SAILABALA BEHERA Vs. BHAGABAN BEHERA

JUDGEMENT

(1.) THIS revision application has been filed against the order of the learned Judge, Family Court, Cuttack, dismissing the petition under Section 125, Criminal Procedure Code filed by the petitioner.

(2.) THE facts leading to the present case may be shortly stated as under : The petitioner married the opposite party according to Hindu rites and customs on 2.7.1979. She alleges that a few months after the marriage, the opposite party subjected herself to physical as well as mental torture on account of the inability of her father to give Motor cycle to the opposite party, as agreed to, at the time of marriage. She came back to her parents house with the promise to meet the demand at the time of 'Punai' but her father could not fulfil the demand within the next two years. Accordingly, the petitioner was neglected and was not even provided with proper food and clothing. Consequently, the petitioner is compelled to reside with her parents since then. The opposite party did not care to see the comforts and the livelihood of the petitioner. The petitioner has got no source of income but has a burden on her parents. Accordingly, the petitioner has filed the petition under Section 125, Cr.P.C. claiming maintenance @ Rs. 300/ - per month. According to the petitioner the opposite party is serving as a Probationary Officer in the State Bank of India and is getting a monthly salary of Rs. 3,000/ - in the year 1988. Besides, he has income from his irrigated agricultural lands to the tune of Rs. 8,000/ - per annum. Subsequently, the petition under Section 125, Cr.P.C, was transferred to the Court of the Judge, Family Court, Cuttack. The petitioner examined three witnesses in all but the opposite party persistently took adjournments and finally did not choose to examine himself or any other witness on his behalf. However, by order dated 6.4.1996 learned Judge, Family Court, Cuttack dismissed the petition holding that neither the petitioner nor the opposite party examined themselves. He was of the opinion that the parties were not interested in the litigation. In that view of the matter, the trial Judge dismissed the proceeding.

(3.) HEARD learned counsel appearing for the parties. It is not disputed that the petitioner is the legally married wife of the opposite party and the marriage was solemnised on 2.7.1979 according to Hindu rites and customs. It is also not disputed that soon after the marriage, the rift between the parties arose and in consequence thereof, the petitioner started living with her parents. She has filed this petition under Section 125, Cr.P.C., claiming maintenance from her husband who is said to be a Probationary Officer of the State Bank of India. There is no serious dispute with regard to the fact that the opposite party is an officer of the State Bank of India. On scrutiny of the lower Court record, it appears that the petitioner had filed a petition claiming maintenance previously. That application was disposed of on compromise and the opposite party agreed to take her back within two months from the date of disposal of the application. But this compromise did not work out. In the present petition, the learned Sub -divisional Judicial Magistrate, Jagatsinghpur directed payment of interim maintenance Rs. 300/ - per month which was reduced to Rs. 150/ - per month by the First Additional Sessions Judge, Cuttack. Anyway, by the impugned order date 6.4.1994, learned Judge, Family Court dismissed the application on the ground that the parties are not interested in the matter and neither the petitioner nor the opposite party has examined themselves to prove their respective contentions. This finding of,the learned Judge, Family Court, has been assailed in this revision application. Learned counsel appearing for the petitioner submits that the observations of the learned Judge, Family Court is unwarranted. He ignored the fact that too many adjournments were granted in this case so far, first by the learned Magistrate and next by the Judge, Family Court, Cuttack. The learned Judge, Family Court, failed to take note of the fact that the petitioner is a deserted lady and she has been pursuing the litigation from her parents house at Jagatsinghpur since 1991 which is far away from Cuttack. She has of course not taken oath to support the allegations of torture or ill -treatment meted out to her by the opposite party but three witnesses have spoken about the same. Learned counsel for the petitioner submits that considering the helplessness of the petitioner and the fact that in the face of numerous adjournments by the Courts below, it was very difficult to pursue the litigation at Cuttack staying at Jagstsinghpur. It is unfortunate that the learned Judge, Family Court, overlooked these aspects of the matter and chose to dismiss the application of a young woman who has been residing separately from her husband since 1979. Learned counsel for the opposite party does not see any objection if there be an order for fresh trial of the case by the Judge, Family Court. Therefore, in the interest of justice, I think it appropriate to pass the following orders :