Satish Kumar Pal vs Mitali Madhusmita Sahani And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Judgment dated 29th March, 2022 (Annexure-7) passed by learned Judge, Family Court, Dhenkanal in Cr.P. No.78 of 2019 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance of Rs.12,000/- per month to Opposite Party No.2 (minor son) from the date of filing of the application.

Mr. Rout, learned counsel for the Petitioner submits that the relationship between the parties is not disputed. The parties were staying at their place of service in Bangalore along with their minor child. Opposite Party No.1 with a plea to visit her parents, left Bangalore with their minor son-Opposite Party No.2 and did not return thereafter. As such, the Petitioner has filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. Thereafter, the Opposite Parties filed an application under Section 125 Cr.P.C. (Cr.P. No.78 of 2019) claiming maintenance. Learned Judge, Family Court while refusing the prayer for grant of maintenance in favour of Opposite Party No.1-Wife directed the Petitioner to pay Rs.12,000/- per month to Opposite Party No.2, as maintenance. It is his submission that the Opposite Party No.1 is a working lady, as has been observed by learned Judge, Family Court in the impugned order under Annexure-7. There is also no material on record to show that the Petitioner has ever neglected to maintain Opposite Party No.2. It is the Opposite Party No.1, who is keeping Opposite Party No.2 away from the Petitioner. Since the Opposite Party No.1 is income tax assessee and has sufficient means to maintain herself, both of them have equal responsibility and obligation to maintain their minor son, namely, Opposite Party No.2. This material aspect was lost sight of by learned Judge, Family Court while assessing the quantum of maintenance. It is also submitted that while assessing the quantum of maintenance, learned Judge, Family Court did not record the income of the Petitioner as well as his expenses. In that view of the matter, the quantum of maintenance appears to be unreasonable and warrants interference.

Mr. Hota, learned counsel being authorized by Mr. Dwibedi, learned counsel for the Opposite Parties submits that Opposite Party No.2 is a school going children and he is also being given private tuition. The Petitioner has not filed any document to show that the Opposite Party No.1-Wife has sufficient means to maintain herself and minor son. Thus, learned Judge, Family Court has committed no error in directing the Petitioner to pay maintenance as stated above.

Considering the submissions made by learned counsel for the parties and on perusal of the impugned order under Annexure-7, it appears that although learned Judge, Family Court has taken the pain to write a lengthy judgment, but has failed to discuss the requirement of the child. No doubt, both the parents of the child have independent income. Thus, both the parties have legal obligation to maintain their minor son. Learned Judge, Family Court while discussing the materials on record failed to take note of the requirement/expenses of the child, more particularly, when the child-Opposite Party No.2 appears to be of nine years old only. It is submitted by Mr. Hota, learned counsel that Opposite Party No.2 is pursuing his study in a Kendriya Vidyalaya, where fees structure is very low. There is no material on record that the child is being given private tuitions and he has other expenses to be borne by the Petitioner. In that view of the matter, direction to pay a sum of Rs.12,000/- per month being without any basis is not sustainable.

Taking note of the fact that both the parents have legal obligation to maintain their child and he is perusing his studies at Kendriya Vidyalaya, this Court feels that a sum of Rs.8,000/- per month to Opposite Party No.2, as maintenance will be just and reasonable in the facts and circumstances of the case, more particularly, in absence of any material with regard to real expenses of the child.

Accordingly, the impugned order under Annexure-7 is modified to the extent directing the Petitioner to pay a sum of Rs.8,000/- (Rupees eight thousand only) per month from the date of filing of the application under Section 125 Cr.P.C.

With the aforesaid modification in the impugned order under Annexure-7, the RPFAM is disposed of.

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

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