[Cites 25, Cited by 0]
Orissa High Court
Monalisha Sahoo vs Anshuman Naik ... Opp. Party on 4 December, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.5 of 2023
Monalisha Sahoo ... Petitioner
Ms. A. Dash, Advocate
-versus-
Anshuman Naik ... Opp. Party
Mr. B.P. Mohanty, Advocate
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 04.12.2025
Chittaranjan Dash, J.
1. Heard learned counsel for the Parties.
2. By this application, the Petitioner seeks to set aside the
impugned order dated 15.04.2021 passed by the learned 1st A.D.J.-
Cum-A.S.J.(P), Rourkela in Criminal Appeal No.7 of 2021, wherein
the court declined to grant the interim monetary relief to the
Petitioner subsequent to the period upon dissolution of the marriage
of the Petitioner and the Opposite Party.
3. The background facts of the case, as borne out from the
record, are that the Petitioner is the legally married wife of the
Opposite Party, their marriage having been solemnised on
10.07.2011 at Rourkela. In July, 2012, the Petitioner returned to
Rourkela where the Opposite Party was then employed as a Manager
with M/s. Adhunik Metaliks and was also possessing ancestral
property at village Karamdihi in the district of Sundargarh. The
Petitioner joined St. Mary School as a teacher in September, 2013
and continued to reside with the Opposite Party. In March, 2017 she
joined a coaching institute; however, such engagement was
consistently objected to by the Opposite Party. It is alleged that on
23.12.2018, the Petitioner came to know that the Opposite Party was
maintaining an illicit relationship with another woman and when she
confronted him, he became furious and physically assaulted her.
Thereafter, the Opposite Party allegedly continued to harass the
Petitioner even at her workplace, leading to her dismissal from
service. On 30.12.2018, the Opposite Party left the matrimonial
home with his belongings and started residing at his native place at
Karamdihi, from where he continued to harass the Petitioner over
phone and otherwise, thereby causing her mental distress.
Being aggrieved by the alleged acts of cruelty, the Petitioner
instituted a proceeding for divorce, which came to be allowed by the
learned Judge, Family Court, Rourkela by decree dated 16.10.2019
in C.P. No.69 of 2019 dissolving the marriage. Thereafter, the
Petitioner filed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter 'PWDV
Act') before the learned S.D.J.M., Panposh seeking monetary and
other reliefs. She also filed an application under Section 23(2) of the
PWDV Act seeking ad-interim monetary relief. The learned
S.D.J.M., Panposh, by order dated 16.02.2019, taking note of the
averments in the application under Section 12 and the affidavit filed
under Section 23(2), granted an ex parte interim order directing the
Opposite Party to pay Rs.7,000/- per month towards ad-interim
monetary relief till conclusion of the proceeding, payable within ten
days of every succeeding month, and further restrained him from
committing any domestic violence. According to the Petitioner, the
Opposite Party did not comply with the aforesaid interim order.
Consequently, she filed an application under Section 128
Cr.P.C. on 14.12.2020, registered as Criminal Misc. Case No.407 of
2020, for enforcement of the interim order and realisation of arrears,
which she stated to be Rs.1,54,000/- for 22 months as on November,
2020. In the said proceeding, the learned S.D.J.M., Panposh, by order
dated 18.01.2021, issued notice to the Opposite Party and upon his
non-appearance, issued distress warrant as well as conditional NBW
for realisation of the arrear amount. The Opposite Party thereafter
preferred Criminal Appeal No.7 of 2021 before the learned 1st
Additional Sessions Judge, Rourkela, which culminated in the
impugned order dated 15.04.2021 modifying the enforcement order
by restricting the Petitioner's entitlement to interim maintenance
only up to the date of decree of divorce, i.e., 16.10.2019. The
Petitioner, challenging the legality of the said order, has approached
this Court, asserting that the ex parte interim monetary relief granted
on 16.02.2019 has never been assailed by the Opposite Party before
the appellate forum.
4. Mr. Dash, learned counsel for the Petitioner-Wife, submits
that the impugned order proceeds on an erroneous presumption of
facts as well as law. It is contended that the Protection of Women
from Domestic Violence Act, 2005 is a self-contained and
independent statute providing distinct remedies to an aggrieved
person, and orders passed in any other proceeding, including a decree
of divorce, do not ipso facto curtail or extinguish the reliefs available
under the said Act. It is urged that the Appellate Court committed a
manifest illegality in restricting the Petitioner's entitlement to interim
maintenance only till the date of the decree of divorce, particularly
when her application under Section 12 of the PWDV Act is still
pending adjudication and the Opposite Party-husband has never
challenged the interim order dated 16.02.2019 passed by the learned
S.D.J.M., Panposh. Learned counsel further submits that the
Appellate Court has misconstrued the scope and import of the
PWDV Act in holding that the Petitioner could not claim interim
monetary relief beyond the date of dissolution of marriage, when the
statute itself recognises rights arising out of past domestic
relationship. It is his submission that so long as the main application
remains sub judice, the interim order dated 16.02.2019 continues to
operate, and cannot be nullified or truncated indirectly in an appeal
arising out of proceedings under Section 128 Cr.P.C. It is asserted
that the Appellate Court exceeded its jurisdiction in entertaining and
allowing an appeal against a mere order issuing notice and initiating
enforcement steps under Section 128 Cr.P.C., as no appeal lies
against such an order. On these grounds, it is argued that the
impugned order is unsustainable in law and liable to be set aside.
5. Mr. Mohanty, learned counsel appearing for the Opposite
Party-Husband, submits that the present application under Section
482 Cr.P.C. is not maintainable inasmuch as the impugned order is,
in essence, revisable and the proper remedy available to the
Petitioner is by way of a criminal revision, not through invocation of
the inherent jurisdiction of this Court. He contends that the Petitioner
has sought to bypass the statutory forum and that such an attempt is
impermissible in law. It is urged that the learned 1st Additional
Sessions Judge has rightly exercised jurisdiction vested in him and
has correctly appreciated the legal position governing proceedings
under the PWDV Act. He asserts that the Appellate Court has
correctly restricted the period of maintenance up to the date of the
decree of divorce, as the Petitioner cannot seek benefits arising out of
a domestic relationship which stood severed on 16.10.2019.
According to him, the findings of the Appellate Court are in
consonance with law and do not warrant any interference by this
Court.
6. At the outset, it is necessary to clearly appreciate the nature
and character of the orders that form the subject matter of challenge
in the present proceeding. The order dated 16.02.2019 was passed by
the learned S.D.J.M., Panposh in D.V. Misc. Case No.28 of 2019 in
exercise of powers under Section 23(2) of the PWDV Act, granting
ad-interim monetary relief to the Petitioner. This order, being one
passed under the P.W.D.V. Act, continues to operate unless varied,
modified or set aside in accordance with the procedure contemplated
under the Act.
Subsequently, upon the Opposite Party's alleged non-
compliance with the said interim order, the Petitioner instituted
Criminal Misc. Case No.407 of 2020 before the same court, invoking
Section 128 of the Code of Criminal Procedure for enforcement of
arrears of maintenance. The learned S.D.J.M., Panposh, by order
dated 18.01.2021 in the said proceeding, recorded the sufficiency of
service of notice on the Opposite Party, and in view of his continued
non-appearance, directed issuance of distress warrant and conditional
non-bailable warrant for realisation of the arrears.
The Opposite Party thereafter preferred Criminal Appeal
No.7 of 2021 before the learned 1st Additional Sessions Judge,
Rourkela, invoking Section 29 of the P.W.D.V. Act, wherein the
order dated 18.01.2021 passed in the enforcement proceeding under
Section 128 Cr.P.C. was assailed. The impugned judgment dated
15.04.2021, therefore, emanates from an Appeal filed under Section
29 of the P.W.D.V. Act, though the order appealed against was one
arising from a proceeding under Section 128 Cr.P.C. and not from
any substantive order passed under the P.W.D.V. Act.
Findings of the Learned Appellate Court
7. The judgment dated 15.04.2021 of the learned 1st Additional
Sessions Judge, Rourkela shows that the husband approached the
appellate forum solely to challenge the order dated 18.01.2021 by
which the learned SDJM, Panposh had issued distress warrant (DW)
and non-bailable warrant (NBW) for realisation of the arrears of
interim monetary relief. The husband did not assail the interim order
dated 16.02.2019 itself, nor did he present any prayer seeking to
deny or extinguish the wife's entitlement to interim maintenance.
The Appellate Court, however, proceeded to examine the extent of
the wife's entitlement for the entire arrear period claimed by her in
the Section 128 Cr.P.C. proceeding.
While considering the appeal, the Appellate Court took into
account the decree of mutual divorce dated 16.10.2019 passed in
C.P. No.69 of 2019 and the affidavit filed therein by the wife
declaring that she had "no future claim including permanent
alimony" against the husband. Treating the decree as a judgment in
rem under Section 41 of the Evidence Act, the Court concluded that
this declaration operated as a binding waiver and therefore prevented
the wife from claiming any monetary relief for a period beyond the
date of dissolution of marriage. On this reasoning, the Appellate
Court held that the liability arising from the interim order remained
enforceable only from 16.02.2019 to 16.10.2019.
The Appellate Court further distinguished the decision in
Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori, reported in
(2014) 10 SCC 736, observing that although a divorced woman may
continue proceedings under the P.W.D.V. Act for acts of violence
committed during the domestic relationship, such principle could not
override a specific voluntary waiver recorded in a mutually agreed
divorce decree. Proceeding on this basis, the Court held that the
SDJM had erred in issuing coercive process for recovery of arrears
beyond 16.10.2019, as no liability, in its view, survived after that
date, and accordingly restricted the recoverable amount to the pre-
divorce period, after adjusting sums already paid by the husband.
8. Thus, the Appellate Court's findings rested primarily on the
procedural history of the matrimonial case, the affidavit waiving
future monetary claims, and the conclusion that the interim monetary
liability did not continue after the dissolution of the marriage.
Although the husband's challenge was confined to the issuance of
DW and conditional NBW, the Appellate Court examined and
limited the underlying liability on the premise that the legal basis for
recovery did not extend beyond 16.10.2019.
Analysis
9. The foremost question that arises for consideration is whether
the Criminal Appeal No.7 of 2021, preferred by the Opposite Party
before the learned 1st Additional Sessions Judge, Rourkela, under
Section 29 of the Protection of Women from Domestic Violence Act,
2005, was maintainable when the order impugned therein had been
passed by the learned S.D.J.M., Panposh in a proceeding initiated
under Section 128 of the Code of Criminal Procedure. To address
this question, it becomes necessary to briefly notice the statutory
framework that governs both the P.W.D.V. Act and the Cr.P.C.,
particularly in the context of enforcement of monetary relief.
Jurisdiction
10. Section 29 of the P.W.D.V. Act provides that an appeal lies to
the Court of Session "from every order passed by the Magistrate
under this Act". The expression "under this Act" gains importance
in the present context because the enforcement proceeding from
which the appeal arose was initiated under Section 128 Cr.P.C.,
which enables the Magistrate to enforce an order of maintenance by
adopting coercive measures in the event of non-compliance. At the
same time, Section 20(6) of the P.W.D.V. Act stipulates that any
monetary relief granted under the Act shall be recoverable as if it
were an order of maintenance under Section 125 Cr.P.C. The
legislative intent is therefore clear: while the source of the monetary
entitlement is the P.W.D.V. Act, the mode of recovery is purposely
channelled through the procedural machinery of the Cr.P.C.
11. This statutory framework is further reinforced by Section 28 of
the P.W.D.V. Act, which clarifies the procedural framework
governing proceedings under Sections 12, 18 to 23 of the Act.
Section 28(1) provides that such proceedings shall be regulated by
the Cr.P.C., whereas Section 28(2) allows the Magistrate to lay down
his own procedure while dealing with applications under Section 12
or under Section 23(2).
28. Procedure. --(1) Save as otherwise provided in this
Act, all proceedings under sections 12,18, 19, 20, 21,
22 and 23 and offences under section 31 shall be
governed by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974). (2) Nothing in sub-
section (1) shall prevent the court from laying down its
own procedure for disposal of an application under
section 12 or under sub-section (2) of section 23.
Thus, even though the P.W.D.V. Act is a special legislation
intended to provide civil-natured reliefs through a criminal court, it
consciously relies upon the Cr.P.C. for procedural guidance, unless
the Act indicates otherwise.
12. Viewed in this statutory backdrop, an order passed by the
learned S.D.J.M., Panposh while enforcing an interim monetary
relief granted under Section 23(2) of the P.W.D.V. Act albeit through
the mechanism under Section 128 Cr.P.C. cannot be treated as
detached from the original proceedings under the Act. The Cr.P.C. is
invoked only to the extent of facilitating enforcement, while the
underlying right, liability and entitlement remain rooted in the
P.W.D.V. Act. Therefore, when the Magistrate directed issuance of
process for recovery of arrears of interim maintenance, such
direction was inseparably linked to the interim order passed under
the Act.
13. In this context, the Appeal preferred under Section 29 of the
P.W.D.V. Act cannot be rejected merely because the order under
challenge incidentally refers to Section 128 Cr.P.C. The proceeding
under the Cr.P.C. operated only as a vehicle to give effect to an order
originating under Section 23(2) of the Act. Consequently, an appeal
questioning the enforcement measures taken in respect of that order
would fall within the ambit of Section 29, subject to the nature and
scope of issues raised. This Court therefore finds no basis to non-suit
the Opposite Party-Husband's appeal before the Sessions Court on
the ground of maintainability alone.
Maintainability of the present CRLMC application
14. It is equally necessary to consider the preliminary objection
raised by Mr. Mohanty, learned counsel for the Opposite Party-
Husband, who submitted that the present application under Section
482 Cr.P.C. is not maintainable, and that the Petitioner ought to have
invoked the revisional jurisdiction under Sections 397 and 401
Cr.P.C. According to him, the impugned judgment being one
rendered by an appellate court, the present invocation of inherent
jurisdiction amounts to bypassing the statutory remedy of revision.
15. The Cr.P.C., however, contemplates two distinct avenues for
approaching this Court. The first is the revisional jurisdiction under
Sections 397 and 401 Cr.P.C., which enables scrutiny of the legality,
propriety and correctness, or of an order passed by a subordinate
criminal court. The second is the inherent jurisdiction under Section
482 Cr.P.C., which empowers the Court to make such orders as may
be necessary to prevent abuse of process or to secure the ends of
justice. These jurisdictions differ in source but may overlap in effect,
and the mere availability of revision does not, by itself, extinguish
the inherent powers of this Court unless expressly barred.
16. In the present matter, the Petitioner challenges the legality of
the judgment rendered by the learned 1st Additional Sessions Judge
in an appeal under Section 29 of the P.W.D.V. Act. There is no
express statutory bar preventing such a challenge from being
examined either in revision or under Section 482 Cr.P.C. What is
material is whether the grievance raised strikes at a jurisdictional
irregularity or manifests a patent miscarriage of justice. It is well
established that where the impugned order is alleged to have been
passed by exceeding jurisdiction or by adopting a procedure not
sanctioned by law, the High Court may invoke its inherent powers
notwithstanding the technical availability of a revisional remedy. The
Petitioner asserts that the Appellate Court travelled beyond the
permissible contours of Section 29 by re-assessing the subsistence
and extent of interim monetary relief granted under Section 23(2) of
the P.W.D.V. Act. Since this challenge requires examination of
whether the Appellate Court acted within the scope of its jurisdiction
under the special statute, this Court considers it appropriate to
exercise its inherent powers. The objection based solely on the
nomenclature of the present proceeding, therefore, cannot be
sustained.
17. For the aforesaid reasons, the preliminary objection raised by
the learned counsel for the Opposite Party-Husband is rejected. The
present CRLMC is held to be maintainable. The matter shall now be
examined on merits with the following issues for consideration.
Whether the Appellate Court was justified in examining the period
for which interim monetary relief remained enforceable?
18. The first point that requires consideration is whether the learned
1st Additional Sessions Judge, while entertaining the appeal under
Section 29 of the P.W.D.V. Act, was justified in examining the
period for which the interim monetary relief granted on 16.02.2019
continued to remain enforceable. It is not disputed that the interim
order was passed under Section 23(2) of the Act during the
subsistence of the marriage, and that the Opposite Party-Husband
never challenged that order. The question raised is limited to whether
the Appellate Court could assess the duration of liability arising from
that interim order when the Petitioner sought recovery of arrears
under Section 128 Cr.P.C.
Interim monetary relief under Section 23(2) is intended to
provide temporary financial support to the aggrieved person during
the pendency of the proceedings under the Act. The relief is linked to
the continuance of the domestic relationship and the immediate
needs arising from that relationship. When the Petitioner later
initiated enforcement under Section 128 Cr.P.C., the Magistrate
acted on the assumption that the interim order continued to operate
for the entire period claimed by her. When the matter reached the
Appellate Court, the Court was required to examine whether the
liability to pay interim monetary relief legally continued beyond
16.10.2019, the date on which the marriage between the parties was
dissolved. This examination did not amount to modifying or setting
aside the interim order itself. It only involved determining the period
for which arrears could lawfully be recovered. The Appellate Court
was therefore entitled to consider whether the interim relief, being
temporary and dependent upon the domestic relationship, continued
to accrue after the relationship had come to an end by virtue of the
decree of divorce.
19. In this background, the Appellate Court's inquiry into the
enforceable duration of the interim monetary relief cannot be said to
be without jurisdiction. The appeal before it concerned the
enforceability of arrears, and the Court was required to examine the
legal basis for the amount claimed. Determining whether the liability
survived beyond the date of divorce was a necessary part of that
assessment.
Whether the Petitioner continued to be an "aggrieved person" after
the divorce, and the relevance of this status to interim monetary
relief?
20. The next question that arises is whether the Petitioner continued
to qualify as an "aggrieved person" under the P.W.D.V. Act after the
decree of divorce dated 16.10.2019, and if so, whether this status
automatically entitled her to interim monetary relief beyond that
date. Section 2(a) of the Act defines an "aggrieved person" in the
following terms:
2. Definitions.--In this Act, unless the context
otherwise requires,-- (a) "aggrieved person" means
any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to
have been subjected to any act of domestic violence by
the respondent
This definition makes it clear that the protection of the Act is
available to a woman who "is, or has been, in a domestic
relationship" with the respondent and who alleges that she has been
subjected to any act of domestic violence.
21. The Supreme Court, in Prabha Tyagi vs. Kamlesh Devi,
reported in MANU/SC/0631/2022 has clarified the scope of this
definition, as follows:
"52. In view of the above discussion, the three
questions raised in this appeal are answered as under:
(i)... (ii)... (iii) Whether there should be a subsisting
domestic relationship between the aggrieved person
and the person against whom the relief is claimed? It is
held that there should be a subsisting domestic
relationship between the aggrieved person and the
person against whom the relief is claimed vis-à-vis
allegation of domestic violence. However, it is not
necessary that at the time of filing of an application by
an aggrieved person, the domestic relationship should
be subsisting. In other words, even if an aggrieved
person is not in a domestic relationship with the
Respondent in a shared household at the time of filing
of an application Under Section 12 of the D.V. Act but
has at any point of time lived so or had the right to live
and has been subjected to domestic violence or is later
subjected to domestic violence on account of the
domestic relationship, is entitled to file an application
Under Section 12 of the D.V. Act."
The Court held that although the incident of domestic
violence must have occurred during the subsistence of a domestic
relationship, it is not necessary that the domestic relationship must
continue on the date of filing of the application under Section 12. In
other words, even after separation or divorce, a woman may still
invoke the remedies under the Act if the allegations relate to
incidents that took place when the domestic relationship existed.
22. In the present case, therefore, the Petitioner did not lose her
status as an "aggrieved person" merely because the marriage was
dissolved. She remained entitled to pursue her application under
Section 12 of the Act and seek appropriate reliefs concerning acts of
domestic violence that allegedly occurred during the marriage. Her
status under the Act, for that purpose, remained intact. What is
important to note is that a woman may continue to seek relief even
after the domestic relationship has come to an end, provided the
allegations pertain to acts of domestic violence committed during the
subsistence of that relationship. The Hon'ble Supreme Court has also
clarified that proceedings under the Act may be maintained even
after separation or dissolution of marriage if the allegations relate to
violence suffered while the domestic relationship was intact. This
shows that the Act is designed to protect against the consequences of
domestic violence irrespective of whether the parties continue to
reside together or whether the marriage continues to subsist at the
time of inquiry.
However, while the definition of "aggrieved person" enables
a woman to seek relief under the Act based on past domestic
violence, the nature, purpose and duration of the relief claimed must
be examined in light of the specific provision invoked. Interim
monetary relief granted under Section 23(2) read with Section 20 of
the Act is intended to provide immediate financial support to the
aggrieved person during the pendency of the proceedings. Section 20
permits the Magistrate to award monetary relief to meet the expenses
incurred and losses suffered as a result of domestic violence. A
portion of this relief may overlap with maintenance, but its duration
and enforceability must still be directly connected to the subsistence
of the domestic relationship and the allegations arising therefrom.
Whether interim monetary relief under Section 23(2) can continue
after the dissolution of the domestic relationship?
23. Having noted that the wife continues to fall within the
definition of an "aggrieved person" for the purpose of pursuing her
application under Section 12 of the P.W.D.V. Act, the next question
is whether the interim monetary relief granted on 16.02.2019 could
lawfully continue to accrue even after the marriage was dissolved on
16.10.2019. Interim monetary relief under Section 23(2) is intended
to provide immediate financial assistance during the pendency of the
proceedings. Though temporary in nature, the relief is linked to the
circumstances that justify the order at the time it is passed. The
dissolution of marriage undoubtedly brings an end to the domestic
relationship; however, this development alone does not automatically
determine the duration for which interim monetary relief may remain
enforceable. The P.W.D.V. Act does not treat the subsistence of the
domestic relationship as the sole criterion for continuation of
monetary relief. Rather, it is the pendency of the statutory
proceedings, the nature of the allegations, and the nature of relief
under Sections 12, 20 and 23(2) of the P.W.D.V. Act that guide the
enforceability of such interim orders.
24. Section 20 of the Act empowers the Magistrate to grant
monetary relief to meet the expenses and losses arising out of
domestic violence, and sub-section (6) expressly makes such
monetary relief recoverable as if it were an order of maintenance
under Section 125 Cr.P.C. This incorporation of the Cr.P.C.
mechanism does not imply that monetary relief ceases immediately
upon divorce; the provision creates no such limitation. Instead, it
links the enforceability of monetary relief to the consequences of
domestic violence and to the period during which proceedings
remain pending. Section 28, which stipulates that proceedings under
Sections 12 and 18 to 23 shall be governed by the Cr.P.C. unless
otherwise provided, further reinforces this structure. The Cr.P.C.,
particularly Sections 125 and 128, recognises that maintenance
liabilities may extend beyond the subsistence of the marriage unless
modified or cancelled by a competent court. The Legislature, by
adopting this mechanism, has not created a separate termination rule
for interim monetary relief under the P.W.D.V. Act.
The above understanding is also found in the decision of the
Hon'ble Supreme Court in Prabha Tyagi vs. Kamlesh Devi (Supra),
where it was clarified that the status of an "aggrieved person"
persists so long as the allegations relate to acts of domestic violence
occurring during a domestic relationship. Once recognised as an
aggrieved person, the woman is entitled to pursue all consequential
reliefs available under the Act, including interim monetary support,
until the application under Section 12 is adjudicated. The decision
does not suggest that divorce automatically curtails interim monetary
relief; rather, it emphasises continuity of remedy where the
allegations relate to a period when the parties lived in a domestic
relationship.
25. In this light, while the cessation of the domestic relationship
i.e. the dissolution of marriage on 16.10.2019 marks an important
stage in the timeline between the parties, it does not, by itself, bring
an end to reliefs that were already operative under the P.W.D.V. Act.
The real inquiry ought to have been whether the interim order
remained in force during the pendency of the wife's application
under Section 12, and whether any judicial order had subsequently
modified, suspended, or set aside that interim directive. In the
absence of any such modification, the interim order continued to
stand, and its enforceability could not be curtailed merely on account
of the dissolution of marriage. Therefore, the Appellate Court's
conclusion that liability under the interim order ceased automatically
on the date of divorce does not accord with the statutory framework,
the nature and purpose of interim monetary relief, or the principles
laid down in binding judicial precedent.
Conclusion
26. Having considered the rival submissions, examined the
statutory framework, and analysed the findings recorded by the
learned Appellate Court, this Court is of the view that the
interference made by the Appellate Court in restricting the
enforceability of the interim monetary relief requires reconsideration.
The materials on record unequivocally demonstrate that the interim
order dated 16.02.2019 passed under Section 23(2) of the P.W.D.V.
Act was never challenged by the husband before the competent
forum. That order continued to remain operative throughout the
pendency of the wife's application under Section 12 of the Act. The
enforcement proceeding initiated under Section 128 Cr.P.C. was
confined solely to realising the admitted arrears arising out of the
said interim order. The husband approached the Appellate Court only
upon issuance of D.W. and N.B.W. by the Magistrate, and not on the
ground that the liability under the interim order was non-existent.
27. This Court has already held that the wife continued to qualify
as an "aggrieved person" within the meaning of the Act and that the
pendency of her Section 12 application entitled her to maintain and
enforce interim monetary relief granted earlier. It has also been
clarified that dissolution of marriage on 16.10.2019 did not, by itself,
extinguish the interim order, in the absence of any judicial
modification or cancellation. The statutory scheme, the nature of
interim monetary relief, and the principles enunciated in judicial
precedents collectively establish that interim relief granted under
Section 23(2) survives until it is expressly vacated, varied, or merged
into the final adjudication of the Section 12 petition.
28. Viewed against this backdrop, the approach adopted by the
learned Appellate Court in treating the date of divorce as the
determinative point from which the liability stood extinguished for
the wife's entitlement is found to be legally unsustainable. The
Appellate Court exceeded the scope of its scrutiny by examining a
question that did not arise from the enforcement order under
challenge. The Magistrate's order dated 18.01.2021 was limited to
procedural steps under Section 128 Cr.P.C. for realising arrears. The
Appellate Court was not called upon to adjudicate the validity,
subsistence, or duration of the interim order itself. By suo motu
entering into that inquiry, the Appellate Court travelled beyond the
record and restricted a liability that continued to stand in law.
29. In view of the findings recorded above, this Court holds that
the learned 1st Additional Sessions Judge, Rourkela was not justified
in curtailing the enforceability of the interim monetary relief granted
on 16.02.2019, and is contrary to provisions of the P.W.D.V. Act.
The modification made in Criminal Appeal No.7 of 2021, restricting
the wife's entitlement up to the date of dissolution of marriage,
travelled beyond the scope of the order under challenge and cannot
be sustained. The interim order dated 16.02.2019 continued to
remain operative during the pendency of the wife's application under
Section 12 of the P.W.D.V. Act.
30. It is also relevant to note that this Court, in CRLMC No.
1381 of 2023, had already examined the quantum of interim
maintenance and, upon due consideration, modified the amount from
Rs.7,000/- to Rs.5,000/- per month vide order dated 12.10.2023.
Accordingly, the enforceability of the interim order shall now stand
subject to the modified quantum of Rs.5,000/- per month, as already
determined by this Court.
31. The order dated 18.01.2021 passed by the learned S.D.J.M.,
Panposh in Criminal Misc. Case No.407 of 2020, initiating steps for
realisation of arrears, stands restored, with the clarification that
arrears up to 11.10.2023 shall be computed at the rate of Rs.7,000/-
per month, and arrears from 12.10.2023 onwards shall be computed
at the modified rate of Rs.5,000/- per month, until the disposal of the
Petitioner-Wife's application under Section 12 or until further orders
of the competent court. The learned Magistrate shall proceed with
the enforcement in accordance with law.
32. It is made clear that this Court has not entered into, nor
expressed any opinion on the merits of the Petitioner-wife's
substantive application under Section 12 of the P.W.D.V. Act. This
Court has confined itself solely to clarifying the position of law. The
learned Magistrate shall, therefore, proceed with the Section 12
application independently and in accordance with law, and shall
endeavour to conclude the proceedings within a reasonable time.
33. The Opposite Party-Husband shall cooperate in the
enforcement proceeding and comply with all the directions issued by
the learned Magistrate in Criminal Misc. Case No.407 of 2020. It
shall remain open to either party to seek modification, variation or
cancellation of the interim order dated 16.02.2019 before the
competent forum, if so advised.
34. With the above observations and directions, the CRLMC
stands disposed of, as allowed
(Chittaranjan Dash)
Judge
Bijay
Location: HIGH COURT OF ORISSA
