IN THE COURT OF THE JUDGE, FAMILY COURT,
BHUBANESWAR.
Present : Shri
B. C. Rout, OSJS(SB),
Judge,
Family Court, Bhubaneswar.
Crl.
Proceeding No. 231/2011
(
Under Section 125 of Cr.P.C.)
Aparimita
Ratha, aged about 34 years,
W/o.
Paresh Mishra,
D/o.
Padmanava Ratha, At/P.O. Golabai,
P.S.
Jankia, Dist. Khurda.
... Petitioner
VERSUS...
Paresh
Mishra, aged about 35 years,
S/o.
Narayan Mishra, At.Bachhara Patna,
P.O./P.S.
Jatni, Dist. Khurda.
... Opp. Party
Date of
argument : 31.1.2013
Date
of judgment : 8.2.2013
J U
D G M
E N T
The petitioner has
filed this application Under Section 125 of Code of Criminal Procedure for
maintenance.
2.
Facts
of the petitioner's case lie in a narrow compass. The petitioner is the divorced wife of
Opp.Party. The petitioner had married to
the Opp. Party on 12.6.2009 at Bhubaneswar according to Hindu rites and
customs. It is alleged by the petitioner
that the Opp. Party suspected her character and tortured her for non-fulfillment
of further demand of a Maruti Swift Dzire car.
The Opp. Party left for USA on
14.9.2009 and thereafter his parents in connivance with the Opp. Party drove
out the petitioner from her marital home.
The Opp. Party filed a petition for divorce vide C.P. No. 30 of 2011on
20.8.2010 against the petitioner and the same has been allowed on
15.7.2011. Further case of the
petitioner is that, the Opp. Party refused to maintain the(petitioner). It is averred by the petitioner that the
monthly income of the Opp. Party is Rs.5 Lakhs and as such the Opp. Party has
got sufficient means and he has no liabilities.
As the petitioner is unable to maintain her, she has filed this petition
claiming maintenance at the rate of Rs.1 Lakh per month. In addition to monthly maintenance, she has
claimed a sum of Rs.20,000/- towards litigation expenses. Hence, the case.
3.
The Opp. Party contested the proceeding filing
written show cause. He denied the
allegations of the petitioner. He has
averred that he never tortured the petitioner for non-compliance of further
dowry of a Maruti Swift Dzire car. But
he has stated that the petitioner has been divorced by him. According to him, the petitioner is serving
as Superintendent (P & I), Procurement and Imput at Puri Milk Union (Pumul)
and her gross salary is Rs.29,979/- per month.
He has further stated that he was undergoing Doctoral Programmes at
Kelly School of Business, Indiana University, USA since August, 2006 and was
receiving $6000 per annum towards stipend.
According to him, the Doctoral Programmes office provided him stipend
for first five years and as such, he has not been receiving any stipend since
last one year. At present he depends on
the pension of his father and charity of his friends to maintain his livelihood
in USA. In other words the Opp. Party is
not employed and he has no means of income.
4.
On
the above contentions of both parties, the following points arose for
determination.
(i)
Whether
the proceeding is maintainable ?
(ii)
Whether
the petitioner is entitled to maintenance being divorce wife of the Opp. Party ?
(iii)
Whether
the petitioner has not remarried after divorce ?
(iv) Whether
the Opp. Party has got sufficient means to maintain
the petitioner and the petitioner has
no sufficient means to maintain herself
?
5. The
petitioner in order to establish her case has examined four
witnesses including herself. The
petitioner figures as P.W.1. P.W.2 is brother-in-law of the
petitioner. P.W.3 is cousin brother of the petitioner and P.W.4 is brother
of petitioner. The Opp. Party has examined himself as sole
witness on his behalf as O.P.W.1. In addition to oral evidence, the Opp. Party
resorted to documentary evidence.
6.
Issue No.II :
Section 125 of Cr.P.C. provides that the definition “Wife” includes divorced
wife. According to statute, a divorced
wife is entitled to maintenance till she has not remarried. In other words, if a divorce wife remarries,
she cannot get maintenance from her previous husband. In view of the statute, the divorced wife is
entitled to maintenance. The issue is
answered accordingly.
7.
Issue No.III :
The petitioner has neither
stated in her petition nor in her evidence that she has remarried. The Opp. Party has not stated in his show
cause and in his evidence whether the petitioner has remarried after
divorce. In absence of the same, legal
presumption arises that the petitioner has not remarried after divorce. The issue is answered affirmatively.
8.
Issue No. IV:
According
to law a divorce wife is entitled to maintenance. Therefore, it is to be seen
whether the Opp. Party has got sufficient means to maintain the petitioner who
has no sufficient means to maintain herself. The evidence of P.W.1 discloses
that the Opp. Party is working as Visiting Professor in Indiana University, USA
and his monthly income is more than Rs.5 Lakhs.
The
O.P.W.1 has stated that his marriage with the petitioner was solemnized on
12.6.2009 and at the time of marriage he was Ph.D. Student in Indiana
University, USA. P.W.3 supports this
evidence of O.P.W.1. According to him, at the time of marriage, the Opp. Party
was prosecuting his study in USA.
Further his evidence unveils that he has been continuing his study till
today from 2006. At present the Opp. Party is undergoing practical
training. In support of his evidence, he
has banked upon Exts.A, B, C and D.
Exts. A & B are xerox copies of his Identity cards. Ext.C is the true photo copy of certificate
of eligibility/ I-20 issued by USA Department of Justice. Ext.C discloses that said certificate has
been issued by concerned authority on 4.3.2012. Ext.D is the certificate
granted by Indiana University, USA.
Ext.D discloses that said certificate has been issued on 11.4.2012. It further discloses that the Opp. Party was
given stipend only for the first five years of Doctoral Programmes and since he
is in the 6th year, he is not receiving stipend of 6000
dollars. The oral evidence of O.P.W.1 coupled with Exts.A,B,C and D
establishes that the Opp. Party is a Doctoral Student at present at the Kelley
School of Business, Indiana University, USA and he has been prosecuting his
study in Doctoral Programmes since August, 2006. Now, he is in the 6th year and he
is undergoing practical training. From
oral and documentary evidence of Opp. Party, it is crystal clear that he is not
serving in USA. For first five years, he
was getting stipend and at present he is not getting any stipend. In the face of cogent, convincing and reliable
evidence of the Opp. Party, the evidence of P.W.1 that the Opp. Party is
earning Rs.5 Lakhs per month as Visiting Professor in Indiana University, USA
cannot be believed for a fraction of moment.
The Opp. Party was not a service holder at the time of marriage. Moreover, he is not serving at present. As stated above, he is also not getting any
stipend in the 6th year of his training. Therefore, the Opp. Party has no income at
all.
It
is settled principles of law that if the husband possesses robust physique, he
is bound to maintain his wife. Law
prevents vagrancy and destitution of neglected wife.
9. Now
it is to be seen whether the petitioner has any income of her own. According to the O.P.W.1, the monthly salary
of petitioner was Rs.25,000/- at the time of marriage. In the examination-in-chief, the petitioner
has stated that she is working as Superintendent in Puri Milk Union (OMFED) and
her gross salary is Rs.29,000/- and her home take salary is Rs.27,000/- per
month. An admitted fact need not be
proved. From the testimony of P.W.1 and O.P.W.1, it is crystal clear that
petitioner has sufficient means and the Opp. Party has no means of income. The petitioner has totally failed to
establish that the income of the Opp. Party is Rs.5 Lakhs per month as Visiting
Professor in Indiana University, USA. Rather, the petitioner has got sufficient
income and the Opp. Party has no income as a student/trainee. Therefore, the petitioner is not entitled to
any maintenance from the Opp. Party. The
issue is answered accordingly.
10.
Issue No. I :
The petitioner has stated in
para-2 of her petition that she is residing within the jurisdiction of this
court. She has admitted in her
cross-examination that at present she is staying in her father's house at
Golabai and at the time of filing of the petition, she was staying at Bhubaneswar. Further, she has admitted that she has not
given Bhubaneswar address in her petition to show that at the time of filing of
the petition, she was staying at Bhubaneswar.
The petitioner made an averment in her petition that she is staying at
Bhubaneswar, but her petition discloses that at the time of filing of the
petition, she was staying at Golabai under Jankia P.S. of Khurda District. From her evidence, it is apparently clear
that she has not given Bhubaneswar address in her petition. If at all she was staying at Bhubaneswar at
the time of filing of the petition, she would have certainly given Bhubaneswar
address. In absence of the same, it can
be held that the petitioner was not staying at Bhubaneswar at the time of
filing of her petition. Therefore, this
court has no territorial jurisdiction to hear the proceeding. The proceeding is not maintainable as this
Court has no territorial jurisdiction.
In the result, the
petitioner is not entitled to any relief sought for in her petition and the
petition of the petitioner is liable to be rejected. Hence, it is ordered:
O R
D E R
The petition of the
petitioner against the Opp. Party is rejected on contest without cost.
JUDGE, FAMILY COURT,
BHUBANESWAR.
Dictated,
corrected by me and is pronounced on this the 8th
day of February, 2013.
JUDGE, FAMILY COURT,
BHUBANESWAR
Witnesses examined for the petitioner :
P.W.1 Aparimita Rath
P.W.2 Bibhu Prasad
Mohapatra.
P.W.3 Jayanta Kumar
Kar.
P.W.4 Manoj Kumar
Rath.
Witnesses examined for the Opp. Party:
O.P.W.1 Paresh Mishra.
List of documents admitted by petitioner:
Nil
List of documents admitted by Opp. Party:
Ext.A&B Xerox copies of
Identity Card.
Ext.C True photocopy of Certificate Illegibility
I-20 issued by USA,
Deptt. of Justice.
Ext.D Certificate granted by
Indiana University.
Ext.E True photocopy of the salary
certificate of the petitioner(computer generated) copy of
petitioner.
JUDGE, FAMILY COURT,
BHUBANESWAR.
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