Smt. Arana Kar Vs. Dr. Sarat Kumur Dash Alias Nachhi - Court Judgment

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- 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. - 4 such opportunity was given to the parties by this court for reconciliation but it failed. the court having dealt with that document, it has failed to consider the same 7. in 1987 cri lj 1815 girishchandra v.k.l. issrani, j.1. present revision has been filed by the petitioner-wife against the rejection of her application under section 125 of the code of criminal procedure by the family court, cuttack, in criminal proceeding no. 40 of 1991.2. submission of the learned counsel for the petitioner is that the opposite party-husband ha9 sufficient means to maintain the petitioner but he has neglected and refused to maintain her. the family court has rejected her application on the ground that the petitioner was unable to substantiate her allegations against the opposite party. it has been submitted by the learned counsel for the petitioner before this court that the petitioner has filed a copy of the complaint in o. s. no. 18 of 1973 filed by the opposite party in which the allegations against her chastity were made by the opposite party. though the court referred to this document in its judgment, it has ignored to take note of its effect and that the revision petition be allowed or the matter be referred to the lower court for fresh decision.3. the learned counsel for the opposite party-husband vehemently opposes the submissions of the learned counsel fat the petitiones and submits that since the petitioner fails to substantiate her allegation and there is no justification for her to desert the opposit party, she is not entitled to any maintenance he further submits that the opposite party is still ready and witling to keep her,but the petitioner has always refused to do so. therefore, she is not entitled to any maintenance.4 such opportunity was given to the parties by this court for reconciliation but it failed. before this court, submission of the petitioner was that there being apprehension of danger to her life and cruelty on her, she is not willing to go to her husband and live with him. though a number of chances were given to the parties to come to a compromise, no fruitful result came out.5. while deciding a petition under section 125, cr pc, it is to be seen as to whether the husband having sufficient means neglects and refuses to maintain his wife. so fa as the findings are cancerned the family court has held that the husband-opposite party has sutiation means to maintain but has not decided title other factor. wnetever the site husband-opposite party neglects or has sufficient reason to refusse to maintain the wife-petitioner.6. submission of the learned counsel for the opposite party is that the petitioner has not stated in her application under section 125 cr pc about the suit (o. s. no. 18 of 1993). so. the lower court was right in not considering the same. unless there is pleading to that effect, the court is not bound to determine that fact i do not agree with the submission, of the learned counsel for the opposite party. the family court while dealing with the facts, in paragraph 2 of its order. has mentioned about o. s. no. 18 of 1993 filed by the opposite party in-the court of the second subordinate judge. cuttack, for judicial separation but has not dealt with the effect of that suit and the pleadings made therein. the submission of the learned counsel for the petitioner is that in that petition unchastity of the petitioner was alleged by the opposite party and she wanted to rely on that document. the court having dealt with that document, it has failed to consider the same7. in 1987 cri lj 1815 girishchandra v.. susbilabai been held that section 125 is designed to prevent vagrancy and aesititution. and provides a summary and speedy remedy to get maintenance, thus it has a social purpose to fulfil and in arriving at any finding in relation to an application thereunder, the courts must look to the substance rather than to the form, must avoid strict technicalities of pleading and proof and must make a realistic approach to the materials on record so that the purpose aforesaid is not frustrated. i find that in paragraph 3 of the petition the opposite party has relied on the facts of unchastity of wife and in paragraph 3 thereof, he has reiterated the fact that she is living separately and leading an adulterous life the effect of this is that if this fact is not proved then the wife gets justification for living separate from the husband and also gets grounds for claiming maintenance in that case. they have not been considered and decided by the family court.8. in view of my discussions in the foregoing paragraphs, the impugned order dated 6-5-1993 passed by the family court, cuttack, in criminal proceeding no. 40 of 1991 is set aside and the matter is remanded to the family court, cuttack, for giving a decision afresh after considering the pleadings of the parties in o. s. no. 18 of 1993 and giving opportunity to the parties to substantiate their respective allegations made therein. the parties are directed to appear before the family court, cuttack, on the 5th of october, 1994. no further notice to be given to them. since the matter is a very old one, it is directed that the proceeding be taken up from to day and be decided within three months from today.