Allowed

Snehalata Behera @ Snehalata Dehury v. Bankanidhi Dehury

Orissa HC18 Nov 2021CRLREV/750/2019

Case brief

AI extract

What is this about?

In criminal revision, the High Court enhanced monthly maintenance from Rs.4,000 to Rs.6,000 and directed it be paid from January 1, 2019, instead of the order date, relying on precedent that maintenance flows from the application date unless ordered otherwise.

What did the court decide?

Enhanced monthly maintenance to Rs. 6,000 payable from 01.01.2019 with arrears in three installments starting from January 2022.

Snehalata Behera @ Snehalata Dehury Vs Bankanidhi… — Maintenance and Alimony | Orissa HC (2021)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CRL REV No. 750 of 2019

¶3

From the order dated 22.10.2019 passed by the learned S.D.J.M., Athamallik in Criminal Misc. Case No.04 of 2018.

¶4

Snehalata Behera @ Snehalata Dehury …. Petitioner

¶5

-versus-

¶6

Bankanidhi Dehury …. Opp. Party

¶7

Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr. Debendra Ku. Sahoo-1,
Advocate
For Opp. Party : Mr.Sanjib Mohanty,
Advocate
CORAM:
JUSTICE SAVITRI RATHO
.………………………………………………………………………
Date of Judgment : 18.11.2021

¶8

………………………………………………………………………..

¶9

Savitri Ratho, J. In this Criminal Revision, the petitioner has challenged the

¶10

order dated 22.10.2019 passed by the learned S.D.J.M., Athamallik in

¶11

Criminal Misc. Case No.04 of 2018 whereby the learned court has allowed the application filed by the petitioner under Section 125 Cr.P.C. and directed the opp. party-husband to pay a sum of

¶12

CRL REV No.750 of 2019

¶13

Page 1 of 15

¶14

Rs.4,000/- to the petitioner as monthly maintenance from the date of order instead of the date of the application.

¶15

The case of the petitioner in brief is that the petitioner is the

¶16

legal married wife of the opp. party and their marriage was solemnized on 21.07.2010 as per Hindu rites and customs. After marriage, both of them led a peaceful married life for about six months. Thereafter, the opp. party started ill-treatment and torture to the petitioner for no reason. After few days of their marriage, the petitioner came to know about the pre-marital love affair of her husband with one Babita Samal and in spite of this she was silent and stayed with her husband with a hope to change the mind of her husband. But on 12.10.2013, the opp. party abused the petitioner in filthy languages and assaulted her mercilessly and when the petitioner protested, the opp. party tried to kill the petitioner. However, due to intervention of her co-villagers, she escaped. When her father came to the house of the opp. party with his other co-villagers to settle the matter, the opp. party did not listen to them and warned that if the father of the petitioner will not take away the petitioner with him, then she will be murdered. So in order to save her life, on 12.10.2013, the petitioner returned to her parental house with her father and since then she is living in her parent’s house depending on them. Later she came

¶17

CRL REV No.750 of 2019

¶18

Page 2 of 15

¶19

to know that taking advantage of her absence, the opp. party had kept the said Babita Samal with him and out of their illicit relationship, she was blessed with a boy child on 27.07.2017. The petitioner further stated that while she is unable to maintain herself, and the opp. party is now serving as a regular teacher in Mankadachua primary school and drawing a monthly salary of Rs.25,000/- and he had an income of Rs.20,000/- from agriculture and apart from that, the opp. party also had landed property which stood recorded in his father’s name and was joint under holding No.41/24 of area Ac.4.700 Decimal, Holding No.41/42 of an area Ac.0.040 decimal of Kissam Gharabari. Hence she claimed Rs.12,000/- per month as maintenance from the opp. party.

¶20

The the opp. party in his show cause admitted that the petitioner is his legal married wife but denied all the other allegations made by her. He stated that they had a peaceful conjugal life for a period of six months. As the petitioner was not willing to marry him after six days of the marriage, she voluntarily left her in-law’s house without the knowledge and consent of the opp. party and again after twenty five days being convinced by the opp. party and other village gentries she returned to her in-law’s house. But during her stay in her in-law’s house, she did not do any domestic work and used to go to

¶21

CRL REV No.750 of 2019

¶22

Page 3 of 15

¶23

other places including her parent’s house without the knowledge and consent of the opp. party. The opp. party also denied his pre-marital love affair with Babita Samal. On the other, he alleged that the petitioner had extra marital relationship with one Ranjan Sahu of her native village Jamunali. The opp. party also stated that the petitioner

¶24

is working as Bidi worker and maintaining herself by tailoring whereas he had no landed property having Holding No.41/24 and 19 and is not working as a regular teacher rather on 29.07.2008, he joined as a Ganasikhyaka with honorary pay of Rs.1750/- and had borrowed

¶25

about Rs.5,00,000/- to Rs.7,00,000/- as loan amount during his marriage and for his mother’s treatment. So, with such low income, he is not able to give maintenance to the petitioner.

¶26

The learned S.D.J.M., Athamallik framed the following issues for determination in the case.

¶27

(A) Whether the petitioner is the legally married wife of the opp. party?

¶28

(B) Whether the opp. party having sufficient means neglected or refused to maintain the petitioner? (C) Whether the petitioner is unable to maintain herself? (D) If the petitioner is entitled to get maintenance, then to what extent?

¶29

CRL REV No.750 of 2019

¶30

Page 4 of 15

¶31

To prove her case, the petitioner examined three witnesses out of whom P.W.1 is the petitioner herself, P.W.2 and P.W.3 are covillagers of the petitioner. The petitioner relied upon the documents which are marked as Ext.1 to Ext.6. Ext.1 is the information slip under R.T.I. Act, 2005 by the Public Information Officer., C.D.M.O., Angul, Ext.2 is the list of articles given to the O.P. at the time of marriage, Ext.3 is the series of salary certificate of the O.P. issued by B.E.O., Kishorenagar, Ext.4 is the office order bearing No.12(53) dated 04.01.2018 of the B.E.O., Kishorenagar, Ext.5 is the C.C. of R.O.R., Khata No.41/24 and Ext.6 is the C.C. of R.O.R., Khata No.41/42.

¶32

The opp. party examined himself as O.P.W.1 and relied

¶33

upon documents which are marked as Ext.A to Ext.A/2. Ext A is the salary certificate of O.P. for the month of 6^th October 2017, Ext.A/1 is the salary certificate of the O.P. for the month of November, 2017 and Ext A/2 is the salary certificate of O.P. for the month of December, 2017.

¶34

In this case, the learned S.D.J.M. after considering the submissions of both sides and the evidence adduced by them, that the O.P. was working as a regular teacher drawing salary and was not

¶35

CRL REV No.750 of 2019

¶36

Page 5 of 15

¶37

willing to maintain the petitioner who was his legally married wife who did not have sufficient means to maintain herself and the O.P. was an able bodied man and should give maintenance. He disbelieved the contention of the opp. party-husband that the petitioner was working as a bidi worker and also earning income from tailoring as he

¶38

had not adduced any documentary evidence in support of such submission and the other witness examined by the opp. party did not support this plea. Accepting the salary certificates of the opp. party for the months of January, February and March 2018- Ext.3 which reveals that he was drawing salary of Rs 24,780/-, the learned S.D.J.M. has taken note of the conduct of the parties while ordering for payment of maintenance of Rs.4,000/- per month with effect from date of the order. He has noted that the show cause was filed on 27.03.2018 but the petitioner adjourned the case from time to time and ultimately examined herself on 18.12.2018 and the case from her side was closed on 06.04.2019.

¶39

Mr. Sahoo, learned counsel for the petitioner challenges the impugned order mainly on two grounds :

¶40

a) The amount of Rs.4000/- is on the lower side as the

¶41

opp. party is getting a salary of Rs.24,780/- per month which

¶42

Page 6 of 15

¶43

CRL REV No.750 of 2019

¶44

is proved from Ext.3, the salary certificate from January, 2018 to March, 2018.

¶45

b) The direction to pay maintenance from the date of the order is illegal and it should be paid from the date of application.

¶46

In support of his contention that maintenance should be directed to be paid from date of application, Mr. Sahoo, learned counsel for the petitioner relies on the decision of this Court in the case of Smt. Susmita Mohanty vs. Sri Rabindra Nath Sahu reported in (1996) 10 OCR 410 : 1996 (1) OLR 361 and the case of Sri Fani Bhusan Nanda vs. Kshiti Sundari Nanda reported in 2006 (2) OLR 490, in support of his submissions that maintenance should be ordered to be paid from the date of application .

¶47

Mr. Sahoo, learned counsel for the petitioner also submits that the petitioner is now getting Rs.32,170/- per month, for which the amount of monthly maintenance awarded to the petitioner should be increased basing on such increase in salary, even though he has not filed documents indicating such increase.

¶48

CRL REV No.750 of 2019

¶49

Page 7 of 15

¶50

Mr. Mohanty, learned counsel for the opp. party contends that the petitioner is not entitled to maintenance as she left her marital house after six days of her marriage as she was unwilling to marry him. On being convinced by her relations and village gentries, she returned after 25 days but was not doing any domestic work and used to go to her parents house and other houses without knowledge and consent of the Opp party. She had extra marital affair with one Ranjan Sahu. She is a bidi worker and has income from tailoring. He therefore submits that the impugned order warrants no interference.

¶51

As there is no challenge by the opp party –husband to the finding fact that the petitioner is his wife for which she is entitled to maintenance from him (opp. party has not challenged the order of the learned S.D.J.M.), the only two questions which are to be decided are the two contentions raised by the petitioner regarding quantum of the maintenance and the date from which it should be paid.

¶52

The salary certificates of the opp. party for the months of January, February and March 2018-Ext.3 had been filed by the petitioner-wife which reveals that he was drawing salary of Rs 24,780/- . Ext.4 filed by the petitioner–wife is copy of the office order No. 12(53) dated 04.01.2018 which indicates that the Opp. party-

¶53

CRL REV No.750 of 2019

¶54

Page 8 of 15

¶55

husband was appointed in Jamujhari P.S. at level-V Asst. Teacher with effect from 01.03.2017 in the corresponding scale of Rs 5,200/to 20,200/- with G.P. Rs.2,200 /- (pre revised) with salary at scale 1, Level-VI of pay matrix of O.R.S.P. Rules 2017. The opp. party salary had filed the salary slips for the month of October, November and December 2017 which indicate that he was drawing a sum of Rs 6,160/- per month. As the Opp. party could not produce his latest

¶56

salary certificate to dispel the salary certificates produced by the petitioner for the months of January, February and March 2018- Ext.3 which reveals that he was drawing salary of Rs 24,780/-, the salary certificates produced by the petitioner–wife were accepted by the learned S.D.J.M. as the salary of the Opp. Party and rightly so.

¶57

For deciding this case, a reference to Section 125 of the Crl.P.C is necessary.

¶58

Section 125 in The Code Of Criminal Procedure, 1973

¶59

125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain-

¶60

(a) his wife, unable to maintain herself, or

¶61

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

¶62

CRL REV No.750 of 2019

¶63

Page 9 of 15

¶64

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself,

¶65

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.For the purposes of this Chapter,-

¶66

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

¶67

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

¶68

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

¶69

(3)If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which

¶70

CRL REV No.750 of 2019

¶71

Page 10 of 15

¶72

may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

¶73

(4)No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

¶74

(5)On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order .

¶75

From a perusal of the provision, it is apparent that Section

¶76

125(2) provides that the allowance for maintenance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

¶77

CRL REV No.750 of 2019

¶78

Page 11 of 15

¶79

In other words, by default (i.e. in the absence of any specific order) the allowance for maintenance is to be paid from the order but for payment from the date of application, a specific order / direction is necessary. This has been decided in a number of decisions of this Court and the Supreme Court.

¶80

This Court in the case of Susmita vs. Rabindra : (1996) 10

¶81

OCR 410 in a very comprehensive manner has dealt with the aspect of date of payment of the allowance for maintenance . The relevant

¶82

portions are extracted below :

¶83

“ ….7. The plain language of the provision makes it clear that if the Court does not specifically indicate the date from which maintenance shall be payable, it should be taken to have been ordered from the date of order. If the order itself indicates that maintenance shall be payable from the date of application or from the date of order, there can be no ambiguity and the parties know from what date the maintenance becomes payable. Ambiguity would arise and parties would be put to difficulty where the order is silent as regards the date from which the maintenance is payable. It is to meet such contingencies that Section 125(2) of the Code lays down that such allowance shall be payable from the date of order. If the provision is only to the effect that it shall be payable from the date of order, there will be no discretion left to the Court to make maintenance payable from the date of application. Therefore the words following :

¶84

CRL REV No.750 of 2019

¶85

Page 12 of 15

¶86

"if so ordered from the date of application " have been incorporated. There is another purpose also underlying Section 125(2). That is to fix the outer limit of date from which the order is to take effect. I do not understand Section 125(2) as containing a legislative mandate that the normal rule is to order maintenance from the date of order or it is only exceptionally that maintenance is to be ordered to be paid from the date of application.”….

¶87

…“10. I find that the clear intention of the petitioner in the application was to seek maintenance from the date of the application. It is the substance which matters and not the form. The Revisional Court was factually not correct in observing to the contrary. Considering the fact situation indicated. I feel this is a case where the order is to operate from the date of application. One fact which has weighed with me while deciding the question is the fact that the matter was pending tor about two years in the Courts below. The amount from the date of application till the date of order, if not already paid/shall be so done in six quarterly instalments beginning from March, 1996 .”…

¶88

In the case of Fani Bhusan Nanda vs. Kshiti Sundari Nanda r eported in 2006 (2) OLR 490, after referring to the decisions in Susmita (supra), Pradeep Kumar Pradhan vs. Dalimba Sahu : 2003 (I) OLR 241, Sarojini Sarangi vs. Dr Biswanath Sarangi : 66 (1988 ) CLT 593 and Bhanwar Lal vs. Smt Kamla Devi : AIR 1983 Rajasthan 229, this Court has held as follows :

¶89

CRL REV No.750 of 2019

¶90

Page 13 of 15

¶91

“… .close reading of all these case laws would lead to the simple conclusion that in the matter of maintenance the date of application should always be regarded as the starting point of for payment of maintenance as otherwise a party seeking maintenance be deprived of such maintenance due to delay in disposal of her petition , which may occasion by the act of the Court or act of one of the parties. The ratio of the above noted cases satisfy judicial conscience and there is no reason not to concur to the said view. The conclusion therefore, on the subject would be that whenever there is no contrary direction of the Court in the order of maintenance, the normal inference should be that the order of maintenance would be effective from the date of application”…”

¶92

The learned S.D.J.M., Athmallik arrived at a finding that the petitioner is need of maintenance for her sustenance and taking note

¶93

of the conduct of the petitioner, has awarded payment of maintenance of Rs.4,000/- per month and directed the same shall take effect from

¶94

the date of the order. A perusal of Ext.3 which reveals that he was drawing salary of Rs.24,780/- for the months of the months of January, February and March 2018. The Opp party-husband has not produced any documentary evidence in support of his plea that the petitioner-wife earns income by working as bidi worker and doing tailoring. Show cause was filed on 27.03.2018 by the Opp Party but

¶95

CRL REV No.750 of 2019

¶96

Page 14 of 15

¶97

the petitioner examined herself on 18.12.2018 after a number of adjournments and her evidence from her side was closed on 06.04.2019. Taking into consideration the above facts and the decisions of this Court and the Apex Court, I feel that interest of justice would be best served if the amount of maintenance is enhanced to Rs.6,000/- and the maintenance is paid with effect from 01.01.2019 instead of from the date of the order.

¶98

The opp. party is directed to pay the current maintenance by 5^th of each month and arrear maintenance in three installments starting from January, 2022. It is open to the petitioner to move the learned court below for enhancement of maintenance in accordance with the provisions of Section – 127 of the Cr.P.C in case there has been or there is any change in income of the opp. party.

¶99