KUSUM @ LATA NATH Vs. RABINDRA NATH

JUDGEMENT

(1.) Petitioners filed an application u/s 125, Cr.P.C. claiming for monthly maintenance against the opposite party on the grounds that petitioner No. 1 is the legally married wife of the opposite party and petitioner No. 2, a minor being legitimate child born out of the wed lock and that due to non-fulfilment of dowry she was ill-treated and deserted though opposite party has sufficient means to provide maintenance. That application was registered as Criminal Proceeding No. 301 of 1996 in the Court of Judge, Family Court, Cuttack. Opposite party filed a show-cause admitting the relationship but denying to the allegation of demand of dowry, ill-treatment and cruelty. On the other hand, he advanced the plea that petitioner no. 1 insisted for a partition of the opposite party from his elder brother and when the opposite party turned a deaf ear to that request, petitioner No. 1 voluntarily left the house with the child. He further stated that he has no share in the shop which belongs to his elder brother and therefore he does not have a monthly income of Rs. 4,000/- and his earning is that of a daily wage-earner. During the pendency of the proceeding there was an order for interim maintenance which was passed by the learned Judge, Family Court, Cuttack on 30.9.1997. As against that, the opposite party preferred Criminal Revision No. 493 of 1997 in this Court. That revision was disposed of without interfering with the order for interim maintenance and the Court below was directed to dispose of the main proceeding early.

(2.) When the case was lingering at the stage of hearing, on 29.10.1998 learned Judge, Family Court, Cuttack passed an order setting the opposite party ex parte for default in payment of interim maintenance. On 16.12.1998 the Court accepted evidence from the petitioners in the shape of affidavit which was filed by the petitioner No. 1 and on 27.3.1999 he passed the impugned order granting monthly maintenance @ Rs. 300/- and Rs. 150/- respectively to petitioner Nos. 1 and 2. That maintenance is made payable from May, 1996 i.e., from the month when the application u/s 125, Cr.P.C. was filed.

(3.) Petitioners have preferred this revision on the ground of fixation of monthly maintenance at a lower rate. In course of hearing, the opposite party resisted that claim but did not make any statement if any application had been filed by him either to set aside the ex parte order or if any other application is pending in any superior Court on the subject matter of dispute or relating to any order passed in the above proceeding u/s 125, Cr.P.C.