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Ananta Bhottamisra Vs. Smt. Saraswati Bhottamisra - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 584 of 1983
Judge
Reported in1985(I)OLR87
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125; Evidence Act, 1872 - Sections 101 and 102
AppellantAnanta Bhottamisra
RespondentSmt. Saraswati Bhottamisra
Appellant AdvocateP. Palit, J. Patnaik, R. Mohapatra and A.K. Bhagat
Respondent AdvocateP.V. Ramdas and N.C. Nayak
DispositionRevision allowed
Cases ReferredSatish Kumar Arora v. Smt. Varsha Arora and Anr. The
Excerpt:
.....not only vague, but also highly unreliable and improbable and could not have been accepted by the learned magistrate in support of the case of the petitioner. as the view taken by the learned magistrate in this regard was unreasonable and could not have been taken on the materials available on the record, the learned additional sessions judge came to the following conclusion :thus, it is found that all the witnesses examined by the opposite patty are most unreliable. 35/- per month for the child would meet the requirements and would be reasonable regard being bad to the status of the parties and their requirements for subsistence......child was born not through him, but because the opposite party had been living in adultery. the learned additional sessions judge has held that the verdict recorded by the learned magistrate was unreasonable and unfounded and rejecting the case of the petitioner that the opposite party had been living in adultery, has granted maintenance at the rate of rs. 90/-per month for the opposite party and rs. 60/- per month for the child. the husband-petitioner has challenged this order as illegal and unfounded.2. mr. j. patnaik, appearing for the petitioner, has submitted that the revisional court ought not to have reversed the findings of facts recorded by the learned magistrate without justifiable reasons. it has also been submitted that if this court holds, agreeing with the first.....
Judgment:

B.K. Behera, J.

1. The petitioner has assailed the revisional order passed by the learned Additional Sessions Judge, Koraput, reversing the order passed by a Judicial Magistrate, First Class, Jeypore, disallowing maintenance claimed by the opposite party as the married wife of the petitioner, for herself and their minor child, by accepting the petitioner's case that the opposite party had been living in adultery and was not entitled to maintenance. It is not disputed that the petitioner had married the opposite party and it was in evidence that some children born to them expired. While according to the opposite party, the child in respect of whom maintenance had been claimed by her had been born through their wedlock, the petitioner's case was that this child was born not through him, but because the opposite party had been living in adultery. The learned Additional Sessions Judge has held that the verdict recorded by the learned Magistrate was unreasonable and unfounded and rejecting the case of the petitioner that the opposite party had been living in adultery, has granted maintenance at the rate of Rs. 90/-per month for the opposite party and Rs. 60/- per month for the child. The husband-petitioner has challenged this order as illegal and unfounded.

2. Mr. J. Patnaik, appearing for the petitioner, has submitted that the revisional Court ought not to have reversed the findings of facts recorded by the learned Magistrate without justifiable reasons. It has also been submitted that if this Court holds, agreeing with the first revisional Court that the opposite party and her child were entitled to maintenance, the quantum of maintenance granted is quite heavy and ought to be reduced. Mr. Ramdas, appearing for the opposite party, has submitted that as an unreasonable view had been taken by the learned Magistrate, the revisional Court has correctly reversed the order and the amount of maintenance granted in respect of the opposite party and the child cannot be said to be heavy in these hard days when the prices of articles ate soaring up.

3. I have Perused the materials on the record and the order passed by the learned Magistrate refusing maintenance and the order passed by the learned Additional Sessions Judge allowing the application and granting maintenance from the date of making the application. As rightly observed by the learned Additional Sessions Judge, it was for the petitioner to establish that his wife (opposite party) had been living in adultery. The learned Additional Sessions Judge was not oblivious of the limited jurisdiction he had while sitting in a Court of revision and being conscious of the fact that normally a finding of fact is not to be interfered with by the revisional Court unless the finding is perverse and is not supported by legal evidence, he has carefully discussed the entire evidence adduced from the side of the petitioner to establish his case that the opposite party had been living in adultery. He has examined the evidence of the petitioner and the evidence of each of his witnesses examined in this regard and for the reasons recorded by him, which need not be repeated, has come to find that the evidence led in this regard was not only vague, but also highly unreliable and improbable and could not have been accepted by the learned Magistrate in support of the case of the petitioner. A plea of the type raised by the petitioner was to be, but had not been established by clear and acceptable evidence and the vague evidence with regard to the company of the opposite party with some persons, without anything more, could not give an indication that she had been Jiving in adultery. As the view taken by the learned Magistrate in this regard was unreasonable and could not have been taken on the materials available on the record, the learned Additional Sessions Judge came to the following conclusion :

'...Thus, it is found that all the witnesses examined by the opposite patty are most unreliable. Therefore, basing on their testimony it can never be believed that the petitioner was living in adultery and the child born to her was through somebody else. Definitely the opposite party has procured the witnesses some how to support his case. The conduct of the opposite party cannot be said to be free from suspicioninasmuch as he has not taken any action against the petitioner and kept silent for so long.'

4. The opposite party is the legally married wife of the petitioner. She has no means to maintain herself. As the evidence from her side would show, the petitioner had neglected to maintain her and the child having means to maintain them. The opposite party had been driven out of the house of the petitioner after ill-treatment and thereafter he had refused to maintain the opposite party and the child. When a charge of unchastity levelled by the husband is not proved, the wife can refuse to stay with her husband, as held in 1984 Cri. L. J. 1012. (All.) : Satish Kumar Arora v. Smt. Varsha Arora and Anr. The opposite party is thus entitled to claim maintenance both for herself and the minor child.

5. Coming to the quantum of maintenance, I find that it is on the higher side keeping in view the income of the petitioner. While fixing the quantum of maintenance, the learned Additional Sessions Judge has taken note of the fact that the petitioner had been getting Rs. 250/-per month from service. It has been brought to my notice that the petitioner's services had been terminated by the time the impugned order was passed by the teamed Additional Sessions Judge and he did not take note of this. The fact, however, remains that the petitioner does have landed property. There is no material that the petitioner is not an able-bodied person. He has thus capacity to earn. Regard being had to the facts and circumstances of the case, I am of the view that maintenance at the rate of Rs. 75/- per month for the opposite party and at the rate of Rs. 35/- per month for the child would meet the requirements and would be reasonable regard being bad to the status of the parties and their requirements for subsistence.

6. In the result, therefore, I would maintain the order passed by the learned Additional Sessions Judge holding that the opposite party and the child are entitled to maintenance. I would, however, reduce the amounts of maintenance for the opposite party and the child in the manner indicated above.

The revision is accordingly allowed in part.


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