Dismissed

Hemanta Ku.Jena v. Subhashree Pattnaik

Orissa HC4 Jan 2023RPFAM/219/2018

Case brief

AI extract

What is this about?

Petitioner challenged Family Court maintenance order under Section 125(4) Cr.P.C., arguing parties filed for mutual divorce so respondent cannot claim maintenance. Court held mutual divorce application does not equate to separate living by consent. Original order unaffected.

What did the court decide?

RPFAM standing dismissed; order dated 24th May, 2018 holding maintenance order valid.

Hemanta Ku.Jena Vs Subhashree Pattnaik — Maintenance and Alimony | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No. 219 OF 2018

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Hemanta Kumar Jena …. Petitioner

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Ms. Pragyan Mohanty, Advocate on behalf of Mr. G.N. Mishra, Advocate

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-versus-

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Subhashree Pattnaik and another

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…. Opp. Parties

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

04.01.2023

This matter is taken up through hybrid mode.

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Order dated 24^th May, 2018 passed by learned Judge, Family Court, Bhubaneswar in Criminal Proceeding No.125 of 2016 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay maintenance @ Rs.3,000/- per month to each of the Opposite Parties with effect from the date of the order i.e. 24^th May, 2018.

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Ms. Mohanty, learned counsel appearing on behalf of Mr. Mishra, learned counsel for the Petitioner submits that relationship between the parties is not disputed. However, the Opposite Party No.1 left the matrimonial home voluntarily and subsequently both the Petitioner and Opposite Party No.1 filed a petition for dissolution of their marriage by a decree of divorce on mutual consent. Learned counsel for the Petitioner referring to Section 125(4) Cr.P.C. submits that when the parties are residing separately on mutual consent, the Opposite Party No.1 is not entitled to any maintenance. She further submits that the Petitioner is an Electrician and does not have sufficient means to

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comply with the direction of learned Judge, Family Court, Bhubaneswar. She, therefore, submits that the impugned order may be set aside.

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Ms. Mohanty, learned counsel also referred to the discussion of learned Judge, Family Court, Bhubaneswar at Paragraph-5 of the judgment and submits that when it is observed that the parties have applied for mutual divorce, learned Family Court should have refused maintenance at least to Opposite Party No.1.

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Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the Petitioner and Opposite Party No.1 had applied for mutual divorce. An application for mutual divorce does not attract Section 125(4) Cr.P.C.. There is no material on record to show that the Opposite Party No.1 left the matrimonial home with Opposite Party No.2 either by mutual consent or at her (Opposite Party No.1’s) own volition. Only because the parties have applied for divorce on mutual consent, it cannot be construed that they are living separately by mutual consent. It appears that leaned Judge, Family Court, Bhubaneswar discussing the materials on record and taking into consideration the need of the Opposite Parties, has directed to pay the maintenance as stated above. As such, I find no infirmity in the impugned order.

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Accordingly, the RPFAM being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Hemanta Ku.Jena v. Subhashree Pattnaik

Case brief

What is this about?

What did the court decide?

Hemanta Ku.Jena v. Subhashree Pattnaik

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

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