HEMANTA KUMAR PATNAIK Vs. BASANTI PATNAIK

JUDGEMENT

(1.) Grant of maintenance to opposite parties on disposal of an application made under Section. 125 of the Code of Criminal Procedure, 1973 (in short, the 'Code') is the subject- matter of challenge in this revision application.

(2.) Filtering out unnecessary details, case of parties as presented before the learned Judicial Magistrate, First Class, Baripada (in short. JMFC) is as follows: An application under Section, 125 of the Code was filed by opposite parties before the learned JMFC inter alia stating that opposite party No.1 is legally married wife of the petitioner, and opp. party Nos. 2 and 3 were born through their wed-lock. While opp. party NO.1 was staying at Bhubaneswar during her second pregnancy she was brought to her fathers house near Baripada on 29-11-1985 by the petitioner, and though he promised to take her back after delivery, he failed to do so. When the opposite parties went to the house of petitioner at Bhubaneswar, they found that the petitioner was staying with another lady named Jhina Das, who claimed to be the wife of petitioner. Said Jhina Das did not allow opp. party No.1 to enter into the house of the petitioner. The matter was reported to the Superintendent of Police, Bhubaneswar. Therefore the first time the petitioner disclosed that he had already divorced opp. party No.1 and had obtained an ex-parte decree for dissolution of their marriage from the Court of Subordinate Judge, Bhubaneswar. The petitioner was getting Rs. 5,000.00 as salary per month, in addition to other income from different sources. The opp. parties having been deprived of minimum requirements for their sustenance, even though the petitioner had capacity and means to pay, and was legally bound to maintain them, claimed maintenance of Rs. 500.00 for opp. party No.1 and Rs. 200.00 for each of other opposite parties. During trial the opp. parties filed an application for amendment for modification of the quantum of maintenance from Rs. 200.00 to Rs. 350.00 in respect of opp. parties Nos. 2 and 3. The petitioner on receipt of notice admitted the marriage but objected to the petition on the ground that the marriage having been dissolved by the decree of divorce obtained from a competent Court, there is no scope for granting maintenance Additionally opp. party No.1 having voluntarily left the house of petitioner without his permission she was not entitled to maintenance. It was also stated that opp. party No.1 was of loose morals and tried to assault the petitioner at his Bhubaneswar residence, but he fortunately escaped. The income of petitioner as claimed by the opp. parties was also challenged. In addition it was submitted that opp. party No.1 being highly educated was able to maintain herself, and in any event had potentiality to eam decently. It was also pleaded that total amount of maintenance cannot exceed Rs. 500.00per month. The learned Magistrate allowed the petition of opp. party and directed the petitioner to pay Rs. 300.00 to opp. party No.1 and Rs. 150.00 each to opp. party Nos. 2 and 3 from the date of filing of application and directed enhancement of quantum to Rs. 400.00 for opp.party No.1 and Rs. 250.00 for opp. party Nos. 2 and 3 from the date of filing of application for amendment, i.e. from April, 1993.

(3.) In support of the application Mr. P. Mohanty, learned counsel appealing for petitioner submitted that firstly, there being a decree of divorce, question of grant of maintenance did not arise. Secondly, in the plaint filed seeking divorce there was clear assertion about desertion of opp. party No.1 and the suit having been decreed, it has to be held that there was desertion by opp. party No.1. Opp. Party No.1 being a highly educated lady has potentiality to eam and therefore it cannot be said that she is unable to maintain herself which is sine qua non for grant of maintenance. It is also submitted that modification of the amount during pendency of the application and providing two different rates are not in accordance with law. Miss. Sujata Dash, learned counsel for opposite parties on the other hand supported the order.