Sunday, March 26, 2023

order in Section 125 Cr.P.C.

 

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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