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Lakshyapati Padhan Vs. Udian Padhanen - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT561; 1982CriLJ1953
AppellantLakshyapati Padhan
RespondentUdian Padhanen
Excerpt:
.....[air 2002 orissa 130 overruled]. - according to her, the petitioner is a well-to-do man having 3 acres of land and he has also got a grocery shon and is quite able to provide maintenance at the rate of rupees 200/- per month to her......misra, learned counsel appearing for the petitioner submitted that there is no finding that the wife (opposite party) is unable to maintain herself and when there is no such finding, maintenance should not be allowed. he has relied on the decisions reported in 1976 cri lj 1664 (all), 1978 cri lj 1555 (kant) and 1978 cri lj 385 (all).mr. mohapatra, learned counsel appearing for the opposite party wife, submitted that the maintenance allowed is very meagre and should be enhanced by this court. he further submitted that the learned court below has categorically found that the petitioner has sufficient means inasmuch as he has got 11/2 acres of fertile land and is an able bodied person having sufficient means. mr. misra learned counsel for the petitioner pointed out that the opposite.....
Judgment:
ORDER

J.K. Mohanty, J.

1. Petitioner who is the husband of the opposite party has come up with this revision against the order of the Sub-Divisional Judicial Magistrate, Bargarh, awarding maintenance allowance of Rs. 40/- per month to the opposite party.

2. The case of the opposite party was that she married the petitioner and lived as husband and wife for about 27 years i.e. till 11th November, 1978. The petitioner married for the second time and thereafter started ill treating her for which she had to leave the house of her husband. The opposite party approached the local gentlemen and a panchayati was convened wherein it was decided that the petitioner would pay maintenance to the opposite party @ Rs. 300/- and 3 Pudugs of paddy per year. The petitioner went on paying the same for some time and thereafter discontinued. When the opposite party demanded for maintenance, she was mercilessly assaulted by her husband and was driven out of his house. So she was forced to file an application under Section 125, Criminal P.C. According to her, the petitioner is a well-to-do man having 3 acres of land and he has also got a grocery shon and is quite able to provide maintenance at the rate of Rupees 200/- per month to her. In support of her case, she examined 5 witnesses and her husband has only examined himself. The learned Magistrate allowed the petition and granted Rs. 40/- per month as maintenance allowance.

3. Mr. Misra, learned Counsel appearing for the petitioner submitted that there is no finding that the wife (opposite party) is unable to maintain herself and when there is no such finding, maintenance should not be allowed. He has relied on the decisions reported in 1976 Cri LJ 1664 (All), 1978 Cri LJ 1555 (Kant) and 1978 Cri LJ 385 (All).

Mr. Mohapatra, learned Counsel appearing for the opposite party wife, submitted that the maintenance allowed is very meagre and should be enhanced by this Court. He further submitted that the learned court below has categorically found that the petitioner has sufficient means inasmuch as he has got 11/2 acres of fertile land and is an able bodied person having sufficient means. Mr. Misra learned Counsel for the petitioner pointed out that the opposite party is working on wages and is earning Rs. 2 to 4/- per day for her maintenance. On this ground he says that the opposite party (wife) has means to maintain herself. No doubt, the finding of the court below is that the opposite party is having income of about Rs. 2 to 4/- per day and this has been taken into consideration by the learned court below. He has relied on a decision reported in 1980 Cri LJ 232 (All) wherein it has been held:

By the phrase 'unable to maintain her self it is not meant that she should be absolute destitute and should be first on the street, should beg and be in tattered clothes and then only she will be entitled to move an application under Section 125. When she leaves her husband's house, she can be maintained for some time by her relations. But that alone will not be sufficient. What is-necessary is that she herself should be in a position to maintain herself, not much below, the status which she was used to at her husband's place.

Even assuming that she is earning Rupees 2 to 4/- per day, it is insufficient to maintain herself on these hard days. The court below has granted only Rs. 40/-per month as maintenance allowance which would come to about Rs. 1.33 paise per day and in my view it is too meagre. So there is no scope for any interference regarding the quantum of maintenance

4. Considering the arguments of both the sides and the facts and circumstances of this case, I see no reason to interfere with the order of the court below and dismiss the revision accordingly.


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