Suren Pattanaik vs Madhusmita Pattanaik

S. Pujahari, J

This is an application filed under Section 19 of the Family Court’s Act, 1984 challenging the order dated 29.01.2014 passed by the learned

Judge, Family Court, Berhampur, in Criminal Proceeding No.756 of 2010, under Section 125 of Cr.P.C., vide which the present petitioner (opposite

party in the said proceeding) has been directed to pay Rs.5,000/- per month to the present opposite party (petitioner in the said proceeding) towards

maintenance with effect from 15.05.2009, i.e., the date of filing of the case.

Heard Ms. Deepali Mohapatra, learned counsel for the petitioner, and Mr. P.K. Panda, learned counsel for the opposite party, through video

conferencing mode. Perused the impugned order vis-Ã -vis the relevant papers on record.

Admittedly, the opposite party is the married wife of the petitioner, but as recorded by the learned Court below on the basis of the evidence that

their marriage has not been consummated. Although the petitioner-husband has taken a plea that the opposite party-wife on her own accord has

withdrawn from his society, the learned Court below has rendered a finding that it is the petitioner who has deserted the opposite party. According to

the opposite party, the petitioner declined to accept her for the reason of non-payment of dowry of two lakh rupees. It is on record that while the

petition for divorce filed by the present petitioner has been dismissed, the petition filed by the opposite party under Section 9 of the Hindu Marriage

Act for restitution of conjugal rights has been allowed.

It is the contention of the learned counsel for the petitioner that being terminated from service due to the complaint made by the opposite party, the

petitioner is going jobless without any earning. It is further submitted that the opposite party being engaged as a Dance Teacher in a private school

was getting salary of Rs.7,735/- per month as on the date of the impugned order. The learned counsel, in other words, sought to justify that since the

opposite party is able to maintain herself by self earning, the petitioner who is jobless is not liable to pay any maintenance to her, and hence, the

impugned order is liable to be set-aside.

On the other hand, the learned counsel appearing for the opposite party submitted that since the petitioner left the opposite party in a state of

desertion and deprivation, the opposite party being confronted with a struggle for sustenance engaged herself in a private school for a meager salary,

and the same cannot afford a ground to the petitioner to deny maintenance to her. He submits that the impugned order calls for no interference by this

Court.

There is no dispute that the petitioner is able bodied and a qualified Engineer. His being off the job or remaining unemployed is not synonymous to

his being incapable of earning. There is no material on record to suggest that the opposite party left the company or society of the petitioner on her

own accord, or refused to join the petitioner or matrimonial home. Rather, she made evident her willingness for restitution of her conjugal rights with

the petitioner by seeking an order under Section 9 of the Hindu Marriage Act. If a married woman after being deserted by husband makes efforts and

struggle to search for means for her sustenance in order to save herself from vagrancy and destitution, the same cannot be construed as her ability to

maintain herself. Had she been in the company of her husband in normal course of marital life, the latter was supposed to maintain her at par with his

own status. In the facts and circumstances of the present case, and for the discussion made hereinbefore, this Court, however, feels it proper to

modify the award of maintenance by reducing the monthly dose from Rs.5000/- (rupees five thousand) to Rs.4000/- (rupees four thousand) to be paid

by the petitioner from the date of the application under Section 125 of Cr.P.C.

With the modification of the impugned order as indicated above, this RPFAM stands disposed of.

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.

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