DILIP KUMAR BARIK Vs. USHARANI BARIK

JUDGEMENT

(1.) HEARD both the parties, perused the evidence on record and considered the argument advanced. The judgment is as follows : Appellant is the husband and respondent is the wife. That relationship is not disputed. Their marriage was solemnized in May, 1996 and a son was born out of the wedlock on 14.12.1997. As per the order of the Court in an earlier proceeding in C.P. No. 142 of 1997, that child is getting maintenance at the rate of Rs. 300/- per month.

(2.) THE respondent wife had filed C.P. No. 142 of 1997 claiming maintenance for herself and the minor child in accordance with the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 (in short 'the Act 1956'). The appellant-husband had also filed C.P. No. 115 of 1998 seeking the relief for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, I955 (in short 'the Act 1955'), In the case filed by the wife, her allegation was of ill-treatment and cruelty by the husband as well as the in-laws on account of dowry and allied matters. While denying to such allegations, the husband inter alia alleged that the wife voluntarily deserted him after going away from the matrimonial home on the pretext of illness of her mother. Both the proceedings were heard analogously and a common judgment was delivered on 6th September, 1999. That judgment was tendered as Ext.B in the present proceeding. Learned Judge, Family Court Rourkela in that judgment, Ext.B, rejected the wife's claim for maintenance. However, the court below granted a decree for maintenance at the rate of Rs. 300/- per month in favour of the child, who is in the custody of the wife, and also passed a decree for restitution of conjugal rights in favour of the husband.

(3.) LEARNED Judge, Family Court, Rourkela, on appreciation of the aforesaid facts and the evidence on record, found that the conduct of the husband in not implementing the decree for restitution of conjugal rights has circumstantially proved that he is the negligent party to maintain the wife or to keep her association. The appellant-husband did not prove that the wife- respondent has source of living and under such circumstances learned Judge, Family Court, Rourkela granted a decree for maintenance at the rate of Rs. 400/- per month with effect from 30.08.2000, i.e., the date of impugned judgment. While passing such an order, the learned Judge, Family Court, Rourkela stated that the findings recorded in Ext.B, under the aforesaid circumstances, do not operate as res judicata.