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Judgment
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.
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 only three things you should ever do about it: admit it,
learn from it, and don''t repeat it.
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.
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 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 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 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 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.
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 on the ground of desertion as well as living in adultery, the petitioner no.1 is not entitled to get any maintenance.
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.
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 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 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.
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 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 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)
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 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.
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, 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.
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 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 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 subsection (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 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 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 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 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.
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 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 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.
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 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.
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.
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 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 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.