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Judgments of Supreme Court of India and High Courts

Pushpanjali Chhuria And Another vs Pranab Ku. Chhuria on 24 January, 2018

IN THE HIGH COURT OF ORISSA, CUTTACK

RPFAM No. 160 Of 2015

From the judgment and order dated 31.08.2015 of the Judge,
Family Court, Kandhamal, Phulbani in C.R.P. No.62 of 2014.
—————————-

Pushpanjali Chhuria
another …….. Petitioners

-Versus-

Pranab Ku. Chhuria …….. Opp. party

For Petitioners: – Miss Pratyusha Naidu

For Opp. party: – Mr. Satyabrata Pradhan
—————————-

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

—————————————————————————————————
Date of Hearing: 18.01.2018 Date of Judgment: 24.01.2018

—————————————————————————————————

S. K. Sahoo, J. Othello, the General in the Venetian military realized

the innocence of his young beautiful wife Desdemona but by that

time, it was too late. She had already been strangled to death in

their bed in the hands of Othello on the suspicion of adultery

with Cassio. That is what the Shakespearean tragedy ‘Othello’

depicts.

2

Philo Thelos writes in ‘Divine Sex’ as follows:-

“A man commits adultery by taking from the
married woman what her husband has claimed
as his sole privilege. It is this ‘property rights’
issue that distinguishes adultery. Strictly
speaking adultery is not ‘sex with someone other
than one’s spouse’. Adultery is taking what
belongs to someone else.”

Trust on the spouse makes the bond of marriage

stronger, happy and peaceful. When one struggles to trust on

the trustworthiness of the spouse and suspects his/her infidelity

with unfounded accusation, the bond gets destroyed. Suspicion

enters through the back door in a marital life paving way for

happiness and peace through the front door. It is said that there

is no smoke without fire but sometimes dense fog is mistaken as

smoke. It is always better to clear doubt by open discussion in

secret and to correct the partner if he/she is in a wrong path.

Keeping silence, showing aggressive attitude to the partner

without understanding the reality creates volcano in heart where

no flowers can bloom. Forgiveness, patience and mutual

understanding save the marriage when it is in a slippery path.

Paul Bear Bryant quotes, “When you make a mistake, there are
3

only three things you should ever do about it: admit it, learn

from it, and don’t repeat it.”

2. This revision petition under section 19(4) of the

Family Courts Act, 1984 has been filed by petitioners Pushpanjali

Chhuria and Sanvi Chhuria who are the wife and daughter of

opposite party Pranab Kumar Chhuria respectively challenging

the impugned judgment and order dated 31.08.2015 of the

learned Judge, Family Court, Kandhamal, Phulbani in C.R.P.

No.62 of 2014 in rejecting prayer for maintenance to petitioner

no.1 with a further prayer to award suitable maintenance in her

favour so also to enhance the maintenance awarded in favour of

petitioner no.2.

3. The petitioners filed a petition under section 125 of

Cr.P.C. on 05.06.2014 before the learned Judge, Family Court,

Kandhamal, Phulbani claiming maintenance @ Rs.15,000/-

(rupees fifteen thousand only) per month from the opposite

party from the date of application.

It is the case of the petitioners that the marriage

between the petitioner no.1 and the opposite party was

solemnized in the year 2001 at Narayani Temple, Phulbani. The

opposite party did not take the petitioner no.1 to his parental

village Kuchinda till the year 2005, however, during her
4

pregnancy, the petitioner no.1 was taken to the parental village

of the opposite party where she stayed for about twenty days.

During her stay at Kuchinda, the petitioner no.1 was repeatedly

asked by her in-laws about the dowry articles. After her return

from village Kuchinda to Phulbani, the petitioner no.1 gave birth

to petitioner no.2 on 14.04.2005 at District Head Quarters

Hospital, Phulbani. After birth of the girl child, the opposite party

started neglecting the petitioner and he had no affection for the

girl child. The opposite party was transferred to Daringibadi

Block as a Junior Engineer and the petitioner stayed back at

Phulbani as desired by the opposite party. The opposite party

started neglecting the petitioner no.1 more and used to assault

her frequently under the influence of liquor and was also

demanding dowry. The petitioners were not provided proper

fooding or clothing and due to such negligence, the petitioner

no.1 remained under mental agony. During December 2013, the

opposite party tried to kill the petitioner no.1 by pressing a pillow

on her face in the late night and therefore, apprehending risk to

her life, the petitioner no.1 lodged a report at Town police

station, Phulbani on 20.12.2013 and accordingly, a case under

sections 498-A, 294, 323, 506 of the Indian Penal Code read

with section 4 of the Dowry Prohibition Act was registered vide
5

Phulbani Town P.S. Case No.209 of 2013. After institution of the

case, the opposite party and his family members requested the

petitioner no.1 not to proceed with the case with an assurance to

maintain the petitioners properly and when the petitioner no.1

kept silence for some days, again the opposite party started

torturing the petitioner no.1 physically and mentally in

connection with demand of dowry. The opposite party was

arrested in the month of January 2014 in connection with the

said case and was forwarded to Court but immediately after his

arrest, the elder brother of the opposite party along with his

friends and lawyers came and requested the petitioner no.1 to

compromise the case with an assurance that the opposite party

will not commit similar offence in future and accordingly, on

good faith, the petitioner no.1 signed the compromise petition

and the opposite party was released on bail on the same day.

The opposite party after being released on bail, took the

petitioners to his elder brother’s house at Deogarh and during

her stay at Deogarh, the opposite party, his elder brother and

mother-in-law persuaded the petitioner no.1 to write some

documents prepared by them and also took her signatures on

various papers. The petitioner no.1 on good faith signed the

documents but after returning from Deogarh to Phulbani, the
6

opposite party again started neglecting the petitioners as a result

of which the education of petitioner no.2 was affected and health

and mental condition of petitioner no.1 was disturbed. The

opposite party did not provide any financial assistance to the

petitioners and also the house rent for which the owner of the

house where the petitioners were staying on rent removed them.

The petitioner no.1 intimated the fact to the opposite party but

he did not turn up to provide any financial assistance. He did not

take care of the education of petitioner no.2 or the treatment of

petitioner no.1 and did not pay any house rent. The petitioners

changed to another house and stayed there on rent leading a

painful life under the financial hardship in a deserted condition

for the negligence, torture and ill-treatment of the opposite

party. The opposite party tried to defame the petitioner no.1 and

fraudulently sold away a piece of land which was purchased in

the name of petitioner no.1 at Bhubaneswar.

It is further stated in the maintenance petition that

the mother of petitioner no.1 even came forward to sell her own

residence to fulfill the illegal demand of the opposite party but

the petitioner no.1 raised her objection. It is further stated that

the petitioner no.1 had no source of income and she has to

maintain herself and her child and take care of the educational
7

expenses of the child, medical expenses and house rent for

which she was in need of Rs.15,000/- per month to maintain her

livelihood. It is stated that she had already taken hand loan from

her friends and relatives. It is further stated that the opposite

party is serving as Junior Engineer at Phiringia Block Office and

getting Rs.35,000/- per month and in addition to that, he had

other income from ancestral property and private source

amounting to Rs.20,000/- per month and the opposite party was

living a luxurious life without performing his responsibility

towards the petitioners.

4. After receipt of notice, the opposite party entered

appearance through his counsel and filed his objection to the

maintenance petition. Apart from denying the allegations of

demand of dowry, torture and negligence, it is stated in the

counter affidavit that the opposite party is maintaining the

petitioner no.2 and he has also filed a petition under Guardians

and Wards Act for the custody of petitioner no.2. It is further

stated that the petitioner no.1 had deserted the company of the

opposite party without any sufficient reason and she is living in

adultery. The opposite party disputed his monthly income and

stated that he is only getting Rs.12,450/- per month and that he

has also to maintain his ailing parents. It is further stated that
8

on the ground of desertion as well as living in adultery, the

petitioner no.1 is not entitled to get any maintenance.

5. During hearing of the case, the petitioner no.1

examined herself as P.W.1. From the side of the opposite party,

he examined himself as O.P.W.1 and the mother of petitioner

no.1 namely Hemalata Nayak was examined as O.P.W.2.

Two documents were exhibited from the side of the

petitioners. Ext.1 is the F.I.R. which was lodged by the petitioner

no.1 against the opposite party on the basis of which Phulbani

Town P.S. Case No.209 of 2013 was registered on 20.12.2013

and Ext.2 is the pay particulars of the opposite party which

shows his net salary as Rs.34,544/-.

From the side of the opposite party, his evidence

affidavit has been marked as Ext.A, envelope has been marked

as Ext.B, pleader notice has been marked as Ext.C, postal notice

has been marked as Ext.D and evidence affidavit of O.P.W.2 has

been marked as Ext.E.

6. The learned Judge, Family Court formulated the

following point for determination:-

“Whether the opposite party being the husband
of the petitioner no.1 and the father of petitioner
no.2 having sufficient means, neglected or
9

refused to maintain them who are unable to
maintain themselves?”

The learned Family Judge after discussing the

evidence adduced from both the sides as well as the documents

filed, has been pleased to hold that both in the counter, evidence

and argument, allegation of adultery among other things was

advanced on behalf of the opposite party to disentitle the

petitioner no.1 from getting any maintenance. The opposite

party himself has no personal knowledge about the allegation

and instead his mother-in-law (O.P.W.2) who is the mother of

petitioner no.1 deposed about the same. It was further held that

the statement of O.P.W.2 in that regard appeared to be

insufficient inasmuch as she had not narrated in detail the time,

place and the manner in which the parties materialized their lust

to accomplish the desire whereas the complaint case filed in that

respect is subjudiced. It is further held that such allegation

would be too early to be acknowledged for the purpose of the

case. The learned Family Judge further held that the petitioner

no.1 had been to different places to reside with the opposite

party and it could not be known as to why she advanced a

negative approach to reside with the opposite party at the place

of his posting. It is stated that the petitioner did not bring any
10

witness to support her case vis-a-vis to establish the alleged

negligence or refusal made on behalf of the opposite party and

though she had filed a case against the opposite party alleging

cruelty but the same is subjudiced and therefore, it would be

premature to hold that on account of cruelty, the petitioner no.1

had left the matrimonial house. It was further held that without

any sufficient reason, the petitioner no.1 had refused to reside

with her husband (opposite party) and therefore, she would not

be entitled to get any maintenance from the opposite party.

While holding the petitioner no.1 disentitled to get any

maintenance from the opposite party, the learned Family Judge

allowed the maintenance in respect of petitioner no.2 and

directed the opposite party to pay a sum of Rs.5000/- (rupees

five thousand only) per month from the date of application for

prosecution of study and maintenance which would be looked

after by the petitioner no.1.

7. Miss Pratyusha Naidu, learned counsel appearing for

the petitioners with all politeness and humility submitted that

though she has challenged the impugned judgment and order

passed by the learned Judge, Family Court, Phulbani on both the

counts i.e. rejecting the maintenance of petitioner no.1 and to

award suitable maintenance in her favour and also for
11

enhancement of the maintenance amount awarded in favour of

petitioner no.2 but since in view of the passage of time, there is

a change in the circumstances for which the petitioner no.2 is

entitled to get more maintenance than what was awarded in her

favour and section 127 Cr.P.C. provides for such alteration in the

maintenance allowance under the change in the circumstances,

she will prefer an application before the learned Judge, Family

Court, Phulbani in that respect and therefore, she is confining

the revision petition only to set aside the impugned judgment

and order passed by the learned Judge, Family Court in rejecting

the prayer for maintenance of petitioner no.1 with a further

prayer to grant suitable maintenance in her favour.

In view of such submission, without expressing any

opinion on the prayer for enhancement of the maintenance

awarded in favour of petitioner no.2, it is directed that if any

application is filed by the petitioner no.2 Sanvi Chhuria before

the learned Judge, Family Court, Phulbani for enhancement of

the maintenance amount on the ground of change in the

circumstances, the same shall be considered in accordance with

law as expeditiously as possible.

The learned counsel for the petitioners strenuously

contended that the impugned judgment and order of the learned
12

Family Judge in rejecting the prayer for maintenance of the

petitioner no.1 on the ground that there was no sufficient reason

for her to refuse to reside with the opposite party is not proper

and justified. It is further contended by the learned counsel for

the petitioners that when a ground of adultery has been taken

against the petitioner no.1 and no clinching materials were

brought on record to establish the same, that by itself would be

sufficient in awarding maintenance in favour of the petitioner

no.1. It is further contended that the petitioner no.1 had

instituted a criminal case against the opposite party relating to

dowry torture and that case was investigated upon and charge

sheet was submitted and therefore, even if the petitioner no.1

stayed separately, in the factual scenario, she is entitled to get

maintenance from the opposite party inasmuch as raising

accusing finger against the petitioner no.1 on the ground of

adultery and also torturing her in connection with demand of

dowry are sufficient reasons for living separately and claiming

maintenance. The learned counsel for the petitioners relied upon

the decision of this Court in the cases of Smt. Chandrama

Biswal @ Chanduri Biswal -Vrs.- Banchhanidhi Biswal

reported in (2011) 48 Orissa Criminal Reports 688,

Srikanta Padhy -Vrs.- Prabasini Dixit reported in 1997 (1)
13

Orissa Law Reviews 156, Apsar Alli Khan -Vrs- Saida

Begum reported in 2012 (II) Orissa Law Reviews 633,

Nirmal Chandra Dash -Vrs.- Smt. Janaki Dash reported in

2013 (I) Current Legal Reports(SC) 792, Smt. Kuni Dei

-Vrs.- Pabitra Mohan Behadi reported in 2013 (II) Orissa

Law Reviews 599, Vijay Kumar -Vrs.- Neela Vijay Kumar

reported in A.I.R. 2003 S.C. 2462 and Narendra -Vrs.- K

Meena reported in A.I.R. 2016 S.C. 4599.

Mr. Satyabrata Pradhan, learned counsel appearing

for the opposite party on the other hand supported the impugned

judgment and submitted that since without any reasonable

cause, the petitioner no.1 deserted the opposite party, she is not

entitled to get any maintenance in view of section 125(4) of

Cr.P.C. It is contended that in her evidence, the petitioner no.1

has admitted that she wanted the opposite party to stay at

Phulbani with her and to deposit an amount of Rs.10,00,000/-

(rupees ten lakh only) in her name and also Rs.10,00,000/-

(rupees ten lakh only) in the name of her daughter. Such a

demand, according to Mr. Pradhan is quite illegal and it cannot

be said that failure of the opposite party to fulfill such demand

by the petitioner no.1 would be sufficient reason for her to live

separately and claim maintenance from the opposite party. It is
14

further contended that since there is no illegality in the

impugned judgment, in view of the limited scope of revision, the

order of the learned Family Judge should not be disturbed. The

learned counsel relied upon the decision of this Court in case of

Khirabdi Tanaya Panda -Vrs.- Chandrasekhar Panda

reported in (2011) 50 Orissa Criminal Reports 685 and

Deb Narayan Halder -Vrs.- Smt. Anushree Halder reported

in (2003) 26 Orissa Criminal Reports (SC) 606.

8. In case of Deb Narayan Halder -Vrs.- Smt.

Anushree Halder reported in (2003) 26 Orissa Criminal

Reports (SC) 606, it is held as follows:-

“11…..It is well settled that the Appellate or
Revisional Court while setting aside the findings
recorded by the Court below must notice those
findings, and if the Appellate or Revisional Court
comes to the conclusion that the findings
recorded by the Trial Court are untenable,
record its reasons for coming to the said
conclusion. Where the findings are findings of
fact, it must discuss the evidence on record
which justifies the reversal of the findings
recorded by the Court below. This is particularly
so when findings recorded by the Trial Court are
sought to be set aside by an Appellate or
Revisional Court. One cannot take exception to a
judgment merely on the ground of its brevity,
15

but if the judgment appears to be cryptic and
conclusions are reached without even referring
to the evidence on record or noticing the
findings of the Trial Court, the party aggrieved is
entitled to ask for setting aside of such a
judgment.”

9. Adverting to the contentions raised by the learned

counsels for the respective parties, it is clear that the

relationship between the opposite party and petitioner no.1 as

husband and wife is not in dispute. The petitioner no.1 has put

forth a case for living separately from the opposite party on the

ground of continuous torture by the opposite party to her in

connection with demand of dowry. It is not in dispute that the

petitioner no.1 lodged an F.I.R. against the opposite party before

the Inspector in charge, Town police station, Phulbani,

Kandhamal on 20.12.2013 for which Phulbani Town P.S. Case

No.209 of 2013 was registered under sections 498-A, 294, 323

and 506 of the Indian Penal Code and section 4 of the Dowry

Prohibition Act. It is also not in dispute that after completion of

investigation, charge sheet has been submitted in the said case

against the opposite party on 25.02.2014 under sections 498-A,

294, 323 and 506 of the Indian Penal Code which corresponds to

G.R. Case No.506 of 2013 pending in the Court of learned
16

S.D.J.M., Phulbani. The copy of the charge sheet was filed by the

learned counsel for the opposite party with a memo which

indicates that the investigating officer found prima facie evidence

against the opposite party for which he submitted the charge

sheet.

Therefore, on the date of impugned judgment and

order passed by the learned Judge, Family Court, Kandhamal,

Phulbani, charge sheet had already been submitted but

unfortunately neither of the parties brought it to the notice of the

Court and therefore, the learned Family Judge held that it would

be premature to hold that on account of cruelty the petitioner

no.1 had left the matrimonial home. Since the petitioner no.1

had lodged the F.I.R. against the opposite party relating to

torture and on investigation, prima facie evidence was found

against the opposite party for which charge sheet was submitted

against him, in my humble opinion that itself is a factor for the

petitioner no.1 to live separately from the opposite party and

claim maintenance. In such a scenario, it cannot be said that

there was no sufficient reason for the petitioner no.1 to refuse to

reside with the opposite party.

Section 125(4) Cr.P.C. provides that a wife who is

entitled to receive an amount of allowance for maintenance or
17

interim maintenance or litigation expense, as the case may be

from her husband will not get the same under the following three

circumstances i.e.,

(i) if she is living with adultery, or

(ii) if, without any sufficient reason, she refuses to

live with her husband, or

(iii) if they are living separately by mutual consent.

“Adultery” has been defined under section 497 of the

Indian Penal Code. As per the definition, whoever has sexual

intercourse with a person who is and whom he knows or has

reason to believe to be the wife of another man, without the

consent or connivance of that man, such sexual intercourse not

amounting to the offence of rape, is guilty of the offence of

adultery. Since “adultery” has not been defined in the Code of

Criminal Procedure, 1973, by virtue of section 2(y) of the Code,

this definition and the meaning assigned in the Indian Penal

Code can be adopted.

‘Sufficiency of reason’ as contemplated under sub-

section (4) of section 125 of Cr.P.C. is a question of fact. Every

reason or pretext put forth on behalf of the wife cannot be

accepted for fulfilling such requirement. The cause shown must

be a reasonable one in relation to her health, safety, unhealthy
18

atmosphere prevailing in the in-laws’ house to lead a decent life.

If the wife is subjected to cruelty and harassment in the hands of

her husband and in-laws’ family members and there is

unnecessary character assassination of her for which she leaves

her matrimonial home and lives separately, it cannot be said to

be a wilful desertion on the part of the wife and on that count,

her claim for maintenance cannot be rejected. Even though in

the present case, the opposite party-husband has not been

found guilty for the offences under which he has been charge

sheeted on the first information report lodged by petitioner no.1-

wife but that cannot be a factor also to refuse maintenance to

her.

The opposite party-husband has brought out an

accusation against the petitioner no.1-wife that she was living in

adultery. The learned trial Court has discussed this part and has

been pleased to hold that the opposite party himself has no

personal knowledge about such allegation and O.P.W. 2 who is

the mother of the petitioner no.1 deposed about the same but it

was further held that even the statement of O.P.W.2 in that

regard appears to be insufficient inasmuch as she had not

narrated in detail, the time, place and manner in which the

parties materialized their lust to accomplish the desire. Having
19

observed like that, the learned Family Judge has held that since

the complaint case filed in that behalf is still subjudiced, such

allegation would be too early to be acknowledged for the purpose

of the case. The complaint petition which was filed by O.P.W. 2

Hemalata Nayak against one Manas Ranjan Panda in the Court of

learned S.D.J.M., Phulbani vide I.C.C Case No.64 of 2014 (T.R.

No.303 of 2015) for offences punishable under sections 294/506

of the Indian Penal Code has ended in acquittal, in which the

learned trial Court vide judgment and order dated 03.05.2016

has been pleased to hold that the prosecution has failed to prove

the charges against the accused. When no complaint was filed

against the adulterer on the accusation of adultery by the

opposite party, the learned Judge, Family Court should not have

refrained himself from giving a finding as to whether the

accusation leveled against the petitioner no.1 that she was living

in adultery has been established or not.

There is no dispute that when the wife destroys the

sanctity of marriage and lives in adultery with another person,

she would not be entitled either to any maintenance or interim

maintenance. Living in adultery denotes a continuous course of

conduct and not isolated acts of immorality. It is different from

leading an unchaste life. An act of isolated lapse would not
20

disentitle the wife to claim maintenance. The onus is on the

husband to establish that the wife is living in adultery. There

must be specific and cogent evidence relating to accusation of

adultery. Evidence which creates some sort of suspicion on the

conduct of the wife is not enough to establish that she is living in

adultery. When the husband comes forward with a case of

adultery against the wife in a maintenance proceeding to

disentitle the wife from claiming maintenance, there is no back

out. He has to prove such aspect by adducing cogent evidence

and if he fails in that respect, that by itself would be sufficient to

entitle her to remain apart from her husband and claim

maintenance.

In case of Smt. Chandrama Biswal -Vrs.-

Banchhanidhi Biswal reported in (2011) 48 Orissa

Criminal Reports 688, it has been held that expression “living

in adultery” does not connote either a single act of adultery or

even several such isolated acts. It denotes a course of

continuous adulterous conduct. Unsuccessful bid by the husband

to castigate the wife as a person living in adultery entitles her to

live separately from her husband and claim maintenance from

him. The very allegation by the husband and members of his

family that the wife is having extra-marital relationship with a
21

person other than her husband is insulting and humiliating her

amounting to cruelty.

In case of Srikanta Padhy -Vrs.- Prabasini Dixit

reported in 1997 (I) Orissa Law Reviews 156, it is held as

follows:-

“9……Genarally speaking any intentional and
malicious infliction of physical or mental
suffering, or the wanton, malicious and
unnecessary infliction or pain upon body or the
feelings and emotions would amount to cruelty.
In matrimonial relation, cruelty includes mental
as well as physical injury. A deliberate false
imputation with intent to wound and humiliate
the other spouse and to make his or her life
miserable amounts to cruelty.”

In case of Apsar Alli Khan -Vrs- Saida Begum

reported in 2012 (II) Orissa Law Reviews 633, it is held

that the petitioner had made allegations against the wife

regarding her character. However, he has not substantiated

those pleas by specifying the name of the person and the

detailed facts. When a husband makes allegations against the

wife regarding her character, he has to prove those allegations

with sufficient materials.

22

In case of Nirmala Chandra Dash -Vrs.- Smt.

Janaki Dash reported in 2013 (I) Current Legal Reports

792, a Division Bench of this Court held that since the

appellant’s husband has brought a serious charge against the

wife that she was an unchaste woman and living in adultery

which charge he has failed to establish, relying upon the

observation made in Smt. Pramila Dei @ Kuni -Vrs.- Sanatan

Jena reported in Vol.67 (1989) Cuttack Law Times 393,

maintenance was awarded in favour of the wife.

In case of Smt. Kuni Dei -Vrs.- Pabitra Mohan

Behadi reported in 2013 (II) Orissa Law Reviews 599, it is

held that it is the person, who makes the allegation of adultery,

has to establish the same. ‘Adultery’ being a serious allegation,

which affects the chastity of a woman, should not be dealt

casually, rather great care and caution should be taken while

considering such allegations.

In case of Vijay Kumar -Vrs.- Neela Vijay Kumar

reported in A.I.R. 2003 S.C. 2462, it was held that leveling

disgusting accusations of unchastity and indecent familiarity with

a person outside wedlock and allegations of extra marital

relationship is a grave assault on the character, honour,

reputation, status as well as health of the wife. Such aspersions
23

of perfidiousness attributed to the wife, viewed in the context of

an educated Indian wife and judged by Indian conditions and

standards would amount to worst form of insult and cruelty,

sufficient by itself to substantiate cruelty in law, warranting the

claim of the wife being allowed.

In case of Narendra -Vrs.- K Meena reported in

A.I.R. 2016 S.C. 4599, it is held that though it is very difficult

to establish the allegations relating to extra-marital affair but it

is equally true that to suffer an allegation pertaining to one’s

character of having an extra-marital affair is quite torturous for

any person, be it a husband or a wife.

In case of Sowmithri Vishnu -Vrs.- Union of

India reported A.I.R. 1985 SC 1618, it is held that the wife

who was involved in illicit relationship with another man, is a

victim and not the author of the crime of adultery.

In case of W. Kalyani -Vrs.- State reported in

A.I.R. 2012 S.C. 497, it is held that the mere fact the appellant

is a woman makes her completely immune to the charge of

adultery and she cannot be proceeded against for the offence of

adultery even as an abettor.

The opposite party has no personal knowledge about

the involvement of petitioner no.1 in adultery as he stated that
24

he came to know about the same from the village gentries. No

village gentries have been examined. The evidence of O.P.W.2

has been held to be insufficient in that respect by the learned

Family Judge. Therefore, it cannot be said that the opposite

party has established in any way that the petitioner no.1 was

living in adultery. The unsuccessful attempt by the opposite

party in leveling disgusting accusations of unchastity entitles the

petitioner no.1 to live separately from the opposite party and to

claim maintenance from him.

Thus I am of the view that the learned Judge, Family

Court was not justified in holding that without any sufficient

reason, the petitioner no.1 refused to reside with the opposite

party and therefore, she would not be entitled to get any

maintenance from her husband. Such an observation is contrary

to the materials available on record and therefore, liable to be

set aside.

10. The learned counsel for the opposite party contended

that the opposite party instituted a proceeding under section 7 of

the Guardians and Wards Act in the Court of learned Judge,

Family Court, Kandhamal, Phulbani which was registered as C.P.

No.43 of 2014 for custody of the female child Sanvi Chhuria

(petitioner no.2) in his favour for her welfare and the learned
25

Family Judge has been pleased to allow the same and directed

the petitioner no.1 to hand over the custody of the minor child,

Sanvi Chhuria to the opposite party.

The learned counsel for the petitioners on the other

hand contended that the petitioner no.1 has challenged such

judgment and order of the learned Family Judge before this

Court in MATA No.69 of 2016 which is subjudiced and the child

(petitioner no.2) is still in the custody of petitioner no.1.

Even though the proceeding under Guardians and

Wards Act was instituted between the same parties but the relief

prayed for by the opposite party in the said proceeding was

different in nature and therefore, merely because he has been

successful in the Family Court which is under challenge in MATA

application before this Court, the same cannot be a ground to

negate the maintenance in favour of petitioner no.1.

11. Now coming to the question of quantum of

maintenance, in the case of Jasbir Kaur Sehgal -Vrs.- District

Judge, Dehradun and Ors. reported in (1997) 7 Supreme

Court Cases 7, it is held that no set formula can be laid down

for fixing the amount of maintenance payable and the calculation

of the same would always depend upon the facts and

circumstances of each case.

26

While determining the quantum of maintenance, the

Court is required to determine the income of the payor

concerned as well as the necessity of the claimant and has to

keep in mind the status, standard and comfort enjoyed by the

claimant during her stay with the payor. The amount should be

fixed in such a way so as to enable the wife to live with dignity

and comfort and not in penury. The living need not be luxurious

but simultaneously she should in a position to meet any kind of

man-made misfortune. The object of the provision is to prevent

vagrancy and destitution.

In computing the quantum of maintenance, net

salary is to be calculated after deducting statutory deductions

like income tax from the gross salary, however, voluntary

deductions such as house building allowance etc. cannot be

excluded. It is held in case of Saheda Khatoon -Vrs.- Gholam

Sarwar reported in 2002 Criminal Law Journal 4150 that

the general and reasonable rule is to charge one fifth of the

income of the husband for the purpose of awarding maintenance

to the wife.

The petitioners have proved the net salary of the

opposite party who was working as J.E. (Scheme) in Phiringia

Block of Kandhamal district for the month of August 2014 which
27

has been obtained through R.T.I. as Rs.35,544/- and the same

has been marked as Ext.2. The learned counsel for the opposite

party filed the judgment of the learned Judge, Family Court,

Kandhamal, Phubani in C.T. No.43 of 2014 which is dated

19.05.2016, in which it reveals that the opposite party has

admitted his monthly income from salary to be around

Rs.40,000/-.

Therefore, taking into account the income of the

opposite party from salary and the necessity of the petitioner

no.1 to lead a decent and dignified life, I am of the view that the

petitioner no.1 is entitled to get monthly maintenance of

Rs.8000/- (rupees eight thousand only) from the opposite party

and the same has to be paid from the date of maintenance

application i.e. 05.06.2014. The interim maintenance amount

which has already been paid to the petitioner no.1 either as per

order of the learned Judge, Family Court, Phulbani or of this

Court passed in CRLMP No.1419 of 2014 has to be

proportionately adjusted and the arrear maintenance dues has to

be calculated and to be cleared by the opposite party by way of

six equal monthly installments along with the current monthly

maintenance which is to be paid on or before the 10th of every
28

succeeding month by the opposite party by way of a bank draft

addressed in the name of the petitioner no.1.

In the result, the RPFAM petition is allowed.

…………………………

S.K. Sahoo, J.

Orissa High Court, Cuttack
The 24th January, 2018/Sukanta

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