Judgment:
ORDER
P.K. Tripathy, J.
1. Opposite Party filed an application claiming for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short 'the Code') and that was registered as Criminal Proceeding No. 368 of 1995 in the Court of Judge, Family Court, Cuttack. She claimed maintenance from the petitioner on the grounds that she is the legally married wife of the petitioner and she was ill-treated and driven out by the petitioner. Opposite Party also claimed that she had no means to sustain her livelihood whereas the petitioner being a practising Advocate is capable of providing maintenance to her. While not disputing to the inter se relationship, petitioner alleged ill-treatment and cruelty on him by the opposite party, challenged her fidelity and also her voluntary disassociation from his society. Petitioner also contended that opposite party being an educated woman is capable of earning her bread and that she is earning by doing tuition and tailoring work. Accordingly he prayed to reject the prayer for maintenance. Both the parties led oral and documentary evidence in support of their respective pleas and learned Judge, Family Court, Cuttack on assessment of such evidence recorded the findings that opposite party has been ill-treated and deserted by the petitioner, she has no source of income and petitioner has sufficient means to provide maintenance besides being legally bound to do so. Accordingly he ordered for payment of monthly maintenance at the rate of 450/- with effect from 12-7-1995 (date of application).
2. While challenging the aforesaid findings and the order learned counsel for the petitioner argued that the evidence on record clearly proves that opposite party had conceived by the date of her marriage on 29-4-1994 and she did not co-operate for cohabitation with the petitioner and that she was found in objectionable condition with her cousin Kuna while the parties were staying first in a lodge and thereafter in a rented house in Cuttack town. Learned counsel for the petitioner thus argued that such factums having been proved by the petitioner it was not proper for the learned Judge, Family Court, Cuttack to grant an order of maintenance in favour voluntarily dissociated herself from the society of the petitioner, therefore, she is not entitled to maintenance in view of the provision in Section 125(4) of the Code.
3. Learned counsel for the opposite party argued that the aforesaid allegation of adultery and pregnancy has not been proved by the petitioner and such plea is totally false and baseless. He further argued that the aforesaid allegation by themselves make out a case of cruelty and in addition to that opposite party and her mother as P.Ws. 1 and 2 have proved on record the demand of dowry by the petitioner and the ill-treatment meted to her by the petitioner at Cuttack. He further argued that there is absolutely no proof on record that the opposite party has any source of income or she has any income of her own. Under such circumstance, the impugned order of maintenance should not be disturbed.
4. On perusal of the evidence on record it is seen that while the opposite party has examined herself and her mother in support of the plea of ill-treatment, cruelty, desertion and situation of no income of her own besides the capability of the petitioner to maintain her, the petitioner has examined as many as five witnesses including himself as O.P.W. No. 5 in support of his aforesaid pleas. So far as the plea of adultery is concerned the evidence of O.P.W. 3, a neighbour and O.P.W. 5 the petitioner himself is totally deficient to prove the allegation of illicit relationship between the opposite party and her cousin Kuna. Therefore, this Court concurs with the finding recorded by the lower Court in that respect. So far as the plea of pregnancy of opposite party is concerned though learned Judge, Family Court, Cuttack has made some irrelevant remark relating to the qualification and capability of the Doctor O.P.W. 3 for certifying relating to a pregnancy, if that comment is excluded then also the appreciation of the evidence of the said witness and finding recorded in negative regarding pregnancy of opposite party is not found to be incorrect. When O.P.W. 3 has not been able to identify the opposite party as the concerned pregnant lady and when there is no creditworthy evidence to connect her with the pathological report and the prescription and the Doctor's advise, such documents produced by the petitioner are not sufficient to prove that during the relevant period opposite party was pregnant. According to the petitioner the pregnancy of opposite party was five months' old by September, 1994. But there is no evidence worth the name from his side to show that the opposite party delivered a child or that she got it aborted or used the instrumentalities for miscarriage. In such circumstance, the allegation of pregnancy is found to be rightly rejected as a myth. The evidence of O.P.W. 4 gives a blow to the petitioner's allegation against the opposite party inasmuch as the said witness has stated that petitioner had lodged a false report alleging about theft of his motor cycle by said Kuna. His evidence in that respect that the opposite party left his rented house in that motor-cycle being driven by said Kuna is thus found to be unworthy of credibility. The evidence of O.P.W. 1, a practising Advocate and the erstwhile senior of the petitioner is of no assistance for the Court to record a finding that the opposite party in the absence of just and sufficient cause has unreasonably refused to disassociate herself from the society of the petitioner.
5. The above discussion and re-appreciation of evidence leads this Court to the conclusion that the findings recorded by learned Judge, Family Court, Cuttack relating to ill-treatment, cruelty and desertion is not liable to be interfered with. So far as the assertion made by the petitioner relating to the income of the opposite party is concerned, there is absolutely no evidence in that respect so as to disallow her claim for maintenance. On the other hand the oral evidence of the opposite party clearly proves that she has no source of income whereas the petitioner being an Advocate has got an income. Another fact which the trial Court did not take into consideration though available in evidence is that the petitioner claims to have purchased a Hero Honda motor-cycle from his own earning. He has not advanced the plea of purchasing that motorcycle by incurring loan. That goes to show his earning capacity. Thus, the findings recorded relating to the earning capacity of the petitioner is not liable to be interfered with in the absence of any illegality or perversity in such finding. In the result the quantum of maintenance awarded in favour of the opposite party is not liable to be interfered with.
6. For the reasons indicated above, there is nothing to interfere with the impugned order of maintenance and accordingly the revision stands dismissed.