Orissa High Court
Ghanashyam Rout @ Jhuna vs Jhili Rout @ Maharana .... Opp. Party on 20 July, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-Jul-2023 13:06:56
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 124 OF 2018
Ghanashyam Rout @ Jhuna .... Petitioner
Mr. Jibananand Mohanty, Advocate
-versus-
Jhili Rout @ Maharana .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 20.07.2023
8. 1. This matter is taken up through hybrid mode.
2. Order dated 29th March, 2018 (Annexure-1) passed by learned Judge, Family Court, Keonjhar in C.M.C. No.122 of 2015 is under challenge in this RPFAM, whereby allowing an application filed by the Opposite Party under Section 125 Cr.P.C., the Petitioner has been directed to pay maintenance of Rs.3,000/- per month to her from the date of filing of the application, i.e., from 16th December, 2015.
3. Mr. Mohanty, learned counsel submits that the Petitioner had never married to the Opposite Party. He has married to one, Swarnaprava Nayak of village Jakhapura in the district of Jajpur on 1st March, 2009 as per his caste, custom and due to their wedlock, they were bless with a daughter on 6th December, 2009 and a son on 16th October, 2014. The Opposite Party alleged that she has married to the Petitioner on 13th March, 2014. Even if, the marriage with the Opposite Party on 13th March, 2014 is accepted, she cannot be the legal marital wife of the Petitioner. As such, she is not entitled to maintenance under Section 125 Page 1 of 3 Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jul-2023 13:06:56 Cr.P.C. It is his submission that the Petitioner also filed documents in support of the marriage with Swarnaprava Nayak and children born out of their wedlock. Learned Judge, Family Court although accepted the marriage of the Petitioner with Swarnaprava Nayak, but holding that the Opposite Party had no knowledge of marriage of Petitioner with Swarnaprava Nayak and that the Opposite Party was a rustic lady, allowed the petition under Section 125 Cr.P.C.. As such, the impugned order under annexure-1 may be set aside.
4. Although notice was issued to the Opposite Party by Registered Post with A.D. in her correct address, but neither the A.D. nor unserved notice has returned. In view of the above, notice on Opposite Party is treated to be sufficient.
5. Since none appears for the Opposite Party, this Court proceeds to dispose of the RPFAM on merit.
6. Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned order under Annexure-1, it appears that the Petitioner had married to one, Swarnaprava Nayak on 1st March, 2009 and they were blessed with two children out of their wedlock. The Opposite Party alleged that she married to the Petitioner on 13th March, 2014. Thus, by no stretch of imagination, the marriage of the Petitioner with Opposite Party can be said to be legally sustainable. As such, the Opposite Party is not the legally married wife of the Petitioner. Hence, she is not entitled to maintenance under Section 125 Cr.P.C. Learned Judge, Family Court failed to appreciate the same and proceeded with a misconception that the Page 2 of 3 Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jul-2023 13:06:56 Opposite Party had no knowledge of previous marriage of the Petitioner and directed to pay the maintenance, as above.
7. In view of the discussion made above, the impugned order under Annexure-1 is not sustainable and is accordingly set aside.
8. The RPFAM is accordingly disposed of.
9. Interim order dated 5th March, 2020 passed in I.A. No.79 of 2020 stands vacated.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge ms Page 3 of 3