Santilata Behuria vs State Of Odisha And Others

Arindam Sinha, J

Mr. Bose, learned advocate appears on behalf of petitioner-wife. He submits, his client made application under sub-section (1) in section 18 of Hindu Adoption and Maintenance Act, 1956. Following law declared by the Supreme Court in judgment dated 4th November, 2020 in Criminal Appeal no.730 of 2020 (Rajnesh -v- Neha and another), there was direction by the Family Court on parties to file affidavit regarding assets and liabilities in terms directions given therein. Mr. Bose submits, opposite party-husband filed affidavit. His client then filed petition (C.P. no.152 of 2020) praying that proceeding be launched for opposite party-husband being punished under sections 199/191/193/209 Indian Penal Code, 1860. He submits, the Family Court by impugned order dated 13th July, 2021 disposed of the petition without initiating the proceeding. Impugned order therefore suffers from material irregularity and illegality.

Mr. Puspalaka, learned advocate appears on behalf of opposite party-husband and relies on impugned order to submit that it is a good order. He places the last paragraph in impugned order which says that if in course of trial/conclusion of trial it comes to light that such a mischief has been committed, petitioner will be at liberty to take steps. On that observation, the petition was disposed of. There should not be interference. Mr. Bose responds, in the petition particulars were given to demonstrate that statements in the affidavit are untrue and incorrect with potential to jeopardize his client's claim for maintenance.

Sections 193 and 195 in the Code provide punishment for giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment. Section 195 in Code of Criminal Procedure, 1973 by sub-clause (b)(i) says no Court shall take cognizance of, inter alia, any offence punishable under sections 193 to 196 (IPC) except on complaint writing of the Court. The Family Court while dealing with the complaint had posted determination of maintenance amount to be paid to a later date and given liberty to petitioner to apply, obviously in event the determination vindicated her allegation of offence committed under section 193 or 195 or both (IPC).

Court does not find that the Family Court acted with material irregularity or illegality in making impugned order since at the stage of complaint made by petitioner, she cannot presume that the affidavit, allegedly wherein false evidence is given, will be relied upon for what it says. The adjudication process for determination of maintenance to be paid to her will cause the affidavit to be analyzed for its evidentiary value. It is only on the finding in the maintenance case that it can be said by Court on a complaint to be thereafter made that it is a fit case for petitioner to be prosecuted.

With above observations, the writ petition is disposed of.

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