Pranabandhu Pal Alias Pagal Vs. Minati Moharana - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 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. 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.orderp.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.

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.