Orissa High Court
(An Application U/S. 19(4) Of The Family ... vs Bavisetty Santosh Kumar ... Opposite ... on 19 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM NOs.231 & 142 of 2024
(An application U/S. 19(4) of the Family Courts Act,
1984).
Yernagula Malathi @ ... Petitioner
Bavisetti Malathi
(in RPFAM No.231 of 2024)
Mr. R.N. Prusty, Advocate
-versus-
Bavisetty Santosh Kumar ... Opposite Party
Mr. D. Panda, Advocate
Bavisetty Santosh Kumar ... Petitioner
@ B. Santosh Kumar
(in RPFAM No.142 of 2024)
Mr. D. Panda, Advocate
-versus-
Yernagula Malathi ... Opposite Party
Mr. R.N. Prusty, Advocate
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING :04.03.2025
DATE OF JUDGMENT :19.03.2025
G. Satapathy, J.
1. Both the spouses have preferred the above two separate revisions challenging the same impugned judgment dated 22.02.2024 passed by the learned Judge Family Court, Paralakhemundi in Criminal Proceeding No. 26 of 2022 directing the husband to RPFAM Nos.231 & 142 of 2024 Page 1 of 24 pay a sum of Rs.12,000/- per month to the wife with effect from 04.08.2022 towards maintenance in an application U/S. 125 of the Code of Criminal Procedure, 1973 ( in short the "Code") filed by the wife.
2. The grievance/relief sought for by the wife in RPFAM No. 231 of 2024 is for enhancement of the maintenance amount as awarded to her by the impugned judgment, whereas the husband's grievance in RPFAM No. 142 of 2024 is for setting aside the impugned judgment on the ground of wife voluntarily leaving his company without any sufficient cause and in the alternative, for reducing the quantum of maintenance.
3. The undisputed facts as found from the trial Court's record in precise are Smt. Yernagula Malathi @ Bavisetti Malathi has married to Bavisetty Santosh Kumar and their marriage was solemnized on 15.06.2019 at Visakhapatnam, Andhra Pradesh in terms of Hindu Customary Rites. After marriage, the wife and husband stayed together at Bangalore for RPFAM Nos.231 & 142 of 2024 Page 2 of 24 some time, but in the month of September, 2019, the wife came to Visakhapatnam to prosecute her MCA course. It is, however, alleged by the wife that during her stay at Visakhapatnam, her parents-in-law ill- treated her and thereafter she returned back to Bangalore and stayed there with her husband for some time. However, the dissension between both the spouses started on various reasons and grounds leading to lodging of FIR by the wife against the husband. On the aforesaid backdrop, the wife filed an application U/S. 125 of the Code against the husband claiming for maintenance, but the husband initially did not appear in the proceeding for maintenance and the maintenance proceeding was decided ex-parte against the husband vide judgment dated 29.10.2022 and when such ex-parte judgment for maintenance was put to execution in CRP No. 45 of 2023 in which subsequently the bank accounts of the husband was put on hold in such proceeding, the husband filed an application U/S. 126(2) of the Code in which he was successful in setting aside the ex-parte judgment and RPFAM Nos.231 & 142 of 2024 Page 3 of 24 the matter was heard afresh and the present impugned judgment is accordingly passed.
4. In opposing the claim of the wife, the husband in his written objection while denying all the allegations raised against him stated inter alia that when in the month of November, 2020 he was served with a notice from his employer for termination of his job w.e.f. 07.04.2021, the wife apprehending to be deprived of enjoying a luxurious life started creating disturbance in his family and voluntarily deserted him by going to attend the marriage ceremony of her brother and thereafter, did not return and subsequently lodged criminal complaint against him and his family members causing harassment and humiliation to the family. The husband has specifically stated in his objection that the petitioner being a qualified lady having MCA Degree has worked with the company "Zetagile Info Solution Private Ltd" at Banjara Hills, Hyderabad, Telengana, but she having suppressed such fact before the Court is not entitled to maintenance. In the alternative, the husband prays to RPFAM Nos.231 & 142 of 2024 Page 4 of 24 reduce the quantum of maintenance on the ground that he being a jobless husband is unable to provide maintenance @ Rs.12,000/- per month to his wife who is working in a Multinational Company with good salary.
5. On the averments of the parties, the learned Judge Family Court, Paralakhemundi formulated the following three points, such as:-
(i) whether the wife has refused to join with the husband without any reasonable and sufficient reason?,
(ii) whether the wife is self-sufficient and as such is not entitled to maintenance? and lastly,
(iii) whether the husband having sufficient means is denying to provide maintenance to the wife?.
Accordingly, the wife and husband were allowed to lead evidence in the proceeding before the learned trial Court and after closure of evidence from both the sides, the learned trial Court upon analysis of evidence and hearing the parties passed the impugned judgment granting maintenance to the wife at a rate of Rs.12,000/- per month to be realized from the RPFAM Nos.231 & 142 of 2024 Page 5 of 24 husband which is the subject matter of challenge by both husband and wife in the aforesaid two separate criminal revisions.
6. In assailing the impugned judgment with regard to quantum of maintenance, Mr.Rabindranath Prusty, learned counsel appearing for wife has submitted that the learned Judge Family Court, Paralakhemundi on erroneous appreciation of fact and evidence directed the husband to pay a paltry sum of Rs.12,000/- per month, but it is established by the wife that the salary of the husband was Rs.1,61,169/- per month and the learned trial Court without any rhyme and reason assessed the income of the husband at Rs.1,00,000/- including the income as per his own admission by the husband at Rs.30,000/- to Rs.40,000/- per month from freelancing and erroneously by taking the income of the wife at Rs.13,000/- has deducted the said amount from the amount as considered to be entitlement of wife @ 1/4th of the income of her husband and awarded a sum of Rs.12,000/- per month which in the circumstance RPFAM Nos.231 & 142 of 2024 Page 6 of 24 not only meager, but also not commensurate to the standard of living as expected by the wife of a Senior Software Engineer drawing salary of Rs.1,61,169/-. Mr.Prusty has accordingly prayed to enhance the maintenance of the wife by granting 1/4th of such salary of the husband at Rs.1,61,169/-. In order to buttress his submission, learned counsel for the wife has relied upon the decisions in (i) Rajnesh Vrs.
Neha; (2021) 2 SCC 324, (ii) Kalyan Dey Chowdhury Vrs. Rita Dey Chowdhury Nee Nandy; (2017) 14 SCC 200 and (iii) Dr.Kulbhushan Kumar Vrs. Raj Kumari and another; 1970(3)SCC 129.
7. On the other hand, Mr.Devashis Panda, learned counsel appearing for the husband has submitted that the wife has claimed maintenance @ Rs.50,000/- per month by falsely stating that she was unemployed and her husband is getting a salary of Rs.2,40,000/- per month, but in fact, the husband is jobless after his termination from service and since the wife is a qualified lady and working in a Multinational Company which is found from EPF slips and bank RPFAM Nos.231 & 142 of 2024 Page 7 of 24 account statement under Annexure-3 and 3/1, she having suppressed her salary is not entitled to any maintenance. It is further submitted by Mr.Panda that since the wife refused to return to her matrimonial house and remained adamant for not to go for amicable settlement by demanding a sum of Rs.1 crore as a permanent alimony, the husband was forced to file a divorce application before the learned Judge Family Court, Visakhapatnam in FCOP No. 56 of 2022, but the learned trial Court being swayed away by the claim of the wife has awarded maintenance to her by the impugned judgment notwithstanding to the false declaration made by her regarding her job, however, the wife being guilty of suppression of fact is not entitled to any maintenance on that score and thereby, the impugned order granting maintenance to wife is liable to be set aside. In support of his contention, Mr.Panda has relied upon the decisions in
(i) Gaurav Vashishtha v. State of U.P. & Another; 2023:AHC:123312 (in CRL REV No.4498 of 2022), (ii) Niharika Ghosh v. Sankar Ghosh; RPFAM Nos.231 & 142 of 2024 Page 8 of 24 (2023) 3 HLR 401 (decided on 12.09.2023), (iii) Avaneesh Mahodaya v. Smt. Shikha Mahodaya; 2024:MPHC-IND:26313, (iv) ABC v. XYZ; 2023 SCC Online Del 5624 (decided on 12.09.2023) and (v) Amit Kumar Kachhap v. Sangeeta Toppo (in CRL REV No.512 of 2023, disposed of on 02.02.2024).
8. After having considered the rival submissions upon perusal of record, since the husband raises two points to challenge the impugned judgment, this Court first confines itself to address the challenge of the husband. In his first plea, the husband has claimed that the wife is not entitled to maintenance since she has withdrawn from the society of her husband unilaterally without any sufficient cause which is one of the legal grounds available to husband U/S. 125(4) of the Code, which prescribes that no wife shall be entitled to receive any maintenance from her husband, if she refuses to live with her husband without any sufficient cause, but such question is of course a question of facts, which can be decided/answered from RPFAM Nos.231 & 142 of 2024 Page 9 of 24 the facts and evidence on record and there is no straight jacket formula as to what constitutes "without sufficient cause", but law permits wife to refuse to live with her husband, if situation so demands. In this case, it is not in dispute that the husband has filed a divorce petition before the Court at Visakhapatnam against the wife in FCOP No. 56 of 2022 which was admittedly filed on 03.01.2022, but the present maintenance proceeding was initiated on 04.08.2022 which was after filing of the divorce petition by the husband who has not filed the copy of the plaint in FCOP No. 56 of 2022 for perusal of the Court to know the grounds under which he has sought for dissolution of marriage, but fact remains that the husband has prayed for dissolution of marriage by approaching the competent Court. The learned trial Court in the impugned judgment while answering point No.1 which is framed on the legal terms of Sec. 125(4) of the Code has observed that during conciliation process also the husband has not consented for resuming conjugal life with plea that the wife has leveled false RPFAM Nos.231 & 142 of 2024 Page 10 of 24 allegation against him and implicated him as well as his family members in criminal case. On the contrary, the wife has taken the plea of ill-treatment and torture on her by her in-laws. In support of such ill treatment, torture and cruelty, the wife has initiated a criminal case in Kashinagar PS Case No. 11 of 2022 which is never denied by the husband. It is of course true that the criminal charge has not yet been established against the petitioner, but fact remains that there is allegation and counter allegation by both the parties and in the process, the husband has denied to resume conjugal life and, therefore, the wife can be said to have justification to live separately. On this point, this Court considers it apt to refer to the very recent decision of the Apex Court in Rina Kumari @ Rina Devi @ Reena vrs. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and another;2025 SCC Online SC 72, wherein it has been held thus:-
"29.Thus, the preponderance of judicial thought weighs in favour of upholding the wife's right to maintenance under Section 125 CrPC and the mere passing of a decree for restitution of conjugal rights at the husband's RPFAM Nos.231 & 142 of 2024 Page 11 of 24 behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) CrPC. It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard and fast rule in this regard and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband coupled with non- compliance therewith by the wife would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4) CrPC."
9. In the aforesaid facts and backdrop of evidence on record and discussions made, especially when the husband has denied to resume conjugal life, the wife has right to live separately and, therefore, by no stretch of imagination, it can be said in this case that the wife has unilaterally withdrawn from the company of the husband without any sufficient cause. Although the husband takes the plea of Sec. 125(4) of the Code for wife deserting him, but the husband in paragraph-20 of his cross-examination has admitted RPFAM Nos.231 & 142 of 2024 Page 12 of 24 that there was so many conciliations and mediations, even by Apex court for their reunion and in every conciliation, he has stated that he is not ready to join with the petitioner though she has expressed her willingness to join with him. Above discussion further negates the plea of husband with regard to wife deserting him. In the sequence, the husband has relied upon the decision in Gaurav Vashishtha(supra) to contend that the wife is not entitled to receive any maintenance from husband, if she refused to live with her husband, but in this case as has been found, since the husband has refused to resume conjugal life, this decision will not come to the aid of the husband. The petitioner has also relied upon the decision in Amit Kumar Kachhap(supra), but the same is not applicable to this case at hand inasmuch as the husband in this case has not been able to establish that the wife has left the society of the husband without any reasonable cause. Hence, it is held that the wife has reason enough to live separately and, therefore, the next question comes for RPFAM Nos.231 & 142 of 2024 Page 13 of 24 adjudication is whether the wife is entitled to maintenance and if so, whether the husband is liable to maintain his wife.
10. In the course of argument, learned counsel for the husband has relied upon the decision in Niharika Ghosh(supra) to contend that the wife is not entitled to maintenance because she has suppressed her income and thereby, guilty of suppression and although the petitioner has relied upon the decision in Niharika Ghosh(supra), but has not filed a copy of such judgment and this Court, therefore, is unable to peruse such judgment. Further, the petitioner on the same point has relied upon the decision of Delhi High Court by producing the hard copy of such judgment in which names has been redacted and therein it has been held by a Division Bench of Delhi High Court that the appellant is highly qualified and has an earning capacity, but in fact she has been earning, though has not been inclined to truthfully disclose her true income. True it is that the person who approaches the Court should come with clean hand and that is why the RPFAM Nos.231 & 142 of 2024 Page 14 of 24 Apex Court has rendered the most celebrated decision Rajnesh (supra) to minimize and confining the disputed question of maintenance in a narrow frame by prescribing a disclosure affidavit to be filed by the parties for effective and early adjudication in a matter relating to maintenance of wife and dependent children. The husband has of course taken a plea that the wife was working under "Zetagile Info Solution Private Ltd" and was appropriately earning, but she has concealed such fact to get maintenance. While appreciating this plea, this Court has privilege to go through the evidence on record as produced by the learned counsel for the husband, but although the examination-in-chief of the wife does not disclose about her working in "Zetagile Info Solution Private Ltd", but no cross-examination has been made to elicit anything from her mouth with regard to her employment in "Zetagile Info Solution Private Ltd". A careful perusal of evidence of wife including cross- examination, this Court does not find a single word from her entire evidence with regard to her RPFAM Nos.231 & 142 of 2024 Page 15 of 24 employment in "Zetagile Info Solution Private Ltd" nor the wife was suggested by the counsel for the husband about her working in such company and earning something and the only evidence that has been elicited from the wife by the husband is that the wife has acquired MCA Degree from Andhra University. On the other hand, the husband while being examined as OPW1 has taken the plea of wife working in "Zetagile Info Solution Private Ltd" in paragraph-29 of his examination-in-chief, but he has not clarified as to when she started working and whether such firm still exists. Be that as it may, the learned trial Court has answered this issue specifically by observing as under:-
"On the application of the respondent(husband), a report was called for "Zetagile Info Solution Private Ltd", but the letter from Court could not be served for the reason that the office of "Zetagile Info Solution Private Ltd" at Banjara Hills, Hyderabad, Telengana was found under lock. Husband- respondent has filed documents proved under Ext.N series which indicate, petitioner (Y.Malathi) as an employee is contributing towards EPF scheme. On the basis of rival submissions, a report was called for from UBI, Kashinagar and the account statement RPFAM Nos.231 & 142 of 2024 Page 16 of 24 received proved under Ext.C-I reveals, the wife has received money from "Zetagile Info Solution Private Ltd" for few months. In the course of argument, the petitioner in person (wife) and her counsel submitted that she had worked under "Zetagile Info Solution Private Ltd" for some time during pendency of the proceeding, but neither on the date of institution of proceeding nor on the date of argument she was working under "Zetagile Info Solution Private Ltd".
11. The above observation was never validly disputed by the husband, however, if the wife was not working at the time of institution of proceeding, she cannot be held liable for suppression of facts in disclosure affidavit for not mentioning the same notwithstanding to the fact that she was working for some time in said company, but was not working at the time of argument of the case and, therefore, the wife cannot be wholly responsible for suppression of facts. Further, the decision which was relied on by the husband in Niharika Ghosh(supra), the learned trial Court has rightly applied the law laid down therein in the present case by observing that it is not established that the earning of wife is sufficient to enjoy the status what she was having in her matrimonial home with RPFAM Nos.231 & 142 of 2024 Page 17 of 24 husband. On this issue, the learned trial Court has also found that the wife was drawing a salary of Rs.13,876/- per month from "Zetagile Info Solution Private Ltd" during her employment, but at the same time, it has held that the husband was drawing of salary of Rs.1,61,169/- per month. The husband has, however, stated that his job has been terminated and at present, he is earning Rs.30,000/- to Rs.40,000/- per month from freelancing. He has also stated in his affidavit that at the time of marriage, the parents of his wife had given three tolas of gold ornaments and household articles worth Rs.1,00,000/-. It is, therefore, very clear that the marriage was solemnized with presentation of gifts to both the parties, but fact remains to be decided here that since the wife is right now jobless, whether she is entitled to maintenance and her husband is liable to maintain her and if so, how much amount would be just and appropriate for the maintenance of the wife. It is an admitted fact that both husband and wife were qualified and were doing job as per their own disclosure. This Court, however, RPFAM Nos.231 & 142 of 2024 Page 18 of 24 makes it very clear as a precaution that law never appreciate those wives who remain idle only to saddle the liability of paying maintenance on the husband by not working or not trying to work despite having proper and high qualification, but at the same time, the husband who is well qualified and was admittedly also in job earlier, but remains idle by quitting the job without any logic only to shift or avoiding the responsibility of maintenance of the wife cannot be accepted in a society of ours. Law will definitely come to the rescue of such person who after making sincere efforts has failed in their pursuit to earn to maintain himself or herself together with his/her family members. Many a time, the attitude of the spouses is most important and when such instinct of such spouse is only to fight and frustrate the efforts of others is quite deplorable. In other words, spouses having high qualification, but desirous to remain idle and not making any efforts for the purpose of finding out the source of livelihood should be discouraged. True it is that even if the husband claims to have no source of RPFAM Nos.231 & 142 of 2024 Page 19 of 24 income, but his ability to earn given his education and qualification is to be taken into account as held in paragraph-26 of the judgment of the Apex Court in Kiran Jyot Maini vrs. Anish Pramod Patel; (2024) SCC Online SC 1724; wherein the Apex Court has held as under:-
"26. Furthermore, the financial capacity of the husband is a critical factor in determining permanent alimony. The Court shall examine the husband's actual income, reasonable expenses for his own maintenance, and any dependents he is legally obligated to support. His liabilities and financial commitments are also to be considered to ensure a balanced and fair maintenance award. The court must consider the husband's standard of living and the impact of inflation and high living costs. Even if the husband claims to have no source of income, his ability to earn, given his education and qualifications, is to be taken into account. The courts shall ensure that the relief granted is fair, reasonable, and consistent with the standard of living to which the aggrieved party was accustomed. The court's approach should be to balance all relevant factors to avoid maintenance amounts that are either excessively high or unduly low, ensuring that the dependent spouse can live with reasonable comfort post-separation."
12. It is also not in dispute that the wife has challenged the quantum of maintenance by filing RPFAM Nos.231 & 142 of 2024 Page 20 of 24 separate revision, but in order to have an equitable determination of financial support required to the wife, it can be said that maintenance should be determined after considering the status and life style of the parties, and their reasonable needs, educational qualification of the wife, so also her earning capacity as well as the financial standing and obligation of the husband shall be taken into consideration to address the rising cost of living and inflation to ensure a standard living that is proportionate to the husband's financial capacity and commensurate to the standard of his living and the standard of living of the wife. However, there cannot be any straight jacket formula for fixing the amount, but the quantum of maintenance must be subjective to each case and his dependent on various circumstance and factors and such factors may be the income of both the parties; their conduct during subsistence of the marriage; their individual social and financial status; their personal expenses; their individual capacities and duties to maintain their dependents; the quality of life enjoyed by the wife during the subsistence of marriage and such other similar factors.
RPFAM Nos.231 & 142 of 2024 Page 21 of 24
13. It is not disputed that the husband's income was Rs.1,61,169/- and more per month during the period when the wife had left the matrimonial home, but the wife being a qualified lady having MCA Degree is capable of doing some job and she was also earning some amount, but the amount of earning which has been assessed by the learned trial Court from the Bank statement of the wife reveals her earning Rs.13,876/- from "Zetagile Info Solution Private Ltd". Further, it is also found from the record that the wife has reason enough to stay separately from her husband, but the husband was well qualified and earning handsome amount at the time of wife living separately, but he is liable to maintain his wife which flows from the alternative submission of the husband to reduce the amount of maintenance, but at the same time, wife seeks for enhancement of maintenance.
14. In the factual backdrop as discussed above, especially by taking into qualification and earning of the husband and wife at Rs.1,61,169/- and Rs.13,876/- and balancing other factors as narrated above and taking into account the dependents of the husband as well as RPFAM Nos.231 & 142 of 2024 Page 22 of 24 his conduct of avoiding to participate in the proceeding earlier till his salary was attached in the execution proceeding which was evident from the ex-parte order passed by the learned trial Court and later on set aside by the same Court in an application U/S. 126(2) of the Code by the husband, this Court considers that the wife is entitled to 1/4th income of the husband minus her own earning per month. In the factual scenario, especially when both the wife and husband have tried to conceal their real income which is evident from the proof of Accounts statement of the husband under Ext.P-41 to 44 that he was drawing salary of Rs.1,61,169/- per month, but coming with his plea that he is only earning Rs.30,000/- to Rs.40,000/- per month from freelancing with his job has already been terminated and the wife claiming herself to be jobless, but was getting salary of Rs.13,876/- in the past as observed by the learned trial Court and both the parties having high qualification and prospect to earn, but taking into account the admitted facts as catalogued in the preceding paragraph with some guess work to consider the income of the husband at Rs.1.6 Lakhs and that of Rs.20,000/- per month and RPFAM Nos.231 & 142 of 2024 Page 23 of 24 striking a balance, since the wife is entitled to maintenance, it would be just and proper to award a sum of Rs.20,000/- (1/4 x Rs.1,60,000 - Rs.20,000) per month to the wife for her maintenance.
15. In the result, while dismissing the revision in RPFAM No. 142 of 2024 filed by the husband, the claim of the wife in RPFAM No. 231 of 2024 stands allowed on contest, but in the circumstance there is no order as to cost.
Consequently, the impugned judgment dated 22.02.2024 passed by the learned Judge Family Court, Paralakhemundi in Criminal Proceeding No. 26 of 2022 stands modified to the extent indicated above and accordingly, the wife is entitled to get maintenance @ Rs.20,000/- per month from the husband w.e.f. the date of filing of application U/S. 125 of the Code since 04.08.2022.
(G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Orissa High Court, Cuttack, Location: High Court of Orissa Date: 19-Mar-2025 18:36:48 Dated the 19th day of March, 2025/Kishore RPFAM Nos.231 & 142 of 2024 Page 24 of 24