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.
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Pushpanjali Chhuria
another …….. Petitioners
-Versus-
Pranab Ku. Chhuria …….. Opp. party
For Petitioners: – Miss Pratyusha Naidu
For Opp. party: – Mr. Satyabrata Pradhan
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 18.01.2018 Date of Judgment: 24.01.2018
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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
9refused 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,
15but 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.
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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
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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