner within the time stipulated, the proceeding under Section 125 of

Cr.P.C. shall stand revived to file, and the learned Judge, Family Court, Kendrapara shall dispose of the same afresh after giving opportunity to the

petitioner to lead evidence in the proceeding.

L.C.R. along with a copy of this order be sent to the Court below forthwith.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.

…………………………