Rankanidhi Behera vs Jayanti Sahoo

P.K. Tripathy, J.—Both the aforesaid revisions have been heard analogously and disposed of by this judgment.

Opposite party No. 1 for herself and on behalf of opposite parties 2 and 3 who were the minor children, filed petition u/s 125(3), Cr. P.C. claiming for maintenance from the petitioner on the ground that she and opposite parties 2 and 3 born out of the wedlock were ill-treated and deserted by the petitioner though he is capable of maintaining them having sufficient means. That application was registered as Crl. Misc. Case No. 74/89 in the Court of A.D.J.M., Jaipur. Later on it was transferred to the file of Judge, Family Court, Cuttack and registered as Crl. Proceeding No. 388 of 1991. Petitioner contested that case. In his show cause he admitted the relationship, but refused to pay maintenance on the ground that opposite party No. 1 is leading an adulterous life with one Mina Behera and voluntarily deserted him. In support of their respective cases both the parties adduced oral and documentary evidence. Opposite parties examined opposite party No. 1 as P.W. 1 and another witness namely Kapila Ch. Sahu as P.W. 2. The petitioner examined himself as O.P.W. No. 2 and his mother as O.P.W. 1. He also relied upon postal receipts vide Exts. 1 to 8 to prove that opposite party No. 1 was residing with said Mina Behera. On assessment of evidence in record, learned Judge, Family Court recorded the findings that the inter se relationship being an admitted factor, petitioner failed to prove the allegations of opposite party No. 1 leading an adulterous life and on the contrary at the time of adducing evidence, he offered to maintain the opposite parties if they rejoin him. In that connection he further recorded a finding that opposite party No. 1 apprehending danger to her life was not willing to join with her husband who, according to her, in the meantime had accepted a second wife. Learned Judge, Family Court also took into consideration the factum of desertion, non-providing of maintenance in the intervening period, the quantum of income of the petitioner as a Senior Stenographer working in the State Secretariat and allowed a monthly maintenance of Rs. 50/- to the opposite party No. 2 and at the rate of Rs. 200/- to each of the opposite party Nos. 2 and 3. That order was passed by the Judge, Family Court on 9.9.1996 granting the monthly maintenance in the aforesaid manner with effect from the date of application i.e. 26.4.1989. That order has been challenged in the above noted Criminal Revision No. 444 of 1996.

Due to non-payment of maintenance amount by the petitioner in accordance with the judgment dated 9.9.1996, about two months thereafter opposite party No. 1 filed application u/s 125(3), Cr. P.C. for realisation of the arrears of maintenance and that application was registered as Criminal Proceeding No. 724 of 1996. After receipt of the notice to show cause, as it reveals from the Order dated 12.5.1997 (impugned order), petitioner challenged maintainability of that application on the ground of limitation relating to the period beyond 12 months from the date of application. After hearing the parties, learned Judge, Family Court vide impugned order dated 12.5.1997 rejected that show cause filed by the petitioner on the ground that two months after the judgment the opposite parties filed the petition for realisation of the arrears of maintenance and therefore, that application was legally sustainable. That order has been challenged in Crl. Revision No. 214 of 1997.

It has been noted in the revision application that Civil Proceeding No. 220 of 1994 was filed by both the parties u/s 13(b) of the Hindu Marriage Act praying for a mutual divorce. According to the petitioner on 26.10.1994 learned Judge, Family Court allowed the application by way of a decree of divorce in the event of payment of Rs. 30,000/- by the petitioner the opposite party on that date itself and accordingly, petitioner paid Rs. 30,000/- to the opposite party No. 1 on 26.10.1994, but later on he found from that order that a direction had been given to the petitioner to deposit a further sum of Rs. 35,000/-. Hence he filed an application to recall that order. Opposite party No. 1 also filed an application withdrawing her consent for a mutual decree for divorce. That matter was heard and disposed of by the learned Judge, Family Court on 27.7.1996. Highlighting the aforesaid contentions of both the parties, learned Judge, Family Court not only recalled the order dated 26.10.1994, but also rejected the application u/s 13(b) and at the same time directed opposite party No. 1 to deposit the amount of Rs. 30,000/- in the Court which she had been directed to keep in a fixed deposit in terms of the order dated 26.10.1994.

The aforesaid aspects are the admitted position in record.

Argument in Crl. Revision No. 444 of 1996 was heard in part on 19.3.1998 and thereafter the further argument in that case and the argument in Crl. Revision No. 214 of 1997 (which was heard analogously) was concluded on 27.3.1998. On 15.4.1998, a petition (registered as Misc. Case No. 193 of 1998) was filed to allow the petitioner to adduce additional evidence i.e. an affidavit said to have been sworn in by one Digambar Sahu the brother of opposite party No. 1 on 13.4.1998 before the Notary Public, a document of settlement of dispute between Digambar Sahu and opposite party No. 1 dated 11.1.1998 and another affidavitsaid to be of one Gajendra Sahu dated 13.4.1998. The prayer of the petitioner in Misc. Case No. 193 of 1998 for acceptance of the aforesaid additional evidence being devoid of merit is rejected inasmuch as petitioner has not been able to show as to under what circumstance, he failed to adduce evidence of those two persons at the time of hearing before the Judge, Family Court. Petitioner was not prevented from examining such person while tendering evidence from his side at the time of hearing of Criminal Proceeding No. 388 of 1991. When that case was instituted in the year 1989 and hearing was concluded and judgment delivered in September, 1996, the said case cannot be re- opened only because of the aforesaid two affidavits which were obtained in the month of April, 1998.

Learned Counsel for the petitioner while praying to set aside the maintenance order dated 9.4.1996 argued that learned Judge, Family Court did not properly appreciate the evidence that he is prepared to accept the opposite party No. 1. In that context learned Counsel for the petitioner further argued that due to lapse of time, notwithstanding the adulterous character of opposite party No. 1, he has reconciled with the situation and therefore for the betterment of his children he wanted to accept opposite party No. 1 and that is why he gave such evidence and it was not properly appreciated by the learned Judge, Family Court.

Even if that part of the argument of the petitioner will be accepted to not to draw adverse inference against his case for the reason of proposing to accept opposite party No. 1, then also keeping in view the facts alleged by the opposite party No. 1 that she has been ill-treated, deserted and refused to be maintained alongwith her children from 1989, is an admitted fact. In that context petitioner had not come out to the Court with a clean mind projecting a proper case justifying his action in refusing and neglecting to maintain the opposite party members. So far as the allegation of adulterous life said to have been led by opposite party No. 1 is concerned, as rightly observed by learned Judge. Family Court, petitioner has not been able to prove that allegation against the opposite party No. 1. As noted above, even if no adverse inference is drawn from the aforesaid answers of the petitioner, then also evidence of Opp. W. Nos. 1 and 2 is totally insufficient to draw a presumption in support of the allegations of opposite party No. 1 leading an adulterous life or having any sexual relationship with said Mina Behera. Thus, when there is no justifiable reason for the petitioner to refuse to maintain the opposite party members for such a long period and when there is reasonable apprehension in the mind of opposite party No. 1 about her safety in the hands of the petitioner. Learned Judge, Family Court did not commit any mistake in awarding maintenance in favour of opposite party members. The fact is not to be lost sight of by this Court (being argued by both the parties) that in 1994 i.e. about five years after the desertion, petitioner participated for a mutual divorce. On the other hand, evidence in record, (copies of the deposition being filed by the parties) goes to show that opposite party No. 1 has sufficiently proved the case on behalf of opposite party members in support of their claim for monthly maintenance u/s 125, Cr. P.C. Hence there is nothing to interfere with the order dated 9.9.1996. Criminal Revision No. 444 of 1996 is devoid of merit and accordingly dismissed.

So far as Criminal Revision No. 214 of 1997 is concerned, though the ground of challenge of the proceeding u/s 125(3), Cr. P.C. was properly dealt with by the Judge, Family Court on the ground of limitation, yet the facts remain that the opposite party No. 1 has already received a sum of Rs. 30,000/- as back as on 24.10.1996, when the proceeding u/s 12(b) of the Hindu Marriage Act is no more existing and learned Judge, Family Court has directed opposite party No. 1 to deposit that amount, it is to be verified by the learned Judge, Family court if the opposite party No. 1 has complied with that order. If not the said Rs. 30,000/- may be adjusted towards the arrears of maintenance by making proper calculation.

Learned Counsel for the petitioner in that regard also argued that since that amount of Rs. 30,000/- was to carry interest, therefore, learned Judge, Family Court should be directed to calculate interest and to add that to Rs. 30,000/- and to adjust that amount (principal + interest) towards the arrears of maintenance. That contention is not acceptable inasmuch as when the arrear amount was awarded with effect from 24.6.1989, petitioner is not asked to pay the said amount with interest. It also appears that as per this Court''s direction, some amount might have been deposited by the petitioner. Learned Judge, Family Court may calculate and disburse the same in favour of opposite party members towards arrears of maintenance up to the amount which they are entitled to get and excess amount if any may be properly dealt with. Thus, while not interfering with the impugned order dated 12.5.1997 (impugned order) Criminal Revision No. 214 of 1997 is disposed of with the aforesaid direction relating to payment and adjustment of the maintenance amount. In view of that if the petitioner shall pray for some reasonable time for payment of any further arrear amount due to be paid as per the application u/s 125(3), Cr. P.C, a reasonable period may be allowed to him and till that date, the order of executing of distress warrant and non-bailable warrants and the orders of attachment of salary be kept in abeyance.

Since the matter relating to civil dispute and passing and recalling of the order of divorce is not the subject of challenge in the aforesaid two criminal revisions and nothing was argued on the legality or otherwise of such order, that aspect has not been dealt with in this order.

Both the Criminal Revisions are disposed of in the manner indicated in this order.