Disposed

Amiya Ku.Sahoo and Ors. v. Tapaswini Biswal

Orissa HC23 Sept 2016CRLREV/386/2014

Case brief

AI extract

What is this about?

In a CRL revision petition, the High Court of Orissa upheld a Sessions Court order reducing interim maintenance to Rs.10,000/per month under the Protection of Women from Domestic Violence Act, 2005, finding no illegality while directing expedited disposal of the main application.

What did the court decide?

Petition dismissed; petitioner directed to pay interim maintenance as per appellate order; main application to be disposed within 60 days.

Amiya Ku.Sahoo and Ors. Vs Tapaswini Biswal — Domestic Violence | Orissa HC (2016)

¶1

IN THE HIGH COURT OF ORISSA, CUTTACK

¶2

CRLREV NO. 386 of 2014

¶3

From the order dated 10.04.2013 of the learned S.D.J.M., Kendrapara passed in Misc. Case No.06 of 2012 and the judgment and order dated 03.04.2014 passed by the learned Sessions Judge, Kendrapara in Criminal Appeal No.19 of 2013.

¶4

¶5

Amiya Kumar Sahoo & Others ……… Petitioners -VersusTapaswini Biswal & another ……… Opp. parties For Petitioners: - Mr. Sushanta Harichandan For Opp. parties: - Mr. B.S. Dasparida --------------------

¶6

P R E S E N T:

¶7

THE HONOURABLE MR. JUSTICE S.K. SAHOO

¶8

-----------------------------------------------------------------------Date of Hearing and Judgment- 23.09.2016

¶9

¶10

S. K. Sahoo, J . The petitioners have challenged the judgment and

¶11

order dated 03.04.2014 of the learned Sessions Judge, Kendrapara passed in Criminal Appeal No. 19 of 2013 in which direction was given to the petitioner no.1 Amiya Kumar Sahoo to pay interim maintenance of Rs.10,000/- to the opposite parties. The order dated 10.04.2013 passed by the learned S.D.J.M.,

¶12

¶13

Kendrapara in Misc. Case No. 6 of 2012 in directing payment of Rs.15,000/- per month to the opposite parties was challenged by the petitioners before the learned Sessions Judge, Kendrapara in Criminal Appeal No. 19 of 2013.

¶14

On perusal of the order passed by the learned Magistrate in Misc. Case No. 6 of 2012, it appears that the opposite parties filed a petition under section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereafter ‘2005 Act’) on 29.01.2013. In the petition filed under section 23 of the 2005 Act, the opposite parties prayed for Rs.20,000/- per month towards their expenses on different heads. The opposite parties filed documents like monthly tuition fees of St. Joseph School, Kendrapara from 2013 to 2014, money receipt of the Auto driver, money receipt of the tutor, book list of UKG for the year 2013-2014 dated 18.03.2013, admission expenses of the year 2012-2013 and 2013-14 and book list of 2012-2013.

¶15

The petitioners filed their objection on 02.02.2013. An affidavit was filed by the opposite party No.2 indicating therein that petitioner no.1-husband is a shareholder of an Engineering Institute named and styled as Ganesh Institute of Technology, Bhubaneswar and the petitioner No.1 also owns a

¶16

¶17

mobile phone shop and has income from agricultural usufructs and houses on rent.

¶18

The learned Magistrate vide impugned order dated 10.04.2013 after considering the submissions made by the respective sides and taking into account the averments made in the application filed by the opposite parties as well as the objection filed by the petitioners came to hold that the petitioner no.1 willfully neglected his family and that he bears the sole responsibility to maintain the opposite parties and he is even neglecting his minor child (opposite party No.2). The learned Magistrate further held there is nothing to disbelieve that the opposite parties have been tortured and neglected by petitioner no.1 and accordingly, directed the petitioner no.1 to pay Rs.15,000/- (rupees fifteen thousand only) per month to the opposite parties as an interim measure until further orders. The matter was challenged before the Appellate Court in Criminal Appeal No.19 of 2013 who was pleased to reduce the interim maintenance amount from Rs.15,000/- to Rs.10,000/-.

¶19

Learned counsel for the petitioners contended that both the Courts below while awarding the interim maintenance have not applied their mind to the materials available on record and the opposite party no.1-wife is working as a Sikhya Sahayak

¶20

¶21

in Gobardhan Bidhyapitha, Nankar and she is receiving Rs.4,000/- as monthly honorarium which she has suppressed. It was further contended that the income of the petitioner no.1 has not been considered by the Courts below and therefore, the interim maintenance amount should be further reduced.

¶22

Learned counsel for the opposite parties on the other hand contended that there is no illegality or infirmity in the orders passed by the Courts below and therefore, the revision petition should be dismissed.

¶23

Section 23 of the 2005 Act empowers the Magistrate to grant interim and the ex-parte orders. So far as section 23(1) is concerned, it is clear that the Magistrate can pass interim order as he deems just and proper. In the present case when in the main application filed under section 12 of 2005 Act, prayer was made seeking for monetary reliefs under section 20 of 2005 Act, certainly the Magistrate has got power and pass an interim order in term of section 23(1) of 2005 Act. The petition under section 23 of 2005 Act was filed by the opposite parties and opportunity of hearing was afforded to the petitioners and they filed their objection and documents were also filed by the respective sides and after considering the submissions made by both the sides as well as on perusal of the documents, the

¶24

¶25

Magistrate thought it proper to award a sum of Rs.15,000/- per month in favour of the opposite parties as an interim measure until further orders and the amount was reduced to Rs.10,000/by the Appellate Court. The main application which has been filed under section 12 of the 2005 Act is subjudiced and at the final stage, if the Magistrate is satisfied after hearing both the parties that there is reason to vary the maintenance award and either to enhance the same or reduce the same, he is empowered to do so.

¶26

The contention of the learned counsel for the petitioners regarding the income of the opposite party no.1 as Sikhya Sahayak, if brought on record by way of proper proof, that can also be taken into consideration while deciding the quantum of maintenance finally but at this stage, I find no illegality or infirmity in the impugned order passed by the learned Appellate Court in reducing the interim maintenance amount from Rs.15,000/- per month to Rs.10,000/- per month.

¶27

As it appears by virtue of the order dated 15.07.2014 passed in Misc. Case No. 653 of 2014, the operation of the impugned order dated 10.04.2013 passed in Misc. Case No.6 of 2012 by learned S.D.J.M., Koraput as per Annexure-1 was directed to be stayed. Since the matter is finally decided today,

¶28

¶29

therefore, the petitioner No.1 shall pay the entire interim maintenance as per the judgment and order of the Appellate Court to the opposite party No.1 subject to whatever amount he has already paid in terms of the order of this Court dated 15.07.2014 within two weeks hence and he shall go on paying the interim maintenance amount as awarded by the learned Appellate Court till disposal of the application under section 12 of the 2005 Act by the Magistrate.

¶30

As it appears, it is a case of the year 2012. Section 12(5) of 2005 Act indicates that the Magistrate shall endeavor to dispose of every application under section 12(1) within the period of sixty days from the date of first hearing. In view of such provision, I direct the learned Magistrate to expedite the proceeding in Misc. Case No. 6 of 2012 and try to conclude the same by end of December, 2016.

¶31

With the aforesaid observations, the CRLREV petition is disposed of.

¶32

Orissa High Court, Cuttack The 23^rd September, 2016/Sukanta

Amiya Ku.Sahoo and Ors. v. Tapaswini Biswal

Case brief

What is this about?

What did the court decide?

Amiya Ku.Sahoo and Ors. v. Tapaswini Biswal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Radhakrushna Behera Vs State

Sibaram Behera Vs State of Orissa

Subash Darjee Vs Basanti Darjee

Tankadhar Mishra Vs Republic of India

Prakash Parida Vs State Of Orissa

Sanjaya Rout Vs State of Orissa