Sri Abhiram Mohapatra Vs. Smt. Draupadi Mohapatra - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. order1. mr. j.m. mohanty, learned counsel for the petitioner is present. none appears for the opposite party. even, we adjourned this case to be taken up now, i.e., after recess, then also nobody appears for the opposite party.2. therefore, we hear the petitioner and this writ petition is disposed of in the following manner.3. petitioner has filed this writ petition challenging the order, annexure-8, passed on 02.06.1999 in criminal proceeding no. 338 of 1991. the family court, cuttack, in consideration of the application under section 125, cr.p.c. filed by the opposite party, passed the ex parte order of maintenance against the petitioner with a direction to make payment of monthly maintenance @ rs. 300/- per month from june, 1999 and also awarded the litigation expenditure of rs. 1,000/-. on 11.06.1999 petitioner filed this writ petition instead of applying to the family court under the proviso in section 126(2), cr.p.c. on 06.07.1999 when the matter was taken up for admission, this court noted that though relief under the cr.p.c. is available to the petitioner, but under the facts and circumstances involved in the case the writ petition would be entertained.4. it appears from the impugned order and also the contention of the petitioner that petitioner initiated the proceeding under section 12 of the hindu marriage act, 1955 (in short 'act, 1955') to annul the marriage under clause (a) of sub-section (1) of section 12. an ex parts decree of divorce was granted therein. then the husband-petitioner filed application under section 152, c.p.c., vide misc. case no. 18 of 1981 to amend the decree from a decree of divorce to a decree of nullity of the marriage. in that respect, on the basis of the direction of the additional district judge, rourkela in civil revision no. 10 of 1997, such a decree was passed in favour of the present petitioner and against the opposite party. mr. mohanty, learned counsel for the petitioner states that no proceeding has been initiated by the opposite party as against that judgment and decree of nullity of marriage. he, however, agrees that his statement is based on the information received from the petitioner.5. mr. mohanty argues that according to the provision in section 125, cr.p.c. a wife includes a woman, who has been divorced or has obtained a decree of divorce and has not re-married. according to him and rightly so, a person, who has obtained a decree of divorce or awarded with a decree of divorce under section 13 of the act, 1955, is eligible to claim for maintenance under section 125. since the annulment of a marriage and grant of a decree accordingly is distinguishable from that of a decree of divorce by dissolution of marriage, therefore, one of the spouses to the marriage, i.e., the wile cannot claim maintenance under section 125, cr.p.c. if there is a decree of nullity of marriage because that is not a decree of divorce in the above context the statutory position is absolutely clear since the marriage is null and void and accordingly avoided by a decree under section 12 of the act, 1955, the status of a divorced wife, as contemplated under section 125, cr.p.c., does not survive for woman covered by a decree under section 12 of the act, 1955.6. notwithstanding the aforesaid legal position, in this case before -us, there is no conclusive evidence or acceptable evidence to accept that status or state of affairs, admittedly, petitioner did not contest the proceeding under section 125, cr.p.c. and suffered an ex parte order. the document, which was filed before the learned judge, family court, cuttack, was the affidavit evidence of the opposite party relating to a decree of divorce. under such circumstance, the impugned award of maintenance cannot per se be termed as an illegal order. therefore, if the petitioner is interested to pursue the aforesaid contention so as to make the opposite party disentitle to the claim of maintenance, then he has to file application to set aside the impugned ex parte order of maintenance and may adduce evidence in the court below in support of his contention.7. thus, we leave the matter at that stage with the observation that petitioner, if so legally advised, may file application to set aside the ex parte order, and if such application is filed within a period of two weeks together with an application under section 5 read with section 14 of the limitation act, then delay may not be the ground to refuse considering the application for setting aside the ex parte order, in as much as, facts are to be addressed properly and the evidence, if any, are to be appreciated legally so as to consider the claim of the applicant (i.e., wife) relating to her entitlement of maintenance or otherwise.8. with the said observation, the writ petition is disposed of.

Judgment:
ORDER

1. Mr. J.M. Mohanty, learned Counsel for the petitioner is present. None appears for the opposite party. Even, we adjourned this case to be taken up now, i.e., after recess, then also nobody appears for the opposite party.

2. Therefore, we hear the petitioner and this writ petition is disposed of in the following manner.

3. Petitioner has filed this writ petition challenging the order, Annexure-8, passed on 02.06.1999 in Criminal Proceeding No. 338 of 1991. The Family Court, Cuttack, in consideration of the application under Section 125, Cr.P.C. filed by the opposite party, passed the ex parte order of maintenance against the petitioner with a direction to make payment of monthly maintenance @ Rs. 300/- per month from June, 1999 and also awarded the litigation expenditure of Rs. 1,000/-. On 11.06.1999 petitioner filed this writ petition instead of applying to the Family Court under the proviso in Section 126(2), Cr.P.C. On 06.07.1999 when the matter was taken up for admission, this Court noted that though relief under the Cr.P.C. is available to the petitioner, but under the facts and circumstances involved in the case the writ petition would be entertained.

4. It appears from the impugned order and also the contention of the petitioner that petitioner initiated the proceeding under Section 12 of the Hindu Marriage Act, 1955 (in short 'Act, 1955') to annul the marriage under Clause (a) of Sub-section (1) of Section 12. An ex parts decree of divorce was granted therein. Then the husband-petitioner filed application under Section 152, C.P.C., vide Misc. Case No. 18 of 1981 to amend the decree from a decree of divorce to a decree of nullity of the marriage. In that respect, on the basis of the direction of the Additional District Judge, Rourkela in Civil Revision No. 10 of 1997, such a decree was passed in favour of the present petitioner and against the opposite party. Mr. Mohanty, learned Counsel for the petitioner states that no proceeding has been initiated by the opposite party as against that judgment and decree of nullity of marriage. He, however, agrees that his statement is based on the information received from the petitioner.

5. Mr. Mohanty argues that according to the provision in Section 125, Cr.P.C. a wife includes a woman, who has been divorced or has obtained a decree of divorce and has not re-married. According to him and rightly so, a person, who has obtained a decree of divorce or awarded with a decree of divorce under Section 13 of the Act, 1955, is eligible to claim for maintenance under Section 125. Since the annulment of a marriage and grant of a decree accordingly is distinguishable from that of a decree of divorce by dissolution of marriage, therefore, one of the spouses to the marriage, i.e., the wile cannot claim maintenance under Section 125, Cr.P.C. if there is a decree of nullity of marriage because that is not a decree of divorce In the above context the statutory position is absolutely clear Since the marriage is null and void and accordingly avoided by a decree under Section 12 of the Act, 1955, the status of a divorced wife, as contemplated under Section 125, Cr.P.C., does not survive for woman covered by a decree under Section 12 of the Act, 1955.

6. Notwithstanding the aforesaid legal position, in this case before -us, there is no conclusive evidence or acceptable evidence to accept that status or state of affairs, Admittedly, petitioner did not contest the proceeding under Section 125, Cr.P.C. and suffered an ex parte order. The document, which was filed before the learned Judge, Family Court, Cuttack, was the affidavit evidence of the opposite party relating to a decree of divorce. Under such circumstance, the impugned award of maintenance cannot per se be termed as an illegal order. Therefore, if the petitioner is interested to pursue the aforesaid contention so as to make the opposite party disentitle to the claim of maintenance, then he has to file application to set aside the impugned ex parte order of maintenance and may adduce evidence in the Court below in support of his contention.

7. Thus, we leave the matter at that stage with the observation that petitioner, if so legally advised, may file application to set aside the ex parte order, and if such application is filed within a period of two weeks together with an application under Section 5 read with Section 14 of the Limitation Act, then delay may not be the ground to refuse considering the application for setting aside the ex parte order, in as much as, facts are to be addressed properly and the evidence, if any, are to be appreciated legally so as to consider the claim of the applicant (i.e., wife) relating to her entitlement of maintenance or otherwise.

8. With the said observation, the writ petition is disposed of.