IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM NO.200 OF 2018

Abid Khan …. Petitioner

Mr. J.P. Chowdhury, Advocate

-versus-

Taslima Khatun and others …. Opp. Parties

CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No. 12.07.2023

6. 1. This matter is taken up through hybrid mode.

7. Judgment dated 20th April, 2018 passed by learned Judge, Family Court, Jajpur in Criminal Proceeding No.260 of 2015 is under challenge in this RPFAM, whereby the Petitioner has been directed to pay Rs.3,000/- per month to the Opposite Party No.1-Wife and Rs. 1,500/- per month to each of the Opposite Party Nos. 2 and 3 (Minor Sons) as maintenance from the date of application, i.e., from 17th November, 2015.

8. It is submitted by Mr. Chowdhury, learned counsel for the Petitioner that the relationship between the parties is not disputed. However, the Petitioner was working in a sofa repairing shop in the name and style as "Tutu Sofa Set and Gadi". Since, he suffered from paralysis; he could not work and earn his livelihood. It is his submission that the Petitioner was suffering from paralysis since 31st July, 2013. He also examined witnesses who deposed that the Petitioner was suffering from paralysis and was unable to work. Learned Judge, Family Court, without recording any finding with regard to the income of the Petitioner has directed to pay the maintenance as above which is highly inflated. Hence, the Petitioner prays for setting aside the impugned order and remit the matter back to learned Judge, Family Court, Jajpur for consideration of the petition under Section 125 C.P.C. afresh in accordance with law.

9. On perusal of the order sheet it appears that vide dated, 24th February, 2020, notices were directed to be issued to the Opposite Parties. Notices issued to the Opposite Parties returned unserved with postal address "Addressee not known". Although the matter was listed on 3rd August, 2021 and 10th August, 2021, none appeared for the Petitioner. Requisites for issuance of fresh notice to the Opposite Party No.1 in her correct address, has not yet been filed.

10. Mr. Chowdhury, learned counsel for the Petitioner, however prays for an adjournment to take out fresh notice on the Opposite Party No.1. Since in the meantime, more than 3 years have already elapsed; I am not inclined to entertain the prayer made by learned counsel for the Petitioner.

6. Upon hearing, learned counsel for the Petitioner and on perusal of the record, it appears that the Opposite Party No.1 in her evidence has categorically stated that the Petitioner is earning about Rs.40,000/- per month. Of course, the Petitioner in his cross-examination denied the same. The mother of the Petitioner who has been examined as O.P.W.2 has also denied that the Petitioner had income of Rs.30,000/- per month.

7. It is submitted by Mr. Chowdhury, learned counsel that the Petitioner was a workman in a sofa repairing shop at Jajpur. Hence, he had a meager income.

8. On perusal of the record, it appears that the Petitioner has not adduced any evidence with regard to his income. Income of a person is in his special knowledge and burden is in him to prove the same. Since, no material has been placed on record with regard to the income of the Petitioner and it has been stated by the Opposite Party No.1 that the Petitioner was earning about Rs.40,000/- per month, learned trial Court on a guesswork held that the Petitioner has sufficient means to maintain his wife and children. Accordingly, the impugned direction has been made.

9. In absence of any material with regard to the exact income of the Petitioner, this Court is not inclined to interfere with the impugned order, more particularly, in exercise of powder under Section 19 (4) of the Family Court's Act, 1984.

10. As such, the RPFAM, being devoid of any merit stands dismissed.

(K.R. Mohapatra)

Rojalin Judge