BALARAM DASH Vs. GITANJALI DASH

JUDGEMENT

(1.) Heard Mr. Sarangi for the petitioner and Mr. Rath for opposite parties 1 and 2. The husband has filed this petition against the order of the Judge, Family Court, Cuttack, granting interim maintenance of Rs. 200/- per month to the wife and the minor daughter. The learned counsel for the petitioner has submitted that in an earlier petition for restitution of conjugal right under S. 9 of the Hindu Marriage Act, a decree for restitution of conjugal right has been passed against the wife and without complying with the said decree, the wife has filed one petition under S. 125, Code of Criminal Procedure, claiming maintenance. The learned counsel for the petitioner further submitted that a petition for stay has been filed for staying the proceeding under S. 125, Criminal Procedure Code, till disposal of Title Appeal No. 74 of 1996 which is now pending before the District Judge, Puri.

(2.) The order of interim maintenance is in favour of the wife as well as the minor daughter. There is no dispute that during the pendency of a proceeding under S. 125, Code of Criminal Procedure, a direction for interim maintenance can be passed if the Court is prima facie satisfied that the wife should be paid interim maintenance. Section 125(5) of the Code of Criminal Procedure contemplates that where the wife refuses to live with her husband without sufficient reason, order of maintenance can be cancelled. When a decree for restitution of conjugal right has been passed against the wife, it can be held prima facie that refusal of the wife to comply with the direction regarding restitution amounts to refusal to live with the husband without sufficient reason. It is, no doubt, true that an appeal against the decree for restitution of conjugal right is pending. However, for the purpose of finding about prima facie entitlement for grant of interim maintenance, mere pendency of the appeal will not tilt the balance in favour of the wife. Therefore, in view of the fact that the decree for restitution of conjugal right has not been complied with by the wife, prima facie, it must be taken that the wife has refused to live with her husband without sufficient reason and is disentitled to claim maintenance. In such view of the matter, the order of interim maintenance in favour of the wife cannot be sustained.

(3.) The Judge, Family Court, has granted Rs. 300/- jointly for the wife and the minor child without specifying what amount should be payable to each party. In the absence of any such specification, it is reasonable to assume that the trial Court intended that at least fifty per cent. of the amount specified was meant for the minor child. In the interest of justice, keeping in view the facts and circumstances of the case, I direct that a sum of Rs. 150/- (one hundred and fifty) was payable as monthly maintenance to the minor child (opposite party No. 2). Instead of paying Rs. 300/- as maintenance to both, it is directed that the petitioner shall pay at the rate of Rs. 150/- per month to opposite party No. 2, from July, 1998, till end of July, 2000. However, so far as payment of future interim maintenance is concerned, I deem it just and proper in the facts and circumstances of the case to fix the amount at Rs. 200/- per month with effect from July, 2000. The arrear amount shall be cleared by the petitioner in nine equal monthly instalments. Payments of first arrear instalment as well as payment of interim maintenance for the month of August, 2000, shall be made by 16th August, 2000, and thereafter subsequent payments shall be made by 16th of every such month. It is made clear that the above direction is issued on the basis of prima facie view and should not be taken to be expression of any final opinion in the matter and the proceeding under S. 125, Code of Criminal Procedure, is to be decided on its own merit regarding the entitlement of the wife and the minor child as well as the quantum.